09/24/2007 - Regular - MinutesPRESENT: Kim E. Abel, Mayor
City of Port Orchard
Council Meeting Minutes
Regular Meeting of September 24, 2007
Council Members: Mayor Pro-Tem Wyatt, Chang, Clauson, Dilenno,
Geiger, Powers, and Putaansuu
ALSO PRESEJ'IT: Police Chief Townsend, Police Commander Palmer, Public Works
Director Abed, Planning Director Long-Woods, City Clerk Merlino, Deputy Clerk
Kirkpatrick, and Assistant City Attorney Jacoby.
7:00 P.M. CALL TO ORDER
Police Commander Palmer led the audience and Council in the Pledge of Allegiance.
PUBLIC HEARING
Comprehensive Plan/Zoning Designations for Brown, Blackstock & Dow
Planning Director Long-Woods presented the staff report, noting this was the first part
of the request for annexation. The property owners submitted a Petition for Annexation
of 20 parcels totaling approximately 36.56 acres, located on the southwest end of the
existing Port Orchard Industrial Park and on the west side of Old Clifton Road. The
parcels are adjacent to an area zoned Employment Industrial/Office and the applicant
intends to extend additional Industria/uses on these parcels. RCW 35.13.177 allows the
City to prepare comprehensive plan and zoning designations of any area; and RCW
35.13.178 requires the Council to hold two public hearings before adopting pre-
annexation comprehensive plan and zoning designations. The first public hearing was
held on June 25, 2007. Planning Director Long-Woods clarified that there were four
parcel numbers listed in the Ordinance that were duplicate numbers.
At 7:04 p.m. Mayor Abel opened the Public Hearing.
Errol! Dow, petitioner, expressed concern with the general blanket moratorium put into
effect by the County and asked for a legal opinion on whether or not the City can
proceed with the annexation requests.
Gary Anderson spoke in favor of the proposed comprehensive and zoning plan
designations.
There were no further public comments. At 7:07 p.m. Mayor Abel closed the Public
Hearing.
Minutes of September 24, 2007
Page 2 of 13
In response to Council Member Diienno, Assistant City Attorney Jacoby explained that
property owners who were a part of the County's Urban Growth Area prior to December
2006 were not affected by the most recent Board of County Commissioners decision
and asked that other issues be discussed during an executive session later on in the
meeting.
Annexation Request for Brown, Blackstock & Dow
Planning Director Long-Woods presented the staff report, noting this was the second
part of the request to annex the 36.56 acres located on the southwest end of the
existing Port Orchard Industrial Park and on the west side of Old Clifton Road. The
Planning Commission, at their May 21, 2007 meeting, recommended that the property
be given a comprehensive plan and zoning designation of Industrial with the condition
of a required buffer of 50 feet from the Old Clifton Road right-of-way. The Boundary
Review Board approved the annexation request at their September 14, 2007 meeting.
At 7:10 p.m. Mayor Abel opened the Public Hearing and closed the Public Hearing at
7:10p.m. due to no public comments.
Comprehensive Plan/Zoning Designations for Terrv Cousins
Planning Director Long-Woods presented the staff report, noting the property owner
submitted a Petition for Annexation of one parcel totaling .83 acres, located on the
northwest side of the intersection of Sidney Road SW and SW Sedgwick Road. The
parcel is adjacent to a commercially zoned area and the applicant intends to extend
additional commercial uses on the parcel. The first public hearing was held on June 26,
2007 and staff recommends accepting the comprehensive plan and zoning request as
proposed.
At 7:12p.m. Mayor Abel opened the Public Hearing.
Terry Cousins, property owner, urged the Council to proceed with the comprehensive
and zoning plans. She explained that she had been working on this annexation request
for over six months and has met all the requirements set by the County and City.
There were no further public comments. At 7:16 p.m. Mayor Abel closed the Public
Hearing.
Annexation Request for Terry Cousins
Planning Director Long-Woods presented the staff report, noting this was the second
part of the request to annex the .83 acres located on the northwest side of the
intersection of Sidney Road SW and SW Sedgwick Road. The Planning Commission, at
their May 21, 2007 meeting, recommended that the property be given a comprehensive
Minutes of September 24, 2007
Page 3 of 13
designation of Commercial and zoning designation of Commercial retail. The Boundary
Review Board approved the annexation request at their September 13, 2007 meeting.
