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013-21 - Ordinance - Amending Official Zoning Map Reclassifying Property from Residential 2 to Residential 3 DesignationORDINANCE NO. 013-21 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, AMENDING THE OFFICIAL ZONING MAP OF THE CITY OF PORT ORCHARD; RECLASSIFYING THE PROPERTY LOCATED AT THE NORTHWEST CORNER OF THE INTERSECTION OF HAROLD DRIVE SE AND SE LUND AVENUE, IDENTIFIED AS ASSESSOR PARCEL NUMBER 4625-000-009-0206, FROM RESIDENTIAL 2 TO RESIDENTIAL 3 ZONING DESIGNATION; ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Contour Capital, LLC (the “Applicant”) is the owner of 1.23-acre parcel located at the northwest corner of the intersection of Harold Drive SE, an unimproved right-of- way, and SE Lund Ave, identified as Assessor Parcel Number 4625-000-009-0206, in the City of Port Orchard (the “Property”); and WHEREAS, the Applicant submitted a complete application for reclassification of their Property from the zoning designation “Residential 2” to “Residential 3”, in order to facilitate the future construction of a 23-unit apartment building on the Property; and WHEREAS, the “Residential 3” zoning designation is appropriate in areas designated as Medium-Density Residential within the City of Port Orchard Comprehensive Plan Land Use Element; and WHEREAS, the request to reclassify the Property has been reviewed and processed pursuant to Port Orchard Municipal Code (“POMC”) Chapter 20.42, with notices of the rezone application provided in accordance with state and local requirements; and WHEREAS, a determination of non-significance was issued for the rezone application in accordance with Chapter 20.42 POMC; and WHEREAS, on January 27, 2021, the Hearing Examiner held a duly-noticed open record public hearing on the request; and WHEREAS, on February 10, 2021, the Hearing Examiner issued his Findings, Conclusions and Recommendation to the City Council, recommending approval of the request for reclassification; and WHEREAS, the City Council concurs with the Findings, Conclusions and Recommendation of the Hearing Examiner, and finds that the rezone application should be approved; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: Ordinance No.013-21 Page 2 of 20 SECTION 1. Rezone Findings. The City Council hereby adopts the Findings and Conclusions, and Recommendation to approve the rezone issued by the Hearing Examiner in "ln Matter of the Application of James Upchurch, on behalf of Contour Capital, LLC for Approval of a Site-Specific Rezone," No.LU20-REZONE-01, attached to this Ordinance as Exhibit A and incorporated herein by this reference. SECTION 2. Zone Reclassification. Pursuant to POMC 20.42.040, and consistent with Section 1of this Ordinance, the City Councilamends the "OfficialZoning Map of the City of Port Orchard" by changing the zone designation for the Property from "Residential 2" to "Residential 3." The Property and its newly approved zone designation is shown on Exhibit B attached to this Ordinance and incorporated herein by this reference. SECTION 3. No Expiration. Pursuant to POMC 2O.42.O5O(IXb), it is the intent of the City Council that this approval shall not expire. SECTION 4. Severa bility. lf any section, subsection, paragraph, sentence, clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining parts of this ordinance. SECTION 5. Effective Date. 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 may be published in lieu of the entire ordinance, as authorized by State Law. PASSED by the City Council of the City of Porrt Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this 9th day of March 2021. Robert Putaansuu, Mayor ATT Bra Ri MC, City Clerk APPROVED AS TO FORM:SPONSOR: Charlotte A. Archer, City Attorney Rpo member PUBLISHED: March L2, 2O2I EFFECTIVE DATE: March 17,2O2L ESEAt Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 1 of 17 BEFORE THE HEARING EXAMINER FOR THE CITY OF PORT ORCHARD In the Matter of the Application of ) No. LU20-REZONE-01 ) James Upchurch, on behalf of ) Contour Apartments Rezone Contour Capital, LLC ) ) ) FINDINGS, CONCLUSIONS, For Approval of a Site-Specific Rezone ) AND RECOMMENDATION SUMMARY OF RECOMMENDATION The Hearing Examiner recommends that the City Council APPROVE the request to rezone the 1.23-acre parcel located at the northwest corner of the intersection of SE Lund Avenue and the unopened right-of-way of Harold Drive SE from the “Residential 2” zoning designation to the “Residential 3” zoning designation. SUMMARY OF RECORD Hearing Date: The Hearing Examiner held an open record hearing on the request on January 27, 2021, using remote technology due to the ongoing COVID-19 pandemic. The site-specific rezone hearing followed a hearing on an appeal of the State Environmental Policy Act (SEPA) determination issued by the City of Port Orchard (City), in association with the rezone application, held the same day.1 Testimony: The following individuals presented testimony under oath at the open record hearing: James Fisk, City Associate Planner Nick Bond, Department of Community Development Director Andrew Bratlien, Transportation Solutions Ian Smith, Department of Public Works Civil Engineer James Upchurch, Applicant Representative Kerry Geffen 1 The appeal by Kerry Geffen (No. HEA-2020-01) has been decided concurrently with the site-specific rezone application following a consolidated hearing, as required by Washington Administrative Code (WAC) 197-11-680(3)(v) and Port Orchard Municipal Code (POMC) 20.160.240(5). Exhibit A Ordinance No. 013-21 Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 2 of 17 Exhibits: The following exhibits were admitted into the record: 1. Application Materials: A. Master Permit Application Form, dated July 5, 2020 B. Site-Specific Rezone Application, dated July 6, 2020 C. Project Narrative, received July 8, 2020 D. SEPA Environmental Checklist, dated July 7, 2020 E. Legal Description, received July 8, 2020 F. Vicinity Map, received July 8, 2020 G. Application for Non-Binding Water Availability Letter, dated December 18, 2019 H. Application for Binding Sewer Availability Commitment, dated