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TAPE #1391
CITY COUNCIL MEETING MINUTES
UNAPPROVED DRAFT
JULY 10, 1996
#0018
#0031
The regular meeting of the City Council of the City of Bremerton
was called to order in the City Council Chambers, 239 4th Street,
Bremerton, Washington, Wednesday, July 10, 1996, at 5:30 P.M., with
Council President John Law presiding. Council members present were
Bob Winters, A1 Colvin, Cecil McConnell, Carlos Montgomery, Sherril
Huff-Menees, David Farr, Richard Neville, and Lon Overson. Also
present were City Attorney Ian Sievers and City Clerk Kathleen
McCluskey.
The meeting opened with the Pledge of Allegiance led by Council
President Law and Invocation given by Reverend Grant Christensen of
First Covenant Church.
President Law announced Council held a Study Session to discuss the
City's "Employment Application Fees" just prior to the Council
meeting.
CONSENT AGENDA
A. Minutes - June 16, 1996, #AB96-144
M/S/C(Overson/McConnell) to approve Consent Agenda as presented.
Vote on motion: In Favor: Montgomery, Huff-Menees, Farr, Neville,
Overson, McConnell, Colvin, Law
Abstain Winters
Motion carried.
CLAIMS/CHECK REGISTERS
Vouchers audited and certified by the auditing officer as required
by RCW 42.24.080, and those expense reimbursement claims certified
as required by RCW 42.24,090, have been recorded on a listing that
had been made available to the Council.
M/S/C/U(Colvin/Farr) on July 10, 1996, the Council does approve for
payment those vouchers included and further described as follows:
199443 through 199572 in the amount of $201,224.82.
COUNCIL MEMBER REPORTS
Mr. Colvin reported during the Bremerton Central Lions Club
luncheon meeting today two issues of concern were raised, one
having to do with Lions Field, which he will refer to the Mayor;
and the other had to do with parking in the Sinclair Landing
project. He suggested that a brochure be printed listing the
questions and concerns about parking for that project.
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Mr. McConnell encouraged residents of the City to take advantage of
the opportunity to see the "Fire Department on parade" on July 16,
7:00 P.M., at the Senior Center and learn about fire safety.
Mr. Farr expressed concern that some residents with unkept yards,
is. tall grasses/weeds, present a fire hazard during the dry hot
weather. He encouraged property owners to take action to reduce
the possibility of such a fire hazard and suggested the possible
use of Community Service groups to assist the elderly, who may be
physically unable to maintain their yards.
Mr. Winters reported he attended the Cable Communications Committee
meeting on Monday evening. It appears the usefulness of this
committee is coming to an end with the formation of the County
Cable access group and individuals participating on that committee
over the past years need to be publicly thanked. In the very near
future, he will come forward with a more defining "thank you" to
the people involved with the cable access committee. He made a
suggestion to the Cable Communications Committee that there may be
opportunities in the future for this community to benefit in
regards to telecommunications technology and the wireless age that
is taking place. He learned of such opportunity through AWC at
their Annual Conference in June.
Mr. Law reminded everyone that District #3 will host the "Fire
Department On Parade" on July 16, 7:00 P.M., at the Senior Center.
He sees this event as an opportunity for children, parents and
grandparents to gain important information on fire safety and
become acquainted with firemen. Free pop and popcorn will be given
out at that event.
MAYOR'S REPORT
Mayor Lynn Hotton reported this afternoon she hosted a contingency
from Puget Sound Naval Shipyard that included Admiral Center and
Captains from the various ships, i.e. USS Rainier, USS Lincoln, and
USS Nimitz, to talk about the Sinclair Landing proposal in order to
ensure that it is the kind of proposal that they and people under
them can fully support. It was also an opportunity to expand and
bring more people on board the project and help to fine tune it so
it becomes a successful project in our community.
