006-09 - Ordinance - Amending Zoning Map to Change Zoning DesignationCity of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
PORT ORCHARD CITY OF 200903310123
Ordinance Re. Fee: $ 54. 00
03/31/2009 01:15 P11 Page 1 of 13
Walter Washington, Kilsap Co Auditor
I !111111111111 III 1111I I!II 111111 II1111 IN 1111111111111111111111111111 I!III IIIII III[ IIII
Introduced by: Development Director
Requested by: Development Director
Drafted by: Development Director
Introduced: March 10, 2009
Adopted: March 10, 2009
ORDINANCE NO. oo6-o9
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON, AMENDING 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 (R -5) TO RESIDENTIAL 20 (R20).
TAX PARCEL NO. 352401-3-o86-2007
LEGAL DESCRIPTION: SE 1/4 of the WE 1/4 of Section 35, T 24N,
RiE., W.M.
FULL LEGAL:
LOT D CITY OF PORT ORCHARD SHORT PLAT NO. PO-99 (S-11o1) BEING
RECORDED UNDER AUDITOR'S FILE NO. 3180797IN VOLUME 15 PAGE 41 OF
SHORT PLATS. THAT PORTION OF THE SOUTHEAST QUARTER OF THE
SOUTHWEST QUARTER, SECTION 35, TOWNSHIP 24 NORTH, RANGE 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 2oo.o5 FEET; THENCE PARALLEL WITH THE WEST LINE OF SAID
SUBDIVISION SOUTH oo* 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*5518 WEST 36.00 FEET TO A POINT ON
Ordinance No. oo6-o9
Page 2 of 12
WHEREAS, pursuant to the terms of a settlement agreement between the
City and Kevin Decker, on February 19, 2009 the City accepted a Settlement Application for
a rezone of the property located at 215 Poplar Street, Port Orchard (the "Property")
consisting of an application that was originally submitted on August 1, 2oo8 and which
requested approval of a rezone to change the existing 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 Residential 20 (R20); legally described above; and
WHEREAS, a Mitigated Determination of Non -Significance (MDNS) was
issued on August 28, 2oo8 and the SEPA official has determined that the earlier MDNS also
applies to the Settlement Application; and
WHEREAS, the Hearing Examiner considered the original application at a
public hearing on September 18, 2oo8 and heard testimony on the proposal from City staff,
the applicant's agent, and the public, and recommended approval of the rezone to the City
Council; and
WHEREAS, the Settlement Application is identical to the original
application and the administrative record is the same, and therefore the Hearing
Examiner's recommendation remains unchanged; and
WHEREAS, on March 10, 2009, the City Council held a closed record
hearing, duly noticed, to consider the Settlement Application and the administrative record;
and
WHEREAS, the proposed rezone is not detrimental to the health, safety, and
welfare of the community and is both consistent with and in harmony with the general
purposes of the Land Use Regulatory Code, Growth Management Act, and Comprehensive
Plan; and
WHEREAS, being fully advised, the Council finds and concludes as follows:
FINDINGS AND CONCLUSIONS
The Council adopts the Hearing Examiner's findings and conclusions as set forth in
the "Findings Conclusions, and Recommendation" for the Kevin Decker Rezone No. R-1172,
(Attached as Exhibit A) as its own, and the same are incorporated by reference; now,
therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON,
DO ORDAIN AS FOLLOWS:
SECTION i. Based upon the administrative record, recommendations of city staff
and the Hearing Examiner, and the findings and conclusions contained herein, the
Settlement Application for a rezone of the Property is approved and the City of Port Orchard
Ordinance No. oo6-o9
Page 3 of 12
Zoning Map, is hereby amended by changing the zoning designation for the Property at 215
Poplar Street, Port Orchard, to -wit: Parcel Number 352401-3-o86-2007, from Residential
4.5 (R4.5) to Residential 20 (R20), subject to the following condition:
A. The fagade of the single family home on the Property shall remain unchanged in
appearance and style as long as (i) there are no changes to the facades of the
single family homes on any side of the Property, (ii) the residential character of
the neighborhood is substantially unchanged, or (iii) ten years, whichever comes
first. The intent of this condition is to ensure that even though the Property may
be used for a commercial purpose, as allowed under the applicable zoning
provision, the character of the neighborhood will not be changed as a result of
the approval of this rezone request. This condition shall be binding upon future
owners of the Property.
