01/15/2013 - Work Study - MinutesCity of Port Orchard
Council Meeting Minutes
Work Study Session of January 15, 2013
7:00 p.m. Call to Order
Mayor Matthes called the meeting to order at 7:00 p.m. Mayor Pro-Tem Fred Chang and
Councilmembers Jerry Childs, John Clauson, Jim Colebank, Cindy Lucarelli, Rob Putaansuu
and Carolyn Powers were present. Public Works Director Mark Dorsey, Acting Development
Director Tom Bonsell, City Clerk Brandy Rinearson, Police Chief Alan Townsend, City Attorney
Greg Jacoby, Associate Planner Stephanie Andrews and Office Assistant II Jenine Floyd were
also present.
1. Discussion: Heron Ridge Storm Pond-Taking Ownership
City Clerk Rinearson stated a citizen is asking the City to take over ownership of a storm-pond
located in the Heron Ridge development. The pond was constructed in 2002 and failed during
the December 2007 storm.
Public Works Director Dorsey further explained that the pond was built in 2002 to the
standards at that time. It worked perfectly for five years until the 2007 storm, where it failed
along with other ponds across the State. This is the only failure of that pond. Ms. Foldvik is
adamant that since the City maintains other ponds, the City should maintain the Heron Ridge
pond. Many of the ponds the City maintains come through annexations, as the County
maintains all privately owned ponds. The responsibility for the maintenance of this storm pond
is Heron Ridge Homeowners Association (HOA). Ms. Foldvik feels this pond is in a critical
nature with it being built on a slope and requests the City take it over. Mr. Dorsey mentioned he
disagrees with her, as the pond has only failed once. His biggest issue is not whether the City
decides to take over this pond, but is the City willing to take all the other ponds to be equitable.
This would raise the stormwater utility fee and the need to create a stormwater facility like
Kitsap County.
Mayor Matthes noted the public works response to Ms. Foldvik states the Heron Ridge plat
documents and CCR's are very clear; "The Heron Ridge Homeowners Association owns and is
responsible for the maintenance of the storm pond".
In response to Councilmember Putaansuu, Public Works Director Dorsey agreed this has been
discussed in the past without her attendance.
In response to Councilmember Putaansuu, City Clerk Rinearson said Ms. Foldvik elected not to
go before the Utilities Committee, because she felt she would receive a better hearing from the
full Council.
In response to Councilmember Childs, City Attorney Jacoby said this is solely a policy issue the
Council needs to decide; whether they are going to adopt all storm ponds, just this storm pond,
or continue to do what has been done in the past.
In response to Councilmember Lucarelli, City Attorney Jacoby said Ms. Foldvik is just one of 30
members of the HOA.
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City Clerk Rinearson further mentioned Ms. Foldvik is representing herself and not the whole
HOA.
In response to Councilmember Childs, Public Works Director Dorsey noted that when he came
to the City in 2008, there were 13 ponds and bioswales, and with the Bethel and McCormick
annexations, we have picked up an additional 30 ponds. We would inherit 20 to 30 more ponds
if we picked up all ponds. He explained that the management of these additional ponds would
include additional personnel, trucks, sweepers, and mini excavators.
In response to Councilmember Chang, Public Works Director Dorsey said the Heron Ridge
HOA dissolved, but the residents are still maintaining the storm pond. Ms. Foldvik has an issue
with having to pay a portion of the repair, and is asking the City to reimburse her. She also feels
the pond is not being maintained properly, and it should not be the HOA's responsibility. He
also explained, there is a stormwater covenant still in place in which the City has the right to go
in, if we decided to maintain the pond, and charge the cost to each homeowner. The County and
other multiple jurisdictions have done this over the years.
Councilmember Putaansuu stated he is comfortable with where the City is right now; and not
take on an additional pond.
Council Direction: Staff was directed to inform Ms. Foldvik that the City elects not to take
over the ownership or maintenance of the pond.
2. Discussion: Transfer of Development Rights Program and Code
Acting Development Director Bonsell reminded the Council that in 2011, former Development
Director James Weaver received a grant to create a Transfer of Development Rights (TDR)
program, which the Planning department has spent over a year working on. This is a rather
complex project, and when Mr. Weaver left, Associate Planner Andrews was asked to continue
the process of meeting the requirements of the grant.