In response to a concern raised by Councilman McConnell that
residents were still being disturbed by parking lot sweeper noise,
she wanted the public know that the City is taking action to
address the problem. She explained the lack of response to a
citizen's call about this issue was due to a shortage of patrol
officers and those on duty having to respond to higher priority
calls. She will be meeting with the owner of the parking lot
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sweeping service next week and hopes that an agreement can be
reached to alter the method of his operation in some capacity or
continue to be cited by the City. If the sweeper is run two
consecutive nights in a row in a manner that is unacceptable, the
City can arrest the operator. However, generally the operation
schedule is a couple of times per week. She also talked with
Councilman McConnell about the possibility of having the neighbors
sign an affidavit and issuing a citation based on that affidavit.
Another concern within the City is speeding vehicles and she hopes
to use some Block Grant funding for some traffic calming devices to
address that problem.
Mayor Horton introduced Charlene Burnett, Parks Department, Robert
Burn and Craig Hobson of Windemere Realty. About two weeks ago the
City was the recipient of a community service project that involved
approximately 100 members of Windsmere Realty painting the interior
of the Sheridan Park Recreation building. She expressed a special
"thank you" to everyone involved with that project. Mayor Horton
presented a Community Service Award to Windemere Realty in
recognition of their contribution to the City. Bob Burn, Manager
of the Windsmere Realty office located in Bremerton, accepted the
award and gave a brief rundown of the coordination of the project
by various individuals within their organization. Charlens Burnett
expressed how ultra organized this project was handled and the fact
that the work was completed the Friday prior to the kick off of the
Department's summer programs.
President Law referenced the parking lot sweeper noise issue and
questioned if he understood correctly that if such noise is created
two days in a row, a citation can be issued? Mayor Morton stated
that was her understanding; however, their schedule is such they do
not sweep two days in a row. President Law asked if the City's
ordinance could be changed to reflect twice within a week?
Slevers, City Attorney, stated it is a matter of local ordinance
and the second offense within 24 hours escalates the penalty.
PUBLIC RECOGNITION
A1 Mercer, Hollis Street, stated he took exception to Mayor
Horton's comment that the parking lot sweeper does not operate
nightly, they do sweep nightly at approximately the same time,
which can be verified on the printout provided to Councilman
McConnell. Per the City Engineer's report, the equipment used by
the parking lot sweeper is in direct violation of the City's Noise
Ordinance, but it appears the City has turned a deaf ear and blind
eye to enforcement of that ordinance. He understands that a Police
officer may not always be available to respond immediately to a
call such as this. He is thankful that some action has begun and
thanked Councilman McConnell for pursuing this issue with the City
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administration.
Charlie Brown reported he was one of the individuals awakened early
Monday morning, which prompted him to call 911 to report the
excessive noise from the parking lot sweeper. The Police did
respond to his call, although he was not aware of it at that time.
A Police Officer called him Monday evening and explained the
actions taken in response to Mr. Brown's call. He referenced a
newspaper article (The Sun-June 28, 1996) stating that Councilman
Huff-Menees made a comment, which could possibly be a miss quoted
statement, "that the private developer (of the Sinclair Landing
Project) would be given the right of eminent domain to buy the
properties if need be". Mr. Brown's understanding is only the City
of Bremerton and Port Of Bremerton can take such action for this
project, i.e. City Council approval plus a public hearing. Mrs.
Huff-Menees acknowledged Mr. Brown was correct in that it was a
miss quote and she understood the process of eminent domain the
same as Mr. Brown.
Carol Atkinson, Bremerton Main Street Association, invited everyone
to the Concert On The Dock on July 12, 8:00-10:00 P.M., featuring
Jr. Cadillac. This concert is sponsored by Westhills Honda,
Heartland Toyota and Haselwood Expo.
Gordy Byrd commented on the quick response of Bremerton paramedics
when called to assist his father after he fell off a ladder and was
injured. He reminded everyone about the free Concerts in the Park
at Evergreen Park on Tuesday evenings.
Shannon Kraetsoh announced Harrison Hospital is sponsoring "Whale
Of Run" July 27, starting at the Silverdale waterfront park.