SECTION 2. This ordinance shall be in full force and effect five (5) days after
posting and publication as required by law. A summary of this Ordinance maybe published
in lieu of the entire ordinance, as authorized by State Law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor
and attested by the Clerk in authentication of such passage this loth day of March 2009.
ATTEST:
&4 ) �J_I -
Patricia J. ' pa ick, City Clerk
APPROVED AS TO FORM:
u
Gregory AJJby, 4Attorney
Sponsored by:
Fred in, Councilmember
Ordinance No. 006-09
Page 4 of 12
BEFORE THE HEARING EXAMINER
FOR THE CITY OF PORT ORCHARD
In the Matter of the Application of )
Kevin Decker )
For Approval of a Rezone 1
No. R-1172
Poplar Heights
Birth & Wellness Center
FINDINGS, CONCLUSIONS,
AND RECOMMENDATION
SUMMARY OF RECOMMENDATION
The Hearing Examiner recommends that the request for a rezone from Residential 4.5 to
Residential 20 for property located at 215 Poplar Street, in Port Orchard, Washington, be
APPROVED, with one condition.
SUMMARY OF RECORD
Request:
Kevin Decker requests a rezone from Residential 4.5 to Residential 20 in order to locate a birth
and wellness center on the site. The property subject to the request is located at 215 Poplar
Street, in Port Orchard, Washington.
Hearing Date:
The Hearing Examiner held an open record hearing on the request on September 18, 2008,
Testimony:
The following individuals presented testimony under oath at the open record hearing:
Tom Bonsell, 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
City of Port Orchard Hearing fixaminer
Poplar Heights Birth & Wellness Center, No, R-1172
Page I of
Ordinance No. 006-09
Page 5 of 12
Exhibits:
The following exhibits were admitted into the record:
1. Pre -application meeting letter, dated March 28, 2008
2. Application packet, received August 1, 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 application
H. Report on Low Impact Development Technologies
I. Permeable Interlocking Concrete Pavement guide
3. Kitsap County Parcel Map and Property Report, dated August 4, 2008
4. Email from Tom Bonsell, Associate Planner, to Kevin, sent August 4, 2008
5. Application Transmittal letter request for review, dated August 4, 2008
6. Letter of Completeness and Detennination of Completeness, issued August 5, 2008
7. Notice of application/SEPA comment period with 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 applicationtSEPA comment period with affidavit of mailing to complete list of
neighboring property owners and posting (second mailing and posting due to incomplete
list submitted with application), dated August 13, 2008
10. Affidavit of Publication of Notice of Application and SEPA Comment period, dated
August 13, 2008
11. Comments from Assistant City Engineer Andrea Archer, received August 26, 2008
12. Comments from Loren & Karen T. Olsen, received August 27, 2008
13. Mitigated Determination of Nousignificance (MDNS), issued August 28, 2008
14. Notice of Public Hearing with affidavit of publication, dated September 6, 2008
15. E-mails between Kevin Decker and Tom Bonsell
16. Site maps for Poplar Heights Birth & Wellness Center (2 sheets), 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 September 18, 2008
19.13. Letter from Jennifer Baxter, received September 18, 2008
20. Poplar Heights Child Birth Center narrative, received September 18, 2008
The Hearing Examiner enters the following Findings and Conclusions based upon the testimony
and exhibits admitted at the open record hearing:
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-1172
Page 2 of 9
Ordinance No. 006-09
Page 6 of 12
FINDINGS
Kevin Decker (Applicant) requests 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 subject to
the request is located at 215 Poplar Street, in Port Orchard, Washington.[ Exhibit 2.A.;
Exhibit 2.B; Exhibit 18, Staff Report, 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 13, 2008. Exhibit 9. On August 13, 2008, the City published notice of the
application in the Port Orchard Independent. 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
rezone, as required by the State Environmental Policy Act (SEPA). The City determined
that, with conditions, the proposed rezone would not have a probable significant adverse
impact on the environment, and issued a Mitigated Determination of Nonsignifrcance
(MDNS) on August 29, 2008.2 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 hours of 7:00 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 issued the MDNS pursuant to all 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 10; Exhibit 13; Exhibit 18, Staff Report, pages 1 and 5.
