06/28/2004 - Regular - MinutesPRESENT:
KIM E. ABEL, MAYOR
COUNCILMEMBERS:
John Clauson
Todd Cramer
Robert Geiger
Rita Diienno
Carolyn Powers
Ron Rider
City of Port Orchard
Council Meeting Minutes
Regular Meeting of June 28, 2004
Rick Wyatt, Mayor Protem
ALSO PRESENT: Public Works Director/City Engineer Curies, City Clerk Etgen, Police
Chief Townsend, and City Attorney Jacoby.
6:30 P.M. CALL TO ORDER
Officer Bob McFann led the audience and Council in the Pledge of Allegiance.
APPROVAL OF AGENDA
Council Member Wyatt moved and Council Member Clauson seconded a
motion to move Consent Item No. I, Authorize the Mayor to Sign
Employment Contract with Chief of Police and Item No. F, Approval of
Council Member Powers' Absence at Council Meetings -July 12, 2004, and
November 22, 2004, to Business. Motion carried.
Council Member Clauson moved and Council Member Wyatt seconded a
motion to add an executive session regarding personnel matters to the end
of the agenda, and to add the Approval of Off-Site Archaeological Recovery
Costs to Business. Motion carried.
Council Member Geiger moved and Council Member Clauson seconded a
motion to move Consent Item No. B, Adoption of Building and Fire Codes, to
Business. Motion carried.
Council Member Diienno moved and Council Member Wyatt seconded a
motion to approve the agenda as modified. Motion carried.
AUDIENCE COMMENTS FOR ITEMS NOT LISTED ON AGENDA
Robert MacFann, City of Port Orchard Police Officer, reported to Council that the entire
department gives their full support and vote of confidence to Chief Alan Townsend. He
stated the Chief's time in office has brought about tremendous growth and positive
changes for the department.
Minutes of June 28, 2004
Page 2 of 11
PUBLIC HEARINGS
A. Rezone Request -West Side of the Intersection of South Flower Street
and Fireweed Street-Leora Park Subdivision (Continued from Meeting of
June 14, 2004)
Council Member Wyatt moved and Council Member Diienno seconded a
motion to move continue this public hearing to the meeting of July 12, 2004
in order for the additional information Council has requested to be made
available. Motion carried.
B. Petition to Vacate a Portion of Seattle Avenue-Gil & Kathy Michael
Assistant City Attorney Greg Jacoby reminded Council of the Quasi-Judicial nature of
the public hearing.
Terrie DeGarmo and Marge Gisberg, citizens, questioned Council Member Rider's ability
to be impartial due to the fact that he is a neighbor of the Michael's. Council Member
Rider stated he could be impartial and that he would stay at the hearing.
Public Works Director/City Engineer Curies referred to two reports for Council review,
both dated June 28, 2004. One report addressed public rights of way and the other
addressed the Seattle Street Vacation request, describing the property and providing
pictures of the area.
Mayor Abel opened the public hearing at 6:47 p.m.
James Tracey, a Land-Use Attorney from Poulsbo representing the applicants, stated
the piece of property the Michaels are requesting be vacated is a 120 by 60 foot piece
of property, with the Michaels owning property on both sides of the parcel. Mr. Tracey
stated he agreed with the City Attorney's request to rescind an earlier decision to
vacate the property because of a question of whether Revised Code of Washington
(RCW) 35.79.035 applied to the this piece of property.
Kathy Michael, 228 Seattle Avenue, stated they have a log building on property that
was constructed over 90 years ago. This historic building sits partially on their property
and partially on city right-of-way. They would like to protect the building and make
sure it remains there as long as it can. When the Michaels bought the property, they
made the assumption it was on their property and have since learned it is not. They
would also like to maintain the natural greenbelt that has existed for well over 114
years. Additionally, their driveway comes across the easement, and this vacation would
bring them into compliance with city code.