Volunteers are needed for this event and additional information can
be obtained by calling 377-3911 and request the Foundation Office.
President Law announced Agenda Item 7C had been taken off the
Agenda.
7A - McKENNA FALLS INTAKE/UNION RIVER PROJECTS DESIGN - APPROVAL OF
AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT WITH R. W. BECK,
#AB96-145
Amendment No. 2 to the Professional Services Agreement has been
negotiated with R. W. Beck, inc., and includes additional design
effort and construction services for the West Branch Modifications
and McKenna Falls Intake Facility. The additional design effort
cost is $8,316. The estimated cost for construction services is
$29,894. The total amount of Amendment No. 2 to the Professional
Services Agreement is $38,210.
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Tom Knuckey, Civil Engineer II, stated the additional design
element encompasses three tasks: (1) putting together the contract
specs and drawings for the gate procurement package. The gate
procurement was required separate from the design contract. A long
lead time is involved for fabrication of the gates. (2) increasing
the scope of work for the West Branch facility. The original scope
identified 10 design sheets for the project; however, an additional
design sheet was included under Amendment #1 of the contract, but
the design actual took 17 sheets. During Amendment #1, the
consultant identified that they would require additional sheets,
but felt, at that time, they would be able to complete the design
within the current budget; however, they were unable to meet that
assumption. (3) Inclusion of a retaining wall at the McKenna Falls
facility. That wall was put into the design after the original
design was completed in order to allow a more safe area for parking
the vactor truck during route maintenance of the facility. When
the vactor truck was moved in to provide route maintenance about a
month ago, after the original design was completed, it became
evident that what was designed was not the most safe approach, so
they revised the design.
The bid phase and construction services are the remainder of
Amendment #2. The construction services are fairly standard as
those provided by other consultants for comparable projects, i.e
assisting with the review of the Agenda, submittal reviews, and
contract document interpretation, some budget allows for any design
changes that become evident during construction.
Public comment - none.
Mr. Farr asked Mr. Knuckey to describe what is involved in the West
Branch modifications and McKenna Falls Intake Facility. Mr.
Knuckey explained in the watershed the intake to the water system
is located at the McKenna Falls facility, which was reconstructed
in 1992. The work to be done at that facility is installing two
large slide gates that replace one slide gate to allow sediment to
be transported through the basin. Currently, the sediment builds
up in the basin and has to be removed manually. In addition, there
is an apron area immediately down stream of the head wall that
needs to be accessed by maintenance personnel so a stairway is
being installed. Also, some unstable riprap will be covered with
concrete material to stabilize that area and a retaining wall will
be built where some of the riprap provides a parking area for the
vactor truck. There will be little grading involved relating to
the access of the vactor truck. The West Branch facility is an
older facility and the last improvement made to it was 20 years
ago. It is functional, but in disrepair and the work will include
removing of the facility that is non-functional and replacing it.
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Mr. Overson expressed concern that the documentation did not
include the content of the original Professional Services
Agreement, the cost of that agreement, or any discussion on what
the total cost of that agreement would be with the approval of the
two amendments. Also, there was no data provided to determine if
there is a duplication of services for additional 452 hours of
service at a cost of $38,0000. Mr. Knuckey explained the original
contract was $78,972.00 and Amendment #1, which was approved
approximately one month ago, amounted to $12,900, making the
current cost $91,923 plus the $38,210.00 for a total of about
$130,000.00. Mr. Overson asked if this contractor came in with a
"low ball" bid and is now adding amendments to increase the cost of
the contract? Mr. Knuckey stated the scope of the project has
increased from what was originally anticipated and 99% of that
increase is driven by requirements dictated by the Department Of
Fish And Wildlife. At the time of the original agreement, they did
not anticipate having to include a fish screen, which required some
major improvements to the West Branch facility. Another item that
increased the scope of work was the bank stabilization immediately
upstream of the West Branch facility. They had anticipated
stabilizing the slope using some inexpensive materials for riprap
for concrete ecology blocks, instead the Department of Fish And
Wildlife required the City to maintain habitat through that area
and require the use of a more expensive form of bank stabilization.
