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HExDecision_LU22-CUP-02 Multicultural Children CenterBEFORE THE HEARING EXAMINER FOR THE CITY OF PORT ORCHARD In the Matter of the Application of ) Ruth Carlson ) For a Conditional Use Permit ) No. LU22-CUP-02 Multicultural Children Center Day Care Facility Proposal FINDINGS, CONCLUSIONS, AND DECISION SUMMARY OF DECISION The request for a conditional use permit to allow for the operation of a "Day Care Center," providing regular childcare for up to 20 children within an existing facility, at 1130 Bethel Avenue, is APPROVED. SUMMARY OF RECORD Hearing Date: The Hearing Examiner held an open record hearing on the request on October 7, 2022, using remote meeting technology. Testimony: The following individuals presented testimony under oath at the open record hearing: Jacob Miller, City Associate Planner John Carlson, Applicant Representative Exhibits: The following exhibits were admitted into the record: 1. Application Materials: A. Master Permit Application Form, dated May 9, 2022 B. Conditional Use Permit Application, dated May 10, 2022 C. Project Narrative, dated May 11, 2022 D. Vicinity Map, 2021, dated July 6 E. Sign Permit Application, dated July 23, 2021 F. Landscape Plan, dated November 12, 2008 G. Building Elevations, dated November 12, 2008 H. Floor Plan, received August 2, 2021 I. Electrical Plan, received May 12, 2022 2. Transmittal Letter, dated May 12, 2022 3. Determination of Technical Completeness, dated June 9, 2022 Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 1 of 10 4. Additional Application Materials: A. Revised Project Narrative, revised June 14, 2022 B. Site Plan, received June 15, 2022 5. Transmittal Letter, dated June 15, 2022 6. Determination of Technical Completeness, dated June 9, 2022 7. Notice of Application, dated July 5, 2022 8. Affidavit of Publication (Notice of Application), Kitsap Sun, dated July 5, 2022, with Legal Invoice and Ad Preview 9. Affidavit of Posting (Notice of Application), dated July 5, 2022 10. Affidavit of Mailing and Emailing (Notice of Application), dated July 5, 2022 11. Revised Site Plan, received August 9, 2022 12. Transmittal Letter, dated August 9, 2022 13. Notice of Public Hearing, undated 14. Proof of Publication, Kitsap Sun, dated July 5, 2022 15. Affidavit of Mailing (Notice of Public Hearing), dated August 26, 2022 16. Staff Report, undated 17. Revised Notice of Public Hearing, undated 18. Revised Affidavit of Publication (Notice of Public Hearing), dated September 23, 2022 19. Revised Affidavit of Emailing (Notice of Public Hearing), dated September 23, 2022 20. Revised Staff Report, undated The Hearing Examiner enters the following findings and conclusions based upon the testimony and exhibits admitted at the open record hearing: FINDINGS Application and Notice Ruth Carlson (Applicant) requests a conditional use permit (CUP) to allow for the operation of a "Day Care Center," providing regular childcare for up to 20 children. The Applicant has been operating a bilingual and multicultural "Mini Day Care Center," accommodating the care and instruction of between 7 and 12 children at the facility since November 2021, with required permits and other regulatory approvals. The Applicant has also been providing instructional classes for students. Under Port Orchard Municipal Code (POMC) 20.39.305, a mini day care center involves a "facility in which regular care is provided during part of the 24-hour day to 12 or fewer children," whereas a day care center entails a "facility in which regular care is provided for 13 or more children" during "part of the 24-hour day." Accordingly, approval of a CUP would allow the Applicant to provide regular childcare for up to 20 children, consistent with their application materials. The property is located at 1130 Bethel Avenue.' Exhibit 1; Exhibit 4; Exhibit 20, Revised Staff Report, pages I and 2. 1 The property is identified by tax parcel number 4060-005-018-0107. Exhibit 20, Staff Report, page 1. Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 2 of 10 2. The City of Port Orchard (City) determined that the application was complete on June 23, 2022. On July 5, 2025, the City provided notice of the application by mailing or emailing notice to property owners within 300 feet of the property and to reviewing agencies, with a comment deadline of July 19, 2022. The same day, the City posted notice of the application on -site and published notice in the Kitsap Sun. On August 26, 2022, the City provided notice of an open record hearing associated with the application, originally scheduled for September 15, 2022, by mailing notice to property owners within 300 feet of the property and to interested parties and by publishing notice in the Kitsap Sun. In light of an emergency situation involving the Hearing Examiner, the originally scheduled hearing was postponed. Accordingly, the open record hearing was rescheduled, and the City provided notice of the rescheduled open record hearing by emailing notice and publishing notice in the Kitsap Sun on September 23, 2022. The City did not receive any comments on the proposal from the public or from reviewing departments and agencies in response to its notice material. Exhibit 2; Exhibit 