At 7:18p.m. Mayor Abel opened the public hearing.
William Palmer, Land Use Consultant, stated his understanding that the City did have
the right to proceed with approving the annexation requests despite the County's
moratorium and cited the case of Glenrose CommunitvAssociation v. Citv of Spokane,
which showed similarities to the current issue in Kitsap County. Further, he believed
that the Central Puget Sound hearing board invalidated Kitsap County's urban growth
areas, but did not invalidate zoning in Kitsap County. He urged the Council to proceed
with approval of the annexation requests.
Michelle McFarland urged caution on approving the annexation ordinances and
questioned whether the City had the authority to extend sewers.
Richard A. Brown stated that the problem was not about zoning, but rather if your
property was reverting back to rural, which cannot be annexed. His attorney has
advised him differently, stating that the City can annex rural property.
There were no further public comments. At 7:25 p.m. Mayor Abel closed the Public
Hearing.
APPROVAL OF AGENDA
The following item was added to the agenda after Consent Agenda:
• A 15-minute executive session regarding potential litigation
The following item was added to Business Items:
• Adoption of Ordinance No. 032-07 Imposing a Moratorium on Home Occupations
and Home (Cottage) Industries as Accessory Uses in Residential Zones and
Setting a Public Hearing on the Moratorium
AUDIENCE COMMENTS
Kathy Michael, 228 Seattle Avenue, explained that based upon Council Member Powers'
comments at the September lOth meeting, she had conducted a survey regarding the
finalization of regulations that would allow buildings in the historic downtown core to be
built 55 feet (5-6 stories) and proposing 2 or 3 parking garages. She stated that the
survey was based on the following two questions:
• Do you want to keep the small town character of Port Orchard; and
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Page 4 of 13
• Do you want downtown Bay Street building heights kept at 2 stories on the water
and 3 stories on the south side of Bay Street.
Ms. Michael reported that based upon 611 signatures, the survey results stated 96.4%
favored maintaining the small town character and keeping buildings in the downtown
core under 55 feet. She provided the City Clerk with the signed survey.
Gil Michael, 228 Seattle Avenue, provided the Council and staff with copies of letters
from himself, Kathy Michael, and Gerald and Shannon Childs regarding the Downtown
Overlay District that were read into the record at the August 27, 2007 meeting.
Cindy Lucarelli, 926 Kitsap Street, voiced concern with costs for building parking
garages in the downtown area and felt the issue had been misrepresented to the public.
Fred DePee voiced concern that the moratorium would take up to two years to resolve
and suggested in the meantime the City obtain partial compliance for South Kitsap
County in order to proceed with annexing property into City limits.
Ron Rider, 714 Bay Street, voiced frustration that for six years he has been involved in
trying to get something done in the downtown area and now at the last minute a small
group of people are telling him what he can or can't do with his property.
Rudy Swenson, 710 Bay Street, voiced appreciation that a survey had been done;
however, he noted that the petition had been embellished, as he was not aware that
the City was contemplating 6 story buildings in the downtown core.
William Palmer, Land Use Consultant, provided a copy of letter he presented to the
Kitsap County Commissioners regarding the moratorium. He agreed that the
moratorium could last longer than a year and urged the Council to work with Kitsap
County to reach some form of compromise.
Richard Brown stated that Kitsap County had over two years to come up with a plan
and urged the City to work with Commissioner Jan Angel on instituting a plan for South
Kitsap County.
CONSENT AGENDA
Council Member Wyatt moved and Council Member Dilenno seconded the
motion approving the Consent Agenda as amended. Upon vote/ motion
passed unanimously.
A. Approval of Claim Warrants #48406--48480 totaling $201,551.89
B. Minutes of September 10, 2007 City Council Meeting
Minutes of September 24, 2007
Page 5 of 13
c.
D.
E.
F.
G.
H.