Mr. Overson asked when would the bids be in for the work described?
Mr. Knu~key pointed out the next Agenda item addresses awarding the
bid for construction of the projects. Mr. Overson questioned if
Mr. Knuckey was saying the project was to the point of construction
or that the consultant would be helping the City with the bid
process, prepare bid meetings, etc.? Mr. Knuckev stated the
bidding process has been completed and a low bidder has been
identified and is being presented to Council for approval as part
of this meeting.
Mr. Colvin questioned where the contract stood in relation to the
budget? Mr. Kn~key explained the budget for the project is
$400,000.00 and the current anticipated cost of the project through
construction, including all the consultants work, the City's work,
etc., is $560,000.00. The Capital Improvement Plan has been
revised to provide for funding to complete this project through
reallocation of budget.
Mr. Meville asked if he understood correctly that the original
total time limit for constructing this project was 13 weeks? Mr.
Knuckey stated the construction period has been identified from
June 30 through September 30, 1996, which is driven by the
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#1285
hydraulic Permit from the Department Of Fisheries & Wildlife. Mr.
Neville questioned if the City missed that "window", would the
project be delayed another year? Mr. Knuckey stated discussions
have been held with the Department of Fisheries about the
possibility of giving the City an extension on this project.
Approximately three weeks ago received the Hydraulic Permit from
the Department of Fisheries for the West Branch facility and the
end date indicated was October 30th, so an additional month has
been given that the City had not anticipated. Mr. Neville
referenced Exhibit A (page 3) Item 2 - Construction Management
Services, including project management, and on-site construction
observation for a construction contract duration in excess of the
assumed 13 weeks, and asked if this now falls into the change
order? Mr. KnuckeV stated that would be additional work; however,
the consultant would only be paid for the actual work performed.
An amount of time has been identified for the different tasks to be
performed. Many of the tasks will have a set cost, but some could
generate additional costs. Mr. Neville questioned, based on Mr.
Knuckey's ability and knowledge on this project, if the project was
on track and if he believed there would not be additional change
orders? Mr. Knuckey stated at this time he does not anticipate any
additional change orders. However, he pointed out the contract
with the contractor actually performing the work identifies
liquidated damages, i.e. if they ran beyond the contract period the
City would be in a position to recoup the costs incurred by the
consultant overseeing the project. Mr. Neville questioned if this
area experienced a 100 year storm could that drive the project off
its time limit? Mr. Knuckey stated acts of God have to be
considered.
M/S/C(Farr/Montgomery) To authorize and direct the Mayor to execute
Amendment No. 2 to Professional Services Agreement for McKenna
Falls Facility/Engineering Design Upgrade with R. W. Beck, Inc., in
the amount of $38,210.00 to provide engineering design services for
the Union River Projects.
Vote on Motion:
Motion carried.
In Favor:
Abstain:
Huff-Menees, Neville, Farr, McConnell,
Colvin, Winters, Montgomery, Law
Overson
7B - BID AWARD - CONSTRUCTION OF UNION RIVER PROJECTS - STANPALMER
CONSTRUCTION, #AR96-146
Bids were opened for the construction of the Union River Projects
on June 27, 1996. Three bids for this project were received. The
low bid from Stan Palmer Construction was $318,338.29. The
engineer's estimate for this project was $284,322. The action
before the City Council is approval of a contract for construction
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of the Union River Projects with Stan Palmer Construction Inc..
Tom Knuckey, Civil Engineer II, stated the City has worked with
Stan Palmer Construction on two separate projects and had a good
working relationship on both projects. When references were
checked, the City of Bainbridge Island responded that Stan Palmer
Construction did an "excellent job" constructing a sewer treatment
plant for their city. Stan Palmer hired a person from Pappas
construction to act as Project Manager. The City checked three
references on that individual and all of them came back as
"excellent".
Public comment - none.