December 18, 2019 I. Signing Authority Letter, dated August 13, 2019 J. Plan Set (11x17) (6 Sheets), dated July 8, 2020 K. Plan Set (34x22) (6 Sheets), dated July 8, 2020 2. Transmittal Letter, dated July 16, 2020 3. Determination of Technical Completeness, issued August 3, 2020 4. Affidavit of Mailing/Emailing (Determination of Technical Completeness), dated August 3 and 4, 2020 5. Notice of Application/SEPA DNS, issued August 13, 2020 6 Affidavit of Emailing (Notice of Application/SEPA DNS), dated August 4, 2020 7. Affidavit of Publication (Notice of Application/SEPA DNS), dated August 13, 2020 8. Affidavit of Mailing/Emailing (Not ice of Application/SEPA DNS), Kitsap Sun, dated August 13, 2020 9. Affidavit of Posting, dated August 13, 2020 10. Public Comments received week of August 17, 2020 A. Comment from Matt Smith, dated August 14, 2020 B. Comment from Laureen Nicoletti, dated August 14, 2020 C. Comment from Franklin Harder, undated Determination of Nonsignificance, issued December 23, 2019 11. Public Comments received week of August 23, 2020 A. Comment from Kerry and Jon Geffen, dated August 27, 2020 B. Comment from Laurie Welch, dated August 28, 2020 12. Public Comment received week of August 30, 2020 A. Comment from Kristi Brenton, dated August 29, 2020 13. Traffic Impact Analysis and Concurrency Review, Transportation Solutions, dated October 6, 2020 14. Determination of Nonsignificance, issued November 3, 2020 15. Affidavit of Mailing and Emailing (DNS), dated November 3, 2020 16. Kerry Geffen – DNS Appeal, dated November 17, 2020 17. Hearing Examiner’s Pre-Hearing Order, dated November 23, 2020 18. Affidavit of Emailing (DNS Appeal), dated November 20, 2020 Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 3 of 17 19. Capacity Reservation Certificate, issued December 11, 2020 20. Notice of Appeal Hearing 21. Notice of Public Hearing 22. Affidavit of Publication (Notice of Hearing), Kitsap Sun, dated January 13, 2021 23. Affidavit of Emailing (Notice of Appeal Hearing), dated January 13, 2021 24. Affidavit Mailing and Emailing (Notice of Public Hearing), dated January 13, 2021 25. Staff Report, dated January 14, 2021 The Hearing Examiner enters the following findings and conclusions based upon the testimony and exhibits admitted at the open record hearing: FINDINGS Background 1. The subject property is approximately 1.23 acres and is currently undeveloped. The property is generally flat and is triangular, with approximately 430 feet of frontage on its southern property line adjacent to SE Lund Avenue and 246 feet of feet of frontage on its eastern property line adjacent to the unopened Harold Drive SE right -of-way. The property was zoned “Urban Low Residential” by Kitsap County prior to its annexation by the City of Port Orchard (City) in April 2012. With annexation, the City Council adopted zoning for the project site that most closely resembled the associated zoning designation under Kitsap County. Accordingly, the property was zoned “Residential” at that time. On March 27, 2019, the City revised its zoning classifications for the area and added additional zoning classifications that fall under the Residential, Commercial, or Industrial designations of the City’s Comprehensive Plan. Again, the City attempted to match previously zoned properties in the impacted area with the new classifications. This led to the subject property being rezoned as “Residential 2” (R2), a zoning designation that does not allow for apartment build ing types or multi-family residential uses. Port Orchard Municipal Code (POMC) 20.34.020; POMC 20.39.040. Exhibit 25, Staff Report, pages 1 through 3. Application and Notice 2. James Upchurch, on behalf of Contour Capital, LLC (Applicant), requests a site-specific rezone of a 1.23-acre parcel from the “Residential 2” (R2) zoning designation to the “Residential 3” (R3) zoning designation. With approval of the site-specific rezone request, the Applicant intends to develop the property with a three story, 23-unit apartment building with 41 parking spaces and associated improvements that would include stormwater drainage facilities and an extension of Harold Drive SE to connect to SE Lund Avenue. The currently unaddressed property is located at the northwest corner of the intersection of SE Lund Avenue and the unopened Harold Drive SE right -of-way.2 Exhibit 1; Exhibit 25, Staff Report, pages 1 and 2. 2 The subject property is identified by tax parcel number 4625-000-009-0206. Exhibit 1.A; Exhibit 25, Staff Report, page 1. A legal description is included with the application materials. Exhibit 1.E. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 4 of 17 3. The City determined that the site-specific rezone application was complete on August 3, 2020. On August 4, 2020, the City emailed notice of the application to reviewing government agencies. On August 13, 2020, the City mailed or emailed notice of the application to owners of property surrounding the subject property and published notice in the Kitsap Sun, with a comment deadline of August 27, 2020. The Applicant posted notice of the application on the subject property the same day. On January 13, 2021, the City mailed or emailed notice of the hearing associated with the application to surrounding property owners, interested parties, and reviewing government agencies and published notice in the Kitsap Sun. Exhibit 3; Exhibits 5 through 9; Exhibits 21 through 24; Exhibit 25, Staff Report, page 20. 4. The City did not receive any comments from reviewing government agencies in response to its notice materials. The City received six comments from surrounding property owners in response to its notice materials. Specifically:  Matt Smith raised concerns about the privacy and traffic impacts of the proposal.  Laruen Nicoletti raised concerns about the privacy, traffic, noise, and crime impacts of the proposal.  Franklin Harder raised concerns about the traffic and vehicular safety impacts of the proposal.  Kerry and Jon Geffen raised concerns about the privacy, traffic, a nd vehicular safety impacts of the proposal.  