Adoption of Ordinance No. 031-07 Relating to the Tremont Medical Office
Rezone
Adoption of Resolution No. 020-07 Relating to the Dave Peterson
Shoreline Permit
Authorization for Mayor to Sign an Interlocal Agreement with Karcher
Creek Sewer District for Use of the City's Decant Station
Authorization for Mayor to Sign Professional Services Agreements for
Expedited Engineering Review
Authorization for Mayor to Sign Agreement with South Kitsap School
District for School Resource Officer Employment
Authorization for Mayor to Sign Two Puget Sound Energy Change Orders
for the Downtown Undergrounding
At 7:44 p.m. the Council moved into a 15-minute executive session for the purpose of
discussing potential litigation. The Council extended the executive session for an
additional 15-minutes and then an additional 5-minutes.
After a 5-minute break, Mayor Abel reconvened the meeting at 8:25 pm
BUSINESS ITEMS:
Adoption of Ordinance No. 027-07 Approving the Comprehensive
Plan/Zoning Designations for Brown, Blackstock & Dow Properties.
Council Member Putaansuu moved and Council Member Diienno seconded a
motion to adopt Ordinance No. 027-07. Upon vote motion passed
unanimously.
Adoption of Ordinance No. 028-07 Approving the Annexation Request for
Brown, Blackstock, & Dow Properties
Planning Director Long-Woods clarified that there were four parcel numbers that were
duplicated and would be corrected.
Council Member Clauson moved and Council Member Wyatt seconded a
motion to adopt Ordinance No. 028-07.
Assistant City Attorney Jacoby explained that there was very little case law on vesting
rights to annexation and should the Council approve the ordinance he would request an
amendment adding the requirement that, "the Mayor sign the Ordinance upon receipt
of a hold harmless agreement on a form accepted by the City Attorney." Should the
action be challenged, the property owner would be liable, not the City.
Council Member Diienno amended the motion and Council Member
Putaansuu seconded the amendment to include a provision for
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Page 6 of 13
indemnification and a hold harmless agreement subject to approval by the
City Attorney. Upon vote, the original motion as amended passed
unanimously.
Adoption of Ordinance No. 029-07 Approving the Comprehensive
Plan /Zoning Designations for Terrv Cousins Propertv
Council Member Putaansuu moved and Council Member Powers seconded the
motion to adopt Ordinance No. 029-07. Upon vote, the motion passed
unanimously.
Adoption of Ordinance No. 030-07 Approving the Annexation Request for
Terrv Cousins Property
Council Member Clauson moved and Council Member Wyatt seconded the
motion to adopt Ordinance No. 030-07. Upon vote motion passed
unanimously.
Notice of Intent for Petition for Annexation for Terry Cousins
Planning Director Long-Woods presented the staff report, noting this was a Notice of
Intent to Petition for Annexation one parcel totaling approximately 2.24 acres
contiguous to the City limits. The parcel is located at 6200 Glenwood Road SW, west of
the intersection of Glenwood and Sedgwick Roads, on the west side of Glenwood Road
SW. The parcel has been recently added to the City's Urban Growth Area through Kitsap
County's Comprehensive Plan, 10-year update, approved in December 2006. The parcel
has been designated Urban High Density Commercial/Mixed Use in the County
Comprehensive Plan with Highway/Tourist Commercia/Zoning. The applicant intends to
develop the property with commercial uses in the near future.
Assistant City Attorney Jacoby advised that Council would be giving the approval for the
applicant to pursue annexation; however, it was unclear whether the County or the
Boundary Review Board will process her request.
Terry Cousins explained the areas around her parcel have been previously annexed and
requested the Council allow her to move forward with the process.
Council Member Diienno moved and Council Member Wyatt seconded the
motion to allow the applicant to circulate a petition for annexation of the
property described in the Notice of Intent and require the simultaneous
adoption of comprehensive plan and zoning designations, and the
assumption of existing City indebtedness in the area to be annexed. Upon
vote the motion passed unanimously.
Minutes of September 24, 2007
Page 7 of 13
Adoption of Resolution
Employees
No.. 019-07 Relating to Non-Representative
City Clerk Merlino presented the staff report, noting this would correct a scriveners error
and that Resolution No. 019-07 clarifies and reflects the most current information
regarding all non-union employees and hereby repeals Resolutions No. 036-06 and 016-
07.
Council Member Clauson moved and Council Member Powers seconded the
motion to adopt Resolution No. 019-07 repealing Resolution No. 016-07 and
No. 036-06 to correct a scrivener's error. Upon vote motion passed
unanimously.