Ms. Michael stated she researched the issue of whether there had been a trail located
on the right-of-way, and a Mr. Jack Grable, who lived in the area for a long time, told
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Page 3 of 11
her there was a trail that came up the ravine and into "Mrs. Triplett's" property, that
the kids would run up and down. Ms. Michael commented that the trees in the
pathway were cut down to keep people from cutting across her property.
Ms. Michael introduced a letter dated June 22, 2004, from M.R. Armstrong stating,
"Some thirty years ago, back in 1974, I purchased a lot in Port Orchard at a tax title
auction. This small lot, Tax Parcel 4053-010-001-0006, which is located between Bay
Street and Kitsap Street, was bought sight unseen. Therefore, just as soon as the
auction was finished, I went directly to the lot to see what I now owned. I traversed
the entire lot as well as the adjoining unimproved street right-of-way at the end of
Seattle Avenue; at no time did I observe any vestige of a public trail or pathway of any
kind. Furthermore, at no time since then has any person or agency contacted me
regarding the establishment or maintenance of a trail or pathway on this property or
the adjacent right-of-way."
Mr. Tracey asked the Council to look at the history of the statute and how it has been
interpreted. He noted that a finding that the property must provide port or beach
(water) access for boating, parks, recreation or educational purposes, or have a public
view. This property, he stated, does not allow for the launching of boats or moorage
or allow for the development of property on the hillside. He stated no opponents in
previous hearings gave such testimony, and that the descriptive words are generic in
nature.
Mr. Tracey reported that the statute does not have "abutting saltwater" in the text, and
quoted RCW 35.79.035, "A city or town shall not vacate a street or alley if any portion
of the street or alley abuts a body of fresh or salt water unless:
(a) The vacation is sought to enable the city or town to acquire the property for port
purposes, beach or water access purposes, boat moorage or launching sites, park,
public view, recreation, or educational purposes, or other public uses ... " Mr. Tracey
noted that the court case of DeWeese vs. Port Townsend, a Court of Appeals,
December of 1984 case concluded that property owners who do not abut the land to
be vacated do not have their access destroyed, that they have no vested rights in the
vacation, and further that absurd results occur when attempting to apply the statute to
situations remote from the water which do not materially impact the public's access to
water. They offered the opinion that they do not believe the Legislature intended that
portions of a street distant from its water abutment be subject to the proviso.
Mr. Tracey pointed out that the Port Orchard City Council had dealt with this type of
issue before when vacating a parcel of road end on the water on Bay Street in 1994.
He stated Council made findings as required by statute that the parcel did not meet the
criteria to disallow the street vacation.
Mr. Tracey disagreed with the City Engineer's application of the park and viewpoint
criteria and recommendation based on generic application of the facts that had no
material impact on anyone's ability to access the water. He stated it would be to the
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city's benefit to vacate the property, put it back on the tax rolls and limit liability from
anyone using the property in its current state.
Terrie DeGarmo, 923 Kitsap Street, presented a conceptual rendering of the property
as a potential park, along with photographs of other areas and Port Townsend where
this type of development has taken place. She described the rendering and how the
area could accommodate views and parking to provide public access to the waterfront.
Ms. DeGarmo stated there was community support to develop the park, including the
Office of Juvenile Rehabilitation who had indicated such a project would provide
community service opportunities for their clients. Ms. DeGarmo noted that the
proposed design would eliminate pedestrians near the Michael's residence.
Ms. DeGarmo suggested the City lease the property to the Michaels at the upper
section of the property for their use with a path or gate marked that it was not to be
used for public access. She stated this parcel of land and trees should remain public
property.
Melody Sapp, 931 Kitsap Street, testified that before the Michaels lived in their current
home there was only pedestrian access over the public easement. Ms. Sapp remarked
she spoke with Ms. Helfig, a resident of 218 Seattle Avenue, who lives north of the
Michael's property, who could not attend the public hearing because of a recent
hospital stay. Ms. Helfig wanted Ms. Sapp to report that Ms. Helfig had been a resident
for over 50 years and that she remembers an excellent trail connected to the edge of
her property and that there was a steady stream of people traveling back and forth
from Bay to Kitsap and that the trail continued to be in excellent shape until the
Nordbys and MacOvers passed away. Ms. Helfig reminded Ms. Sapp of the City
Council's promise of formal access to Bay Street when Nordby's Garage moved.
