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051-08 - Resolution - Denying Amendment to Zoning MapRESOLUTION NO. 051-08 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, DENYING THE REQUEST TO AMEND THE CITY OF PORT ORCHARD ZONING MAP TO CHANGE THE ZONING DESIGNATION OF CERTAIN PROPERTY LOCATED WITHIN THE CITY OF PORT ORCHARD FROM RESIDENTIAL 4.5 (R4.5) TO RESIDENTIAL 20 (R20). TAX PARCELS NO. 352401 -3 -086-2007 LEGAL DESCRIPTION: SE 1/4 of the WE 1/4 of Secti on 35, T 24N , R1E., W.M . FULL LEGAL: LOT D CITY OF PORT ORCHARD SHORT PLAT NO. P0-99 (S-1101) BEING RECORDED UNDER AUDITOR'S FILE NO . 3180797 IN VOLUME 15 PAGE 41 OF SHORT PLATS. THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER, SECTION 35, TOWNSHIP 24 NORTH, RJl.NGE I EAST, W .M., KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF THE ABOVE SAID SUBDIVISION ; THENCE ALONG THE NORTH LINE OF SAID SUBDIVISION SOUTH 87 *46 '44 EAST 20 .00 FEET; THENCE CONTINUING SOUTH 87 *46'44 : EAST 200.05 FEET; THENCE PARALLEL WITH THE WEST LINE OF SAID SUBDIVISION SOUTH 00* 55' 18 WEST 94.94 FEET; THENCE SOUTH 88*43'05 EAST 93 .27 FEET; THENCE SOUTH 54*44'12 EAST 32.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 54*44'12 EAST 144,73 FEET; THENCE SOUTH 00 *55 '18 WEST 36.00 FEET TO A POINT ON WHEREAS, an application was received on August 1, 2008, from Kev in Decke r, Director, Poplar Heights Birth and Wellness Center (Rezone Application R-1188) requesting approval of a rezone to change the ex isting zoning on a parcel containing a single-family residence totaling 0.33 acres with a current zoning designation of Residential 4.5 (R4 .5) to Res i dential 20 (R20); legally described above; and WHEREAS, the Hearing Ex aminer considered the application at a public hearing on September 18, 2008 and heard test i mony on the proposal from the applicant's agent and the public; and recommended approval of the rezone to the City Council; and WHEREAS, on October 28, 2008, the City Counci l held a closed -record hearing on the above described re-zone application; and Resolution No. 051-08 Page 2 of 3 WHEREAS, being fully advised, the Council finds and concludes as follows: FINDINGS AND CONCLUSIONS Having reviewed the Hearin g Examiner's findings and conclusions as set forth in the "Findings Conclusions, and Recommendation" for the Kevin Decker Rezone No . R-1188, (Attached Exhibit A) and the record in this matter, the Council makes the following findings and conclusions: 1. The Council finds that it has jurisdiction over this matter. 2. On October 28, 2008, the Council held a closed-record hearing on the rezone application. At that hearing a letter was presented from neig hbors Thomas and Shannon Driver in opposition to the proposed rezone. The Council has taken this letter under consideration as argument in opposition to the conclusions reached by the Hearing Examiner . The Council has not considered any information contained in this letter that was not part of the original record presented to the Hearing Examiner. Nevertheless, this letter was presented without objection by the applicant, and any objection to it admission has been waived. 3. The subje ct property is .33 acres in size, and is fronted by a lo ca l access road. The surrounding neighborhood is primarily characterized by single -family homes. 4. The site is presently designated as High density res idential Comprehensive Plan land use designation but is zoned low density Residential 4.5 (R 4.5) zon ing consistent with built conditions of the neighborhood. 5. The applicant seeks to rezone the prop erty in an attempt to bring his propo sed business enterprise (birthing center) into compliance with City Codes. Residential 4.5 zoning does not allow for health-services to occur in R4.5. Th e applicant brought his rezone application as a proposed remedy to code-enforcement action that had been taken by the City. 6. Rezone applications are governed by Chapter 16 .25 of the Port Orchard Municipal Code. Section 16 .25.060 establishes the criteria required for review by the City in determining whether to approve or deny a rezone application. POMC 16.25.060 establishes seven criteria for review, all of which must be satisfied for a rezone application to be granted. Those criteria are as follows: (1) The reclass ification is substa ntially related to the public health, safety, or welfare; and (2) The reclassification i s