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HomeMy WebLinkAbout10221998 Ag . . . CITY OF PORT TOWNSEND PLANNING COMMISSION AGENDA Pope Marine Park Building, 7:00 PM Business Meeting October 22, 1998 I. ROLL CALL II. APPROVAL OF MINUTES III. COMMUNICATIONS: Current mail IV. OLD BUSINESS A. Jefferson County Public Utility District (PUD) #1, Open-Record Public Hearing Comprehensive Plan Amendment (LUP98-30) 1. 2. 3. Staff Report (Bruce Freeland) Public Testimony Commission Discussion and Conclusions V. NEW BUSINESS VI. ANNOUNCEMENTS: Next Scheduled Meetings October 26 1998 Joint City Council/Planning Commission Workshop Comprehensive Plan Amendments Parks & Recreation Functional Plan, Public Hearing Rosewind PUDA Amendment #5 (not a hearing) October 29 1998 November 12. 1998 VII. ADJOURN · · · CITY OF PORT TOWNSEND PLANNING COMMISSION AGENDA Pope Marine Park Building, 7:00 PM Business Meeting October 22, 1998 I. ROLL CALL II. APPROVAL OF MINUTES III. COMMUNICATIONS: Current mail IV. OLD BUSINESS A. Jefferson County Public Utility District (PUD) #1, Open-Record Public Hearing Comprehensive Plan Amendment (LUP98-30) 1. 2. 3. Staff Report (Bruce Freeland) Public Testimony Commission Discussion and Conclusions V. NEW BUSINESS VI. ANNOUNCEMENTS: Next Scheduled Meetings October 26, 1998 Joint City Council/Planning Commission Workshop Comprehensive Plan Amendments Parks & Recreation Functional Plan, Public Hearing Rosewind PUDA Amendment #5 (not a hearing) October 29, 1998 November 12, 1998 VII. ADJOURN · · · ~ i , PLANNING COMMISSION MINUTES Business Meeting October 22, 1998 I. ROLL CALL The meeting was called to order at 7:00 p.m. in the Pope Marine Park Building by Chair Cindy Thayer. Other members in attendance were Karen Erickson, John Boles, Craig Johnson, Nik Worden, and Larry Harbison. Lois Sherwood was excused. Staff members present were Bruce Freeland, Eric Toews, and Tim McMahan. II. APPROVAL OF MINUTES Motion to approve the minutes of October 8, 1998 as written and amended by Ms. Thayer was made by Mr. Boles and seconded by Ms. Erickson. All were in favor. III. COMMUNICATIONS: Current Mail Planning Commission minutes of October 1, 1998, approval at the regular meeting October 29th; Letters regarding the PUD application: ~ Karen R. McKee, dated October 21, 1998 ~ Bob and Donna Snow, dated October 19, 1998 ~ Kathleen Snow, dated October 20, 1998 Meetings, Meetings, Meetings (Calendar of Events) IV. OLD BUSINESS A. Jefferson County Public Utility District (PUD) #1, Open-Record Public Hearing Comprehensive Plan Amendment (LUP98-30) 1. Staff Report (Bruce Freeland) Mr. Freeland pointed out that the property being discussed is just under 1 acre of land owned by the Public Utility District (PUD) on Kearney Street between the Washington Mutual Bank building and the land the city leases from the PUD where the trail off from Kearney Street enters into the Kah Tai Lagoon Park. That property currently belongs to the PUD. Its current Comprehensive Plan designation reflects that PUD ownership, Public Infrastructure (PI), that allows a variety of public uses, but not much other than public type uses. The site is very visible in the community, very valuable as far as the open space ofKah Tai Lagoon. It is one in which the city has repeatedly shown an interest in acquiring for park land. It is also one that is · · · Planning Commission Minutes October 22, 1998 Page 2 extremely environmentally constrained, a very important, sensitive site. There is a large wetland on the property, and a good part of the property that isn't wetland is in the wetland buffer. Mr. Freeland stated the central issue is whether it is appropriate for the city to keep a public infrastructure land use designation on the property. If that property should be sold by the PUD, are the only people that have the right to buy that property, people who would use it for public uses? He said, basically, the current zoning would have that effect on it. The PUD has indicated they view it as surplus property they would like to sell; they do not have a public purpose for it. Mr. Freeland said the city, undoubtedly does have, but the city would need to buy it in order to convert it for public purpose so that it is part of the park system. He said generally that is a subject matter that cannot be the decision maker in a land use decision, but mentioned it because it will be discussed. He reminded the Planning Commission they will have to wrestle with whether or not they are comfortable with keeping it a Public Infrastructure (PI) designation, given that the PUD considers it surplus. If it is not to be a PI designation, what is the appropriate designation? He noted the PUD has actually applied for two separate potential categories; CII general commercial, and CIlIMU community serving mixed use centers. Mr. Freeland noted they are both designations that are immediately near the site; the Washington Mutual Bank site is CII and abuts the property on one side, and the ClIIMU exists all up and down on the opposite side of Kearney Street. The other zoning that abuts the property is Public Open Space (POS), which represents the lands ofKah Tai Lagoon, currently part of the parks system. He indicated to the Commission that he struggled with his beliefs on this, and said he suspected they would also. He said he initially felt that the environmental constraints on the property were so great, that they really caused a major obstacle to changing it to a zone that would be more intense than is currently on the property. Both CII and ClIIMU zones do allow a more intense activity, higher floor area ratio, and more intensive activity than is possible under the current zone. The PUD, however, voluntarily chose to place a number of limitations on their property, all of which staff is proposing to be incorporated into conditions on the zone; so this would be a conditional rezone of the property. Mr. Freeland enumerated the conditions as: ~ The maximum building footprint shall be 1,800 square feet, with a maximum total building size of 3,600 square feet on two floors, ~ The maximum area of the site devoted to parking shall be 5,400 square feet; ~ The maximum total development be limited to 7,200 square feet (pavement and building on the land), all to be located outside the wetland and the 50 foot wetland buffer, ~ All parcels that constitute the subject property shall be bound together into a single building site, so it can't be broken down and come back for multiple requests for development. Mr. Freeland said what he considered the unreasonableness of insisting on the PI zoning if the land is to be sold to somebody other than a public agency, along with the limitations the PUD suggested, were sufficient in his mind to feel comfortable in recommending the change to the ClIIMU zone, but not the CII zone. · · · Planning Commission Minutes October 22, 1998 Page 3 Staff recommendation is to approve the change to the ClIIMU zone with all the conditions formerly mentioned, plus the condition that at the time of future development, there be additional SEP A review, an additional Environmental Sensitive Area ordinance review. (If that is approved, the CII general commercial be denied.) Mr. Freeland discussed Findings requirements in Title 20 in amending the Comp Plan and the extensive list of Findings of Fact. Requirements (given the test) must be considered, but it is not stated to find each affirmative. Findings of Fact Requirements -- General questions: ~ Are there changed circumstances? ~ Are there new facts; were there errors? ~ Is the project consistent with community