Ms. Sapp stated the Mosquito Fleet Trail Plan to connect Kingston to Southworth would
fit in with public access to the area in question with its bicycle trails and pedestrian
walkways, benches and rest areas. She noted this is would be an excellent location for
birdwatchers, which has been a big tourist attraction. A secondary pathway would take
people down Bay Street past City Hall and down Rockwell, and a path up to the park
would tie in well with the proposal. She encouraged Council to consider the public's
future needs when making a decision.
Phil Havers, an attorney representing a group of concerned citizens stated the law is
clear that if the Council finds that the area being considered for vacation can be used
as a park or viewing area that the vacation cannot be allowed. He agreed with Mr.
Tracey in that a proposed street vacation six miles away from the water did not appear
to have any relevance to the issue, but that this property is a couple of blocks from the
water. He stated Ms. DeGarmo's proposal would provide access to the water with the
park and pathway. Mr. Havers referred to the report from the Public Works Director
which stated the parcel did have the potential for a pocket park with a bench in the
wooded area, and that the view of water and mountains would simply require trimming
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of trees, and that a pathway would provide access to the water. He reminded Council
that once the property was vacated, the potential for public use of the property was
eliminated.
In response to a question by Council Member Diienno, Mr. Havers stated "suitability"
has the same impact of "potential" when referring to future implications.
Reed Miller of Warren C. Miller and Associates referred to the court case of Banchero
vs. the City of Seattle, stating that the key words referring to the abutment of a street
in the street vacation process are "touching or at one end." He stated Seattle Street
north of Bay Street abuts Puget Sound, but that it also abuts Bay Street, ending the
waterfront portion of Seattle Street. Mr. Miller indicated the Banchero court case found
that Mr. Banchero had no interest in a property being vacated on the other side of the
intersection from him, and he was barred from bringing his petition forward.
Charles Harris, 319 Seattle Street, read a note from his wife who was unable to attend
the hearing. The note stated that his wife had lived in Port Orchard for 58 years, and
she lived in the third house on Seattle Avenue with her parents and that her best friend
lived up above her, and that they used a trail that ran along the west side of the
property in question almost every day to meet. Mr. Harris who is 74 years old, stated
he walked the trail, which is steep and covered with plants in 20 minutes. In answer to
a question by Council Member Diienno, Mr. Harris stated he did not pass around the
top of the historic log building when climbing.
Bruce Quaintance, a Boys Scout Scoutmaster stated they recently completed an Eagle
Scout project on Coles Lane that runs behind the Buffalo Burger business on Bay
Street, and that their scouts are always looking for projects. He made reference to
other projects their group has completed in the community and encouraged the Council
to keep the land for public use.
Pat Drew of Bay Street stated the hillside in question could be made into a walking
path by using a switchback pattern, and that most of it is not steep. She stated she
had walked up the "valley" of the hillside.
Mayor Abel closed the public hearing to further public testimony at 7:33 p.m.
Council Member Clauson stated he was impressed by the quality of the view from the
top of the property in question, and felt it had potential for public use as view property,
with the possible acquisition of some public property and construction of stairs for trail
access. Because of this potential for public use, he felt the City could not vacate the
property under State statute.
Council Member Geiger stated Council has always been careful and taken potential
public use into consideration when making street vacations decisions in the past.
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Council recessed at 7:43 p.m. in order to look at previous decisions regarding street
vacations made by Council in the past -specifically Ordinance 1603 and Resolution
1600, along with minutes from the March 28, 1994 Council meeting.
Council reconvened at 7:54p.m.
Council Member Dilen no moved and Council Member Wyatt seconded a motion
to reopen the public hearing to accept further public testimony. Motion
carried.