3; Exhibits 5 through 19; Exhibit 20, Revised Staff Report, page 1. State Environmental Policy Act 3. The City determined that the proposal is categorically exempt from review under the State Environmental Policy Act (SEPA), Chapter 43.21 C Revised Code of Washington (RCW), as provided in Washington Administrative Code (WAC) 197-11-800(6)(b). WAC 197-11-800(6)(b) provides that land use decisions not qualified for exemption under WAC 197-11-800(6)(a) are exempt provided that: the authorized activities will be conducted within an existing building or facility qualifying for exemption under WAC 197-11-800(1) and (2); and the activities will not change the character or the building or facility in a way that would remove it from an exempt class. Exhibit 20, Revised Staff Report, page 7. Comprehensive Plan and Zoning 4. The subject property is designated "Commercial" by the City Comprehensive Plan. City staff determined that the proposal would be consistent with the Comprehensive Plan, including goals and policies of the Land Use, Utilities, and Transportation elements. Exhibit 20, Revised Staff Report, page 2. 5. The portion of the property where the day care facility is located is zoned "Commercial Mixed Use" (CMU).2 The purpose of the CMU zone is to accommodate a broad range of residential and nonresidential uses and to promote walkability and compatibility. Port Orchard Municipal Code (POMC) 20.35.030(1). Indoor recreation is permitted outright 2 City Associate Planner Jacob Miller testified that the subject property is, in fact, split -zoned and that the western portion of the property is zoned "Greenbelt" (GB). City staff determined, however, that because no development, use, or activity would occur in this area further review of the proposal in relation to the GB zoning district would be unnecessary. Testimony of Mr. Miller. Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 3 of 10 in the CMU zoning district. POW 20.39.040.3 As noted above, group day cares, which are day cares serving seven to 12 children, are also permitted outright in the CMU zone. POW 20.39.040. Day care centers, which are day cares serving 13 or more children, are allowed in the CMU zoning district only with approval of a conditional use permit. POW 20.39.040. Properties to the north and south are also zoned CMU. The property to the south is developed with miscellaneous services. The property to the north is currently undeveloped. Properties to the east are zoned Commercial Heavy and developed with governmental services. Properties to west are zoned Greenbelt and are undeveloped. Exhibit 20, Revised Staff Report, pages I and 2. Conditional Use Permit 6. As noted above, the Applicant has been operating a group day care serving 7 to 12 children on the subject property and requests a CUP to operate a day care center serving 13 or more children. The Applicant submitted a narrative explaining how the proposal would comply with the requirements for a CUP under POW 20.50.050. Specifically, the Applicant's narrative contends: • Day care centers are a conditional use in the CMU zone and consistent with the zoning code and purpose of the CMU zoning district. The CMU district is intended to accommodate a range of residential and nonresidential activity. • The proposed development would not adversely affect traffic flow and control, access to and circulation within the property, off-street parking and loading, refuse and service areas, utilities, screening and buffering, signs, open spaces, height, bulk, and location of structures, hours and manner of operate, noise, lights, dust, odor, fumes, and vibration. The primary vehicular access point to the property is from Bethel Avenue, which is directly in front of the building. Additional entry is provided 100 feet uphill to the south. These entry points have been used since the building previously operated as the Spring House, Victorian Tea House, and the Grey House restaurant. A middle turn lane provides safe ingress and egress with good visibility north and south on Bethel Avenue. The drop-off for children is directly in front of the building through the front door. The daycare involves significantly less traffic than other previous uses of the property. Accordingly, traffic flow for up to 20 children would not have any adverse effect on Bethel Avenue or surrounding businesses. • The downstairs day care facility could accommodate between 20 and 30 children, and the application is for up to 20 children. The City of Port Orchard Certificate of Occupancy allows up to 80 people at one time in the downstairs area, so the request is within occupancy limits. s Indoor recreation means a commercial facility providing daily or regularly scheduled recreation -oriented activities in an indoor setting. POMC 20.39.315. City staff determined that the three-hour instructional classes offered in the building would qualify as an indoor recreation use. Exhibit 20, Staff Report, page 1. Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 4 of 10 • The site includes an outside 1,000 square -foot patio and 1,000 square foot grass play area, enclosed with an approved five-foot high cyclone fence for outdoor recreation. These are approved by the City of Port Orchard Planning Department and the Washington State Department of Children, Youth and Families. • The site is zoned CMU, which is well suited for a day care facility. All of the business operations are contained within the building or within the enclosed patio and grass area, with no adverse effect on adjacent businesses, traffic flow, or public health, safety, and welfare. There are no adverse noise or visual impacts, utility usage is minimal, and the outdoor areas and building are well maintained and pleasing to the eye. Parents of children who currently attend the day care are pleased with the building and grounds. Likewise, local businesses consistently have positive remarks. Families of the children who attend the day care, adjacent businesses, and the business community routinely comment that the day care is a needed addition to the community and situated geographically in an ideal location. • The proposed day care center aligns with the Economic Development element of the City's Comprehensive Plan. It uses and maintains an "iconic" well-known building (previously the Victorian Tea House), provides employment opportunities, and provides much -need quality day care in the South Kitsap area. • The building, outdoor play area, and day care service adequately support children enrolled in the day care. The building is cleaned and sanitized after every session. Children are taught how to wash and clean their hands between activities. The proposed use would have virtually no adverse impact on local public services, businesses, or the local area. Utility usage for electricity, water, and natural gas is relatively low. The parking lot adequately accommodates vehicles as drop-off and pick-up times. Vehicle ingress and egress is smooth and safe, with good visibility year-round. Outdoor lighting is provided during dark hours. The approved signage does not interfere with traffic and is appealing. • The day care operates Monday through Friday from 8:00 AM and 5:00 PM inside the building and enclosed patio area. • The site has adequate parking and access points, which have already been approved by the City Planning Department. Exhibit 4.A. 7. City staff reviewed the proposal and determined that it would meet the criteria for approval of a conditional use permit under POMC 20.50.050. Specifically, in addition to noting its agreement with the Applicant's narrative, City staff determined: • A day care center is consistent with the objectives and purpose of the CMU zoning district to accommodate a broader range of residential and nonresidential activity than neighborhood mixed use. The property is currently used for three- hour instructional classes and as a group day care for seven to 12 children. Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 5 of 10 • The property has been used for several previous purposes and has existing infrastructure to support the current and proposed uses. The change in use does not increase parking requirements. The proposed use of a day care center is not substantially different than the current use of a group day care, with the only difference being the allowable number of children. The building occupancy load far exceeds the needs for the proposed use, which limits any potential issue with utility and other infrastructure. • Section 2.2 of the Comprehensive Plan provides that accommodating growth is a key component of the City's Comprehensive Plan. The proposed use would provide additional capacity for childcare within the City and the larger community and would meet the objective of the Comprehensive Plan. Allowing a business to expand their use and ability to serve a need within the confines of an existing development would minimize traffic congestion, protect open spaces and the natural environment, and accommodate changes in population, all of which are discussed as objectives in Chapter 2 of the Comprehensive Plan. • The application is consistent with requirements of Title 20 POMC. • All public facilities and services needed for the day care already exist. The CUP is not significantly changing the existing use and is not modifying the project site or building. The building and site are designed to accommodate a greater occupancy than the proposed use requires. • The proposed use is consistent with the objectives of the zoning code and purpose of the district and would not have a substantively greater adverse effect on the health, safety, or general welfare of the community. Existing infrastructure is adequate to support the proposed use, and, with conditions, the proposed use would not adversely affect public services in the surrounding area. Exhibit 20, Revised Staff Report, pages 3 through 7. Testimony 8. City Associate Planner Jacob Miller testified generally about the history of the subject property and proposal, and how the proposal would meet the criteria for approval of a conditional use permit. Mr. Miller noted that the proposal would not trigger an on -site or off -site improvements, that the certificate of occupancy for the building allows for up to 80 people such that there are no concerns about the size of the space, and that the Applicant has obtained regulatory approval from other state agencies to operate the day care. Testimony of Mr. Miller. 