values? Requirements A - H -- More specific. site specific changes (must find each affirmative) Mr. Freeland said where he felt the questions called for a conclusion, he moved them into the Conclusions section; if considered to be more a matter of fact, he left then in the Findings section. Staff Recommendation: Approval of CII/MU, but not of Cll. Comments Included in Findings of Fa.ct: #1 Describes the property itself. The property is divided by an alley creating the problem that as long as they were separate lots, some ofthose lots could not be accessed without putting roads into a wetland buffer. Later there was the voluntary requirement that those lots be tied together, and it was possible to have access out to the street for development on that land without opening up a new street into the buffer. #4 Lease was terminated (Mr. Freeland said he gave the Commission erroneous information a month or so ago that he thought the city still had a lease on that property.) It was under lease at one time, but is not currently under lease. Mr. Freeland stated there clearly is continuing interest in the site on the part of Port Townsend Parks and Recreation, and maybe some day it would be purchased as part of the park. #6 The existing P·I zoning allows a floor area ratio (FAR) of3 square feet of building area per 10 square foot of site (or.3 FAR -- you get.3 of a building for every foot oflot area). Mr. Freeland said if you apply that FAR to the 39,600 square foot site, there would be a theoretical potential under the zoning to build an 11,880 square foot building on this property. As proposed by the PUD through their limitations, the maximum building size would be brought down to about 3,600 square feet, or substantially less than the zoning would imply you could under the current zoning. He said you might not accomplish an 11,000 square foot building, given all the environmental limitations of the site. The current zoning has a rather higher face value level of development than what is proposed (only for the uses that are listed in the code, most of which are public uses). -' · · · Planning Commission Minutes October 22, 1998 Page 4 #7 Begins to address the required findings: circumstances have not change. #8 Second required finding: Assumptions. The PUD does not require the site for its purposes, and they are basically interested at this point in surplusing it, so it would not be a publicly held site. #9 Mr. Freeland said he had a hard time answering; he thinks it is very clear there is a broad community value in keeping that land as what it is, a lovely open field that is near the lagoon; undoubtedly, there is a lot of community support for that. He said he felt it would be against the values the community has expressed in the Comp Plan to turn this into general commercial zoning, because that would begin to establish turning the commercial strip off Sims Way (the Bank is already set back off Sims Way). There is the Jefferson Street cut-off between it and Sims Way. To bring commercial further around the corner onto Kearney, Mr. Freeland felt would begin to turn Kearney into a commercial strip, which he thought was pretty clearly against the purposes of the Comp Plan, and therefore he assumed the community values. He said the CII/MU, mixed use zone, was created with the idea of trying to preserve the small town character of Port Townsend. It seemed to him, iftbere was a use other than a public use, the mixed use was pretty consistent with the broad vision for Kearney Street, although it skips to the other side of Kearney Street. He felt that since the purpose of mixed use is to try to maintain some of the scale and character ofthe community, it probably could be found to be consistent with the overall values of the community. He said the Planning Commission needs to wrestle with this as it is considered. # 1 0 Beginning of more specific findings. Concurrency requirements for transportation, sewer and water, or adverse affects on level of service (LOS) standards for services, e.g. police, fire, emergency medical services, park services and general government services. He cited some specific information provided in Commission packets from a transportation study that he thinks pretty definitively addresses the concurrency issue; there would not be a problem with concurrency standards. He said that study looked at a larger, higher level of development than would be possible with the conditions that the PUD has now said they are willing to accept. They can state pretty definitely on the transportation point of view they are O.K. He noted the long-term issue that exists in the current zoning and in any other zoning; if you look far enough into the future build out of the community, our street system in general including Kearney Street will have a hard time handling development of the town at some distant point in time when the uptown is fully developed. He said that is not a conclusion that has changed with what you do on this site, but it is out there in the long term. By going to a condition that limits development to its current condition, they can say there certainly will be no more impact on sewer, water, protective services and general government services available, and maybe less, than leaving it in its current condition; they did not receive any indication that they would have a concurrency problem from this change. . . . Planning Commission Minutes October 22, 1998 Page 5 #llA Not many policies are very on point in the Comp Plan; take the Plan overall for what you believe it stands for. Mr. Freeland found the CII zone incompatible with Land Use Policy 8.4 that talks about the Gateway Corridor -- only expanding it when it helps create infiII development that comes off from the Gateway Corridor, avoiding departing from that Gateway Corridor to create strip commercial development. Mr. Freeland said he felt if you made a CII zone out of this site, and not be part of any coordinating development that would face the main gateway, it would begin to turn commercial development onto Kearney and estabJish more of the strip development on Kearney. He felt that policy was inconsistent and is a large part of why he has recommended against the CII zone. #11B The CII/MU zone is favored in this general vicinity, but there really isn't a policy that is quite specific enough and on point. Mr. Freeland felt it would be consistent with the Plan to make it CII/MU in this location, but there isn't a very strong policy. #12 In large part, this question duplicates the concurrency question discussed earlier. Staff felt it did not place an undue burden on any city services and facilities, and as limited through the conditions the PUD has agreed to, they feel that the environmental impacts can also be handled with the size of development, given what they know about the property. Mr. Freeland reported there was a SEP A determination of mitigated declaration of non-significance that became final today, and was not appealed. # 13 As limited by the restrictions the PUD has agreed to, Staff feels this could fit within those parameters in a way that would be physically suitable on that site. Even though it is a very constrained site, it is constrained by the limitations that are proposed. The site can be served by utilities; basically, the limitations make it possible to answer affirmatively. Also part of the question, surrounding land uses -- there is CII next door and CII/MU across the street, and from that standpoint, either one would be compatible with their surroundings. P/OS interface -- P/OS already abuts CII, and P/OS is across the street from