051-08 - Resolution - Denying Amendment to Zoning MapRESOLUTION NO. 051-08
A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON,
DENYING THE REQUEST TO AMEND THE CITY OF PORT
ORCHARD ZONING MAP TO CHANGE THE ZONING DESIGNATION
OF CERTAIN PROPERTY LOCATED WITHIN THE CITY OF PORT
ORCHARD FROM RESIDENTIAL 4.5 (R4.5) TO RESIDENTIAL 20
(R20).
TAX PARCELS NO. 352401 -3 -086-2007
LEGAL DESCRIPTION: SE 1/4 of the WE 1/4 of Secti on 35, T 24N ,
R1E., W.M .
FULL LEGAL:
LOT D CITY OF PORT ORCHARD SHORT PLAT NO. P0-99 (S-1101) BEING
RECORDED UNDER AUDITOR'S FILE NO . 3180797 IN VOLUME 15 PAGE
41 OF SHORT PLATS. THAT PORTION OF THE SOUTHEAST QUARTER OF
THE SOUTHWEST QUARTER, SECTION 35, TOWNSHIP 24 NORTH,
RJl.NGE I EAST, W .M., KITSAP COUNTY, WASHINGTON, DESCRIBED AS
FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF THE ABOVE
SAID SUBDIVISION ; THENCE ALONG THE NORTH LINE OF SAID
SUBDIVISION SOUTH 87 *46 '44 EAST 20 .00 FEET; THENCE CONTINUING
SOUTH 87 *46'44 : EAST 200.05 FEET; THENCE PARALLEL WITH THE
WEST LINE OF SAID SUBDIVISION SOUTH 00* 55' 18 WEST 94.94 FEET;
THENCE SOUTH 88*43'05 EAST 93 .27 FEET; THENCE SOUTH 54*44'12
EAST 32.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH
54*44'12 EAST 144,73 FEET; THENCE SOUTH 00 *55 '18 WEST 36.00
FEET TO A POINT ON
WHEREAS, an application was received on August 1, 2008, from Kev in Decke r,
Director, Poplar Heights Birth and Wellness Center (Rezone Application R-1188) requesting
approval of a rezone to change the ex isting zoning on a parcel containing a single-family
residence totaling 0.33 acres with a current zoning designation of Residential 4.5 (R4 .5) to
Res i dential 20 (R20); legally described above; and
WHEREAS, the Hearing Ex aminer considered the application at a public hearing
on September 18, 2008 and heard test i mony on the proposal from the applicant's agent and the
public; and recommended approval of the rezone to the City Council; and
WHEREAS, on October 28, 2008, the City Counci l held a closed -record hearing
on the above described re-zone application; and
Resolution No. 051-08
Page 2 of 3
WHEREAS, being fully advised, the Council finds and concludes as follows:
FINDINGS AND CONCLUSIONS
Having reviewed the Hearin g Examiner's findings and conclusions as set forth in the
"Findings Conclusions, and Recommendation" for the Kevin Decker Rezone No . R-1188,
(Attached Exhibit A) and the record in this matter, the Council makes the following findings and
conclusions:
1. The Council finds that it has jurisdiction over this matter.
2. On October 28, 2008, the Council held a closed-record hearing on the rezone
application. At that hearing a letter was presented from neig hbors Thomas and
Shannon Driver in opposition to the proposed rezone. The Council has taken this letter
under consideration as argument in opposition to the conclusions reached by the
Hearing Examiner . The Council has not considered any information contained in this
letter that was not part of the original record presented to the Hearing Examiner.
Nevertheless, this letter was presented without objection by the applicant, and any
objection to it admission has been waived.
3. The subje ct property is .33 acres in size, and is fronted by a lo ca l access road. The
surrounding neighborhood is primarily characterized by single -family homes.
4. The site is presently designated as High density res idential Comprehensive Plan land use
designation but is zoned low density Residential 4.5 (R 4.5) zon ing consistent with built
conditions of the neighborhood.
