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05/10/2004 - Regular - MinutesPRESENT: KIM E. ABEL, MAYOR COUNCILMEMBERS: John Clauson Todd Cramer Robert Geiger Rita Diienno Carolyn Powers -excused Ron Rider Rick Wyatt, Mayor Protem CITY OF PORT ORCHARD City Council Minutes CITY HALL • 216 Prospect Street, Port Orchard, W A 98366 (360) 876-4407 • FAX (360) 895-9029 May 10,2004 ALSO PRESENT: City Planner Wen man, City Engineer Curies, City Treasurer Tompkins, Police Chief Townsend, City Clerk Etgen, and City Attorney Combs. 6:30 p.m. CALL TO ORDER Police Chief Townsend led the audience and Council in the Pledge of Allegiance. PRESENTATIONS Sgt. Randy Drake, Regarding WESTNET and Drug Activity in Port Orchard and South Kitsap Sgt Drake, member of the Washington State Patrol, presented a brief overview of the sale and distribution of Methamphetamines in Kitsap County. Sgt. Drake advised at the end of 2004 the City's WestNet grant would end. Sgt. Drake further commented, the WestNet Board has drafted a Memorandum of Understand to help jurisdictions pay overtime costs for the WestNet detective. Sgt. Drake stated the Memorandum of Understanding is currently on the City's Consent Agenda for Council's consideration at this meeting. Councilmember Geiger moved and Councilmember Wyatt seconded a motion to excuse Council member Powers from this Council meeting. Proclamation Recognizing May 15, 2004 as Peace Officers' Memorial Day Mayor Abel read a proclamation recognizing May 15, 2004 as Peace Officers' Memorial Day. APPROVAL OF AGENDA Councilmember Wyatt moved and Councilmember Clauson seconded a motion to approve the Agenda with the following revisions: J>-Remove from Consent Agenda and Place on Business Items: 0 68. o 6F. Minutes of April 26, 2004 City Council Meeting May 10, 2004 Page 2 of 9 Approval for the Mayor and Police Chief to Sign the MOA with WestNet Regarding Overtime o 6G. Approval of Change Order for Street Paving >-Add to Executive Session an addition 30 minutes to discusses Personnel Issues Motion carried unanimously. PUBLIC HEARING Street Vacation - A Portion of Seattle Avenue, as Submitted by Gilbert and Kathy Michael. City Engineer Curies presented the staff report regarding a Petition to Vacate of Portion of Seattle Avenue as submitted by Gilbert and Kathy Michael. City Engineer Curies advised the Street Committee reviewed the Petition and had no objections to the petition, and recommended that a Public Hearing be set and heard by the whole Council. At this time Mayor Abel opened the Public Hearing on the Petition to vacate a portion of Seattle Avenue, and asked for audience comments. James Tracy, Land Use Attorney, representing Mr. and Mrs. Michael, identified on a map the location of the proposed street vacation and stated that the only abutting property owners are Mr. and Mrs. Michael. Mr. Tracy also advised there are building improvements on the proposed street vacation. Mr. Tracy commented the right-of-way has never in the past been considered for street development. Mr. Tracy acknowledged other areas of concern: >-The ability of the City to maintaining an easement for the purposes of storm drainage or the possibility the City or another entity may wish to develop a trail connecting the upland portion of the property to the Bay Street level. Mr. and Mrs. Michael have agreed to allow the City to establish an easement, however they do request that the easement be placed on the east side of the proposed vacated property. >-There are limitations on the City's ability to vacate streets, which abut salt water. Mr. Tracy clarified for the Council this proposed vacation is upland and across the street from salt water, therefore an easement could still be considered and not compromise a trail to the waterfront. In conclusion Mr. Tracy advised this proposed street vacation would not be useable for boat moorage, launching sites, beach or water access, park, public view, recreation or education. City Attorney Combs advised this is not an actual Quasi-Judicial matter, however if anyone from the audience who would like to challenge a Councilmember's ability to participate in the matter due to a potential conflict of interest, was free to do so. May 10, 2004 Page 3 of 9 Pat Vemos Drew, 944 Bay Street, presented a grievance Petition regarding the proposed street vacation. Ms. Vermos Drew expressed a concern over the excessive drainage from this hill that she felt could cause potential damage to Blackjack Creek Bill Williams, 121 Seattle Avenue, advised he is not concerned with the expansion of the property, however did express a concern with excessive noise if the property were used for weddings, parties, etc. Marge Gissberg, 840 Prospect Alley, asked the following questions: 1. Has Mr. Michael reclused himself from any Planning Commission discussion on this topic, since he is the Planning Commission Chair? 2. Who made the determination on the value of the property? 