Laurie Welch raised concerns about the proposal’s impacts to the small-town character of the neighborhood. She also raised concerns about the proposal’s privacy, parking, pedestrian safety, and traffic impact s.  Kristi Brenton raised concerns about the traffic and safety impacts of the proposal. Exhibits 10 through 12; Exhibit 25, Staff Report, page 20. 5. The City provided responses to the concerns raised by the public, which note:  Development applications must pass a concurrency test demonstrating that the traffic generated by a specific proposal would not result in a Level of Service (LOS) failure on the City’s transportation network. The Applicant will submit a Traffic Impact Analysis (TIA) to allow the City to evaluate the traffic impacts of the proposal. If the Applicant’s TIA shows that the proposal would cause an LOS failure, the proposal will not be approved without mitigation to ensure an acceptable LOS.  There are no current applicable regulations that would require preservation of existing vegetation on the property as a “greenbelt.”  The City has design standards that address the appearance of structures and the relationship between proposed buildings and adjacent properties to protect the privacy of residents on adjacent properties. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 5 of 17  The municipal code has landscaping design standards that would require landscaping buffer to be provided along the perimeter of the site and a certain percentage of recreational space to be created as part of multi-family development. If the rezone is approved, compliance with these standards would be reviewed with the land disturbing activity permit and/or building permit.  The Applicant has applied for a rezone to designate the property as R3. R3 is an appropriate zoning designation for properties identified in the City Comprehensive Plan as Medium Density Residential. The subject property and properties on Cassandra Loop that are designated R3 are designated as Medium Density Residential in the Comprehensive Plan. The R3 zone allows for the same type of development as the R2 zone but also includes apartments as an allowed building type.  If the rezone is approved, the Applicant would be required to provide on-street and off-street parking in accordance with municipal code requirements.  The Department of Community Development does not attribute crime to specific housing types. Exhibits 10 through 12. State Environmental Policy Act 6. City Department of Community Development (DCD) acted as lead agency and analyzed the environmental impacts of the proposal under the State Environmental Policy Act (SEPA), Chapter 43.21C Revised Code of Washington (RCW). The City consolidated notice of the SEPA review and notice of the application under the optional process provided for by Washington Administrative Code (WAC) 197-11-355, with a comment deadline of August 27, 2020. The City’s notice materials stated that the City’s SEPA Responsible Official expected to issue a Determination of Nonsignificance (DNS) for the proposal. DCD reviewed the Applicant’s environmental checklist and other information on file, including comments submitted by the public, and determined that the proposal would not have a probable significant adverse impact on the environment. Accordingly, the City’s SEPA Respo nsible Official issued a DNS on November 3, 2020, with an appeal deadline of November 17, 2020. The City provided additional notice and opportunity to comment on the DNS by mailing or emailing the DNS to surrounding property owners and interested parties. Exhibit 1; Exhibit 5; Exhibit 14; Exhibit 15; Exhibit 25, Staff Report, pages 4 and 20. 7. Following the initial SEPA comment period (ending on August 27, 2020), Transportation Solutions prepared a Traffic Impact Analysis and Concurrency Review (TIA) for the proposal, dated October 6, 2020. The TIA determined that the construction of a 23 -unit apartment building on the property, allowable with the rezone, would generate a total of 126 new daily trips, with 8 new AM peak-hour trips and 10 new PM peak-hour trips. The TIA identified seven intersections that would be impacted by the proposal, all of which currently operate below the City’s minimum LOS standards. The TIA noted that Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 6 of 17 the trips generated from a build-out of the 23-unit apartment complex would not cause any new LOS deficiencies to the area intersections and that the LOS deficiencies to these intersections would be addressed through improvements identified in the City’s 2020 - 2039 Transportation Improvement Program or through improvements identifie d in the Washington State Department of Transportation’s SR-16 – Tacoma Narrows Bridge to SR 3 Congestion Study. The TIA further determined that the proposed new intersection at SE Lund Avenue and Harold Drive SE would operate at an acceptable LOS. As noted above, the City’s SEPA Responsible Official reviewed the TIA prior to issuing the final DNS on the proposal, on November 3, 2020. Later, on December 11, 2020, the City issued a Capacity Reservation Certificate for the proposal. Exhibit 13; Exhibit 19. 8. As discussed above, the City received six comments from surrounding property owners in response to its notice materials, including comments from Kerry Geffen, who timely appealed the DNS. Ms. Geffen argued in her appeal that the City’s SEPA Responsible Official issued the DNS based on incomplete or missing information in the Applicant’s environmental checklist, that the traffic impact analysis and concurrency review for the project failed to include information about the traffic impacts of a nearby residential project, and that the City’s transportation network cannot support the proposed development of a 23-unit apartment building that would be allowed with the rezone. As explained in detail in the companion decision issued concurrently with this decis ion, the Hearing Examiner determined that substantial evidence in the record supports the decision of the City’s SEPA Responsible Official to issue a DNS, such that the decision was not clearly erroneous. Accordingly, Ms. Geffen’s appeal has been denied. Hearing Examiner’s Findings, Conclusions, and Decision, Kerry Geffen Appeal, No. HEA -2020- 01, dated February 10, 2021. 