ClIIMU. It seems that relationship already exists and is compatible. # 14 The question: Is there a case regarding the long-term interest of the community? Mr. Freeland identified this as one he had struggled with, and concluded if it couldn't be left in a public use, the CU/MU probably was in the long-term interest of the community. With a small development Jimited by the PUD conditions, that use would be compatible with other uses on Kearney Street. He said if it has to change, he felt it was a change that could be in the long-tenn interest of the community. # 15 Would not get in the way of any of the growth projections. #16 Is within the Urban Growth Area; found no incompatibility. Comments Included within Conclusions: #1 Felt it important to state specifically, this is not a valid consideration for this application, and should not be a factor in the decision in the criteria he set out for the Commission. He feels it should not be a factor in the Commission's work as well. . . . Planning Commission Minutes October 22, 1998 Page 6 Planning Commission Questions: Q Ms. Erickson: If the PUD had decided to keep this land and build on it, what size building would they have been allowed? A Mr. Freeland: The 11,880 square feet mentioned earlier is what the zoning would allow mathematically. That site is highly constrained by being a wetland and having a large wetland buffer. Any proposed developments would have to go through the ESA ordinance, and he felt the size of building that would actually be accomplished would be considerably smaller than the face value of the zone. Q Ms. Erickson: Would it be larger than the 1,800 square foot footprint they are proposing for restrictions? Isn't the height limit in PI, 50 feet? A Mr. Freeland: It's really speculation whether it would be bigger or smaller than 1,800 square feet. From what we know about the site, an 1,800 square foot footprint is fairly realistic to accommodate what can be done and avoid the wetland buffer. He thought they are in the ball park of what could be accomplished there. In the PI district, there is a 50 foot height limitation. Q Mr. Worden to Mr. McMahan: 1) What would be the consequences if we took no action; if we denied the rezone? 2) How feasible is it to attach these conditions to a rezone which continues in the record as CIIIMU, if we approve this. Is this the way to do, to attach these conditions? A Mr. McMahan: Lawyers don't like to answer these kinds of questions on public record, and I would like to have gone into executive session to give you my answer. My circumspect answer: 1) It would depend upon Findings and Conclusions that you craft. 2) Conditional rezones have been granted many times in the past in other places; one has not been done while he has been in Port Townsend. One proposal is a particular covenant filed on the property that would restrict future use. An ordinance could state it is conditioned upon filing a restrictive covenant with the following restrictions, and carried forward with the title. A Ms. Thayer: That would be the appropriate way to do it. Q Mr. Boles: Was the lease termination, active or passive? Mr. Freeland replied it was passive. Mr. Boles asked if it was a conscious policy decision that the City had no interest in that property? A Mr. Freeland: No, looking back at what they were able to find in the files, it was a three- year lease that could have been renewed and extended, but wasn't. There was actually an attempt after it had lapsed to renegotiate the lease, and even a nominal payment of City money about that lease passed from the City to the PUD, which was part of the confusion a month or more ago when he reported to them it might still be under lease. There was actually interest during Brent Shirley's time in office as mayor to get that lease going again, but it never happened. . Planning Commission Minutes October 22, ]998 Page 7 Q A . Q A A Q Q Mr. Boles: Stated by ordinance and in the title, etc., could conditions be made independent of any zoning, now or in the future of that property? If we would do something to attach these conditions, would they be independent of any zoning, rezoning, that we do on the property now? How can we impose conditions on a piece of property? A Mr. McMahan: Subject to the conditions, it's the recommendation of Staff that the rezone could be approved; before the conditions, it would be denied. The ordinance when drafted would say, so as long as conditions are imposed, it meets the criteria and can be approved. Q Mr. Boles: Not to take a position one way or another, if the rezone were done, say recommended as CII/MU, those conditions would only apply to the rezone to CII/MU? The property itself is not bound by that? A Mr. McMahan: The property would be bound. The property could be rezoned CIIIMU upon recording of the restrictive covenants, and any planned use application when it came in for a building permit, for example, or a future environmentally sensitive area review, would be required. Mr. Boles: What if this ClIIMU is approved tonight and next year they come in for a different rezone? Mr. McMahan: It is entirely new. Mr. Boles: The conditions are not traveling with the property? Ms. Thayer: They will unless the city chooses to change them. Mr. McMahan: That is right, unless there is another zone. Mr. Boles: To pick up on -- what if we didn't do anything, there seems to be a paradox here. On one hand it still is public infrastructure property, and we are dealing with the intent of that public infrastructure, not with an accomplished fact. 1) Isn't this a little premature as a remedy for that? 2) Is there any special process for disposal of public agency property? A Mr. Freeland: Answer to #1 -- The PUD wants to sell the property; prospective buyers are going to want to know what they can use the property for. At that point, if they are only able to sell the property for a public use, we have imposed a restriction on them, and then the restriction is, is it defensible? Q Mr. Boles: Reworded the question -- if the public infrastructure, in fact, sells the property with a contingency, what options are available as it exists? Would they have to come on an annual basis, or is there an emergency they can come in on? A Mr. Freeland: Only the annual amendments. Q Mr. Boles: You are asserting there is some obligation to relieve them of the burden of zoning, because of their intent, even though they still own the property? A Mr. Freeland: It is his opinion that is probably an unreasonable restriction on that property. A Mr. McMahan: Answer to Mr. Boles question #2, The process for surplusing property by public agencies -- From what is known of city-owned property, and he thinks it is the same for the PUD property, public agencies are required to sell for fair market or appraised value. . . Q A Q A . Q A . Planning Commission Minutes October 22, 1998 Page 8 For the city, it would have to hold public hearings first before entertaining a sale like that; the public has full notification of a pending sale, full notification of the value. After a hearing with certain findings of being surplus sed for the city's needs, it would be declared surplus. He thinks the POO process is similar; it is a general policy in the State of Washington in the sale of publicly owned property. Q Mr. Boles: Given that criteria, it does seem to be a paradox, because the value of the property changes depending on how it is zoned prior to the sale. The City in a sense on one hand is not in a position to use its policing powers to take over the property for parks, our priority, but at the same time, the