3. Councilmember Rider is a member of the Council and a neighbor to the petitioner's and Ms. Gissberg questioned if he had the ability to be neutral on this issue. Melode' Sapp, 931 Kitsap Street, advised their property is 16 feet away from the proposed street vacation. Mrs. Sapp expressed a concern with having Councilmember Rider and Councilmember Geiger not excusing themselves from decision-making regarding this issue. Mrs. Sapp expressed a concern with vacating this right-of-way and stated the intersection of Seattle Avenue and Prospect alley is the only safe turnaround for public utility vehicles and police vehicles. Mrs. Sapp encouraged the Council to maintain this property as a pedestrian walking path from Kitsap Street to Bay Street. Mrs. Sapp also questioned the fair market value of the proposed street vacation. Earl Johnson, 923 Division Street, spoke in opposition to the proposed Street Vacation and asked that the City maintain these properties for future uses. Council member Rider advised he does not have any vested interest in the decision concerning this proposed Street Vacation and assured the audience and Council he could make an unbiased decision on this matter. James Tracey, representing applicant presented the following rebuttal: > Mr. and Mrs. Michael obtained a certified appraisal for this property and paid the fair market value. > There are only two abutting properties to this proposed Street Vacation and they are both owned by the Michaels. > This proposed Street Vacation will not create a new lot, this will only add to the two existing lots. > At this time there is no application for a Bed and Breakfast facility for this location. > The Planning Commission does not review proposed Street Vacations. Council member Rider questioned the amount of water run-off on the property. Mr. Tracy advised granting the Street Vacation would not make any difference to the water run- off from the property. May 10, 2004 Page 4 of 9 Council member Diienno asked if the applicant would be willing to move the easement to allow for better use of the easement and further questioned the steepness of the area. Mr. Tracy advised that the City's ordinance should specify that the easement will be identified and presented to the City Council for final approval. This would allow all parties to review the actual placement of the easement. Bill Williams, 121 Seattle Avenue, clarified for Councilmember Diienno that the drop-off of the area in question is approximately the same as Rockwell and Division and slants west to east and would be a very hard climb. Marge Gissberg, 840 Prospect Alley, reiterated her concerns regarding the value of the property and questioned the appraisal process. Ms. Gissberg also questioned the ability of Council member Rider's appearance of fairness and the ability to lend a bias decision. At this time Councilmember Rider removed himself from the Council table and any further discussion or action on this matter. Melode' Sapp, 931 Kitsap Street, asked if City Engineer Curies had any information on the grade of Rockwell. City Engineer Curies replied he did not know. City Engineer Curies clarified for the Council and audience the City received one appraisal on this property with 6 com parables properties. City Attorney Combs commented at this time that he was uncomfortable making a recommendation on the vacation of this property as it relates to the historical use of being a pathway to the waterfront. Attorney Combs asked to do further research on this matter. Councilmember Clauson moved and Councilmember Geiger seconded a motion to continue the public hearing to the next regular Council meeting, and that the public hearing be closed to further oral public testimony, but remain open for written comments until the next council meeting. Councilmember Diienno asked for clarification on the following issues: >-When was the last access or roadway on the right-of-way; >-Any legal opinion from the City Attorney be based on case law, specifically to any application that has a state highway running before the waterway as opposed to running into the waterway. Councilmember Diienno asked for clarification from the City Attorney regarding abstention of Council votes. At 7:52 p.m. Mayor Abel called for a 7-minute recess, with meeting reconvening at 8:03 p.m. May 10, 2004 Page 5 of 9 City Attorney Combs advised according to City ordinance all City Councilmembers must vote, unless there is a conflict of interest. As no further discussion, Mayor Abel called for the final vote on the motion to continue the public hearing to the next regular Council meeting, and that the Public Hearing be closed to further oral public testimony, but remain open for written comments until the next council meeting. Motion failed with 3 dissenting votes and 2 affirmative votes. Councilmembers Dilenno, Cramer and Wyatt cast the three dissenting votes. Councilmember Geiger moved and Councilmember Clauson seconded a motion to continue the public hearing to the next regular Council meeting to allow written and oral testimony. Motion failed with 3 dissenting votes and two affirmative votes. Councilmembers Dilenno, Cramer and Wyatt cast the three dissenting votes. At this time, Mayor Abel closed the Public Hearing to further public testimony. Councilmember Clauson spoke in support of maintaining the right of way and stated that selling the property would not be in the