9. The site is adjacent to areas with potential for wetlands. Because approval of the site - specific rezone does not authorize any development, the City determined that a wetland report is not required at this time. The Applicant would be required to provide a wetland report categorizing and delineating wetlands with any future development permit application, and review for compliance with critical areas regulations would occur at that time. Exhibit 25, Staff Report, pages 19 and 20. Comprehensive Plan and Zoning 10. The City revised its Comprehensive Plan in July 2020. The City designates the subject property and surrounding properties to the north, south, and west as Medium Density Residential. Properties to the east are designated Commercial. Uses within the Medium Density Residential designation include single-family detached housing, single-family attached housing, and apartment buildings. Comprehensive Plan, Sec. 2.4, Table 1 (Revised July 2020). Exhibit 1.F; Exhibit 25, Staff Report, pages 2 and 4. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 7 of 17 11. City staff reviewed the proposal and identified several Comprehensive Plan goals and policies as applicable to the rezone, including:  Retaining the City’s small town commercial and residential character while accommodating allocated growth citywide. [Land Use Goal 1]  Ensuring that sufficient land is available for development to accommodate allocated growth in population and employment. [Land Use Goal 2]  Protecting, enhancing, and maintaining the values and functions of the City’s natural areas, open spaces, and critical areas. [Land Use Goal 5]  Reducing congestion and greenhouse gas emissions, promoting public health, reducing automobile dependency, and increasing multimodal transportation opportunities for accessing retail services, health care services, and places of employment. [Land Use Goal 6]  Encouraging the development of active, vibrant, and attractive destinations throughout the community. [Land Use Goal 7]  Connecting new and existing neighborhoods to each other, to commercial and employment centers, and to public facilities. [Land Use Goal 8].  Ensuring that the City’s housing stock responds to changes in desired housing types based on demographic trends and population growth. [Housing Goal 1]  Ensuring that housing is affordable and available to all socioeconomic levels of the City’s residents. [Housing Goal 2]  Promoting the efficient provision of municipal infrastructure a nd services to new housing developments. [Housing Goal 4]  Promoting the efficient use of residential land to maximize development potential. [Housing Goal 5]  Ensuring that future residential development protects and maintains natural ecosystems and critical areas, including wetlands, streams, and wildlife habitats. [Housing Goal 9]  Increasing the ability of residents to enjoy a high quality of life and access to healthy living opportunities, such as locally produced food, nearby grocery stores, parks and open spaces, and safe streets for walking and bicycling. [Economic Development Goal 5]  Providing a safe, comfortable, and reliable transportation system. [Transportation Goal 2]  Developing a funding strategy and financing plan to meet the multi-modal and programmatic needs identified in the transportation element of the Comprehensive Plan. [Transportation Goal 3]  Working with Kitsap Transit to provide increased transit service to the City as development occurs. [Transportation Goal 7]  Promoting pedestr ian, bicycle, and other non-motorized travel. [Transportation Goal 10] Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 8 of 17  Integrating walking and bicycle facilities into private development in a way that minimizes impacts on the development process and property owners. [Transportation Goal 14]  Supporting and reinforcing coordination between land use and transportation. [Transportation Goal 22]  Developing transportation improvements that respect the natural and community character and are consistent with both the short-term and long-term vision of the Comprehensive Plan. [Transportation Goal 25] Exhibit 25, Staff Report, pages 5 through 8. 12. The property is currently zoned R2, as are surrounding properties to the east and south. Properties to the north are zoned R3, and properties to the east are zoned “Commercial Corridor” (CC). The R2 zone is “intended to accommodate detached house, duplex, and townhouse development with a minimum lot size that varies based on building type.” Port Orchard Municipal Code (POMC) 20.34.020(1). Apartments are not a permitted building type and multi-family residential is not an allowed use in the R2 zoning district. POMC 20.34.020(2); POMC 20.39.040. Exhibit 25, Staff Report, pages 2 and 9 through 13. 13. Chapter 36.70A Revised Code of Washington (RCW) mandates that zoning classifications should be consistent with Comprehensive Plan designations. The City’s Residential Medium Density designation includes both the R2 and R3 zoning districts. The R3 zone is “intended to accommodate a variety of residential options limited to three stories in height.” POMC 20.34.030(1). Unlike the R2 zone, the R3 zone allows for multi-family residential uses and for apartment building types. POMC 20.34.030(2)(i); POMC 20.39.040; POMC 20.35.025(1). Exhibit 25, Staff Report, pages 9 through 13. Rezone Criteria 14. City staff reviewed the proposed site-specific rezone request against the required criteria for a rezone in POMC 20.42.030 and determined:  The proposed rezone would be consistent with the Comprehensive Plan.  The proposed rezone, which would allow for a 23-unit apartment building and associated improvements, would be consistent with the purpose of the R3 zone by providing denser residential development consistent with development standards and landscaping requirements applicable to the R3 zone.  