Associate Planner Andrews further explained the City received a $97,000 grant through the
State Department of Commerce. In this program development rights from rural properties in
the County have the opportunity to be transferred into designated receiving areas. The City has
looked at the receiving area be designated within the Downtown Overlay District (DOD) with
grant funds. Kitsap County has a program for transfer of development rights that they have had
in place for about 4 years. Currently they have not utilized the program since they do not have
very many sending areas. Bainbridge Island is the only city that has a program set up. With the
grant funds, they were looking at how the City could develop some receiving areas and see if it is
something that would work for Port Orchard. The goal for designating the DOD as our
receiving area would be to encourage more of the revitalization efforts and offer another
incentive to developers who are looking at property within the downtown area. These sending
areas from the County are typically agricultural or forest lands and this would preserve their
status in perpetuity, meaning if they were allowed to build four homes on their property and
they transferred those four building rights to the City, they would never be allowed to build on
that property. It is a permanent conservation easement.
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She further explained Kitsap County had originally tried to write it as a forty year limit, but they
were denied. They had to change it to be in perpetuity. Within the City as a receiving area, the
credit could be used towards thirteen amenities which are allowed under our Municipal Code
for the DOD. Some of those amenities are public art installation, public plazas, public
restrooms, vegetative roofs or similar amenities, and this would add to one of those possible
amenities to use the credit towards.
In response to Councilmember Chang, Associate Planner Andrews said there is a list of different
options. They could use one density credit for an additional residential unit in the DOD; one
residential credit for an exemption of one parking space; one TDR credit for an additional floor
of height within the DOD; or they could use the TDR credit in lieu of one of those amenities. The
program is written so everything written in the Municipal Code would still be the standard. If
someone would like to purchase a credit from the County and use it on a project in the City, they
would have to get a conditional use permit from the Planning Department, which would then go
through the Hearing Examiner and a Public Hearing.
In response to Councilmember Childs, City Attorney Jacoby said this is a regional program
which the City would be a part of. These TDR programs really only work if cities and counties
work together.
Associate Planner Andrews mentioned in order to meet the grant requirements before February
28, 201, when the grant ends, we would need to have a Public Hearing and a vote by the Council
on how the City would like to move forward. She also stated the City has only used the grant
money for staff time.
City Attorney Jacoby said the goal is to promote urban growth in urban areas and promote rural
characteristics. We already have several tools to do those types of things. The County has a
huge parcel of land that they hope will never be developed and they could do rezoning to
prevent development. This TDR could be used as a third tool to promote development in urban
areas and prevent it in rural areas.
Councilmember Lucarelli expressed she does not see this as an effective tool for the City of Port
Orchard to only focus this on the DOD.
Associate Planner Andrews said right now the program is only written to impact the Downtown
Overlay District area. There are other areas of the City that could be looked at for this pilot
program. The grant is paying for the research, development, and staff time. If the Council
chooses to look into this into the future, we might not receive a grant at that time.
Councilmember Lucarelli explained this would make sense for some cities when you have a
three or four block area that is their DOD, and unless the TDR included other areas of the City,
this would not be an effective tool.
City Attorney Jacoby reminded the Council that if they decide not to move forward by February
28, 2013, and if something changes in the future and staff could look into it, the only thing that
is lost is the grant, which pays for staff time.
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Councilmember Putaansuu said a lot of thought was put into the DOD and the amenities, and
he is comfortable with the density and heights which are currently in place.
In response to Councilmember Powers, Associate Planner Andrews replied that no one from the
public attended the two public hearing the Planning Commission held regarding the TDR.
City Attorney Jacoby said the Planning Commission recommended a change by Resolution,
which approves the TDR program with minor changes; and asked the Council if they agree with
the recommendation. The Council came to a consensus to not accept the Planning
Commission's recommendation.
Council Direction: Council directed staff to proceed with the Public Hearing on January 22,
2013, and Council will take action on either approving or not approving the program at the
February 12, 2013, Council meeting.
3· Discussion: Possible Future Discussion Items
Mayor Matthes discussed with the Council the following:
a) NK Success Foundation Board
Mayor Matthes reported he was contacted by the NK Successes Foundation, who would like to
the opportunity for the City to intern with high school students during the summer.
In response to Councilmember Powers, Mayor Matthes said it was his understanding they get
paid minimum wage, of which the foundation pays half, and the City pays the other half. They
would also need supervision. He further stated that Bainbridge Island used them mainly for
outdoor projects.
Police Chief Townsend said they had on-call summer interns last year, and unfortunately had to
turn people down, because there was just not enough support staff to manage them.
b) Sinclair Inlet Trail
Mayor Matthes reported he was contacted by Jay Spady, who would like to have the City's
support of the Sinclair Inlet Trail, a non-motorized trail that would connect Bremerton and Port
Orchard.