warranted because of changed circumstances or because of a need for additional property in the proposed land use zone classification or because the proposed zoni ng classification is appropriate for reasonable development of the subject property; and Resolution No. 051-08 Page 3 of 3 (3) The subject property is su itable for development in general conformance with zon ing standards under the proposed zoning classification; and (4) The reclassification will not be materially detrimental to uses or property in the immediate vicinity of the subject property or incompatible with such uses; and (5) The reclassification has merit and value for the community as a whole; and (6) The reclassification is in accord with the comprehensive plan; and (7) The reclassification complies w ith all other applicable criteria and standards of the Port Orchard Municipal Code . 7. Wh i le the area that is the subject of this application has been designated under the City's Comprehens ive Plan as High density residential, the Comprehen sive Plan des ignation is just one of seven factors to be considered . 8 . The City Coundl has delegated the duty of hold ing a public hearing on rezone applications to the Hearing Examiner. The City Council recognizes the importa nce and impacts that rezones have on the community, and has not delegated the final authority to the Hearing Examiner . Recommendations from the Hearing Examiner are not binding. 9. The Coun ci l finds that the Kevin Decker Rezone No. R-1188 application has failed to satisfy the following criteria: (1) The reclassification is not substantially related to the publ ic health, safety, or we lfare. The area is characterized by single-fam ily residences . The rezone application has been presented as an attempt to bring a proposed non- conforming use into compliance with the City Code. The existing uses along Poplar Street are in conformance with the current-zoning designation of R4 .5. While the City Council appreciates the need for a birthing facility of this type, the Council finds that that rezoning ·a single parcel with in this neighborhood would confirm a special benefit or favor on an individual and is not substantially related to the public health, safety, and/or welfare of the community. (2) The reclassification is not warranted due to a changed circumstances or because of a need for additional property in the proposed land use zone classification or because the proposed zoning classification is appropriate for reasonable development of the subject property. The apparent change in this location is the applicant's decision to bring a non-conforming business use into a residential neighborhood. (3) The subject property is unsu itable for development in general conformance with zoning standards under the proposed zoning classification. The record is clear that the site is currently built-out w ith a single-family home . ( 4) The reclassification will be mate rially detrimental to uses or property in the immed iate vicinity of the subject property or incompatible with such uses . The proposed rezone is in the middle of a single-family neighborhood along a local- access road. Neighbors have expressed concerns about the potential change of Resolution No. 051-08 Page 4 of 3 use that may accompany a rezone of this type. Among the concerns expressed are the loss value of individual homes, traffic impacts, and stormwater impacts. (5) The reclassification does not have merit and value for the community as a whole. The Hearing Examiner has focused on the potential proposed use (birthing center) as having merit and value for the community as a whole. However, there is no guarantee that this use will ultimately occur or that it will continue. The focus of this criterion is on the merit or value of the rezone to the community . The City Council finds merit and value to high-density residential construction, as it provides affordable housing for the community. However, there is also merit and value in preserving single-family residential neighborhoods . This rezone will not serve to enhance the Poplar Street neighborhood, and therefore it does not have merit and value to the community as a whole . THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: Based upon the findings and conclusions contained herein, the City of Port Orchard herebby denies the Kevin Decker Rezone No . R-1188, and maintains Parcel Number 352401-3-086-2007 as Residential 4.5 (4.5) with no change to the City of Port Orchard Zoning Map. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 25 th day of November 2008. / \. .. ·;;..-~ .....__,____-,- .· ...... // ,/ / !/ ... ·'/ BEFORE THE HEARING EXAMINER FOR THE CITY OF PORT ORCHARD In the Matter of the Application of Kevin Decker For Approval of a Rezone ) ) ) ) ) ) ) No. R-1172 Poplar Heights Birth & Wellness Center FINDINGS, CONCLUSIONS, AND RECOMMENDATION SUMMARY OF RECOMMENDATION The Hearing Examiner recommends that the request for a r ezone from Residential 4.5 to R esidential 20 for property located at 215 Poplar Street , in Port Orchard, Washington, be APPROVED, with one condition. SUMMARY OF RECORD Reque st: Kevin Decker requests a rezone from Residential 4.5 to Residential20 in order t o locate a birth and wellness center on the site. The property subject to the request is located at 2 15 Poplar Street, in Port Orchard, Washington. Hearing Date: The H earing Examiner held a n open record hearing on the request on September 18, 200R. Testimony: The following individuals presented testimony under oath at the open record hearing: Tom Bonse ll , City Planner James Weaver, City Planning Director Mark Dorsey, City Public Works Director Kevin Decker, Applicant Louise Wales Cammy Mills Dr. Joella Pettigrew Heather Kraetsch Alex Gainsbrugh Findings, Conclusions, and Recommendation CiLy of Port Orchard Hearing Examiner Poplar Heights Birth & Wei/ness Center. No. R-1 172 Page 1 of9 Exhibits: The following exhibits were admitted into the record : l . Pre-application meeting let ter , dated March 28, 2008 2. Application packet, received August I, 2008, with the following attachments: A. Rezone Application B. Project Narrative, Site Map, and Legal Description C. List of Neighboring Property Owners and Certification Statement D . By-laws of the Poplar Heights Foundation E. Certificate of Formation of Poplar Heights Birth and Wellness Center F. Environmental Checklist G. City of Port Orchard Business License app lication H. Report on Low Impact Development Technologi es I. Permeable Interlocking Concrete Pavement guide 3. Kitsap County Parcel Map and Property Rep01i, dated A ugust 4, 2008 4. Email from Tom Bonsell, Associate Planner, to Kevin, sent August 4, 2008 5. App lication Transmittal letter r~quest for review, dated August 4 , 2008 6. Letter of Completeness and Detennination of Completeness, issued August 5, 2008 7. Noti ce of application/SEPA comment period w ith affidavit of mailing to neighboring property owners and posting property, dated August 8, 2008 8. SEPA Distribution notice of application/SEPA comment period and checklist, dated August 8, 2008 9. Notice of application/SEPA comme nt period with affidavit of mailing to complet e list of neighboring property owner s and posting (second mailing and posting due to incomplete li st submitted with application), dated August 13, 2008 10. Affidavit of Pub lication of N otice of Application and SEPA Comment p eriod , dated August 13 , 2008 11. Comments from Assistant City Engineer Andrea Archer, received August 26, 2008 12. Comments f rom Loren & Karen T. Olsen, received August 27, 2008 13. Mitigated Detennination ofNonsignificance (MDNS), issued August 28, 2008 14 . Notice of Public Hearing with affidavit of pub lication, dated Sept emb er 6, 2008 15 . E-mai ls between Kevin Decker and Tom Bonsell 16. Site maps for Poplar H eights Birth & Wellness Center (2 sh eets), dated August 1, 2008 17. Aerial Map 18. Staff Report prepared for September 18 , 2008 open record hearing 19.A. Letter from Melissa Hudson, to Ted Hunter, received Sept ember 18, 2008 19 .B . Letter from Jennifer Baxter, received September 18, 2008 20. Poplar Heights Child Birth Center narrati ve, received September 18 , 2008 The Hearing Examiner e nters the following Findings and Conclusions b ased upon the te stimony and exhibits admitted at the open record hearing: Findings, Conclusions, and R ecommendation Ci~}' of Port Orchard Hearing Examiner Poplar Heights Birth & Wellness Center, No. R -11 72 Page 2 of9 FINDINGS I. Kevin Decker (Applicant) reque sts a rezone from Residential 4 .5 (R4.5) to Residential 20 (R20) in order to locate a birth and wellness center on the site. The property s ubject to the request is located at 215 Poplar Street, in Port Orchard, Washington.1 Exhibit 2.A .; Exhibit 2.B; Exhibit 18. Stc~ffReport, page 1. 