Discussion Item: Vacation Leave Accrual Benefit to Union Employees
This item was continued from the September 10, 2007 Council meeting for further
discussion.
Council Member Clauson advised the issue went before the Finance Committee at their
last meeting and it was the Committee's opinion that this issue was better left for future
negotiations purposes.
Council Member Dilenno stated it was not uncommon in the labor world to apply an
issue across the board for all employees to benefit from and urged the Council to direct
the City Attorney to talk with the bargaining units.
Council Member Diienno moved and Council Member Chang seconded a
motion that the City Attorney work with the represented groups to see if this
is a viable amendment to extend the use of vacation leave.
Council Member Clauson explained that there were differences between different
represented groups and provided the example that law enforcement has unique holiday
schedules that respects the fact that some have to work on a holiday and addresses the
specifics of their type of work for the City. He stated the issue was not a concern for
recruitment in the represented class; rather it was more of an issue for recruitment of
non-represented employees.
At the request of Council, Police Chief Townsend explained that this has not been an
issue as represented employees have other ways to compensate for leave time.
In response to Council Member Putaansuu, Assistant City Attorney Jacoby explained
that this issue was brought before the Council due to recruitment issues for non-
represented employees and could be used as a bargaining tool during Union
negotiations. He urged the Council to not pursue the matter at this time.
Minutes of September 24, 2007
Page 8 of 13
Upon vote, motion failed with two affirmative votes and five dissenting
votes. Council Members Dilenno and Chang cast the two affirmative votes.
Second Reading Regarding Approval of Ordinance No. 025-07 Adopting the
Downtown Overlay District Regulations
Mayor Abel advised the clarified final version was before the Council for consideration.
Council Member Clauson moved and Council Member Wyatt seconded the
motion to adopt Ordinance No. 025-07 approving the final draft of the
"Downtown Overlay District" (DOD) regulations.
Council Member Clauson voiced appreciation for the community's involvement during
the process. He noted this was a major change for the City and felt it was important to
move forward in hopes that it will help struggling retail businesses in the downtown
core. Further, the Council discussed many issues and has done a good job of addressing
views by establishing a process for buildings that go beyond the standards, and
understood that redevelopment of downtown was a step in the right direction. Further,
the Council had listened to the public's input during the process and he would support
adoption of the ordinance.
Council Member Wyatt expressed his concern that the view protection ordinance was
not sufficiently addressed.
Council Member Putaansuu voiced support of the ordinance, noting that change was
difficult; however, the Design Review Board would give the Council an opportunity to
review larger projects. Even though it hadn't been an easy process, he was happy with
the final results.
Council Member Chang voiced support of the ordinance, stating that there is no way to
please everyone, but the Council did listen to the public's comments and input and he
was satisfied with the final document.
Council Member Geiger voiced opposition to the ordinance, stating that before
implementing the plan, the Council should really look at it to ensure it won't cause more
problems than anticipated. He was concerned that the City would be financially
responsible for ensuring there was adequate parking in the downtown core, including
building a parking garage and did not feel that was a good use of City funds. He noted
this was a small area to be developed and urged Council Members to not compound the
already congested downtown. He supported annexing the Bethel Corridor in order to
bring in additional revenue as he did not feel new buildings and/or redevelopment of
the downtown core would bring in sufficient revenue.
Minutes of September 24, 2007
Page 9 of 13
Council Member Diienno spoke in favor of the ordinance and clarified that not agreeing
with someone does not mean you are not listening to them and she commented that
the view protection ordinance stated you could not take more that 30% of the view, but
does not specify what that view is. Additionally, she clarified that the Port Orchard
Economic Development Plan prepared by EDAW, Inc., was not in conflict with the DOD
ordinance; rather it complimented it in that the EDAW Plan required that regulations be
put in place to develop the downtown area, which is what this ordinance was doing.
Further, this ordinance does not require the City to have a parking plan in place; rather
the property owner must provide a parking plan to the City. Finally, she requested
language clarification as follows: Adding the words "new/proposed" throughout the
document when it refers to the amenity value.
Assistant City Attorney Jacoby stated that his notes were vague and that upon Council's
approval he could amend the ordinance to say, "new or proposed."