The subject property is identified by tar parcel number 352401-3.086.2007. Exhibit 2.B; Exhibit 18, Staff Report,
page 1. A legal description is included with the rezone application. Exhibit 2.B.
'The MDNS was signed by lames Weaver, City Planning Director and SEPA Responsible Official, on August 28,
2008, The staff report states that the MDNS was issued August 28, 2008; however, the MDNS states that it is issued
"August 29, 2008." Exhibit 13; Exhibit 18, Staff Report, pages I and 5.
r The Washington Administrative Code provides for an optional Determination of Nonsignificance (DNS) process,
which is an integrated project review process and comment period to obtain comments on the notice of application
and the likely DNS threshold determination for the proposal. WAC 197-I1-355.
Findings, Conclusions, and Recommendation
City of Pori Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-1172
Page 3 of 9
Ordinance No. 006-09
Page 7 of 12
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 Plan
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 Density Residential (MDR). The subject property is
currently developed with a single-family residence. Exhibit 2.A; Exhibit 18, Staff Report,
page 1.
5. The R4.5 zone allows for development at a density of up to 4.5 dwelling units per 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,
Staff Report, 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
density housing types, and allowing only such accessory and complementary
nonresidential uses as are compatible with multiple family residential communities.
POMC 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 been
developed for commercial, business, employment, public facility, or other nonresidential
but higher intensity activities, while offering greenbelt, recreation, pedestrian, and transit
services most supportive of higher density living arrangements. POMC 16.13.140(3).
The R20 zone mandates a minimum lots size of 2,178 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. POW 16.40.025 Table 9. The proposed birthing center, classified as
° Net usable site area is defined as "the total site area less sensitive environmental features (equal to gross useable
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 & Wellness Center, No. R-1172
Page 4 of 9
Ordinance No. 006-09
Page 8 of 12
"office/patient clinic" is a permitted use in the R20 zone. POMC 16.30.050, Table 2;
Exhibit 18, Staff Report, page 5.
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 rezone of the area to R20. Mr. Bonsell explained that the rezone
request is a non -project rezone, and that the specific development proposal will be
reviewed separately with the building permit and certificate of occupancy review.
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 birth center "are compatible with high
density residential uses and will make services more convenient to residents of the R-20
zone." Exhibit 18, Staff 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 rezone request. The Olsens expressed
concern that the proposed use could create traffic issues, increased stormwater 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 birth center. Mark
Dorsey, City Public Works Director, testified 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; Testimony of Mr.
Dorsey.
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-1172
Page 5 oJ'9
Ordinance No. 006-09
Page 9 of 12
11. The City also received two letters supporting the proposed birth center and rezone
request, submitted at the open record hearing on September 18, 2008. In addition,
members of the public testified to support the requested rezone and proposed birth center.
Louise Wales testified that there is currently a shortage of places to birth babies within a
reasonable distance from Port Orchard. Cammy Mills testified that expectant mothers
must now travel to Tacoma, a trip of 30 to 60 minutes, 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.
Exhibit 19.A; Exhibit 19.11; Testimony of Ms. Wales; Testimony of Ms. Mills; Testimony
oj'Dr. Pettigrew; Testimony of Ms. Kraetsch; Testimony of Ms. Gainsbrugh.
12. Poplar Street provides the sole access to the property. According to the SEPA checklist,
public transit is available within a few minutes walk from the site. The property is
currently served by electricity, water, natural gas, garbage service, and sanitary sewer
service. Exhibit 2. F; Exhibit 8.