2. The City of Port Orchard (City) received the rezone application on August 1, 2008. The City determined that the application was complete on August 5, 2008. Exhibit 6. The City transmitted notice of the application and associated threshold environmental determination to relevant agencies on August 7, 2008. Exhibit 5. On August 8, 2008, the City posted notice of the application and SEPA comment period on the subject property, and mailed notice to owners of property surrounding the subject property. Exhibit 7. A second notice was posted and mailed to the complete list of neighboring property owners on August !3, 2008. Exhibit 9. On August 13,2008 , the City published noti ce of the application in the Port Orchard Indepe ndent. Exhibit 10. The notice of the application mailed to surrounding property owners and posted on-site included notice of the open record hearing associated with the application. Exhibit 9. The City published notice of the hearing in the Port Orchard Independent on September 6, 2008. Exhibit 14 . 3. The City acted as lead agency to analyze the environmental impacts of the proposed re zone, as required by the State Environmental Policy Act (SEPA). The City determined that , with conditions, the proposed rezone would not have a probable signi-ficant adverse impact on the environment, and issued a Mitigated Determination ofNonsignificanc e (MDNS) on August 29, 2008? The seven MDNS conditions require that the Applicant obtain a business license, certificate of occupancy, and approved rezone of the property prior to commencement of birthing activities; comply with City code requirements for clinics ; limit building occupancy to 32 people; limit classes to no more than four days per week, between the hour s of7:00 AM and 10 :00 PM; and ensure that no activities associated with the birthing center impinge on the general neighborhood single-family residential uses. The City issu ed the wiDNS pursuant to an optional process combining the comment period with the notice of application.3 The optional MDNS comment period ended August 27,2008. The City did not receive any appeals of the MDNS. Exhibit 9; Exhibit 1 0; Exhi~it 13; Exhibit 18, Staff Report, pages 1 and 5. 1 The subj ect property is identified by tax parcel number 352401-3-086-2007. Exhibit2.B; Exhibit 18, Staff Report, page!. A legal description is included with the rezone application. Exhibit 2.8. 2 The MDNS was signed by James Weaver, City Planning Director and SEPA Responsibl e Official , on August 28, 2008 . The staff report states that the MDNS wa s iss ued August 28, 2008; however, the MDNS state s that it is issued "August 29, 2 0 0 8." Exhibit 13; Ex hibit/8, Staff Report, pages I and 5. 3 The Wash ington Administrative Code provides for an o ptional Detennination o fNonsignificance (DNS ) process, wh ich is an integrated project review process and comment period to obt ain comments on t he notice of application and the likely DNS threshold determination for the proposal. WAC 197-11-355. Findin gs, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Poplar Heights Birth & We/lness Center, No. R-1172 Page 3 of9 4 . The subject property is currently zoned R4.5 , as are surrounding properties to the north, east, and west. Property to the south is zoned R8 . The City's Comprehensive Pl an designates the subject property as High Density Residential (HDR). Properties to the north and east are designated Public and Community Spaces. Properties to the south and west are designated as Medium Dens ity Residential (MDR). The subject property is cmrently developed with a single-family residence. Exhibit 2.A; l!-xhibit 18, Staff Report, page 1. 5. The R4.5 zone allows for development at a density of up to 4.5 dwelling units p er net usable acre.4 The primary purposes of the R-4.5 zone are to "(a) provide for an urban residential environment that is consistent with the traditional image of the Port Orchard area and (b) to implement comprehensive plan goals and policies for housing quality, diversity, and affordability, and to efficiently use residential land , public services, and energy." Port Orchard Municipal Code (POMC) 16.13.120. The R4.5 zone requires a minimum lot size of 6,000 square feet; maximum lot coverage of 45 percent; and minimum landscaping site coverage of 55 percent. POMC 16. 