Mayor Matthes updated the Council on a correspondence he received just before the meeting,
mentioning the Navy has decided this would not be a good fit for them, as part of the trail would
be too close to their railroad. Mayor Matthes withdrew this request.
c) Belfair Bypass Project
Mayor Matthes mentioned he was contacted by an attorney for a private landowner who would
like to come and explain the dollar amounts, what the Belfair Bypass is, and how this would
affect the Bremerton Airport Industrial Area and Port Orchard.
Councilmember Colebank stated he has heard this presentation and it is very informative.
d) Public Works Shop Carport I Active Club Playground
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Mayor Matthes reported there is a potential for two ribbon cutting ceremonies, and would like
to know if the Council would be interested in attending.
In response to Councilmember Clauson, Public Works Director Dorsey said having a ribbon
cutting ceremony will not disrupt anything. He believes a ribbon cutting is a great idea, and the
public works staff is thankful to have the carport. He also mentioned the toys for the Active Club
playground are put together, but not ready for installation. He would suggest doing both ribbon
cutting ceremonies on the same day.
e) National Water Trails Designation
Mayor Matthes reported the Kitsap Peninsula Visitor & Convention Bureau (KPVCB) is asking
the City to support the National Water Trails Designation.
Councilmember Powers mentioned that she would like to look into other spots in Port Orchard
to add to the map, as the Water Street Facility was the only input from Port Orchard. She also
stated that looking at the map, everything seems to be in the north end.
Mayor Matthes asked if the Council would like to have a letter endorsing the water trails.
Councilmember Clauson said looking at the map, these spots are access areas to the water,
including boat and kayak launches.
Public Works Director Dorsey said that he believes we are able to add water access areas from
Port Orchard to the map.
Councilmember Colebank mentioned his concern is if we go on a national register, then a lot of
times they tie your hands with more regulations.
In response to Councilmember Lucarelli, Mayor Matthes said he would contact the KPVCB and
find out about printing costs.
In response to Councilmember Childs, City Clerk Rinearson stated from this point forward she
would provide individual emails from Councilmembers to the rest of the Council, so everyone is
able to review the comments.
Council Direction: Council directed Mayor Matthes to contact the NK Success Foundation
Board and let them know we are not interested in summer interns at this time; contact the
attorney and have a 15 minute presentation on the Belfair Bypass Project at the February 12,
2013, Council meeting; staff to coordinate the ribbon cutting ceremonies and to give notice to
the Council; and contact the KPVCB and ask about printing costs and adding designations to the
map.
4· Discussion: Amending POMC 2.08 Appointive Officers
Mayor Matthes stated that during research conducted to find out whose duty it is to negotiate
contracts, Mayor or Council, information was received from Roger Neal, Loss Control
Coordinator for the Association of Washington Cities (AWC), the City's Insurer, noted the
following:
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"Port Orchard Municipal Code (POMC) 2.08 states that the Mayor may appoint or remove the
City Attorney with confirmation by a majority vote of the City Council. RCW 35.23.021 states
the City may enact an ordinance whereby the Council may approve mayoral appointments.
The RCW does not allow the City Council to approve Mayor's decisions to remove appointive
officers such as the City Attorney (except municipal judges under certain conditions.) It
appears to me that POMC 2.08 grants the Council a power not allowed under the RCWs. You
may wish to have your City Attorney review POMC 2.08 as it relates to RCW 35.23.021"
Councilmember Clauson mentioned his concern is that this is one person's opinion, and the
other opinion received was from an attorney.
City Attorney Jacoby said his view was slightly different. He thought the issue the Mayor was
presenting was not so much to do with negotiations but with the basic concept of our appointive
officers. The RCW says that those appointive officers are appointed by the Mayor and confirmed
by the Council. The question that the Mayor is posing is in respect to termination. AWC, MSRC,
and myself have the same opinion that the Mayor is the only one who can terminate as he does
not need the Council's permission. This is State law.
Councilmember Clauson mentioned that in regards to termination, he does not argue with that.
In response to Councilmember Putaansuu, City Attorney Jacoby stated that the POMC and the
RCW relates to appointive officers; City Clerk, City Treasurer, City Engineer, City Planner,
Police Chief and City Attorney. He further stated that the City Attorney is appointed by the
Mayor and confirmed by the Council.
Councilmember Powers mentioned she looks at the attorney as a consultant and serves the
Council and not just the Mayor, and she believes as to the hiring and firing of the attorney, it
should be a Council decision.
In response to Councilmember Childs, City Attorney Jacoby noted that Municipal Code section
2.08 was written in 1961, and probably does not predate the RCW.