City has to bid against itself if we are to have interest in that property in changing the zoning to a use that would necessarily escalate the perpetual value of the sale. A Mr. McMahan: That is one key reason Mr. Freeland throughout the recommendations has suggested that the issue of City acquisition be put on the side, as best you can. Ms. Erickson: Who owns the property to the north that the City leasing? Messrs. FreelandlMcMaban: The POO, and the lease is still in effect until 2012. Ms. Erickson: Why was this lease a separate lease? Mr. Freeland: In the beginning it was a separate lease; it was never as long-term. It was a three-year lease, could have been renewed and wasn't, and thought someone just dropped the ball, way back. Mr. Boles: Do I understand that the Port objects to its zoning? What is the status between the Port and the City? Mr. McMahan: The Port appealed the City's 1996 Comp Plan on the basis that we should have zoned the Port-owned property that was under along-term lease as Industrial versus P/OS. The City opposed that appeal, went to the Hearings Board and filed an answer that stated, since we have control until 2012, the Port's remedy would be to come and ask for a Comp Plan change in 2011. The Port ended up dropping its appeal after the City filed its response. As he recalls, as an accommodation, the City put a cross-hatch on the map that shows it to be Port-owned land subject to a lease by the City of Port Townsend. Q Mr. Boles: So, the distinguishing feature between the Port-owned land and the property now under consideration is that there is no active lease with the City on that property. Mr. McMahan concurred. Chair Thayer innumerated exhibits that had been received. Exhibit: A Letter dated September 29, 1998 from Public Utility District # 1 .BMemorandum dated October 1, 1998 to the Planning Commission from Jim Farmer, Chair of . . . Planning Commission Minutes October 22, 1998 Page 9 the Port Townsend Parks and Recreation Commission C Letter dated September 27, 1998 from John C. Heal, President of Bionomics Incorporated D Letter dated September 28, 1998 from Waves Waterfront Properties Inc. E Letter dated October 14, 1998 from Dana Roberts F Letter dated October 21, 1998 from Karen R. McKee G Letter dated October 19, 1998 from Bob and Donna Snow H Letter dated October 20, 1998 from Kathleen Snow 2. Public Testimony Chair Thayer opened the meeting to public testimony and asked participants to limit their testimony, if possible, to 5 minutes. Barbara Blowers, Representative for the Applicant, POO # 1 Swore and affirmed the testimony she was about to give was true to the best of her knowledge. Ms. Blowers said she was asked by the POO to market this property. The POO bought the property in 1952 as terra firma; it has been terra firma probably since the 1800s. She said she could remember this particular piece of property from 1956; it was the year the pond froze over and Mr. Marriott taught people to ice skate. She said she was born and raised in Port Townsend, and her feelings about Kah Tai are very strong. She claimed the Port Commission in 1962 and 1963 took this most special thing about Port Townsend and ruined it. She indicated it is still ruined~ there hasn't really been any restoration of that lagoon, and is why she was willing to work on this particular property. She showed a picture of what Kah Tai looked like in 1953. She noted where Safeway, the Park and Ride, Henery's Hardware and Washington Mutual are now located and also pointed out where the subject property is and stated it was filled already in that 1953 picture. Ms. Blowers referred to a picture which she did not have with her that was taken in the 1940s or earlier, before the existence of the DeLeo building, and claimed the area was terra firma at that time. Chair Thayer marked the picture taken in 1953 as Exhibit I. She said when the property was acquired in 1952, the intent was to eventually build their POO offices there; they continued to have an interest to do that until the early 1980s when most of the POO was way out in the county. In approximately 1982 ~ 1985 - 1987 they made leases to the City. She noted the lease of property where the path goes across from Kah Tai Park, approximately at the end of Clay Street, was a long-term lease, and said they do not quibble about that. They have no intention of getting it back and are willing to sell it for a nominal fee to the City, provided they are able to sell this other property for a reasonable amount, which they consider to be the fair market value of a buildable lot. Ms. Blowers admonished that people on both sides ofthe environmental issues ofKah Tai are going to have to get together or nothing is going to be fixed. She spoke of groups · · · Planning Commission Minutes October 22, 1998 Page 10 running around trying to save Kah Tai; she declared Kah Tai was "gone" in 1964, that it probably cannot be restored, but that it could be vastly improved. She described what Kah Tai used to be as cat tails and beach grasses, another flower she could not name -- that was about all that was in Kah Tai, and hundreds and hundreds of birds. She also described what she thinks Kah Tai is now -- scotch broom and grass. She said she went to Kah Tai Park for the first time to meet a client last week and was amazed. Her assumption had been that the park was a meandering path along the marsh, but indicated that the park is a little baseball field. She asserted the environmentalists have a lot of thinking to do if they think that is what they ought to be doing with that "most precious place." Ms. Blowers said when she first started working on the proposal and met with John Heal from Bionomics, they talked about: ~ Lack of restoration work in the area ~ Let's make restoration part of the proposal-- required restoration of the park portion of the Lagoon ~ Let's bring Port Townsend school children in to participate in the restoration ~ Let's get the scotch broom out ~ Let's get some cat tails in there ~ Let's have exhibit information for people to read ~ Let's have a plan of restoration for this park portion of the Lagoon and let that project lead to restoration of as much as can be restored. Ms. Blowers recommends this be part of any proposal from any developer that goes in there to build on that site. She said she would like to see the City buy the property, that she understands why it would be nice to have it part of the park. Exhibits (marked by Chair Thayer): I Aerial photograph of the area, 1953 J Aerial photograph of the area, approximately mid-1960s K Aerial photograph of the area, approximately early 1980s Those speaking in opJX>sition to the application: Steve Hayden, 611 Scott Swore and affirmed the testimony he was about to give was true to the best of his knowledge. Mr. Hayden discussed a letter dated October 21, 1998 from Friends ofKah Tai Lagoon. He said he spent considerable time on behalf of Friends ofKah Tai Lagoon Park reviewing the SEPA determination. He reflected on tonight's report from Mr. Freeland, and said he realized · · · Planning Commission Minutes October 22, 1998 Page 11 the SEP A considerations are really tangential to the issue here -- what criteria to use to either approve or disapprove the rezone. He suggested it is a practice run of what might happen, if and when that property is developed; as far as a rezone goes it is just an exercise. Mr. Hayden cited four issues he felt to be critical to use to judge this rezone that carry more weight than the rest: Critical issues -- Port Townsend Municipal Code (PTMC) Section 20.04.080 ~ 3a -- Have the