40.025 Table 9. The City staff report states that the proposed use is classified as "office/patient clinic." This use is not permitted within the R4.5 , R8 , or R12 zones . POMC 16.30.050, Table 2; Exhibit 18, StaflReport, page 5. 6. The R20 zone allows development at a density of up to 20 dwelling units per usable acre. The purposes of the R20 zone are to "(a) allow high density residential development in urban locations where public services and facilities are most available; (b) implement comprehensive plan goals and policies for housing quality, diversity , and affordability, and (c) efficiently use residential land, public services, and energy." POMC 16.13.140(1). The R20 zone purposes are accomplished by providing a mix of higher dens ity housing types, and allowing only such accessory and complementary nonresidential uses as are compatible with multiple family residential communities . POiv!C 16.13.140(2). The R20 zone is appropriate in areas that have been designated by the Comprehensive Plan and are served by adequate public sewers , water supply, roads, and other needed public facilities and services; and where surrounding lands have b een developed for commercial, business, employment, public facility, or other nonresidential but higher intensity activities, while offering greenbe lt, recreation, pedestrian, and transit services most supportive ofhigher density living arrangements. POMC 16.13.140(3). The R20 zone mandates a minimum lots size of2,178 square feet; maximum lot coverage of 85 percent; and minimum landscaping site coverage of 15 percent. Other development standards, including setbacks and building height, are the same for both the R4.5 and R20 zoning districts. POMC 16.40.025 Table 9. The proposed bhthing center, classified as 4 Net usable site area is defined as "the total site area less se nsitive environmental features (equal to gross useab le site area) and dedications as these areas are defined elsewhere in this code." POMC 16.40.040. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Poplar Heights Birth & Wei/ness Center, No. R-1 172 Page 4 of9 "office/patient clinic" is a permitted use in the R20 zone. POMC 16. 30.050, Table 2; Exhibit 18, Staff Report, page 5. 7. City Planner Tom Bonsell testified that zoning classifications should be consistent with Comprehensive Plan designations, as required by Chapter 36.70A Revised Code of Washington (RCW). Mr. Bonsell testified that the City is currently updating the 1995 Comprehensive Plan. He testified that as part of the Comprehensive Plan, the Council is considering a general r ezone of the area to R20. Mr. Bonsell explained that the rezone request is a non-proj ect rezone, and that the specific development proposal will be reviewed separately with the building permit and certificate of occupancy rev iew. Testimony of Mr. Bonsell. 8. According to the 2008 Draft Comprehensive Plan, the HDR designation allows for housing density of up to 20 dwelling units per net usable acre . The purposes of the HDR designation include the provision of high density residential development and the efficient use of residential land, public services, and energy. The HDR designation allows for development of single-family and multi-family dwellings, as well as for traditional uses such as parks, schools, and churches . 2008 Draft Comprehensive Plan Land Use Element. The City staff report states that the subject property and other properties in the area are underdeveloped for their Comprehensive Plan designations. According to the staff report, when the City Council enacted Ordinance No. 1916, the Council determined that uses such as the proposed bi1th center "are compatible with high density residential uses and will make services more convenient to residents of the R-20 zone." Exhibit 18, Stqff Report, page 3. 9. Loren and Karen Olsen sent a letter to the City, dated August 26, 2008, expressing concern about the proposed birth center and r ezone request. The Olsens expressed concern that the proposed use cou ld create traffic issues, increased stonnwater runoff, and a loss in value for surrounding properties. The Olsens questioned whether there is a need for additional R20-zoned properties in the City. Exhibit 12. 