Councilmember Powers conveyed her concern that the Council can set the policies, and it is the
Mayor's duty to make sure the policies are being carried out, and should not have any say in
appointments, hiring, or firing.
Mayor Matthes said that when Roger Neal brought this up, the City is not in align with the
RCW. He just wanted to bring this to the Council's attention and based on the Councils
consensus tonight, the code will not be changed.
Council Direction: No direction was given to staff.
5· Discussion: Subcommittee-Port Waterfront Plan Vision Subcommittee
City Clerk Rinearson mentioned that a couple months ago at a Work Study Session, the three
Chairs of the Waterfront Plan Vision sub-committee would be Councilmembers Clauson, Childs,
and Powers. It was expressed that all three Port Commissioners and three Councilmembers
would be on that committee for an equal representation. The Port came back and stated they
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prefer not to have all three Commissioners on this sub-committee. They prefer only one Port
Commissioner, Larry Stokes, to be the representative of this sub-committee.
In response to Councilmember Childs, Public Works Director Dorsey noted that the intent of
the sub-committee was to develop some kind of guidance to staff for the next year.
Council Direction: Council directed City Clerk Rinearson to contact the Port of Bremerton
and confirm Larry Stokes as the Port representative and to schedule a meeting.
6. Discussion: Seattle Street ROW Lease with Port of Bremerton
Public Works Director mentioned an issue arose from the Waterfront Park Expansion in that
the Seattle Street, north of Bay Street also known as a street end, goes right through the middle
of the park and has two encumbrances, which includes a portion of the 'spinning park', the
entire garage, and about 1/3 of a house.
City Attorney Jacoby noted the Port is expanding their existing park, and they own property
which is protruding in the City's right-of-way. In any other part of the City, reasonable steps to
take would be to discuss a Street Vacation. There are special and complicated rules relating to
street ends that abut the water, and it is not clear to him if we can meet the statutory
requirements that would enable us to vacate that area. We also do not want to hold up the Port's
activities. The Port is proposing to take out those existing structures and replace them with a
public viewing platform.
He further explained staff has drafted a lease that is similar to the Water Street Boat Launch.
The most important provision is rent, $1.00 per year, with the understanding that the Port will
be building this platform at the Port's expense and they are fully responsible. In the event this
lease goes for 30 years, at the end of the term, the platform would belong to the City. The lease
is set up for 15 years, with an option to renew, because it affects a street end abutting the water.
The Port is responsible for everything associated with the area that they are leasing. There is a
provision in the lease stating this could be terminated without penalty by either party, if we can
do a street vacation. If a street vacation is not available, this lease is a legal tool which allows the
Port and the City to do what is needed.
Councilmember Clauson stated that for $30 for 30 years, why spend the money investing in a
street vacation? Public Works Director Dorsey replied from the Port's perspective it would be
much cleaner if this was vacated. If after 30 years, this comes back to the City, there would be a
portion of the City's right-of-way between the Port's park and City right-of-way and issues
would arise of who would take care of that portion.
In response to Councilmember Powers, City Attorney Jacoby noted there are circumstances
where you can vacate, but it is rarely going to be allowed where you have commercial entities or
residential property owners. Where the property owner is a public entity who is proposing to
use that right-of-way for a park and public access, there may be a way.
Council Direction: Council directed staff to put the Port of Bremerton lease on the January
22, 2013, Council Agenda for approval.
January 15, 2013 Work Study Session Minutes
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7· Discussion: Council Committees/Retreat
Mayor Matthes noted that is has been discussed that Council Committee members will be
selected every even year.
City Clerk Rinearson reported she received an email from Mary McClure wanting to confirm if
Councilmember Powers will be representing the Kitsap Regional Coordinating Council (I<RCC)
and if Councilmember Colebank will be the alternate. After a brief discussion, the Council
agreed that Councilmembers Powers and Colebank will continue representing KRCC.
City Clerk Rinearson further mentioned in previous years, the Council has held their retreat in
January /February, but it was her understanding that they would like to move the retreat to
July/August to be in alignment with the budget process.
Councilmember Childs explained he thought it was decided it didn't work to hold the retreat
later because of the Councilmembers who were getting elected.
Councilmember Putaansuu responded the logic was to have the retreat to discuss the budget
and priorities and next year they could discuss moving the retreat back to the beginning of the
year.
Council Direction: Council directed staff to notify Ms. McClure of Councilmembers
representing KRCC; hold the Council Retreat as July's Work Study Session and to ask annually
in January when that year's retreat will be held.
8. City Attorney Contract
Mayor Matthes reported Councilmember Childs asked to include the attorney contract
discussions at this Work Study discussion.