5. The applicant seeks to rezone the prop erty in an attempt to bring his propo sed business
enterprise (birthing center) into compliance with City Codes. Residential 4.5 zoning
does not allow for health-services to occur in R4.5. Th e applicant brought his rezone
application as a proposed remedy to code-enforcement action that had been taken by
the City.
6. Rezone applications are governed by Chapter 16 .25 of the Port Orchard Municipal Code.
Section 16 .25.060 establishes the criteria required for review by the City in determining
whether to approve or deny a rezone application. POMC 16.25.060 establishes seven
criteria for review, all of which must be satisfied for a rezone application to be granted.
Those criteria are as follows:
(1) The reclass ification is substa ntially related to the public health, safety, or
welfare; and
(2) The reclassification i s warranted because of changed circumstances or
because of a need for additional property in the proposed land use zone
classification or because the proposed zoni ng classification is appropriate for
reasonable development of the subject property; and
Resolution No. 051-08
Page 3 of 3
(3) The subject property is su itable for development in general conformance with
zon ing standards under the proposed zoning classification; and
(4) The reclassification will not be materially detrimental to uses or property in
the immediate vicinity of the subject property or incompatible with such uses;
and
(5) The reclassification has merit and value for the community as a whole; and
(6) The reclassification is in accord with the comprehensive plan; and
(7) The reclassification complies w ith all other applicable criteria and standards
of the Port Orchard Municipal Code .
7. Wh i le the area that is the subject of this application has been designated under the
City's Comprehens ive Plan as High density residential, the Comprehen sive Plan
des ignation is just one of seven factors to be considered .
8 . The City Coundl has delegated the duty of hold ing a public hearing on rezone
applications to the Hearing Examiner. The City Council recognizes the importa nce and
impacts that rezones have on the community, and has not delegated the final authority
to the Hearing Examiner . Recommendations from the Hearing Examiner are not
binding.
9. The Coun ci l finds that the Kevin Decker Rezone No. R-1188 application has failed to
satisfy the following criteria:
(1) The reclassification is not substantially related to the publ ic health, safety, or
we lfare. The area is characterized by single-fam ily residences . The rezone
application has been presented as an attempt to bring a proposed non-
conforming use into compliance with the City Code. The existing uses along
Poplar Street are in conformance with the current-zoning designation of R4 .5.
While the City Council appreciates the need for a birthing facility of this type, the
Council finds that that rezoning ·a single parcel with in this neighborhood would
confirm a special benefit or favor on an individual and is not substantially related
to the public health, safety, and/or welfare of the community.
(2) The reclassification is not warranted due to a changed circumstances or
because of a need for additional property in the proposed land use zone
classification or because the proposed zoning classification is appropriate for
reasonable development of the subject property. The apparent change in this
location is the applicant's decision to bring a non-conforming business use into a
residential neighborhood.
(3) The subject property is unsu itable for development in general conformance
with zoning standards under the proposed zoning classification. The record is
clear that the site is currently built-out w ith a single-family home .
( 4) The reclassification will be mate rially detrimental to uses or property in the
immed iate vicinity of the subject property or incompatible with such uses . The
proposed rezone is in the middle of a single-family neighborhood along a local-
access road. Neighbors have expressed concerns about the potential change of
Resolution No. 051-08
Page 4 of 3
use that may accompany a rezone of this type. Among the concerns expressed
are the loss value of individual homes, traffic impacts, and stormwater impacts.
(5) The reclassification does not have merit and value for the community as a
whole. The Hearing Examiner has focused on the potential proposed use
(birthing center) as having merit and value for the community as a whole.
However, there is no guarantee that this use will ultimately occur or that it will
continue. The focus of this criterion is on the merit or value of the rezone to the
community . The City Council finds merit and value to high-density residential
construction, as it provides affordable housing for the community. However,
there is also merit and value in preserving single-family residential
neighborhoods . This rezone will not serve to enhance the Poplar Street
neighborhood, and therefore it does not have merit and value to the community
as a whole .