best interest of the City, because of the potential for public use of the property. Councilmember Dilenno moved and Councilmember Wyatt seconded a motion to approve the Petition to vacate a portion of Seattle Avenue as submitted by Gilbert and Kathy Michael, with a condition a public right-of-way be determined between the applicant and the City Engineer and brought back to the Council for final ·determination on the right-of-way with the compensation of $4,000 be distributed with a 50/50 split between the Street Fund and the Designated Unreserved Fund Balance for Parks. Before the final vote, City Attorney Combs read into records the following applicable RON: ')1 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 the City or Town by Resolution of its legislative authority declares that the street or alley is not presentiy being used as a street or alley and that the street or alley is not suitable for any of the following purposes: port; beach or water access; boat moorage; launching sites; park; public view; recreation; or education. " City Attorney Combs cautioned the Council about passing the motion as stated, because of the possibility of the easement being used as a park or other public purpose. Council member Dilenno expressed her opinion that the right-of-way abuts a state highway, park, and then the water, and that therefore this law would not be applicable. The City Attorney advised that without further research, he could not give a legal opinion or recommend the approval of this Street Vacation. Upon vote, motion passed with 3 affirmative votes and 2 dissenting votes. Councilmembers Geiger and Clauson cast the two dissenting votes. Councilmember Rider refrained from voting. CONSENT AGENDA May 10, 2004 Page 6 of 9 Councilmember Geiger moved and Councilmember Dilenno seconded a motion to approve the Consent Agenda as modified: A. Minutes of the April12, 2004 City Council meeting C. Approval of Claim Warrants 41208-41288 in the amount of $162,673.80 and April, 2004 Payroll Warrant #138180-138227 and Direct Deposit amount $306,787.45. D. F irst Reading Regarding Draft Ordinance Concerning Surplus Police Vehicles E. Adoption of Resolution No. 2063 Approval of Final Plat of Division 3, Flower Meadows Motion carried unanimously. BUSINESS ITEM Discussion Reaarding the Significant Tree Ordinance Councilmember Dilenno asked for Council's guidance on potential changes to the historical tree provision within the current zoning ordinance. Currently the City ordinance inadvertently encourages developers to tree their Jots before they develop their site. Councilmember Rider indicated he would like to see historical trees removed from the significant tree ordinance or provide new developments with incentives to keep trees standing, if possible. Councilmember Geiger suggested that only healthy evergreen trees should be considered historical, or possibly a maple tree within an aesthetically pleasing meadow and exempt alders and cottonwood type trees. The Growth Management Committee will contact other cities for input as to how they handle this issue. Authorization for the Mayor to Sign Interlocal Agreement Concerning SHB2060 Councilmember Clauson moved and Councilmember Dilenno seconded a motion to authorize the Mayor to sign the Interlocal Agreement between Kitsap County and the City of Bainbridge Island, City of Bremerton, City of Port Orchard and the City of Poulsbo concerning allocation of SHB2060 surcharge funds to very low-income housing project in Kitsap County and its incorporated cities. Councilmember Dilenno moved and Councilmember Rider seconded a motion to amend the original motion by adding a condition the Mayor would be authorized to sign the contract only if the agreement could be amended by striking the last sentence of Section 2.4 as follows: "Sheuld the statute ee amended te distFieute aelmiRistFati\fe ft.tnEis less speeifieally1 the I~RCC may Be eeRsiEiet=ed as aR appFepFiate FeeipieRt, te ee'VeF the east of pregFam meRiteFiRg and aeiR1iAistFation as EleseFibed bele'i•'." Councilmember Diienno and Councilmember Rider withdrew their motion. May 10, 2004 Page 7 of 9 There was discussion about allowing the Kitsap Regional Coordinating Committee (KRCC) to administer and monitor the program. Upon vote, motion failed with 4 dissenting votes and 2 affirmative votes. Councilmembers Wyatt, Diienno, Cramer and Rider cast the 4 dissenting votes and Councilmembers Clauson and Geiger cast the two assenting votes. Revisions to Parking Resolution Regarding 2-Hour Parking on Ada Street Councilmember Wyatt moved and Councilmember Rider seconded a motion to adopt Resolution No. 2069, amending Resolution No. 2064 and providing for a two-hour parking and no-parking zones on Ada Street. Motion carried unanimously. Approval of April 26, 2004 Council meeting Council member Dilenno moved and Councilmember Rider seconded a motion that the minutes of April 26, 2004 reflect the fact that City Attorney Jacoby told Council that the City would be obligated to pay for change orders implemented by contractors who were told by the Public Works Director that he would take the recommendation for approval of the change order