CONCLUSIONS
Jurisdiction
The City of Port Orchard Hearing Examiner has jurisdiction to hold an open record hearing on
rezone applications that are not part of the Comprehensive Plan Amendment process. Based on
the evidence 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 2.76100; POMC 2.76.110; POMC 16.01. 021(3).s
Criteria for Review
The City Council may approve, approve with modifications, or deny an application for a
reclassification of property if:
(1) The reclassification is substantially 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 zone classification or because the proposed
zoning classification is appropriate for reasonable development of the subject property; and
(3) The subject 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 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
s On December 19, 2007, the Port Orchard City Council passed and the Port Orchard Mayor signed City Ordinance
No. 047-07, repealing POMC 2.20.040 in its entirety and adding a new POMC Chapter 2.76 (Hearing Examiner).
City Ordinance No. 047-07. POMC Chapter 2.76 has not yet been codified and is not currently available on the City
website.
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-1172
Page 6 of 9
Ordinance No. 006-09
Page 10 of 12
(7) The reclassification complies with all other applicable criteria and standards of the Port
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
substantially changed since 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
associated development implement policies contained in the comprehensive plan. Bjarnson v,
Kitsap County, 78 Wn. App. 840 (Div. I, 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
The rezone is substantially related to the public health, safety, or welfare. The City
Council 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
appropriate 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 issued a Mitigated Determination ofNonsignificance (MDNS) 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 I — 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 with the
property's HDR designation. Findings 4 — 8.
3. The subject property is suitable for development. The property is currently developed
with a single-family residence. The property has access to Poplar Street, and is served by
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-1172
Page 7 of 9
Ordinance No. 006-09
Page 11 of 12
electricity, natural gas, garbage service, 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 materially detrimental to or incompatible
with uses and properties in the immediate vicinity. The requested rezone 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
analyzed 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 issued a Mitigated Determination of Nonsignificance
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 requirements, during the building permit and certificate of occupancy reviews.
Approval of the rezone request would ensure that the 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
Density 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 stormwater runoff standards. Findings 4 —12.
Discussion
This rezone application is reviewed under the recently approved Hearing Examiner process in
the City of Port Orchard. The Hearing Examiner 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 Comprehensive Plan amendment, with potentially multiple hearings
Findings, Conclusions, and Recommendation
City of Port Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-1172
Page 8 of 9
Ordinance No, 006-09
Page 12 of 12
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 of Washington (RCW) 35, 63.130; RC W
36.70B.050(2); Port Orchard Municipal Code (POMC) 16 01.02](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
defined 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 Council does not allow for the submittal
of new evidence or testimony. See POMC 16.08.138. If the City Council determines that no
mistake has been committed by the Hearing Examiner, the City Council would likely approve
the Hearing Examiner's recommendation. If the Council amends or rejects the findings 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
detennine specifically how it fails to provide support. Conclusions should only be modified or
rejected if the reference in support of the conclusion fails to provide substantial evidence in
support of the conclusion.
When reviewing a rezone application, the Hearing Examiner 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
this time for the Hearing Examiner to impose conditions governing site development as
conditions of rezone approval. Development -related conditions are more appropriately proposed
and considered during site development permit review.
RECOMMENDATION
Based on the above findings and conclusions, the Hearing Examiner recommends that the
request for a rezone from Residential 4.5 to Residential 20 for property located at 215 Poplar
Street, in Port Orchard, Washington, be APPROVED, with the recognition that business uses for
the site must comply with the SEPA Mitigated Detennination of Nonsignificance issued August
29, 2008 (Exhibit 13).
.t-v�
Recommended this I d day of September 2008.
THEODORE PAUL HUNTER
Hearing Examiner
Findings, Conclusions, and Recanmendation
City gjPort Orchard Hearing Examiner
Poplar Heights Birth & Wellness Center, No. R-1172
Page 9 of 9
NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular
Council meeting held March 10, 2009.
ORDINANCE NO. oo6-og
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON, AMENDING 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 (R2o).
Copies of Ordinance No. 006-09 are available for review at the office of the City Clerk of the City of Port
Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any
interested person without charge. Thirty days after publication, copies of Ordinance No. 006-09 will be
provided at a nominal charge.
City of Port Orchard
Patti Kirkpatrick
City Clerk
Publish: Port Orchard Independent
March 20, 2009