Mr. Tracey noted that although the park proposal was a nice concept, it would land
lock two parcels, requiring a street vacation on Prospect Street. He noted that the
Michaels were willing to agree to a utility easement on the parcel.
Gil Michael, applicant, presented and discussed a diagram showing the topography and
slope of the piece of property under consideration. Mr. Michael pointed out that some
of the property individuals had traversed when climbing the hill had been his private
property. Mr. Michael stated that part of the reason they are requesting the vacation is
to protect the building on the property. He stated the building in question is a gazebo
and fireplace that is approximately 10 by 12 feet, with approximately 9 feet of the
building being in the City's right of way.
Phil Havers introduced a memorandum from 1991 from the City of Port Orchard Public
Works Department to the Street Committee regarding the request for the vacation of a
portion of Seattle Avenue, wherein the City Engineer advised the Street Committee that
the Council could not consider the street vacation because the property terminated in
Sinclair Outlet. Mr. Havers noted that the building currently existing partially in the
right-of-way could be donated to the City to provide historical preservation for it.
The Mayor closed the public hearing at 8:13 p.m. to further public testimony.
Council Member Clauson stated it appeared that in 1994 property was vacated in order
to exchange property to provide better access to property for the public, consistent
with State statute requirements in acquiring property for park and viewing purposes.
Council Member Dilenno moved and Council Member Cramer seconded a
motion to approve the street vacation.
Council Member Diienno pointed out that the City Engineer had prepared two
conflicting reports for Council, one stating that the property was suitable for public view
property, and the other stating it was not. She stated that the City Engineer had
pointed out that there was potential to use the property for a pocket park, but did not
indicate it was necessarily suitable for that use. Council Member Diienno stated that
there was always potential for almost anything, but it did not mean that the
circumstances were suitable.
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Council Member Diienno stated the funds from the street vacation in 1994 for Mitchell
Point improvements still have not been used. She also pointed out that the property
vacated in 1994 could have been used for boat moorage.
Council Member Cramer agreed with Council Member Diienno and stated he does not
feel this property represents an area that can be used as a public site for viewing.
Council Member Powers questioned whether this piece of property had been considered
in discussions about downtown revitalization. She stated that it appears there is
potential for this piece of property to be used publicly. Council Member Powers told of
a recent trip to Tacoma and of walking up a stairway that was quite impressive that
came to her mind when thinking of the potential for this piece of property. She urged
Council to consider denying the street vacation, especially when there were civic
organizations in the community who were willing to consider donating time for a
project to enhance the property.
Council Member Wyatt stated it was clear to him when visiting the site in question that
the public notice sign had been placed on private property rather than the property
under consideration for vacation. He stated it was clear to him that the site is unusable
as an area for public use. He also pointed out that Bay Street has approximately
20,000 cars a day traveling down it, which would make access to the bay very difficult.
He stated he supported the street vacation request.
Council Member Rider stated he visited the site in question and that a retaining wall
would be needed if a trail was developed on the property because of the steep terrain,
and that he felt it would be an extensive job to make the property accessible to the
public. He added that because of the Michael's intent to keep the property as a
greenbelt, he was comfortable with granting the vacation request.
Council Member Geiger stated the property that had been traded in 1994 involved
tideland property between two homes built on pilings that made the property unusable.
He also stated that when the City of Port Orchard was plated, all streets lead to the
water, but over the years Bay Street extended and crossed the streets, but that the
streets still lead to the water. Council Member Geiger emphasized the intent of the
comprehensive plan to keep such corridors and greenbelts open for wildlife and people,
noting that this parcel fits with that intent. He noted that most of the funds from the
previous vacation had gone to landscaping City Hall. Council Member Geiger declared
his belief that a land swap would possibly allow for development of this piece of
property into a space the public could use. He stated access to water is valuable, and
he urged Council to not vacate the property.