10. James Weaver, City Planning Director, testified that the MDNS conditions would mitigate impacts arising from the proposed rezone and development. He further testified that home occupation permit regulations would apply to the proposed bitth center. Mark Dorsey, City Public Works Director, t estified that drainage and parking issues would be addressed during building permit and certificate of occupancy reviews. In an email to Mr. Bonsell , Andrea Archer, Assistant City Engineer, stated that the Public Works Department would perform a complete review of the proposed use, including review of water and sewer connections and parking conditions, when the owner requests a certificate of occupancy . Exhibit 11 ; Testimony of Mr . Weaver; Testimo ny of Mr . Dorsey. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Ewminer Poplar Heights Birth & Wellness Center, No . R-1 172 Page 5 of9 11. The City al s o received two letters supporting the proposed birth center and rezo ne request, submitted at the open record hearing on September 18, 2008. In addition, members of the public testifie d to support the requested rezone and proposed birth c e nt er. Louise Wales testified that there is currently a shortage of places to b irth babies within a reasonable distance from Port Orchard. Cammy Mills testified t hat expectant mothers must now travel to Tacoma, a trip of 30 to 60 m i nutes, depending on the traffic . Dr. Joella Pettigrew testified that the proposed center would be good for practitioners and would provide education to the community. Heather Kraetsch and Alex Gainsbrugh also testified to voice their support of the proposed birth center and the rezone request. &chibit 19.A ; Exhibit 19.B,· Testimony of Ms. Wales; Testimony of Ms. Mills ; Testimony ofDr. Pettigrew; Tes timony of Ms. K ra etsch ,· Testimony of Ms. Gainsbrug h. 12 . Poplar Street provides the so le access to the property. According to the SEPA checklist, public transit is available within a few m inutes walk from the s ite. T he property is currently served by electricity, water, natural gas, garbage service, and sanitary sewer service. Exhibit 2 .F ; Exhibit 8 . CONCLUSIONS Juri s diction The City of Port Orchard Hearing Ex aminer h as jurisdiction to hold an open record hearing on rez one applications that are not part of the Comprehensive Plan Amendme nt process. Based on the ev idence in the record, the Hearing Examiner may recommend that the City Council approve, approve with modifications, or deny the application. Port Orchard Municipal Code (POMC) 2. 76.080,· POMC 2. 76.100; POMC 2. 76.110; POMC 16.01.021(3).5 Criteria fo r Review The City Council may approve, approve with modifications, or deny a n application for a reclassification of property if: (1) The reclassificati on is subs tantially related to the public health, safety, or welfare; and (2) The reclassification is warranted because of changed circumstances or because of a need for additional property in the proposed land use zo ne classification or because the proposed zo ning classification is appro priate for reasonable development of the subject property ; and (3) T he s ubject property is suitable for development in general conformance with zoning standards under the proposed zoning classification; and ( 4) The reclassification will not be materially detrimental to uses or prop erty in the immediate vicinity of the subject property or incompatible with such uses; and (5) The reclassification has merit and value for the community as a whole; and (6) The reclassification is in accord with the comprehensive plan ; and 5 On D ecember 19, 2007, the Pm1 Orchard City Council passe d and the Port Orchard Mayor signed City Ordinance No . 0 47 -07 , repeal ing POMC 2.20.04 0 in it s entirety and add ing a new POMC Chapter 2 .76 (Hear ing E xamin er). C ity Ordinance No. 047-07. POMC Chapter 2 .76 has not yet been cod ified and is not currently availa ble on the City webs it e. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Ex amin er Poplar Heights Birth & Wellness Center, No. R-1 172 Page 6 of9 (7) The reclassification complies with all other applicable criteria and standards of the P ort Orchard Municipal Code. POMC 16.25.060. In addition , Washington state courts apply the following general rules to rezone applications: (1) there is no presumption of validity favoring the action of rezoning; (2) the proponents of the rezone have the burden of proof in demonstrating that conditions have s ubstantially changed s ince the original zoning; and (3) the rezone must bear a substantial relationship to the public health, safety, morals or welfare . Parkridge v. Seattle, 89 Wn.2d 454 ( 1978). Proof of changed circumstances are not required for a rezone if the proposed rezone and assoc iat ed development implement policies contained in the comprehensive plan . Bjarnson v. Kitsap County, 78 Wn. App . 