The subject property is in an area where a transition from more intense commercial uses may be transitioned to lower -density residential uses through a medium-density residential use. The requested rezone to R3 would be consistent with the purpose of the district and the characteristics of existing development through transitioning land uses from more intense uses.  The zoning history includes Urban Low Residential zoning by Kitsap County prior to annexation. The City has subsequently adopted zo ning classifications for Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 9 of 17 the property that would most closely resemble the historic zoning designation by Kitsap County. Other than areawide rezones through annexation or adoption of development code regulations, the zoning designations of the area have r emained largely consistent. A 2019 site-specific rezone request for the property located at the northeast corner of Harold Drive SE and SE Lundberg Road was approved by the City of Port Orchard City Council, which redesignated the property from Commercial Mixed Use (CMU) to Business Professional Mixed Use (BPMU) to rectify a non-conforming use that had not been evaluated at annexation or subsequently.  The proposed rezone would not create a transition from more intense zones to less intense zones, but the permitted use and building types in the proposed rezone would offer the opportunity to create a transition from more intense existing and potential uses in the CC zone to the east of the site with the existing single -family detached residential uses to the north of the site.  Required site improvements associated with multi-family development on the site would be adequately buffered by required zoning setbacks, landscaping requirements, building design standards, and existing and required roadway improvements.  No new parcel boundaries would be created.  The proposed development would be required to face Harold Drive SE, which would provide access to the property, to comply with the building type requirements of POMC 20.32.100(6). Future commercial development east of the site would be required to satisfy varied block frontage standards, likely resulting in parking lots located to the side or rear of structures with a commercial building entrance facing SE Lund Avenue, the primary street.  The proposed rezone would provide for housing type options increasing available housing capacity in the city.  The proposed rezone would create additional demand on public services and facilities but would not cause a level of service failure to City facilities. The City has the ability to provide appropriate public services to meet the additional demand.  The proposed rezone would not substantially increase impacts to the environment. Any environmental impact to adjacent wetlands from subsequent development on the property would be reviewed upon submittal of a land disturbing activity permit.  The proposal makes provisions for pedestrian safety through the connection of pedestrian facilities associated with improvements to the Harold Drive SE right - of-way.  Manufacturing activit y is not applicable to the proposal.  The proposed rezone would not impact employment intensity.  The area is not a registered historic place. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 10 of 17  Shoreline view, public access, and recreation are not applicable to the proposal.  Any future development would be a nalyzed for its impacts to service capacities.  The proposed rezone would not impact the commercial capacity of the site because commercial uses are not permitted in either the R2 or R3 zoning districts. The proposed rezone may result in an increase to population because it would allow for multi-family residential development that is not permitted in the R2 zone.  The proposed rezone to R3 would be more compatible with surrounding properties and would provide an opportunity to transition from more intense la nd uses in the vicinity.  Potential wetlands are located to the east of the property. Any proposed development would address impacts to the potential wetlands and would be subject to the critical areas ordinance in effect at the time of development application. Exhibit 25, Staff Report, pages 15 through 18. 15. City staff determined that that proposed rezone would be consistent with the Comprehensive Plan goals and policies and would meet the specific criteria for a rezone under POMC 20.42.030. Exhibit 25, Staff Report, pages 4, 5, 8, and 15 through 21. Testimony3 16. City Associate Planner James Fisk testified generally about the proposal. He explained that a rezone of the property from R2 to R3 would be necessary to accommodate the development of a 23-unit apartment building with associated improvements on the property. Mr. Fisk stated that the rezone would be consistent with the Comprehensive Plan designation of the property as Medium Density Residential and would be consistent with several Comprehensive Plan goals and policies. He explained that City staff analyzed the potential impacts created by the development of a 23-unit apartment building and determined that existing code requirements would adequately mitigate for such potential impacts. Mr. Fisk no ted that, if the rezone request were to be approved, the Applicant would be required to obtain additional development permits prior to construction of the apartment building and that further environmental review would likely occur due to potential wetlands near the site. He explained that a Capacity Reservation Certificate was issued for the project after City staff determined that the proposal would not cause an LOS failure to intersections that would be impacted by the development. Mr. Fisk acknowledged that the TIA for the project identified several intersections that currently operate below the City’s minimum LOS standards and that the proposed development would add additional trips to the already failing intersections, but 3 At the consolidated hearing, the Hearing Examiner explained that duplicative testimony between the SEPA appeal and the preliminary plat portions of the hearing would not be necessary. Accordingly, testimony received during the SEPA portion of the appeal has been replicated here, where applicable. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 11 of 17 he stressed that the City co uld not require the Applicant to mitigate for the failing intersections because the failure was not caused by the proposal. Testimony of Mr. Fisk. 17. Community Development Director Nick Bond testified that he is the SEPA Responsible Official for the City. He noted that SEPA environmental review was required for the proposal under the Washington Administrative Code because the environmental checklist submitted with the rezone application identified a potential development proposal associated with the rezone request. Testimony of Mr. Bond. 18. Andrew Bratlien, of Transportation Solutions, testified that he prepared the TIA for the proposal. He noted that the purpose of the Capacity Reservation Certificate (CTC) application review process is to ensure that transportation concurrency is maintained in accord with Growth Management Act requirements and to ensure that the City can monitor the operational capacity of the transportation network so that it can schedule improvements concurrent with pending development . Mr. Bratlien explained that Transportation Solutions maintains a traffic forecast model for the City to forecast level of service (LOS) deficiencies, which is updated every time a permit application is submitted to account for a proposed project’s traff ic impacts. He noted that data on the traffic impacts of the nearby Riverstone residential development project were entered into the traffic forecast model prior to analyzing the traffic impacts of the current proposal. He also noted that Transportation Solutions developed a traffic forecast , as part of the Bethel Road and Sedgwick Road Corridor Plan, to identify existing deficiencies and design improvements to meet future traffic needs. Regarding the TIA prepared for the Applicant’s proposal, Mr. Bratlien stated that all studied intersections currently operate below the City’s minimum LOS standards and that the additional trips that would be generated by the development of a 23-unit apartment building would not cause any new deficiency. He explained that a project proponent may be responsible to mitigate for traffic impacts even if there are pre-existing LOS deficiencies but only if the project has a significant impact. Mr. Bratlien stated that the proposed apartment building project’s addition of less than 2 PM peak-hour trips to the affected intersection would not be significant enough to warrant required mitigation beyond the payment of traffic impact fees. He explained that traffic collision rates are periodically reviewed as part of the city- wide comprehensive update process. Testimony of Mr. Bratlien. 19. Department of Public Works Civil Engineer Ian Smith testified that improvements to failing intersections would be implemented through the City’s Bethel Road and Sedgwick Road Corridor Plan, whic h would include roundabout at the intersection of Bethel Road and SE Lund Avenue as part of Phase 5 of the plan. He noted that the planned roundabout is slated for construction in December 2022 and that the City is motivated to move the improvement plan forward because the City has been awarded federal funding, which has pushed up the date for construction. Mr. Smith further explained that the City Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 12 of 17 has several area projects identified in its long-term Transportation Improvements Plans (TIPs) specifically designed to address congestion. Testimony of Mr. Smith. 20. Applicant Representative James Upchurch testified that the Applicant purchased the property in August 2019 and had complied with all requirements for a site-specific rezone of the property. He noted that there would be adequate parking provided on-site to serve residential tenants and that additional off-street parking would be provided as part of the SE Lund Avenue extension. Mr. Upchurch stated that he is not familiar with a requirement that the proposed apartment building provide a minimum of four electric car charging stations but that the Applicant would comply with all code requirements as it moves forward with the project. Testimony of Mr. Upchurch. 21. Kerry Geffen testified that she owns residential property that is adjacent to the parcel for which the Applicant has requested a site-specific rezone and on which the Applicant intends to develop an apartment building. She stated that she manages her property as a rental unit for residential tenants. Ms. Geffen described the surrounding neighborhood as full of children who use the local street as their playground, and she expressed her opposition to the proposed site-specific rezone allowing development of an apartment building because it would change the character of the neighborhood. She asserted that the City failed to comply with SEPA when issuing the DNS because it failed to analyze relevant information pertaining to the proposal’s traffic impacts, particularly information indicating that affected intersections were already operating below acceptable levels of service and from traffic studies associated with another pending development project in the vicinity of the subject property. Ms. Geffen stressed that the City should have been aware that the existing traffic infrastructure was failing and would not be able to support additional development absent significant improvements. Testimony of Ms. Geffen. Staff Recommendation 22. City staff recommends approval of the proposed site-specific rezone without conditions. Exhibit 25, Staff Report, page 21. CONCLUSIONS Jurisdiction The City of Port Orchard Hearing Examiner has jurisd iction to hold a hearing on rezone applications that are not part of the Comprehensive Plan Amendment process. Based on the evidence in the record, the Hearing Examiner shall make a recommendation to the City Council as to whether the proposed rezone meets the criteria in POMC 20.42.030. POMC 2.76.080; POMC 2.76.100; POMC 2.76.110; POMC Table 20.22.020, -.060(5); POMC 20.42.010(2), - 040(5). Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 13 of 17 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 site-specific rezone criteria found in POMC 20.42.030. The City Council then reviews the Hearing Examiner’s recommendation and may hold an additional hearing on the site-specific rezone application at its discretion. The City Council’s approval, modification, deferral, or denial of a site-specific rezone application shall be based on the criteria set forth in POMC 20.42.030. If a quasi-judicial rezone is approved, the city council will subsequently adopt an ordinance amending the city’s official zoning map to be consistent with the ir final decision on the rezone application. POMC 20.42.040(6). Criteria for Review POMC 20.42.030 sets forth general provisions and criteria the Hearing Examiner must use to evaluate a request for a site-specific rezone. A request for a rezone shall only be approved upon compliance with the following review criteria: (1) The following general provisions shall apply to review of all site -specific rezone applications: (a) There is no presumption of validity favoring the action of rezoning; (b) The pro ponents of the rezone have the burden of proof to demonstrate that conditions have changed since the original zoning; and (c) The rezone must bear a substantial relationship to the public health, safety, morals or welfare. (2) Criteria for Review. In addition to the general criteria in subsection (1) of this section, the city shall review applications for site-specific rezone applications and issue approval of said applications pursuant to the following criteria: (a) Consistency with the existing comprehe nsive plan (the comprehensive plan that has been approved and is in place at the time the application was submitted); (b) Consistency with the purpose of the proposed zoning district; (c) Consistency between zone criteria and area characteristics; (d) Zoning history and precedential effect. Previous and potential zoning changes both in and around the area identified in the application shall be examined; (e) The impact of more intense zones on less intense zones or industrial and commercial zones on other zones shall be minimized by the use of transitions or buffers in the more intense zone, if possible. A gradual transition between zoning categories, including height limits, is preferred; (f) Physical buffers may provide an effective separation between different uses and intensities of development. The following elements may be considered as buffers: Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 14 of 17 (i) Natural features such as topographical breaks, lakes, rivers, streams, ravines and shorelines; (ii) Freeways, other major traffic arterials and railro ad tracks; (iii) Distinct change in street layout and block orientation; (iv) Open space and greenspaces suitable in area to mitigate against more intense uses; (v) Zone boundaries; (g) In establishing boundaries, the following elements shall be considered: (i) Physical buffers as described in subsection (2)(f) of this section; and (ii) Platted lot lines; (h) Boundaries between commercial and residential areas shall generally be established so that commercial uses face each other across the street on which they are located, and face away from adjacent residential areas. An exception may be made when physical buffers can provide a more effective separation between uses; (i) Impact Evaluation. The evaluation of the changes that would result from approval of the application shall consider the possible negative and positive impacts on the affected area and its surroundings. Factors to be examined include, but are not limited to, the following: (i) Housing; (ii) Public services; (iii) Environmental fact ors, such as noise, air and water quality, terrestrial and aquatic flora and fauna, glare, odor, shadows and energy conservation; (iv) Pedestrian safety; (v) Manufacturing activity; (vi) Employment activity; (vii) Character of areas recognized for architectural or historic value; (viii) Shoreline view, public access and recreation; (ix) Service Capacities. Development which can be reasonably anticipated based on the proposed development potential shall not exceed the service capacities which can reasonably be anticipated in the area, including: street access to the area; street capacity in the area; transit service; parking capacity; utility and sewer capacity; shoreline navigation; Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 15 of 17 (x) Population and employment allocations as established through the countywide planning policies; (xi) Changed Circumstances. Consideration of changed circumstances shall be limited to elements or conditions included in the criteria for the relevant zone designations in the zoning code; (xii) Critical Areas. If the area is located in or adjacent to a critical area, the effect of the rezone on the critical area shall be considered. POMC 20.42.030. The criteria for review adopted by the Port Orchard City Council are designed to implement the requirement of Chapter 36.70B RCW to enact the Growth Management Act. In particular, RCW 36.70B.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, infrast ructure, and the characteristics of development. RCW 36.70B.040. Conclusions 1. The rezone would meet the general site-specific rezone provisions of POMC 20.42.030(1) and rezone criteria of POMC 20.42.030(2)(a)-(e). The City provided reasonable notice of t he application and associated hearing. No comments from reviewing government agencies were received in response to the City’s notice materials. The City received several comments from members of the public, which generally raised concerns about the traffic, safety, and privacy impacts associated with the planned construction of a three story, 23-unit apartment building that would be allowed with the rezone. City design standards applicable to building appearance and landscape buffering would ensure that any future development on the property would adequately protect the privacy of adjacent residential properties, and compliance with these standards would be reviewed with any future development permit application. The traffic impact analysis (TIA) prepared for the proposal determined that , although the planned construction