Council Member Powers spoke in favor of the ordinance even though there were
portions she didn't agree with and noted that she had weighed all sides of the issue
before making her decision. She urged the community to give the process a chance.
Council Member Geiger clarified that when he read from Section 18.96.140, it spoke to
parking garages. Further, he did not state that they should forget about the downtown;
rather they should focus on the outlying areas to generate more revenue. He stated
there were other community needs that far outweighed the DOD such as housing for
indigent people and storm sewer improvements. He urged the Council to oppose the
DOD ordinance.
Council Member Clauson clarified that parking spaces and garages were an unknown at
this time and felt appropriate measures had been put in place to ensure full discussion
prior to allowing downtown development.
Assistant City Attorney Jacoby clarified that the ordinance before them created a new
Title 18 and Chapter 18.96. He asked for direction on the effective date of the DOD
regulations and whether or not Council wanted to tie that to the Design Review Board.
If so, staff would prepare a draft ordinance for public hearing at the next meeting as,
currently, there is no process in place for evaluating applications to help developers
figure out how to comply with the standards.
Council Member Clauson clarified that if they adopt the DOD ordinance it would at least
tell property owners to go ahead and begin planning and designing; however, property
owners would not be able to proceed until the design review process was in place.
Minutes of September 24, 2007
Page 10 of 13
Council Member Diienno amended the motion and Council Member Chang
seconded the amendment authorizing the effective date of Ordinance No.
025-07 shall be the same as the passage of the Design Review Board
Ordinance.
Council Member Clauson further amended the motion and Council Member
Diienno seconded the amendment that the words, "new/proposed" be added
to the document whenever it refers to amenities. Upon vote the motion to
amend passed with five affirmative votes and two dissenting votes. Council
Members Geiger and Wyatt cast the two dissenting votes.
The main motion as twice amended passed with five affirmative votes and
two dissenting votes. Council Members Geiger and Wyatt cast the two
dissenting votes.
Council Member Clauson moved and Council Member Dilenno seconded a
motion to extend the meeting to 10:30 p.m. Upon vote the motion passed
unanimously.
Discussion Item: Draft Ordinance Adopting the Design Review Board
Mayor Abel explained that staff was unable to complete the model draft review and
advised the document would be ready for Council's review by October 2, 2007.
Assistant City Attorney Jacoby explained the ordinance does not require a public
hearing, rather a public meeting to allow public comments. He encouraged the Council
to email their comments for incorporation into the next Council meeting packet.
Council Members directed staff to provide the following information by October 2, 2007:
• Staff comments and time line of when items needed to be completed;
• Clarification of the section that discusses where the board members shall reside,
i.e. inside city limits, the urban growth area including city limits, etc.
Council Member Powers moved and Council Member Diienno seconded a
motion to prepare a draft ordinance for the October 8, 2007 meeting. Upon
vote the motion passed unanimously.
Approval of Parking Plan for Railway Marina
Planning Director Long-Woods presented the staff report, noting a revised application
for Council approval of the final parking plan for the Railway Marina Expansion Project
was received August 28, 2007. The project was previously approved through a
Shoreline Substantial Development/Conditional Use Permit in 2004. One of the SEPA
mitigation measures required the Council to approve the final parking plan for the
Minutes of September 24, 2007
Page 11 of 13
expansion project. Staff recommended the application for the Railway Marine Project be
approved and that a draft resolution be presented at the next regular meeting for
Council's review. Additionally, the applicant is requesting a variance on not installing
sidewalks.
Mayor Abel clarified that the Railway Marine Plan had been approved in 2004, with the
condition that any parking plan had to come back before the Council for final approval.
The issue before the Council was whether or not this was a good parking plan and does
it meet with their approval.
In response to Council Member Chang, Assistant City Attorney Jacoby advised he did
not feel a conflict of interest existed due to his employment with Washington State
Department of Transportation (WADOT) and Council Member Chang was not required
to recuse himself from the issue.
Dan Jenks with West Sound Engineering spoke to the conditions of approval, noting
that they would comply with each of the items listed, except for item #6. Mr. Jenks
explained that WSDOT required the applicant to provide a backing turn radius for safe
maneuvering outside the fog line; however, any improvements to the frontage would
defeat the additional parking requirements.