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY
RESOLVES AS FOLLOWS:
THAT: Based upon the findings and conclusions contained herein, the City of Port
Orchard herebby denies the Kevin Decker Rezone No . R-1188, and maintains Parcel Number
352401-3-086-2007 as Residential 4.5 (4.5) with no change to the City of Port Orchard Zoning
Map.
PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested
by the Clerk in authentication of such passage this 25 th day of November 2008.
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF PORT ORCHARD
In the Matter of the Application of
Kevin Decker
For Approval of a Rezone
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No. R-1172
Poplar Heights
Birth & Wellness Center
FINDINGS, CONCLUSIONS,
AND RECOMMENDATION
SUMMARY OF RECOMMENDATION
The Hearing Examiner recommends that the request for a r ezone from Residential 4.5 to
R esidential 20 for property located at 215 Poplar Street , in Port Orchard, Washington, be
APPROVED, with one condition.
SUMMARY OF RECORD
Reque st:
Kevin Decker requests a rezone from Residential 4.5 to Residential20 in order t o locate a birth
and wellness center on the site. The property subject to the request is located at 2 15 Poplar
Street, in Port Orchard, Washington.
Hearing Date:
The H earing Examiner held a n open record hearing on the request on September 18, 200R.
Testimony:
The following individuals presented testimony under oath at the open record hearing:
Tom Bonse ll , City Planner
James Weaver, City Planning Director
Mark Dorsey, City Public Works Director
Kevin Decker, Applicant
Louise Wales
Cammy Mills
Dr. Joella Pettigrew
Heather Kraetsch
Alex Gainsbrugh
Findings, Conclusions, and Recommendation
CiLy of Port Orchard Hearing Examiner
Poplar Heights Birth & Wei/ness Center. No. R-1 172
Page 1 of9
Exhibits:
The following exhibits were admitted into the record :
l . Pre-application meeting let ter , dated March 28, 2008
2. Application packet, received August I, 2008, with the following attachments:
A. Rezone Application
B. Project Narrative, Site Map, and Legal Description
C. List of Neighboring Property Owners and Certification Statement
D . By-laws of the Poplar Heights Foundation
E. Certificate of Formation of Poplar Heights Birth and Wellness Center
F. Environmental Checklist
G. City of Port Orchard Business License app lication
H. Report on Low Impact Development Technologi es
I. Permeable Interlocking Concrete Pavement guide
3. Kitsap County Parcel Map and Property Rep01i, dated A ugust 4, 2008
4. Email from Tom Bonsell, Associate Planner, to Kevin, sent August 4, 2008
5. App lication Transmittal letter r~quest for review, dated August 4 , 2008
6. Letter of Completeness and Detennination of Completeness, issued August 5, 2008
7. Noti ce of application/SEPA comment period w ith affidavit of mailing to neighboring
property owners and posting property, dated August 8, 2008
8. SEPA Distribution notice of application/SEPA comment period and checklist, dated
August 8, 2008
9. Notice of application/SEPA comme nt period with affidavit of mailing to complet e list of
neighboring property owner s and posting (second mailing and posting due to incomplete
li st submitted with application), dated August 13, 2008
10. Affidavit of Pub lication of N otice of Application and SEPA Comment p eriod , dated
August 13 , 2008
11. Comments from Assistant City Engineer Andrea Archer, received August 26, 2008
12. Comments f rom Loren & Karen T. Olsen, received August 27, 2008
13. Mitigated Detennination ofNonsignificance (MDNS), issued August 28, 2008
14 . Notice of Public Hearing with affidavit of pub lication, dated Sept emb er 6, 2008
15 . E-mai ls between Kevin Decker and Tom Bonsell
16. Site maps for Poplar H eights Birth & Wellness Center (2 sh eets), dated August 1, 2008
17. Aerial Map
18. Staff Report prepared for September 18 , 2008 open record hearing
19.A. Letter from Melissa Hudson, to Ted Hunter, received Sept ember 18, 2008
19 .B . Letter from Jennifer Baxter, received September 18, 2008
20. Poplar Heights Child Birth Center narrati ve, received September 18 , 2008
The Hearing Examiner e nters the following Findings and Conclusions b ased upon the te stimony
and exhibits admitted at the open record hearing:
Findings, Conclusions, and R ecommendation
Ci~}' of Port Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R -11 72
Page 2 of9
FINDINGS
I. Kevin Decker (Applicant) reque sts a rezone from Residential 4 .5 (R4.5) to Residential 20
(R20) in order to locate a birth and wellness center on the site. The property s ubject to
the request is located at 215 Poplar Street, in Port Orchard, Washington.1 Exhibit 2.A .;
Exhibit 2.B; Exhibit 18. Stc~ffReport, page 1.