9. Applicant Representative John Carlson testified that the Applicant agrees with staff s assessment of the proposal and noted that the Applicant has been operating the facility with approval from the Washington State Department of Children, Youth, and Families. Testimony of Mr. Carlson. Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 6 of 10 Staff Recommendation 10. Mr. Miller testified that City staff reviewed the application and determined that the proposal would be consistent with the Comprehensive Plan, the Port Orchard Municipal Code, and all other applicable municipal and state regulations. Accordingly, City staff recommends approval of the CUP, with conditions. Mr. Carlson testified that the Applicant would comply with the recommended conditions of approval. Exhibit 20, Revised Staff Report, page 8; Testimony of Mr. Miller; Testimony of Mr. Carlson. CONCLUSIONS Jurisdiction The City of Port Orchard Hearing Examiner is authorized to hold a hearing on the conditional use permit application. Based on the evidence in the record, the Hearing Examiner may grant, grant with conditions, or deny the application. Port Orchard Municipal Code (POMC) 2.76.080; POMC 2.76.100; POMC 2.76.110; POMC 20.50.050. Criteria for Review The Hearing Examiner shall not grant a conditional use permit unless the request meets all of the following criteria: (a) That the conditional use is consistent with the objectives of the zoning code and the purpose of the zoning district in which the subject site/property is located; (b) Granting the conditional use will not have a substantively greater adverse effect on the health, safety or welfare of persons living or working in the area and will not be substantively more injurious, economically or otherwise, to property or improvements in the surrounding area than would any use generally permitted in the zone. Among matters to be considered are traffic flow and control, access to and circulation within the property, off-street parking and loading, refuse and service area, utilities, screening and buffering, signs, yards and other open spaces, height, bulk, and location of structures, location of proposed open space uses, hours and manner of operation, and noise, lights, dust, odor, fumes, and vibration; (c) The proposal is in accordance with the goals, policies, and objectives of the comprehensive plan; (d) The proposal complies with all requirements of this title; (e) The conditional use will be supported by adequate public facilities or services and will not adversely affect public services to the surrounding area, or conditions can be established to mitigate adverse impacts on such facilities; and (f) Existing conditions of approval required as part of a prior land division or permit shall be met. POMC 20.50.050(1). Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 7 of 10 In addition, the Hearing Examiner may impose specific conditions upon the use that are necessary to find that the required approval criteria have been met. Possible conditions on use include, but are not limited to: (a) Limiting the hours, days, place and/or manner of operation; (b) Requiring site or architectural design features which minimize environmental impacts such as noise, vibration, exhaust/emissions, light, glare, erosion, odor and/or dust; (c) Requiring larger setback areas, lot area, and/or lot depth or width; (d) Limiting the building or structure height, size or lot coverage, and/or location on the site; (e) Designating the size, number, location and/or design of vehicle access points or parking areas; (f) Requiring street right-of-way to be dedicated to the public and street(s), sidewalks, bicycle facilities, curbs, planting strips, pathways or trails to be improved; (g) Requiring landscaping, screening, drainage, water quality features and/or improvement of parking and loading areas; (h) Limiting the number, size, location, height and/or lighting of signs; (i) Limiting or setting standards for the location, design and/or intensity of outdoor lighting; (j) Requiring berms, screening or landscaping and the establishment of standards for their installation and maintenance; (k) Requiring and designating the size, height, location and/or materials for fences; and (1) Requiring the protection and preservation of existing trees, soils, vegetation, watercourses, habitat areas, drainage areas, historic resources, cultural resources, and/or sensitive lands. POW 20.50.050(2). The criteria for review adopted by the Port Orchard City Council are designed to implement the requirement of Chapter 36.7013 RCW to enact the Growth Management Act. In particular, RCW 36.7013.040 mandates that local jurisdictions review proposed development to ensure consistency with City development regulations, considering the type of land use, the level of development, infrastructure, and the characteristics of development. RCW 36.70B.040. Conclusions 1. The conditional use would be consistent with the objectives of the zoning code and the purpose of the zoning district in which the subject site/property is located. The portion of the property where the day care use would operate is located in the Commercial Mixed Use (CMU) zoning district. The purpose of the CMU zone is to accommodate a broad range of residential and nonresidential uses and to promote walkability and compatibility. POW 20.35.030(1). The proposed day care center has Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 8 of 10 been designed in accordance with code requirements for development in the CMU and would expand childcare capacity of the surrounding area. The property is adequately served by existing public infrastructure and access points. The proposed use would only increase the number of children that an existing day care facility could accommodate and would not include changes to the building, enclosed play area, parking lot, or public services. Findings 1, 4 —10. 