840 (Div.l, 1995); Henderson v. Kittitas County, 124 Wn. App. 747 (Div. III , 2004). Only general conformance with a comprehensive plan is required. Woods v. Kittitas County, 130 Wn. App. 573 (Div . III, 2005). Conclusions 1. The rezone is substantially related to the public health, safety, or welfare. The City Counci l reviewed the potential impacts when the High Density Residential land use designation was approved to allow development up to 20 dwelling units per acre. After consideration of public input and planning goals, the City Council determined that the HDR designation would be consistent with the community character. The proposed rezone of the subject property from R4 .5 to R20 would create consistency between the property 's zoning classification and Comprehensive Plan designation. The City provided appropri ate notice of the rezone application and associated open record hearing. The City analyzed the potential environmental impacts of the proposed rezone and determined that granting the rezone would not result in probable significant adverse environmental impacts. The City iss ued a Mitigated Determination ofNonsignificance (MONS) on August 29, 2008. There was no appeal of the MDNS. Any future use of the property would be reviewed for compliance with City requirements during the building permit and certificate of occupancy reviews. Findings 1 -4, 6-8, 10. 2. The rezone is warranted because of changed circumstances. Proof of changed circumstances is not required for a rezone if the proposed rezone and associated development implement policies contained in the comprehensive plan. The subject property is currently designated High Density Residential in the City Comprehensive Plan. The proposed rezone would ensure consistency between the property 's zoning classification and HDR designation under the Comprehensive Plan. The City Council has determined that uses such as the proposed birth center are compatible wi th the prop erty's HDR designation. Findings 4 -8. 3. · The subject property is suitable for development. The propetty is currently developed with a single-family residence. The property has access to Poplar Street, and is served by Findings. Co nclusions, and Recommendation City of Port Orchard Hearing Examiner Poplar Heights Birth & Wellness Center, No. R-11 72 Page 7 of9 electricity, natural gas , garbage serv ice, water service, and sanitary sewer service. Public transportation is available. The City reviewed the environmental impacts of the rezone request and determined that the rezone would not result in a probable significant adverse impact on the environment. Future uses of the property would be reviewed for compliance with City standards during the building permit and certificate of occupancy reviews. Findings 3, 4, 8 -10, 12. 4. ·with a condition, the rezone will not be materialJy detrimental to or incompatible with uses and properties in the immediate vicinity. The requested rezo ne would bring the property's zoning classification into compliance with the HDR designation under the Comprehensive Plan. The proposed use is a permitted use within the R20 zone. The City anal yzed the potential environmental impacts of the proposed rezone and determined that with conditions, granting the rezone would not result in probable significant adverse environmental impacts. The City is sued a Mitigated Determination ofNonsignificance on August 29, 2008 . A condition of approval is necessary to ensure that the Applicant comply with the MDNS conditions to mitigate potential impacts of the proposed birth center and rezone. Findings 3 -8. 5. The rezone has merit and value for the community as a whole. Approval of the rezone request would facilitate development of a birthing center. Expectant mothers in the City of Port Orchard currently must leave the area to birth their babies. The proposed birthing center would also provide education to the community. The proposed birthing center is a permitted use in the requested R20 zone. The proposed use would be reviewed to ensure compliance with City standards, including parking and stormwater runoff r equirements , during the building permit and certificate of occupancy reviews. Approval of the rezone request would ensme that t he property's zoning classification is consistent with the Comprehensive Plan designation. Findings 1, 4-12. 