2. The City of Port Orchard (City) received the rezone application on August 1, 2008. The
City determined that the application was complete on August 5, 2008. Exhibit 6. The
City transmitted notice of the application and associated threshold environmental
determination to relevant agencies on August 7, 2008. Exhibit 5. On August 8, 2008, the
City posted notice of the application and SEPA comment period on the subject property,
and mailed notice to owners of property surrounding the subject property. Exhibit 7. A
second notice was posted and mailed to the complete list of neighboring property owners
on August !3, 2008. Exhibit 9. On August 13,2008 , the City published noti ce of the
application in the Port Orchard Indepe ndent. Exhibit 10. The notice of the application
mailed to surrounding property owners and posted on-site included notice of the open
record hearing associated with the application. Exhibit 9. The City published notice of
the hearing in the Port Orchard Independent on September 6, 2008. Exhibit 14 .
3. The City acted as lead agency to analyze the environmental impacts of the proposed
re zone, as required by the State Environmental Policy Act (SEPA). The City determined
that , with conditions, the proposed rezone would not have a probable signi-ficant adverse
impact on the environment, and issued a Mitigated Determination ofNonsignificanc e
(MDNS) on August 29, 2008? The seven MDNS conditions require that the Applicant
obtain a business license, certificate of occupancy, and approved rezone of the property
prior to commencement of birthing activities; comply with City code requirements for
clinics ; limit building occupancy to 32 people; limit classes to no more than four days per
week, between the hour s of7:00 AM and 10 :00 PM; and ensure that no activities
associated with the birthing center impinge on the general neighborhood single-family
residential uses. The City issu ed the wiDNS pursuant to an optional process combining
the comment period with the notice of application.3 The optional MDNS comment
period ended August 27,2008. The City did not receive any appeals of the MDNS.
Exhibit 9; Exhibit 1 0; Exhi~it 13; Exhibit 18, Staff Report, pages 1 and 5.
1 The subj ect property is identified by tax parcel number 352401-3-086-2007. Exhibit2.B; Exhibit 18, Staff Report,
page!. A legal description is included with the rezone application. Exhibit 2.8.
2 The MDNS was signed by James Weaver, City Planning Director and SEPA Responsibl e Official , on August 28,
2008 . The staff report states that the MDNS wa s iss ued August 28, 2008; however, the MDNS state s that it is issued
"August 29, 2 0 0 8." Exhibit 13; Ex hibit/8, Staff Report, pages I and 5.
3 The Wash ington Administrative Code provides for an o ptional Detennination o fNonsignificance (DNS ) process,
wh ich is an integrated project review process and comment period to obt ain comments on t he notice of application
and the likely DNS threshold determination for the proposal. WAC 197-11-355.
Findin gs, Conclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar Heights Birth & We/lness Center, No. R-1172
Page 3 of9
4 . The subject property is currently zoned R4.5 , as are surrounding properties to the north,
east, and west. Property to the south is zoned R8 . The City's Comprehensive Pl an
designates the subject property as High Density Residential (HDR). Properties to the
north and east are designated Public and Community Spaces. Properties to the south and
west are designated as Medium Dens ity Residential (MDR). The subject property is
cmrently developed with a single-family residence. Exhibit 2.A; l!-xhibit 18, Staff Report,
page 1.