2. Granting the conditional use would not have a substantively greater adverse effect on the health, safety, or welfare of persons living or working in the area, and would not be substantively more injurious, economically or otherwise, to property or improvements in the surrounding area, than would any use generally permitted in the zone. The City determined that the proposal is categorically exempt from SEPA environmental review because it involves a land use decision for an exempt facility. The City provided reasonable notice and opportunity to comment on the application. The City did not receive any comments in response to its notice materials. The proposed use would increase the number of children of a currently operating day care facility from 12 to up to 20 children. A group day care facility serving seven to 12 children is permitted outright in the CMU zoning district. The proposed use does not include changes to the building, enclosed grass area, public services, or parking lot. Access to the property would be provided by two access points off of Bethel Avenue. Bethel Avenue provides a middle turn lane for safe ingress and egress. The proposed use would be adequately served by existing public infrastructure. The outdoor patio and grass play area are enclosed with a five-foot fence. The proposed use would not have substantially greater impact than the previous uses as a group day care or as the Victorian Tea House and would provide additional day care services in the surrounding area. The facility also offers three-hour instructional classes, which is considered indoor recreation use, a use permitted outright in the CMU zoning district. Findings 1-10. 3. The proposal would be in accordance with the goals, policies, and objectives of the Comprehensive Plan. The property is designated Commercial by the City Comprehensive Plan. The proposal would be consistent with the Comprehensive Plan, including goals and policies of the Land Use, Utilities, and Transportation elements. Findings 4, 6, and 7. 4. With conditions, the proposal would comply with all requirements of Title 20 POMC. The proposal would be consistent with all requirements of the development code (Title 20 POMC). Conditions are necessary to limit the number of children receiving daycare to 20 at a time; to ensure patrons continue to follow parking requirements and vehicle circulation requirements related to Bethel Avenue; and to ensure all signage complies with the City's sign code requirements. Findings 1, S —10. Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 9 of 10 5. The conditional use would be supported by adequate public facilities or services and would not adversely affect public services to the surrounding area, or conditions can be established to mitigate adverse impacts on such facilities. City staff reviewed the proposal and determined that the building would be supported by adequate public facilities and services and that it would not adversely affect public services to the surrounding area. The building has been operating as a group day center serving seven to 12 children since November 2021, and the proposed use of a day care center serving 13 to 20 children would not require additional public services or impact the surrounding area. The proposal does not include any changes to the building, enclosed play area, parking lot, or access points. Additionally, the proposed day care center would serve community needs by providing additional childcare in the area. Findings 1, 5 —10. 6. There are no existing conditions of approval required as part of a prior land division or permit. The site is not subject to existing conditions of approval for any previously issued permits. Findings 6 and 7. DECISION Based on the above findings and conclusions, the request for a conditional use permit to allow for the operation of a day care center serving 13 to 20 children, at 1130 Bethel Avenue, is APPROVED, with the following conditions: 1. The Day care center use must be limited to a maximum of 20 children at a time. 2. Patrons of the Day care center must park vehicles in designated parking stalls and may not park, load, or unload in the drive aisle. 3. Vehicles may not stack in such a way that would limit circulation on the project site or on Bethe Avenue. 4. All signage must comply with Chapter 20.132 POMC, including for temporary signs. DECIDED this 251" day of October 2022. ANDREW M. REEVES Hearing Examiner Sound Law Center Findings, Conclusions, and Decision City of Port Orchard Hearing Examiner Multicultural Children Center Childcare CUP No. LU22-CUP-02 Page 10 of 10