to Council at the next regular meeting. Motion passed unanimously. Approval for the Mayor and Police Chief to Sign the Memorandum of Agreement with WestNet Reaarding Overtime Councilmember Dilenno moved and Councilmember Cramer seconded a motion to authorize the Mayor and Police Chief to sign the Memorandum of Understanding with WestNet for the payment by WestNet of overtime costs. Motion passed unanimously. Proposed Change Order for Street Paving Councilmember Rider expressed a concern with allocating funds to pave a 500-foot section of Mitchell Avenue at this time and recommended the City keep the funds that would be used for the paving project in reserve. Councilmember Rider moved and Councilmember Dilenno seconded a motion to deny the request to pave a 500-foot section of Mitchell Avenue. Councilmembers Geiger and Clauson urged the Council to authorize the paving of this section of Mitchell Avenue, due to it heavy traffic volume and not delay this allocation of funds as the cost to pave this section next year may be at a higher rate. As no further discussion, Mayor Abel called for the final vote, regarding the motion to deny the request to pave a 500-foot section of Mitchell Avenue. Motion passed with 4 affirmative votes and two dissenting votes. Councilmember's Dilenno, Rider, Cramer and Wyatt cast the four assenting votes and Councilmember's Geiger and Clauson cast the two dissenting votes. May 10, 2004 Page 8 of 9 Reconsideration of Motion from the Meeting of April 26, 2004 Council meeting Councilmember Rider (who voted in the affirmative for the original motion) moved and Councilmember Dilenno seconded a motion to reconsider the motion from the April 26, 2004 council meeting that when change orders on public works project arise and the City Engineer determines that immediate action is required to keep the project on schedule and avoid unnecessary expenses, the City Engineer is authorized to advise the contractor that if they proceed with the change order, then the City Engineer will make a strong recommendation to Council to approve the change order at the next Council meeting. Councilmember Rider requested that a cap be placed on change order expenditures, and change orders over a certain amount would be reviewed by the City Council. Councilmember Clauson expressed a concern with placing any limitation on the City Engineer, which could cost the City money by causing delays in projects. Councilmember Diienno suggested more discussion on this matter is necessary to help give direction and authority to the department heads without micromanaging the departments. Upon being questioned, City Treasurer Tompkins advised that she was not aware of any prior limitations or cap on the City Engineer's expenditure authority, and that the City Engineer has always brought change orders to the Council for the consideration. Councilmember Dilenno moved and Councilmember Cramer seconded a motion to continue the meeting past 9:30 p.m. Motion passed with 5 affirmative votes and 1 dissenting vote. Councilmember Geiger cast the one dissenting vote. Upon question, City Attorney Combs stated that currently the City Engineer does not have any authority to proceed with change orders without Council approval. Councilmember Dilenno moved and Councilmember Rider seconded a motion to table the matter. Motion passed with four assenting votes and two dissenting votes. Councilmember Dilenno, Rider, Wyatt and Cramer cast the four assenting votes. Councilmembers Clauson and Geiger cast the two dissenting votes. Councilmember Rider moved and Councilmember Clauson seconded a motion to take the matter off the table and authorize the Public Works Director to approve change orders up to $15,000, and to call for a special City Council meeting within 24 hours if change orders of higher dollar amounts are required. Motion passed unanimously. MAYOR'S REPORT Mayor Abel reported on a neighborhood block watch meeting she and Council Member Diienno attended. Mayor Abel reported on her attendance and representation of the City at the Health Insurance Savings Committee meeting and is hopeful some savings will come from this committee. May 10, 2004 Page 9 of9 Mayor Abel reported on her attendance at the KRCC Policy Board meeting and commented the Countywide Planning Policies were discussed briefly, however discussion on the public comments were be reviewed by a KRCC subcommittee. She reported that the City of Port Orchard was awarded funding for the design of the Tremont Expansion Project. Councilmember Dilenno questioned Mayor Abel concerning the hiring of a consultant for the joint planning process with the County for the Urban Growth Area. EXECUTIVE SESSION: At 10:07 p.m. Mayor Abel adjourned the Council into Executive Session for the purpose of discussing pending litigation and personnel issue for 30 minutes. RCW 42.30.110(1) (i)(A) and (B). At 10:37 p.m. the Executive Session was extended an additional 39 minutes At 11:16 p.m. Mayor Abel continued the meeting to Tuesday, May 11, 2004, 6:30 p.m. for the purpose of discussing the South Kitsap Urban Growth Area Joint Planning Process. ~~Qhl~ Michelle Merlino, Deputy City Clerk KIM E. ABEL, MAYOR