Council Member Diienno reminded Council of the public access already in the area at
Cole Lane. She noted that there would be significant damage done to the greenway if
a trail or park were to be developed in the area under consideration. Council Member
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Page 8 of 11
Clauson disagreed, stating it would only take minor tree trimming in the area to create
public access, and that giving this property away would be a shortsighted decision.
Council Member Clauson moved and Council Member Geiger seconded a
motion to negotiate a trade by the Michaels for the parcel under
consideration. Upon vote, motion failed with Council Members Geiger,
Clauson and Powers casting votes in favor of the motion.
Upon vote, the oriainal motion to approve the street vacation passed, with
Council Members Geiger, Clauson and Powers casting dissenting votes.
Council Member Powers moved and Council Member Rider seconded a motion
for Council to immediately consider the Business Item pertaining to the
Adoption of Building and Fire Codes. Motion carried.
BUSINESS ITEM
Adoption of Building and Fire Codes (Continued from Meeting of June 14,
2004)
Council Member Geiger moved and Council Member Diienno seconded a
motion to pass Ordinance No. 1945 to adopt the 2003 International Building
Code, and Ordinance No. 1946 to adopt the 2003 International Fire Code.
Motion carried.
CONSENT AGENDA
A. Adoption of Resolution Declaring Surplus Property-1986 Buick
B. Ado13tioA of BuildiAg aAd Fire Codes (CoAtiAued froFA P4eetiAg of JuAe 11,
2001) (Moved to Business Item Prior to Consent)
C. Approval of Minutes of the June 14, 2004 City Council Meeting
D. Approval of Claim Warrants Nos. 41505-41567 in the Amount of
$442,643.64
E. Approval of Application for Public Event -Concerts by the Bay
F. A1313roval of CouAcil P4eFAber Powers' AbseAce at CouAcil P4eetiAgs July
12, 2001, aAd NoveFAber 22, 2001 (Moved to Business Item E)
G. Approval of Final Change Order to Bay Street/Frederick Avenue
Intersection Improvement
H. Approval of Supplement 1 of the Consultant Contract for the Bay Street
Pedestrian Path
I. Authorize the P4ayor to SigA EITIJ3IOyffieAt CoAtract witl9 Chief of Police
(EtgeA) (Moved to Business Item F)
J. Authorize the Mayor to Sign the Modified Cost Reimbursement Program
Agreement
K. Authorize the Mayor to Sign the Modified McCormick Intertie Water
Agreement with the City of Bremerton
L. Approval of Ordinance 1947 Amending 2004 Budget
Minutes of June 28, 2004
Page 9 of 11
Council Member Rider moved and Council Member Diienno seconded a
motion to approve the consent agenda as amended. Motion carried.
BUSINESS ITEMS
A. Discussion and Council Approval of the South Kitsap UGA Sub-Area
Planning Interlocal Agreement -(Continued from Meeting of June 14,
2004}
Council reviewed a revised version of the draft South Kitsap UGA Sub-Area Planning
Interlocal Agreement (ILA). Mayor Abel noted that the County's Department of
Community Development (DCD) staff had incorporated changes as requested by Council
into the revision; the two-third/one-third language had been deleted, a specific
contribution amount with a "not to exceed" clause is included, along with a note that
fourth quarter negotiations will be used determine 2005's contribution.
Council Member Clauson moved and Council Member Powers seconded a
motion to authorize the Mayor to sign the Interlocal Agreement with Kitsap
County regarding cost sharing for the Joint Sub-Area Planning Process for
development of the South Kitsap/Port Orchard Urban Growth Area.
Motion to Continue Council Meeting Past Scheduled Ending Time:
Council Member Diienno moved and Council Member Powers seconded a
motion to continue the meeting through the conclusion of the business
items. Motion carried with Council Member Clauson casting a dissentin9
vote.
Council Member Geiger moved and Council Member Powers seconded a
motion to amend the motion to change Item IV C. to read that for FY 2005
the City would contribute no more than $60,000 at the conclusion of the
project, however, the City's contribution would not exceed the portion of the
percentage paid towards the project in FY 2004. Upon vote, motion failed,
with Council Members Powers and Geiger casting assenting votes.