Councilmember Clauson mentioned when this issue was last addressed, the consensus was that
the Mayor and the Finance Committee would sit down and negotiate the contract.
Unfortunately, the Mayor and the Committee have sat down and tried to agree on what the
contract would look like, but could not come to a consensus. The Mayor would like a one year
contract at $160 per hour, and the committee would like a three year contract with $170 per
hour. Now, they are looking for direction from the Council on how to move forward.
In response to Councilmember Powers, Councilmember Clauson stated the Council can accept,
deny, or make modifications to the Finance committee's recommendation. There are 2 issues at
hand; who negotiates the contract, and who approves the contract. There is no doubt in
anyone's mind that it is the Council's job to approve the contract. The contract was extended
one month, to expire at the end of January 2013.
Mayor Matthes announced if the Council would like, he will negotiate with the firm and bring
forth another contract for the Council to approve.
Councilmember Powers responded if they go with what the Finance committee recommended,
why would they ask the Mayor to negotiate the contract?
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Councilmember Childs stated from the input received, some cities may want the Mayor to
negotiate the contract, and some may want the Council to negotiate contracts. The point is, if we
believe that, then the Mayor and the Council could each negotiate and each could bring forth a
contract.
City Attorney Jacoby stated he personally believes they received the same advice from him,
AWC, and MRSC, which is the Council is the policy body and in accordance with all other
responsibilities, they can decide what the City Attorney's job duties are; set the compensation
whether that is a specific range or dollar figure; and they are entailed to set the parameters. The
Mayor then gets to negotiate the contract based on those parameters the Council gives him.
In response to Councilmember Putaansuu, Mayor Matthes mentioned he received specifics, but
no parameters.
Councilmember Childs noted he would like the Mayor to negotiate the attorney contract with
McGavick Graves for a term of 3 years minimum and a maximum of 5 years; and with an hourly
rate of $170 to $200.
Councilmember Powers suggested that in the future, we pass an ordinance or a resolution
stating who does the negotiations.
Council Direction: Council directed the Mayor to negotiate an Attorney contract with the
parameters given.
9· Update: Form of Government/City Governance
Councilmember Putaansuu reported this November is an election year and he would like to put
changing to a code city and changing the form of government on the November ballot. He would
also like the City Attorney to look at different options as there are other cities that have gone
this route.
City Attorney Jacoby mentioned he was always under the impression that when the non charter
code city was developed, it created the city manager role, but he is not 100% sure. If the Council
would like to move forward to put this on the ballot, then they would have to pass a resolution
by June indicating they would like to have reorganization, reclassification, or both, on the
November ballot.
In response to Councilmember Putaansuu, City Attorney Jacoby agreed if the City switches to a
Council/Manager form of government everybody would have to run for re-election, which has to
happen within 90 days of the November ballot. There would have to be a special, primary, and
general election to elect new Councilmembers and Mayor.
Councilmember Putaansuu stated half of the Council are up for election this year.
Councilmember Childs noted it will cost money to put the issue of becoming a code city on the
ballot, and he would like to know how much. Also, he knows the Council could just pass it. We
have also had public hearings on what the public thought and have no negative things except a
January 15, 2013 Work Study Session Minutes
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citizens group wanted to put it on the ballot. We could theoretically not put this on the ballot
and just pass a resolution changing to a code city.
City Attorney Jacoby mentioned we could run the risk of people not minding the change to a
code city, but have no one vote yes for the change of government. Also, are two topics
appropriate for one ballot?
Councilmember Putaansuu mentioned that realistically, a city manager would make as much as
the highest paid employee.
Mayor Matthes stated there is a cost of staff time researching this issue; and this is not listed on
the Councils short-term goals.
Councilmember Clauson mentioned MRSC might be a resource on this issue .
Councilmember Childs suggested having a Council committee to discuss this issue . That way the
committee could contact other entities, by telephone or in person, and make sure this is
something we want to present to the citizens.
Council Direction: Council directed City Clerk Rinearson to contact someone from MRSC
and invite them to the February's Work Study Session to discuss the process, pros and cons of
changing into a code city and/ or City Manager form of government; and for the City Attorney to
see if the changing to a Code City and the City Manager form of government could be on the
same ballot measure.
to. Mayor's Update
Mayor Matthes reported he has been working on a handout to pass out to citizens, which would
list the contact information of the Council, and asked the Council to provide him the contact
information they would like on the handout.
At 9:13p.m., Mayor Matthes adjourned the meeting.
dt . .;,~o . 11/d~LJ
Timothy C. M~tthes, Mayor