Discussion between Council, staff and Mr. Jenks ensued relating to the original
conditions, creation of a pathway to the observation deck, required number of parking
spaces, and installing sidewalks in an effort to meet all the requirements.
Council Member Powers moved and Council Member Chang seconded the
motion to continue the meeting until all agenda items were completed. Upon
vote the motion failed. Three affirmative votes were cast and four dissenting
votes were cast. Council Members PowerS;-Chang and Clauson cast the three
affirmative votes.
Council Member Powers moved and Council Member Chang seconded the
motion to continue the meeting to 11:00 p.m. Upon vote, the motion passed
with four affirmative votes and three dissenting votes. Council Members
Wyatt, Geiger and Diienno cast the three dissenting votes.
Public Works Director Abed provided a compromise to move the sidewalk to the front
of the building and extend it to where it would connect to the parking lot and Gino's
Restaurant (429 Bay Street). This would allow the City the option to buy back that
portion and/or move the guardrail back at a future date and still allow a pathway to the
observation deck.
Minutes of September 24, 2007
Page 12 of 13
Mr. Jenks stated that he would have to go back and reconfigure the sidewalk to ensure
it would fit in that area.
Council Member Dilenno moved and Council Member Wyatt seconded the
motion to approve the final parking plan at the site of the previously
approved Railway Marine Expansion Project and direct staff to draft a
Resolution for approval at the next regularly scheduled meeting. Upon vote
motion passed with five affirmative votes and two dissenting votes. Council
Members Geiger and Clauson cast the two dissenting votes.
Authorization for Mayor to Sign the 2007 Asphalt Overlay Project Contract
Public Works Director Abed presented the staff report, noting that this item was
continued from the September 10, 2007 meeting. Mr. Abed explained the Street
Committee has reviewed the request and recommended that the Council reject the bids
and defer the budgeted amount to 2008. Staff; however, still recommended awarding
the contract to Hot Mix Pavers, Inc., for a total amount not to exceed $138,556 as the
streets to be overlaid are among the worst in terms of road conditions and the price of
asphalt continues to rise.
Council Member Dilenno moved and Council Member Wyatt seconded the
motion to not approve this contract and reject all bids.
Council Member Powers voiced concern with rising asphalt costs and whether there was
a way to compromise in order to allow the bid to go forward.
Upon vote motion passed with six affirmative votes and one dissenting vote.
Council Member Powers cast the dissenting vote.
Discussion Item: Review of Draft Kitsap Regional Coordinating Council
Interlocal Agreement
Mayor Abel presented the staff report, noting that for the past four months, the Kitsap
Regional Coordinating Council (KRCC) has been reviewing the existing Interlocal
Agreement that formed the KRCC. The KRCC has been recently tasked with Low Income
Housing grant responsibilities, Broadband Government Access through KitNet and
recently, the Kitsap 20/20 process to review economic development. In response to this
activity, the Interlocal Agreement (ILA) needs to be reauthorized to address contracting,
insurance and other general "best practices" requirements. Representatives and
attorneys from each of the cities, the county, the tribes, and the Port of Bremerton have
reviewed the draft ILA and recommend adoption. She requested Council provide
feedback to her and Council Member Powers. The item would come back for adoption at
a future meeting.
Minutes of September 24, 2007
Page 13 of 13
Adoption of Ordinance No. 032-07 Imposing a Moratorium on Home
Occupations and Home (Cottage) Industries as Accessory Uses in Residential
Zones and Setting a Public Hearing on the Moratorium
Council Member Powers moved and Council Member Clauson seconded the
motion to impose a moratorium on home occupations and home (cottage)
industries as accessory uses in residential zones and setting a Public Hearing
date of October 22, 2007 on the moratorium.
Council Member Powers explained that the moratorium expired on September 25 1h and
this would extend it to October 22, 2007 to allow staff additional time to complete the
process.
Vote on the motion passed with five affirmative votes and two dissenting votes. Council
Members Dilenno and Geiger cast the two dissenting votes.
ADJOURNMENT
At 11:00 p.m. Mayor Abel adjourned the meeting.
,£i7;a-:D ( :1 l:;;t;J
· Patricia J. Kirkpa rick, eputy City Clerk Kim E. Abel, Mayor