5. The R4.5 zone allows for development at a density of up to 4.5 dwelling units p er net
usable acre.4 The primary purposes of the R-4.5 zone are to "(a) provide for an urban
residential environment that is consistent with the traditional image of the Port Orchard
area and (b) to implement comprehensive plan goals and policies for housing quality,
diversity, and affordability, and to efficiently use residential land , public services, and
energy." Port Orchard Municipal Code (POMC) 16.13.120. The R4.5 zone requires a
minimum lot size of 6,000 square feet; maximum lot coverage of 45 percent; and
minimum landscaping site coverage of 55 percent. POMC 16. 40.025 Table 9. The City
staff report states that the proposed use is classified as "office/patient clinic." This use is
not permitted within the R4.5 , R8 , or R12 zones . POMC 16.30.050, Table 2; Exhibit 18,
StaflReport, page 5.
6. The R20 zone allows development at a density of up to 20 dwelling units per usable acre.
The purposes of the R20 zone are to "(a) allow high density residential development in
urban locations where public services and facilities are most available; (b) implement
comprehensive plan goals and policies for housing quality, diversity , and affordability,
and (c) efficiently use residential land, public services, and energy." POMC
16.13.140(1). The R20 zone purposes are accomplished by providing a mix of higher
dens ity housing types, and allowing only such accessory and complementary
nonresidential uses as are compatible with multiple family residential communities .
POiv!C 16.13.140(2). The R20 zone is appropriate in areas that have been designated by
the Comprehensive Plan and are served by adequate public sewers , water supply, roads,
and other needed public facilities and services; and where surrounding lands have b een
developed for commercial, business, employment, public facility, or other nonresidential
but higher intensity activities, while offering greenbe lt, recreation, pedestrian, and transit
services most supportive ofhigher density living arrangements. POMC 16.13.140(3).
The R20 zone mandates a minimum lots size of2,178 square feet; maximum lot coverage
of 85 percent; and minimum landscaping site coverage of 15 percent. Other development
standards, including setbacks and building height, are the same for both the R4.5 and R20
zoning districts. POMC 16.40.025 Table 9. The proposed bhthing center, classified as
4 Net usable site area is defined as "the total site area less se nsitive environmental features (equal to gross useab le
site area) and dedications as these areas are defined elsewhere in this code." POMC 16.40.040.
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar Heights Birth & Wei/ness Center, No. R-1 172
Page 4 of9
"office/patient clinic" is a permitted use in the R20 zone. POMC 16. 30.050, Table 2;
Exhibit 18, Staff Report, page 5.
7. City Planner Tom Bonsell testified that zoning classifications should be consistent with
Comprehensive Plan designations, as required by Chapter 36.70A Revised Code of
Washington (RCW). Mr. Bonsell testified that the City is currently updating the 1995
Comprehensive Plan. He testified that as part of the Comprehensive Plan, the Council is
considering a general r ezone of the area to R20. Mr. Bonsell explained that the rezone
request is a non-proj ect rezone, and that the specific development proposal will be
reviewed separately with the building permit and certificate of occupancy rev iew.
Testimony of Mr. Bonsell.
8. According to the 2008 Draft Comprehensive Plan, the HDR designation allows for
housing density of up to 20 dwelling units per net usable acre . The purposes of the HDR
designation include the provision of high density residential development and the
efficient use of residential land, public services, and energy. The HDR designation
allows for development of single-family and multi-family dwellings, as well as for
traditional uses such as parks, schools, and churches . 2008 Draft Comprehensive Plan
Land Use Element. The City staff report states that the subject property and other
properties in the area are underdeveloped for their Comprehensive Plan designations.
According to the staff report, when the City Council enacted Ordinance No. 1916, the
Council determined that uses such as the proposed bi1th center "are compatible with high
density residential uses and will make services more convenient to residents of the R-20
zone." Exhibit 18, Stqff Report, page 3.