Council Member Clauson moved and Council Member Powers seconded a
motion to allow the Mayor to speak regarding this issue. Motion carried.
Mayor Abel reported she had a conversation with Commissioner Angel wherein
Commissioner Angel had expressed a concern about the County's ability to continue to
keep the South Kitsap UGA Planning Process a top priority if an agreement could not be
reached in the near future, and that the likelihood of being able to complete the project
in 2005 lessened greatly as time went by.
Upon vote, motion carried, with Council Members Diienno, Wyatt and Cramer
casting dissenting votes.
Minutes of June 28, 2004
Page 10 of 11
B. Passage of Ordinance Establishing Criteria for Department Head
Recruitment and Selection Process; and
C. Passage of Ordinance No. 1940 Establishing a Planning Department and
the Position of Planning Director (Continued from Meeting of June 14,
2004)
Council Member Diienno stated that if Council rejected the motion on the floor from the
meeting of June 14, 2004, that she would present an alternative motion.
The motion from the meeting of June 14, 2004, was: Council Member Dilenno
moved and Council Member Wyatt seconded a motion to pass Ordinance No. 1940
adding a new Chapter 2.19 to the Port Orchard Municipal Code establishing a City
Planning Department. Upon vote, motion failed.
Council Member Dilenno moved and Council Member Wyatt seconded a
motion to add the title of City Planner to Section 2.080.10 that currently
addresses the hiring procedures for other department heads. Motion carried.
D. Council Committee Appointments
Council Member Wyatt moved and Council Member Cramer seconded a
motion to adopt the Council Committee Appointment chart as presented.
Council Member Powers moved and Council Member Geiger seconded a motion
to amend the motion to change the Council Committee Appointment chart by
moving Council Member Geiger out of the Safety Committee and onto the
Economic Development Committee, and to move Council Member Powers
from the Economic Development Committee onto the Safety Committee.
Motion carried with Council Member Cramer casting a dissenting vote.
Council Member Clauson moved to amend the motion to change the
appointment to Council Committees by lottery rather than using the chart
method. Motion failed with Council Members Geiger and Clauson casting the
affirmative votes.
Upon voting on the main motion as amended, motion carried with Council
Members Powers and Clauson casting dissenting votes.
The Council Committee Membership as adopted by Council is as follows:
Economic Development Committee: Cramer (Chair), Geiger, Diienno
Growth Management Committee: Geiger (Chair), Powers, Rider
Finance Committee: Clauson (Chair), Wyatt, Diienno
Public Safety Committee: Wyatt (Chair), Powers, Cramer
Public Property Committee: Powers (Chair), Geiger, Clauson
Minutes of June 28, 2004
Page 11 of 11
Utilities Committee: Rider (Chair), Clauson, Cramer
Streets Committee: Diienno (Chair), Wyatt, Rider
Lodging Tax Advisory Committee: Diienno
E. Approval of Council Member Powers' Absence at Council Meetings -July
12, 2004, and November 22, 2004
Council Member Wyatt moved and Council Member Clauson seconded a
motion to approve Council Member Powers' request to be excused from the
meetings of July 12, 2004 and November 22, 2004. Motion carried.
EXECUTIVE SESSION
Council went into executive session at 10:41 p.m. to discuss a personnel matter, and
convened back into regular session at 11:26 p.m.
BUSINESS ITEMS (continued)
F. Authorize the Mayor to Sign Employment Contract with Chief of Police
Council pulled this item off the agenda.
G. Off-Site Archaeological Recovery Costs
Council Member Clauson moved and Council Member Powers seconded a
motion to authorize the off-site archaeological recovery efforts for the
expansion of the Waste Water Treatment Facility. Motion carried.
ADJOURNMENT
The meeting was adjourned at 11:29 p.m.
Kim E. Abel, Mayor