circumstances related to this property changed? He stated there had been no significant changes, that water still runs down hill and collects in one spot. ~ 3b -- The assumptions are still valid -- the property is still owned by the PUD, and it still has value as use for "public infrastructure." He said he thinks the assumptions are still valid; it is still publicly owned; it still has a function and value as a public infrastructure. He asserted the only thing new, although it is not really new, is the POO wants to sell it for more than they could get for it on this current zoning; we aU knew that a year ago -- this is not news to anybody. It has been in the works for a couple of years; so this is not a change in circumstances, or new information. ~ 3c -- The proposal reflects current widely held community values. The Parks Master Plan which he said was rendered by a very reputable architectural design firm in Seattle on behalf of the City and commissioned by the City to design Kah Tai Park in 1985, represents in his mind the best rendition of community value about this area that we have. He said he thinks it is a big stretch to make any kind of assumption that CIIIMU is somehow supportive of community values along Kearney Street, and CII is not. The distinctions between what is allowed or what could be built on that side of Kearney Street between those two zones is pretty minimal when you get down to it. He said, there are differences, but the effect on that side of Kearney Street would be pretty similar. ~ 4(b) and 4( e) -- Is it consistent with the goals, policies and objectives of the Comp Plan! will not create pressure to change the land use designation of other properties. That goes to the thinking that CIIlMUis more benign than CII, and he thinks that is facetious. He stated Mr. Freeland has said the POO cannot sell that property to anybody but a public agency because of its zoning. He said he does not think that is true; they could sell it to him for $1. After going through their surplusing, after offering it to a government agency, put it up for auction, he could buy it for a buck, for a $1 million. He declared they can sell it under its current zoning, if anybody is willing to buy it -- that's the way it works; that person, obviously, would probably not want to buy it for $1 million. He said it is not true to say that by not granting this rezone, we are preventing the POO from selling that property. He said it wiIlhave an effect on the market price, but reminded the Planning Commission that is not their business, not the Planning Department's business, not the City Attorney's business; that is the POO's business. He stressed, don't let that fool you, they can sell it under the current zone. · · · Planning Commission Minutes October 22; 1998 Page 12 Conditions on Rezone: Mr. Hayden said in approximately 1984, they vacated Lawrence Street from Kearney Street to the Lagoon. Friends ofKah Tai Lagoon sued the city. The State Appeals Court prevailed and it was sent back to the city, that it is illegal to vacate streets that abut water. The street vacation ordinance the city passed, had a condition on it, not dissimilar to these kinds of conditions, that said if the development option that was the reason for the street vacation was not acted upon within six years; this street vacation automatically reverts; automatically is null and void. He said he went to the appraiser's office approximately a month ago; it is still reported as vacated. He said he has little faith in conditions on rezones carrying forward; five to ten years it will be history that will be forgotten. He said he brought the street vacation to staff s attention but does not know if it has been fixed. Mr. Hayden distributed the letter from Friends ofKah Tai Lagoon and urged the Planning Commission to give it their attention. The letter was entered as an exhibit. Exhibit (marked by Chair Thayer): L Letter dated October 21, 1998 from Friends ofKah Tai Lagoon Charles Haniford, 907 Pierce Swore and affirmed the testimony he was about to give was true to the best of his knowledge. One thing he heard was the long term interest of the community. He has only been here 15 years; but it seems to him one of the long term interests of this community is clearly to have a park at Kah Tai Lagoon; anyone who walks through there knows the value of this park space. He said to have seen on one comer the Washington Mutual Bank being created was not a very pleasant experience. To see on the other comer the Park & Ride created and all this asphalt on what was their park, also was not a very pleasant experience. He indicated he had written a letter to the Washington Mutual Bank when they put up their cash machine. He told them this might be nice in Federal Way, but not in Port Townsend. He asked them to enclose it so they do not have to look at the ugly cash machine, and indicated Washington Mutual did not respond and he proposed they were busy buying banks in California and did not have time for his concerns. Mr. Haniford urged the city to deny this rezone; the city had in its wisdom set this land aside for public use, for a park, and he does not see any reason to change that. He indicated what is left of this area is a park; this land abuts the entrance to the park. There is no sense to have a building, parking space and more parking spaces, there. He does not think the city needs to buy this land. If it is already in public use, it can remain public use by denying the request for the rezone. He said it is important to have this park as open space. He referred to a recent trip he made to Buffalo and was appalled at how many streets on both sides were commercial development. He said when we have what we have in Port Townsend, we ought to preserve the park atmosphere, any of the open spaces we have that are so easily accessible to the community; · · · Planning Commission Minutes October 22, 1998 Page 13 let's do what we need to preserve that open space, and not have the commercial development start up around the comer on Kearney Street right on the side ofKah Tai Lagoon. He said if it wants to be on the other side of Kearney Street, that's fine, but let's try to hold the Kah Tai Park and Lagoon as we have it now. Bob Deweese, 1919 Lawrence Affirmed the testimony he was about to give was true to the best of his knowledge. Mr. Deweese said this is in his neighborhood; he appreciated Ms. Blowers' comments about what Kah Tai Lagoon used to be. He said as a resident for 25 years, he is concerned with what it is, and what it has become. He declared it has become our neighborhood park, and this is a threat to our neighborhood park. It has become a wildlife corridor, and rezoning this property would block that wildlife corridor. There is a deer population that uses that area going to and from the park. He said if a park is to remain a park and become a better park, it seems to him that having wildlife there could only help it; this would in effect shut off access to the park for the wildlife corridor from the courthouse down to the area of the lagoon. As he heard staff discuss this, two things occurred to him: ~ The quotation from the Gateway Corridor Plan says prohibit the expansion of such areas where it would significantly diminish liveability or viability of an adjoining neighborhood. He said that speaks to him; this is his neighborhood; this rezone wouldn't do that. ~ About the lease -- He said he can't see that their neighborhood should suffer because the City failed to renew the lease. They tried to renew the lease; obviously it was in the best interest of the city to