9. Loren and Karen Olsen sent a letter to the City, dated August 26, 2008, expressing
concern about the proposed birth center and r ezone request. The Olsens expressed
concern that the proposed use cou ld create traffic issues, increased stonnwater runoff,
and a loss in value for surrounding properties. The Olsens questioned whether there is a
need for additional R20-zoned properties in the City. Exhibit 12.
10. James Weaver, City Planning Director, testified that the MDNS conditions would
mitigate impacts arising from the proposed rezone and development. He further testified
that home occupation permit regulations would apply to the proposed bitth center. Mark
Dorsey, City Public Works Director, t estified that drainage and parking issues would be
addressed during building permit and certificate of occupancy reviews. In an email to
Mr. Bonsell , Andrea Archer, Assistant City Engineer, stated that the Public Works
Department would perform a complete review of the proposed use, including review of
water and sewer connections and parking conditions, when the owner requests a
certificate of occupancy . Exhibit 11 ; Testimony of Mr . Weaver; Testimo ny of Mr .
Dorsey.
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Ewminer
Poplar Heights Birth & Wellness Center, No . R-1 172
Page 5 of9
11. The City al s o received two letters supporting the proposed birth center and rezo ne
request, submitted at the open record hearing on September 18, 2008. In addition,
members of the public testifie d to support the requested rezone and proposed birth c e nt er.
Louise Wales testified that there is currently a shortage of places to b irth babies within a
reasonable distance from Port Orchard. Cammy Mills testified t hat expectant mothers
must now travel to Tacoma, a trip of 30 to 60 m i nutes, depending on the traffic . Dr.
Joella Pettigrew testified that the proposed center would be good for practitioners and
would provide education to the community. Heather Kraetsch and Alex Gainsbrugh also
testified to voice their support of the proposed birth center and the rezone request.
&chibit 19.A ; Exhibit 19.B,· Testimony of Ms. Wales; Testimony of Ms. Mills ; Testimony
ofDr. Pettigrew; Tes timony of Ms. K ra etsch ,· Testimony of Ms. Gainsbrug h.
12 . Poplar Street provides the so le access to the property. According to the SEPA checklist,
public transit is available within a few m inutes walk from the s ite. T he property is
currently served by electricity, water, natural gas, garbage service, and sanitary sewer
service. Exhibit 2 .F ; Exhibit 8 .
CONCLUSIONS
Juri s diction
The City of Port Orchard Hearing Ex aminer h as jurisdiction to hold an open record hearing on
rez one applications that are not part of the Comprehensive Plan Amendme nt process. Based on
the ev idence in the record, the Hearing Examiner may recommend that the City Council approve,
approve with modifications, or deny the application. Port Orchard Municipal Code (POMC)
2. 76.080,· POMC 2. 76.100; POMC 2. 76.110; POMC 16.01.021(3).5
Criteria fo r Review
The City Council may approve, approve with modifications, or deny a n application for a
reclassification of property if:
(1) The reclassificati on is subs tantially related to the public health, safety, or welfare; and
(2) The reclassification is warranted because of changed circumstances or because of a need for
additional property in the proposed land use zo ne classification or because the proposed
zo ning classification is appro priate for reasonable development of the subject property ; and
(3) T he s ubject property is suitable for development in general conformance with zoning
standards under the proposed zoning classification; and
( 4) The reclassification will not be materially detrimental to uses or prop erty in the immediate
vicinity of the subject property or incompatible with such uses; and
(5) The reclassification has merit and value for the community as a whole; and
(6) The reclassification is in accord with the comprehensive plan ; and
5 On D ecember 19, 2007, the Pm1 Orchard City Council passe d and the Port Orchard Mayor signed City Ordinance
No . 0 47 -07 , repeal ing POMC 2.20.04 0 in it s entirety and add ing a new POMC Chapter 2 .76 (Hear ing E xamin er).