Mr. Overson expressed concern that a contract was not included as
part of the Agenda documentation. Randy Witt, City Engineer,
stated traditionally construction contracts are not included in the
Agenda packet; however they are brought to Council committee
meetings. Mr. Overson stated his primary purpose for wanting to
review the contract was the scope of work and beginning variates on
the contract. Mr. Witt stated that information is not generally in
the contract and is better described in the "special provisions",
and the issue with that documentation is that it gets to be 1-3
inches thick. Mr. Overson asked if work had already started on the
project? Mr. Witt stated no, Council action will award the
contract.
Mr. McConnell noted the low bid was $318,338 and the Engineer's
estimate was $284,322, with a different of approximately $34,000.
He asked if sales tax made up the difference between those two
figures? Mr. Knu~keV stated no, the estimate has the same items
included as the bid. One of the first items the contractor is
required to provide is a schedule of values that will breakdown the
cost of the various portions of the work. Once that schedule is
received, they can identify where the difference in cost occurred.
Mr. McConnell asked if R.W. Beck had anything to do with the
estimate? Mr. Knuckey stated yes, there is approximately 11-12%
difference between the estimate and low bid. He noted there is
only a $7-8,000 difference between the low bid and construction
estimate, if you include the contingency included by the engineer.
Mr. Colvin asked if that cost difference is an acceptable and
reasonable difference? Mr. Witt stated naturally they would like
to see their estimates closer to the low bid amount. If you go
back to the hydro gates that were bid previously, the Engineer's
estimate was about $50,000 lower than the bid. His ideal range
between the estimate and bid would be 5%. Council will be updated
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#1372
on how well they are doing in estimating projects at the monthly
Utility issues Study Session. As was stated, this project is over
budget and a Budget Adjustment will be forth coming to Council in
a couple of weeks to address that situation.
Mr. Overson pointed out frequently Council is given a Scope Of Work
for projects, which provides information that helps them to
understand what is involved in the cost. Mr. Witt explained when
consultant contracts and agreements are brought before Council the
entire agreement is provided, which may change along the way;
however construction contracts do not change. Mr. Overson pointed
out the lack of substantiating documentation to support the various
work specified for the two projects. Mr. Witt explained it goes
back to the scope of the construction provisions.
President Law asked if the contract set 13 weeks as the time of
construction? Mr. Knuckey stated the contract identifies the end
of construction at September 25, 1996. President Law asked if
construction goes beyond that date, will monies come from the
contract to offset the professional services contract for any
additional charges to the City? Mr. Knuckey stated the additional
charges for consulting are what the liquidating damages are based
upon. President Law questioned for clarification if an Amendment
3 to the professional services agreement is required, would it be
paid for by the contractor for having extended services? Mr. Witt
stated this issue was unlike the wastewater treatment plant where
a consultant is doing daily inspections, on this contract the City
is doing the daily inspections. The contract with the consultant
is for specialized services...an on call contract.
M/S/C/U(Neville/Colvin) To approve a contract for $318,338.29 with
Stan Palmer Construction Inc., for construction of the Union River
Projects and authorize the Mayor to execute the same.
7D - REVISION TO COUNCIL RULES AND PROCEDURES FOR QUASI-JUDICIAL
HEARING, #AB96-148
Ordinance #4550 established interim procedures for land use permits
pursuant to ESHB 1724 (RCW 36.70B) including procedures for a
closed record hearing or appeal before the City Council where there
has been a prior open record administrative hearing on the
application or appeal.
Current Council rules set a procedure for an open record hearing
where new evidence is introduced and must be amended for a closed
record hearing based on the record from the prior hearing, argument
of parties, and "limited" new information or evidence as allowed by
Council rules of procedure. (Ord. 4550 Section 2(2)
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Ian Sievers, City Attorney, stated the City is operating under an
interim ordinance on quasi-judicial hearing process for
administrative decisions, which was approved approximately two
months ago and was a 90-day ordinance. This discussion does not
get into what permanent arrangements will be on handling
Administrative hearings. As the Mayor mentioned in the Study
Session, the Planning Commission is meeting on this issue and will
soon be passing on their recommendation for a permanent ordinance.