renew the lease. Why should his neighborhood be condemned to this rezone, because the city was not wise enough to follow up on the renewal of the lease? Margaret Lee, 809 Gaines Affirmed the testimony she was about to give was true to the best of her knowledge. She was disappointed this issue had to come before them. When she saw this issue coming forward a few months ago, she wrote a letter to the City Council stating in effect that she was surprised; she thought this land was being protected, that it was part ofKah Tai Lagoon Park. The whole fact this issue was being raised again, that a portion of the park seemed like it was being threatened, surprised her. Ms. Lee said she thinks it is very sad that the two public entities, the POO and the City of Port Townsend, have not been able to settle this prior to this, and hopes these two entities would take the public interest to heart -- the need for a park within our community that she uses every day. She lives in an apartment and realizes the value of that park. She said she hopes the City a:ijd POO can come to accommodation on this issue, and the City denies this rezone. - · · · Planning Commission Minutes October 22, 1998 Page 14 She said she thinks staff has stretched the point when they talk about community values, on one hand they say Kah Tai Lagoon and Park has great esteem in the eyes of the residents of Port Townsend, represents community values and is something they treasure very much. She said it is almost like turning that on its head somehow by some very circuitous means to turn Findings of Fact #9 around and come to the conclusion that rezone ClIIMU would reflect community value. She doesn't think in this case you can have it both ways. Paula Mackrow, 604 Rose Street -- as a citizen and a parent Affirmed the testimony she was about to give was true to the best of her knowledge. She said she has studied wetland science and natural history and has worked in the schools for approximately 13 years with school children. She said she got the attention of some of the Friends ofKah Tai and the Parks Department 10 years ago, and they planted the first dedication tree in Kah Tai Lagoon nature park rather than Chetzemoka Park. At that time she also brought to their attention a noxious weed that was prevalent where she came from in Eastern Washington. As part of Friends ofKah Tai volunteer efforts, she has for the past 10 years worked on pulling the weed, she noted by name, from the park. Ms. Mackrow clarified for the record: ~ Scotch broom in the area, while noxious and tends to take over, has provided several beneficial characteristics to a place, as you see in those aerial photographs, that requires a long time to heal back into some kind of natural state. ~ To make that have the appearance of a valuable, natural place is something that doesn't take place overnight; it doesn't take place in the 30 years that things have been growing there since sand was deposited on the spot. ~ The scotch broom, is nitrogen-fixing and does provide benefit to take the place of the soil. She said we are looking at a soil-building process in that park. Scotch broom holds the soil from extreme winds we get; it provides those kinds of factors. She said there are very few things that can survive at this time in that soil. What you see growing in that park is what will grow in that park in its natural condition. ~ Ms. Mackrow has personally been involved in plantings with school children and with people around the community, four consecutive years herself, fostering trees, buying trees from the conservation district, trying to establish all kinds of native plantings in that park and finding over and over again that the summer drought conditions, the high wind conditions, the sandy soils, have extreme limitations. She said it is something they will continue to work on as a community. Ms. Mackrow commended Ms. Blowers offer to help augment their efforts with the school children, and thinks it is admirable of the POO to see the need for that. She stated it is something that definitely has been going on in that park for the last 10 to 12 years, and said these are things she wanted to clarify for the record. ~ . . . Planning Commission Minutes October 22, 1998 Page 15 Applicant's rebuttal Ms. Blowers answered comments made during public testimony regarding: ~ Conditions for this rezone. that the conditions could go away. She clarified that the conditions are not part of the rezone; the conditions are to be made a part of the property and go with the title. The agreement to put those in the title, are part of the ordinance. In the ordinance itself there shall be an agreement for the POO to attach the conditions and that go on the title, stays with the title and becomes a condition of the property. Could it be removed? She said she doesn't know, but is sure there must be some legal way to put it on there so it couldn't be removed arbitrarily. ~ The amount of area to be used. The area to be utilized by this development is relatively small. She showed the location on the survey map included in Commission member's packets and said it is really only one comer of property closest to Washington Mutual. She said you could only use a certain percentage, so that is the percentage of area they will use. She said in terms of affecting the park, the path is there; it is not going to prevent anybody from going to the park. including deer. Chair Thayer asked if there was anyone else wishing to testify. Mr. Hayden asked to give a brief history of the lease, since he was intimately involved in it, and if there are any questions he could give a quick rundown. Chair Thayer thanked Mr. Hayden, but Commission members determined the issue does not really come into play in their decision. Commission Questions of applicant. There were none. Chair Thayer closed the public hearing at 8:30 p.m. 3. Commission Discussion and Conclusions Q Mr. Boles: Said he was still confused and asked if the covenants could travel with the property? He said Ms. Blowers states they could be made to travel with the property, but from talking with Mr. Freeland and the City Attorney understood it would be part of this rezoning, but not travel with the property. A Mr. Freeland explained that he thought Mr. Boles was asking if a future decision could go a different direction on the zoning and have a condition that could lead to the removal of that. - · · · Planning Commission Minutes October 22, 1998 Page 16 Q Mr. Boles: Said he was asking if there was a foreseeable condition situation that would remove those conditions. A Mr. Freeland: They are usually written with a proviso that says the City would have to agree to them, and that was what he was originally answering. He then said that if something in the future that causes the City to be a willing party to remove the restrictive covenant, it could be removed. Mr. McMahan: We draft restrictive covenants all the time; BCD has a form we prepare. So, the City initiates the form, it is recorded and turned back to City files for long~term filing; but it runs with the legal description on the property. When somebody comes in at closing of property purchase, the title company picks up the encumbrances on the title and the purchaser would be closing, purchasing the property subject to that condition. He said one thing the Planning Commission and Council could do, if they have any worry aboutthis at all, assuming approval of the application, is to put a footnote on the map that says it is subject to restrictive covenants, etc, but he said he thinks there is a lot of security already. Ms. Thayer: Said there is a lot of security, but expressed a concern. Let's say you rezone a property and the owner of that property, any property, goes to get a building permit; the permit process may not ask for a title report on the property, and it could very well not show up at that time. She said when it does show up is on a change of ownership; when you get title insurance it will show up as a red flag at that point. There are some circumstances where they might not show up. She said the City Attorney's idea of adding it to the map would be a good idea, because it would be a red flag. MOTION Mr. Worden Go into Executive Session for the purpose of reviewing the legal consequences of the decision we make SECOND Discussion: Mr. Boles Mr. Boles said there are some issues he thinks they need to discuss, and some issues have been raised that he thinks make it important to do this. Unanimous, 6 in favor by roll call vote VOTE Mr. McMahan said the Planning Commission doesn't do this very often, but the general purpose for going into executive session should be stated (potential litigation), the approximate time to be in session and staff members that will be staying. Mr. Hayden objected stating that potential litigation can come from anybody, anywhere, anytime; it is not a blanket excuse to go into executive session. He asked what is the actual threat of litigation. Mr. McMahan replied that there have been recent court decisions on that, and they do not have to state that. Mr. Hayden asked what kind of written record there is of the content of the executive seSSIOn. · · · Planning Commission Minutes October 22, ] 998 Page 17 Mr. McMahan replied that there need not be any written record of an executive session. It was announced those leaving would be notified at the conclusion of the executive sessIon. At 8:30 p.m. Chair Thayer recessed the meeting into Executive Session with BCD Director Freeland and City Attorney McMahan for approximately 15 minutes to discuss potential litigation. At 8:56 p.m. Chair Thayer reconvened the meeting to continue discussion and deliberation. Attendees who had left the premises and were available were notified. Commission Discussion (continued) Ms. Thayer: This is a very difficult one; the natural inclination is to keep this as park, which we cannot do. That is not what we are here to do; we cannot even deal with that. She said her feeling is if they keep the zoning as it is, they have the risk of a government building being built there, ]] ,000 square feet, not because of the restrictions of the property but the maximum is more than being proposed here. She said for that reason she is leaning toward CIIIMU, because ofthe fact that there would be a much smaller building than allowed with its current designation. Q Ms. Erickson: With the CIlIMU regulations as they exist now what percentage ofthis 3,600 square foot two-floor building would be aHowed for commercial use and what would be residential? A Mr. Freeland: There is a really good question there, because the ClIIMU has a minimum of residential density. As long as that stays in place, what is the basis for applying that? If you applied it against the whole site, you would have to have 17 units, which would be physically impossible in that size building. He was inclined to think they would want to apply it against the buildable area and use the density calculation against the buildable area, considering the covenants. Q Ms. Erickson: She is not sure she understands why they are going for either CII or ClllMU, because there is such a vast difference in what could be done with these restrictions. A Mr. Freeland: You are raising the question -- Could CTIIMU actually be developed given these limitations because of the minimum housing density requirement? Ms. Erickson concurred. Q Mr. Boles: Why couldn't it. You would have to apply it against the covenants. A Mr. Freeland: It is a case that hasn't come up before. He said it seems to him that you . . . Planning Commission Minutes October 22, 1998 Page 18 would apply it against the buildable portion of the site; there is nothing in the code that tells you that. It would require a director's interpretation to be written. Q Ms. Erickson: Even if you apply it as such, and there is a minimum density, how many units? A Mr. Freeland: The minimum is 17 units per 40,000 square foot area, so two small dwelling units, which would be possible on an 18,000 square foot second floor. You could have two. small units. Q Ms. Erickson: So the actual commercial space would be only 18,000 square feet and two residential units of 9,000 square feet, 18,000 square feet total. A Mr. Freeland: There is nothing in the CIIIMU that says how big the units could be. He said he just heard Ms. Blowers talk about single room occupancy. You could have units as small as 400 square feet, supposedly, that would still be a unit. We are rather in the realm of hypo.thetical, but it would be something like two to three dwelling units. The larger the dwelling units, the less residual there is that could be office or commercial. Mr. McMahan: He said if the Commission should choose to recommend this to the Council, he recommended an additional co.ndition that is explicit and that would say that the building unit ratio will be applicable to the buildable footprint or envelope as proposed by the PUD. Q Mr. Boles: Asked for clarification of Findings of Fact #8: "whether the assumptions upon which the Port Townsend comprehensive plan is based are no longer valid, " -- the site is currently designated P-I, ... the designation is intended to be applied to schools, libraries, and government buildings and uses including parks; "or whether new information is available. . . " -- there is new information, in that the PUD does require the site for its purposes and is now interested in selling the land for uses other than public infrastructure. At the time of setting of the Comp Plan, he understood there was deliberation about this, that the interest of the POO in not using the property was known, and, in spite of that, it was zoned as it currently exists, because of the ownership by the POO. He asked this question before in the context of the paradox he is facing here -- if he sees no new information, that is that the zoning is appropriate because it is, in fact, owned by the POO, then he is having difficulty seeing why there is a new basis on which he would change that. By definition, it is owned by the POO, and therefore is properly zoned. A Mr. Freeland: Mr. Boles raises the questio.n that maybe there is not new information and maybe this finding is not factual. He said he made a presumption when he wrote this, if we are going to designate something public infrastructure, he believes they had to have a public infrastructure use or necessity in mind; that they wouldn't go around designating something public infrastructure unless there was some belief that was there for a public purpose. He said his presumption, and it could have been wrong, was that we must have believed that the POO had a public infrastructure purpose for holding that property; or, if they didn't, then the . . . Planning Commission Minutes October 22, 1998 Page 19 City should have declared a public infrastructure purpose of its own for keeping this property. He was going on some presumptions rather than clear history. Ms. Thayer said she thinks there is new information in that at the time they thought the City was leasing this land. There is new information that they find it is not. Mr. Boles said he would make a different point -- that it is zoned as it currently exists