C ity Ordinance No. 047-07. POMC Chapter 2 .76 has not yet been cod ified and is not currently availa ble on the City
webs it e.
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Ex amin er
Poplar Heights Birth & Wellness Center, No. R-1 172
Page 6 of9
(7) The reclassification complies with all other applicable criteria and standards of the P ort
Orchard Municipal Code.
POMC 16.25.060.
In addition , Washington state courts apply the following general rules to rezone applications:
(1) there is no presumption of validity favoring the action of rezoning;
(2) the proponents of the rezone have the burden of proof in demonstrating that conditions have
s ubstantially changed s ince the original zoning; and
(3) the rezone must bear a substantial relationship to the public health, safety, morals or welfare .
Parkridge v. Seattle, 89 Wn.2d 454 ( 1978).
Proof of changed circumstances are not required for a rezone if the proposed rezone and
assoc iat ed development implement policies contained in the comprehensive plan . Bjarnson v.
Kitsap County, 78 Wn. App . 840 (Div.l, 1995); Henderson v. Kittitas County, 124 Wn. App.
747 (Div. III , 2004). Only general conformance with a comprehensive plan is required. Woods
v. Kittitas County, 130 Wn. App. 573 (Div . III, 2005).
Conclusions
1. The rezone is substantially related to the public health, safety, or welfare. The City
Counci l reviewed the potential impacts when the High Density Residential land use
designation was approved to allow development up to 20 dwelling units per acre. After
consideration of public input and planning goals, the City Council determined that the
HDR designation would be consistent with the community character. The proposed
rezone of the subject property from R4 .5 to R20 would create consistency between the
property 's zoning classification and Comprehensive Plan designation. The City provided
appropri ate notice of the rezone application and associated open record hearing. The City
analyzed the potential environmental impacts of the proposed rezone and determined that
granting the rezone would not result in probable significant adverse environmental
impacts. The City iss ued a Mitigated Determination ofNonsignificance (MONS) on
August 29, 2008. There was no appeal of the MDNS. Any future use of the property
would be reviewed for compliance with City requirements during the building permit and
certificate of occupancy reviews. Findings 1 -4, 6-8, 10.
2. The rezone is warranted because of changed circumstances. Proof of changed
circumstances is not required for a rezone if the proposed rezone and associated
development implement policies contained in the comprehensive plan. The subject
property is currently designated High Density Residential in the City Comprehensive
Plan. The proposed rezone would ensure consistency between the property 's zoning
classification and HDR designation under the Comprehensive Plan. The City Council
has determined that uses such as the proposed birth center are compatible wi th the
prop erty's HDR designation. Findings 4 -8.
3. · The subject property is suitable for development. The propetty is currently developed
with a single-family residence. The property has access to Poplar Street, and is served by
Findings. Co nclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-11 72
Page 7 of9
electricity, natural gas , garbage serv ice, water service, and sanitary sewer service. Public
transportation is available. The City reviewed the environmental impacts of the rezone
request and determined that the rezone would not result in a probable significant adverse
impact on the environment. Future uses of the property would be reviewed for
compliance with City standards during the building permit and certificate of occupancy
reviews. Findings 3, 4, 8 -10, 12.
4. ·with a condition, the rezone will not be materialJy detrimental to or incompatible
with uses and properties in the immediate vicinity. The requested rezo ne would bring
the property's zoning classification into compliance with the HDR designation under the
Comprehensive Plan. The proposed use is a permitted use within the R20 zone. The City
anal yzed the potential environmental impacts of the proposed rezone and determined that
with conditions, granting the rezone would not result in probable significant adverse
environmental impacts. The City is sued a Mitigated Determination ofNonsignificance
on August 29, 2008 . A condition of approval is necessary to ensure that the Applicant
comply with the MDNS conditions to mitigate potential impacts of the proposed birth
center and rezone. Findings 3 -8.