The proposed rule amends a current Council rule on how to conduct
hearings at the Council level. The interim ordinance calls for a
closed hearing at Council and the current Council rules set forth
an open record hearing, which must be amended to comply with the
interim ordinance.
In reviewing proposed changes, there are some non-substantive
changes on the appearance of fairness statement made by the Council
President #4, under Rule 11, as to what the Council President will
announce to the hearing audience as to the type of evidence that
will be allowed at the closed hearing. It restates the interim
ordinance... that this closed record hearing will only contain
material and evidence that has been submitted earlier at the open
record hearing, which will be the Planning Commission; and on some
sort of record either a tape or transcript. This rule proposes
an option that was given to the City by State law to admit limited
new evidence and the State Law did not elaborate on what that
meant. He reviewed all of the model ordinances and one
jurisdiction did set forth three types of additional information
that can be admitted at a closed hearing, those are set forth in
5(a). Item #4 announces to the audience what additional
information might be in addition to the party's argument. Again,
those are optional and Council may choose to strike one or more of
those three additional types of limited information. Also, Council
can set the length of argument to allow a fair hearing. Another
proposed change elaborates a little more than the current rule on
what is in Council's motion. He believes Council has been a little
lax in the motion making and it is preferred that the motion maker
recite the findings that are needed to support the motion or
decision of the Council. Council can adopt prior findings to the
degree they support their motion, but if additional findings are
needed, they should be included in the motion. Under sub-rule 11
of Rule 11 has to do with reconsideration, which has given some
difficulty in the past. He recommends that after Council has made
their decision on the closed record that there would not be
reconsideration. Council does have the option to provide some kind
of reconsideration, possibly at the request of one of the
participants or parties in the hearing, or maybe upon Council's own
motion, which has happened in the past.
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Kathleen McCluskey, City Clerk, read the following letters into the
record: Paul Scheyer, 2111 Madrona Point Drive, Bremerton WA 98312
- "Subject: Revision to Council Rules, comments on proposal Rule 11
"(1) I appreciate the opportunity to comment on the proposed Rule
11 change. I recently (1993) was involved in an appeal of the
Kitsap County Director of Public Works action to the Board of
Commissioners, which was conducted as a closed public hearing
meeting based on a written record transmitted by the Director with
no additional evidence or argument permitted. This was done under
Ordinance 113. The Director was allowed to provide both sides of
the dispute. The only thing that made this remotely fair was that
I was allowed to provide written rebuttal testimony right up to the
decision meeting. The fact that the Commissioners did not make the
decision at the initial closed public hearing was also a help to
obtain fairness. (2) I would like to make the following comments
on the proposed rule 11:
a. Separate rules should be drawn for open and closed hearings.
b. all testimony should be written for closed public hearings.
c. Written testimony should be allowed from any party prior to the
initial closed public hearing.
d. Any party should be able to rebut anything presented during the
initial closed public hearing including anything the staff presents
verbally or written.
e. A deadline for final written testimony should be established
prior to the decision meeting.
f. More than one closed public meeting is needed to complete the
process."
George Miller, P. O. Box 788, Bremerton, WA 98337 - "It has
recently been an illuminating experience, examining the records,
rules, and regulations associated with one of the City's
'departments'. The records were found to be haphazard at best, in
a state of flux, or non existent. The record system exhibits an
egregious lack of standardization and control. Copies of one of
that 'department's" "bibles" were current, but without an audit
trail to the status of previous revisions; and Officials in that
'department' could often NOT adequately quote nor apply their own
rules and regulations.
And now to run across RULE #11 which, as it presently exists is a
perfect political document. It consumes words and paper, says
nothing intelligible, and even a trained legal mind could not, in
all probability, fully devine its intent and purpose.
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It would cost respect for the City Council if you maintain your
determination to vote on that gaggle of babble, in it s present
form, at this meeting.