because it is owned by the POO, and that is a proper zoning for a buildable building, not because anyone envisions any use of it as a park. He said he accepts what Mr. Freeland is saying. Maybe on reconsideration, we take a new context for the POO's intent in not being able to use that property. In spite of the ownership, more appropriate zoning would not be for the POO or a government building, but for something else that is more consistent than stated in the Findings and Conclusions, with the constraint resulting in less development and more consistency with community values for that area than could be done were it to stay under the PI zoning and ownership of a public entity. Mr. Worden said they had spent time over the past few weeks looking at this particular piece of the town. He said it has become clear to him that the intent of the Comp Plan really was to make a distinction of Kearney Street from commercial zones on Sims Way partly asa way to make a transition to adjacent residential neighborhoods, and partly to prevent strip development. What occurs to him now is that the designation of this property as public infrastructure is a very appropriate part of that transition zone, and also the multi-use, CII/MU zoning on the other side of the street. He said the question they are facing now is whether or not it is appropriate to extend CII/MU to the side of the street it is not currently on. In a sense that does some of the same things that maybe putting the CII around the comer did. He said it is difficult for him to understand a reason for changing that determination -- that the Public Infrastructure use was appropriately zoned for that side of the Kearney Street area, that transition zone. He said he guessed he has not been convinced there is a public reason to make the change. Mr. Boles said there is an interesting nested problem in the zoning, and he thinks Finding #6 is clear in what would be allowed to be built in a PI zone and the effect it would have on what is otherwise perceived as a transitional property. He suggested, undoubtedly, they are going to have to face that problem with regard to the Port-owned property which is similarly zoned; the zoning is appropriate by definition, because it is owned by a public entity; on the other hand, it doesn't take into account what could be built there. He said he is not sure if there was a fogging effect at the time -- this could be park land or it could be something else; they are now being called on to clearly associate the PI as a buildable site by a public entity versus park land or something of a similar value. He said he thinks on that basis one has to be very careful how the property is seen as PI buildable by a public entity, or seen relative to · · · Planning Commission Minutes October 22, ]998 Page 20 a hoped-for transition to the residential areas. He would vote to reject CII, but would accept CII/MU on the basis of the covenants and conditions. The constraints on the property would be greater than the constraints as a publicly-owned property and would fit in more with the people living in that area and using the park than just having a pubhc building sold to a public entity, like the Port for building offices in that area. He said he is not comfortable with this, because he too would like see it under lease and under protection, etc. The question is, what is allowed under the PI zone for development for the public entity as in Finding #6, and what would be allowed under a ClIIMU proposal with the covenants and constraints that are to be conditions of this approval. He said he is slightly tipped in favor of the ClIIMU with covenants and conditions MOTION Mr. Boles Approve the Cll/MU designation with covenants and conditions SECOND Mr. Worden Discussion Mr. Worden said he thinks Mr. Boles said it correctly, and he meant to say it at the beginning; the voluntary constraints on the property are very generous and very important. This is the kind of thing they would hope to impose at a project level; this rather takes all that issue away and guarantees the development of the property can be done at a very good density. He said it just happens to work out about the same as the CII/MU proposed at the last meeting, 1,800 square feet commercial without residential and an 1,800 square feet of residential. He said, understanding all that, he will vote in favor of this motion. Amendments to: Mr. Freeland's memorandum of September 29, 1998 with Recommendations, Findings of Fact, Conclusions and Conditions of Approval Additions: ~ '"The dwelling shall be applicable to the footprint." ~ Reference to Conditions shall be marked on the map ~ Conclusion #2 -- change to read: " . . . along Kearney Street to C-II use which could. . ." Conditions of Approval: Renumber paragraph #2 to read #4 Add new paragraphs: ~ #2 A footnote on the Land Use Map that states, "This zoning is subject to restrictive covenants recorded in the Jefferson County Auditor's file # . . ." ~ #3 Recognize that the applicable CII/MU zoning formula for proper development would be applied to the 7,200 square foot maximum total, and the building envelope as restricted in the covenants and would apply wherever the CIIIMU zone is, whether it is the current one or is changed. Correct typo&raphical errors: ~ Throughout, change spelling of envelop to '"envelope" . . . Planning Commission Minutes October 22, 1998 Page. 21 .. Finding of Fact #8, last sentence -- change to read: ". . . for its purposes and. . . " ~ Finding of Fact #12, mid paragraph -- change to read: " . . . is in a class 3 wetland or. . ." ~ Finding of Fact #15, first sentence -- change to read: ~'. . . asks if the proposed action. . ." ~ Conclusion #1 -- changeto read: ". . . Kah Tai LagOQn Park. . ." Friendly AmendlDents accepted by Messrs. Boles aud Worden' VOTE '5 in favor by roll call vote, Mr. Johnson dissenting Chair Thayer1hanked the participants for their comments and reported this application now goes forward to the City Council for an open record hearing November 2, 1998. V. NEW BUSINESS Mr. Freeland gave the reminder that on October 26, 1998 at 6~30 p.m., the Planning Commission has a Joint workshop with the City Council for-the primary purpose of the Planning Commission: explaining to Council what they have done on these proposals: He indicated the Commission will answer Council questions and the Council will deliberate after their open record public hearing. Ms. Thayer stated she and Mr. Eric Toews will be preparing a letter of transmittal to present to the City Council. Mr. McMahan answered a question that once Planning Commission is finished, Commission Members can discuss the quasi-judicial issues. He also reminded that anything stated in the Executive Session is to remain confidential. VI· ANNOUNCEMENTS: Next Scheduled Meetings October 26. 1998 6:30 p.m. Joint City Council/Planning Commission Workshop Comprehensive Plan Amendments Parks & Recreation Functional Plan, Public Hearing Rosewind PUDA Amendment #5 (not a hearing) Election of officers. October 29. 1998 November 12. 1998 VII. ADJOURN Motion to adjourn the meeting was made by Mr. Worden and seconded by Mr. Johnson. All were in favor. The meeting adjourned at 9:30 p.m. . . . -. Planning Commission Minutes October 22, 1998 Page 22 -- ) c/' [... . " ll~/¿J- / '- ~ -;,- ,/.1 . '<:. ~t;bu Sheila Avis, Minute Taker /'j . '-', :J¿¿~vJ CindÝ Thayer, Chair . .J . Guest List )'J Meeting of: 't¿4/i/¡f//A!Ç:' ( IO,f;1A1IYS/{)t1l'c Purpose: ¡r¡t!S /" ó/Vj/'l2¡E II ¿ .') !t/-é ;l4~"f' / #é/f/.¿)/I' f4T Date: ~~- 'Q Name (please print) Address \....// ;?~ / / ,v ~ I· u.1 I I J