5. The rezone has merit and value for the community as a whole. Approval of the
rezone request would facilitate development of a birthing center. Expectant mothers in
the City of Port Orchard currently must leave the area to birth their babies. The proposed
birthing center would also provide education to the community. The proposed birthing
center is a permitted use in the requested R20 zone. The proposed use would be
reviewed to ensure compliance with City standards, including parking and stormwater
runoff r equirements , during the building permit and certificate of occupancy reviews.
Approval of the rezone request would ensme that t he property's zoning classification is
consistent with the Comprehensive Plan designation. Findings 1, 4-12.
6. The rezone is in accordance with the Comprehensive Plan and complies with the
City code. The City Comprehensive Plan designates the subject property as High
Den sity Residential, providing for development at a density of up to 20 dwelling units per
acre. The current zone only allows for development at a density of up to 4.5 dwelling
units per acre . The proposed rezone would allow development of up to 20 dwelling units
per acre , bringing the property's zoning classification into compliance with the
Comprehensive Plan designation. Future use of the property would be reviewed during
the building permit and certificate of occupancy reviews to ensure compliance with City
code, including parking and storm water runoff standards. Findings 4 -12.
Di scussion
This re zone application is reviewed under the recently approved Hearing Examiner process in
the City of Port Orchard. The Hearing Exan1iner system is a quasi-judicial process , with a single
open record hearing on an application for change in zoning designation. This is in contrast to
legislative action, such as a Comprehens ive Plan amendment, with potentially multiple hearin gs
Findings, Co nclusions, and Recommendation
City of P ort Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-1 172
Page 8 of9
on a land use policy proposal. The state legislature and City Council recognize the importance
of an efficient process by providing for a single open record hearing under the Hearing Examiner
for certain land use applications. See Revised Code ofWashington (RCW) 35.63.130; RCW
36. 70B.050(2); Port Orchard Municipal Code (PO}vfC) 16.01 .021 (3).
City code authorizes the Hearing Examiner to hold an open record hearing on rezone requests
that are not part of the Comprehensive Plan Amendment process. POMC 16.01.021(3). The
City Council then reviews the Hearing Examiner's recommendation in a closed record hearing to
ensure that no mistakes have been made by the Hearing Examiner. "Open record hearing " is
d efined as a "hearing, conducted by the hearing examiner, which creates the City's official
record through testimony and submission of evidence and information." POMC 16. 08.520. In
contrast, the closed record hearing to be held by the City Counci l does not allow for the submittal
of ne w evidence or testimony. See POMC 16.08.1 38. If the City Council determines that no
mistake has been committed by the Hearing Examiner, the City Council would likel y approve
the Hearing Examiner's recommendation. If the Council amends or rejects the finding s of the
Hearing Examiner, it should do so only with specific reference to exhibits or testimony in the
record that support the rejection or amendment. If the Council believes a mistake was made in a
conclusion, it is suggested the Council also review the underlying support for that conclusion to
determine specifically how it fails to provide support. Conclusions should only be modified or
rejected if the reference in supp01t of the conclusion fails to provide substantial evidence in
support of the conclusion.
When reviewing a rezone application, the Hearing Exan1iner does not review development
proposals. Rather, the role of the Hearing Examiner is to review the rezone request to ensure
compliance with the rezone criteria found in POMC 16.25.060. Therefore, it is inappropriate at
thi s time for the Hearing Examiner to impose conditions governing site development as
conditions ofrezone approval. Development-related conditions are more appropriately proposed
and con sidered during site development permit review.
RECOMMENDATION
Based on the above findings and conclusions, the Hearing Examiner recommends that the
request for a re zo ne from Re si dential4.5 to Residential20 for property located at 215 Poplar
Street, in P01t Orchard, Washington, be APPROVED , with the recognition that busines s uses for
the site must comply with the SEP A Miti gated Determination ofNonsignificance is sued August
29, 2008 (Exhibit 13 ).
·r;. o+Y'-Recommended this ~ day of September 2008.
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar H eights Birth & Wei/ness Center, No. R-1 172
Page 9of9
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THEODORE PAUL HUNTER
Hearing Examiner