of a 23-unit apartment building on the property would add increased daily vehicle trips to nearby intersections already operating at deficient levels of service, the project did not cause those failures and, therefore, the Applicant would not be required to mitigate for traffic impacts beyond the payment of traffic impact fees. The City reviewed the TIA and issued a Capacity Reservation Certificate. Existing deficiencies to the City’s transportation network will be remedied through implementation of the City’s Bethel Road and Sedgwick Road Corridor Plan, and through implementation of other projects within the City’s TIPs. The property was zoned Urban Low Residential by Kitsap County and annexed into the City. In 2019, the City rezoned the property to R2. The Applicant has requested that the property be rezoned to R3 to allow multi-family residential uses and the construction of Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 16 of 17 an apartment building on the property. The R3 zoning designation is consistent with the City’s Comprehensive Plan Medium Density Residential designation for this area, and City staff identified several Comprehensive Plan goals and policies that would be furthered by the rezone, including goals ensuring that the City’s housing stock is adequate to accommodate population growth and is affordable and available to all socioeconomic levels of City residents. The proposed rezone would be consistent with the characteristics of the area. Adjacent property to the north is zoned R3 and developed with single-family residences. The multi-family uses and apartment building types that would be allowed by the rezone could help create a transition from existing commercial uses to the east of the property and the single-family residential uses to the north and west of the property. Site improvements Findings 1 – 23. 2. The rezone would meet the rezone criteria of POMC 20.030(2)(f)-(h). The triangular property is bordered to the southwest by SE Lund Avenue. Planned development of the property would include an extension of the unopened Harold Drive SE right -of-way along the property’s western border to connect to SE Lund Ave. Site improvements that would be required with future multi-family development of the property would ensure adequate buffering to residential properties to the north through required zoning setbacks, landscaping requirements, and building design standards. The proposed rezone is limited to the property’s existing parcel boundaries and would not create a parcel split by zoning designations. Future buildings on the property would be required to face Harold Drive SE, which would provide primary access to the property, and future commercial development on properties east of Harold Drive SE would be required to comply with frontage standards requirements that would likely result in commercial building entrances facing SE Lund Avenue. Findings 1 – 5, 13 – 23. 3. The rezone would meet the rezone criteria of POMC 20.030(2)(i). The proposed rezone would allow mu lti-family residential uses and an apartment building type that would increase available housing capacity in the city. The proposed rezone would have no significant impact on public services. As discussed above in Conclusion 1, the City properly issued a Capacity Reservation Certificate for the proposal after determining that it would not cause an LOS failure to City facilities. The City reviewed the proposal’s environmental impacts and issued a Determination of Nonsignificance (DNS). As detailed in the companion decision issued concurrently with this decision, the Hearing Examiner denied an appeal from the DNS. Any impacts to potential wetlands located near the site resulting from the planned development of the property would be reviewed and addressed with the development permit applications. The planned development of the property would make provisions for pedestrian safety through street improvements that would be required for the extension of Harold Drive SE. The proposed rezone would not impact employment intensity, and any future development would be analyzed for its impacts to service capacities. The City determined that the R3 zone is more compatible Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Contour Apartments Rezone, No. LU20-REZONE-01 Page 17 of 17 with surrounding properties and would provide an opportunity to transition from more intense land uses in the vicinity. Findings 1 – 23. RECOMMENDATION Based on the above findings and conclusions, the Hearing Examiner recommends that the City Council APPROVE the request for a site-specific rezone from Residential 2 to Residential 3 for the approximately 1.23-acre parcel located at the northwest corner of the intersection of SE Lund Avenue and the unopened right -of-way of Harold Drive SE. RECOMMENDED this 10th day of February 2021. ANDREW M. REEVES Hearing Examiner Sound Law Center LU N D BETHELVALLEYHAROLDJERRY LINCOLN CALEBMITCHELLBETHELC A RL PIC K EL CASANDRACALEBINDIGO POINTEBETHEL VALLEY BETHEL VALLEYLUNDBERG CATHIEVALLAIRCARL PICKEL CITY OF PORT ORCHARD 2020 ZONING MAPEXHIBIT B Business Professional Mixed Use (BPMU) Civic and Institutional (CI) Commercial Corridor (CC) Commercial Heavy (CH) Commercial Mixed Use (CMU) Downtown Mixed Use (DMU) Gateway Mixed Use (GMU) Greenbelt (GB) Light Industrial (LI) Neighborhood Mixed Use (NMU) Parks and Recreation (PR) Public Facilities (PF) Residential 1 (R1) Residential 2 (R2) Residential 3 (R3) Residential 4 (R4) Residential 6 (R6) ® 0 130 260 390 52065 Feet City of Port Orchard Department of Community Development 216 Prospect Street, Port Orchard, WA 98366 Phone: (360) 874-5533 Fax: (360) 876-4980 www.cityofportorchard.us This map was created from existing map sources,not from field surveys. While great care was takenin using the most current map sources available,no warranties of any sort, including accuracy, fitness,or merchantability accompany this product. The userof this map assumes responsibility for determining its suitability for its intended use. This map is not a substitute for field survey. Date Saved: 3/11/2020 1:32:20 PM Subject Property