6. The rezone is in accordance with the Comprehensive Plan and complies with the City code. The City Comprehensive Plan designates the subject property as High Den sity Residential, providing for development at a density of up to 20 dwelling units per acre. The current zone only allows for development at a density of up to 4.5 dwelling units per acre . The proposed rezone would allow development of up to 20 dwelling units per acre , bringing the property's zoning classification into compliance with the Comprehensive Plan designation. Future use of the property would be reviewed during the building permit and certificate of occupancy reviews to ensure compliance with City code, including parking and storm water runoff standards. Findings 4 -12. Di scussion This re zone application is reviewed under the recently approved Hearing Examiner process in the City of Port Orchard. The Hearing Exan1iner system is a quasi-judicial process , with a single open record hearing on an application for change in zoning designation. This is in contrast to legislative action, such as a Comprehens ive Plan amendment, with potentially multiple hearin gs Findings, Co nclusions, and Recommendation City of P ort Orchard Hearing Examiner Poplar Heights Birth & Wellness Center, No. R-1 172 Page 8 of9 on a land use policy proposal. The state legislature and City Council recognize the importance of an efficient process by providing for a single open record hearing under the Hearing Examiner for certain land use applications. See Revised Code ofWashington (RCW) 35.63.130; RCW 36. 70B.050(2); Port Orchard Municipal Code (PO}vfC) 16.01 .021 (3). City code authorizes the Hearing Examiner to hold an open record hearing on rezone requests that are not part of the Comprehensive Plan Amendment process. POMC 16.01.021(3). The City Council then reviews the Hearing Examiner's recommendation in a closed record hearing to ensure that no mistakes have been made by the Hearing Examiner. "Open record hearing " is d efined as a "hearing, conducted by the hearing examiner, which creates the City's official record through testimony and submission of evidence and information." POMC 16. 08.520. In contrast, the closed record hearing to be held by the City Counci l does not allow for the submittal of ne w evidence or testimony. See POMC 16.08.1 38. If the City Council determines that no mistake has been committed by the Hearing Examiner, the City Council would likel y approve the Hearing Examiner's recommendation. If the Council amends or rejects the finding s of the Hearing Examiner, it should do so only with specific reference to exhibits or testimony in the record that support the rejection or amendment. If the Council believes a mistake was made in a conclusion, it is suggested the Council also review the underlying support for that conclusion to determine specifically how it fails to provide support. Conclusions should only be modified or rejected if the reference in supp01t of the conclusion fails to provide substantial evidence in support of the conclusion. When reviewing a rezone application, the Hearing Exan1iner does not review development proposals. Rather, the role of the Hearing Examiner is to review the rezone request to ensure compliance with the rezone criteria found in POMC 16.25.060. Therefore, it is inappropriate at thi s time for the Hearing Examiner to impose conditions governing site development as conditions ofrezone approval. Development-related conditions are more appropriately proposed and con sidered during site development permit review. RECOMMENDATION Based on the above findings and conclusions, the Hearing Examiner recommends that the request for a re zo ne from Re si dential4.5 to Residential20 for property located at 215 Poplar Street, in P01t Orchard, Washington, be APPROVED , with the recognition that busines s uses for the site must comply with the SEP A Miti gated Determination ofNonsignificance is sued August 29, 2008 (Exhibit 13 ). ·r;. o+Y'-Recommended this ~ day of September 2008. Findings, Conclusions, and Recommendation City of Port Orchard Hearing Examiner Poplar H eights Birth & Wei/ness Center, No. R-1 172 Page 9of9 ~~~~~~ THEODORE PAUL HUNTER Hearing Examiner