May it be suggested that first you develop a clear picture in your
own minds as to what the basic procedure is to be. Then create a
Glossary of terms, so that the average citizen can make a beginning
of understanding exactly what You mean. At this point it would
probably be best if you were to separate your "rule" into two
separate sub-rules, one dealing with Open and the other dealing
with Closed Hearings.
Next, take special pains in the area of "presentation and
admissibility of data" to avoid the color of prejudicial treatment
and "filtering" by the Information Czar who provides the Council
with the basic data. It would be nice, even intelligent, if
Council members were expected to make their individual decisions
based upon ALL of the information that was available.
With that under control, bug, borrow, or bribe someone who can
write ENGLISH, and have that person do an approval draft. Run it
by a High School Senior (or equivalent) and see if that senior can
understand the organization and protocols put forth in the
document. Then, you can as a body, Vote on it. But please don't
vote something into being that is as obtuse and arcane as the
existing version. Give the public a break...give us a document
that everyone can understand and respect.".
Mr. Overson stated from his experience he believes Mr. Scheyer has
an insightive method of reviewing issues and his questions p~obably
need considerable attention because they have substance. He asked
Mr. Sievers if he had an opportunity to review those questions and
determined if they have been answered or the proposed changes meet
the points he brought out? Mr. Sievers responded to the questions
raised in Mr. Scheyer's letter: he agrees that a separate rule for
open and closed hearings need to be established; however, there
will still be a couple of instances where the Council will hold
open hearings. He recommended adding a new rule for the closed
hearings and retain Rule #11 for the open hearing. Questions: All
testimony should be written for closed public hearings; Answer:
Council has been given that option in the proposed rule change, but
Council is not tied to that option if they want to use some sort of
tape; however, Mr. Scheyer recommends a written transcript.
Questions: written testimony should be allowed by any party prior
to the initial closed public hearing; Answer: the problem with that
is testimony of any kind, whether written or oral, needs to be
presented during the open hearing, not at any time prior to the
closed hearing. This contemplates receiving letters after the
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close of the Planning Commission hearing, which would not be due
process for those involved in the hearing since they would not have
an opportunity to respond and rebut. Question: any party should be
able to rebut anything presented during the initial closed/public
hearing, including anything staff presents verbally or written;
Answer: the staff will be more limited in their presentation to
Council. You will notice a change in this rule that says they are
simply to summarize the record at Planning Commission and do not
jump into a new presentation before Council. There will be a
change to rebut in the form of argument at the closed hearing.
Question: a deadline for final written testimony should be
established prior to the decision meeting; Answer: there is a
deadline, it is the conclusion of the open record hearing. We
don't expect any letters to be taken under consideration by the
Council that come in after the closure of that open hearing.
Question: more than one closed meeting is needed to complete the
process; Answer: Council has the ability to continue a closed
hearing, if more time to deliberate is needed.
Mr. Overson emphasized the biggest concern is to have a separate
rule for open and closed hearings and both of the letters read into
the record expressed that need. Mr. Slevers agreed with Mr.
Overson and recommended that Rule 11 remain as the open hearing
rule and a new Rule 12 be added covering the closed hearing.
Mr. McConnell questioned what the appeal will be based on, the
entire hearing or a specific portion? Mr. Sievers stated it would
depend on the form of the appeal and he would have to review the
various underlying appeals in the City's Code. When the permanent
ordinance is developed Council may wish to be more specific as to
the content of the appeal, identification of issues and maybe some
process for narrowing the record down to those issues, which may be
difficult. Mr. McConnell questioned if the Planning Commissions'
recommendations to Council will be closed or open hearings? Mr.
Sievers stated there has been a lot of discussion on that issue;
however, he did not know what that recommendation will be. Mr.
McOonnell asked if specific items are identified for appeal, can
Council rule on something within that hearing that was not part of
the appeal and excluded from the appeal in error or will Council be
restricted to ruling specifically on the item(s) being appealed?
Mr. Sievers stated he believed Council will be restricted to the
appeal item(s).
Mr. Farr stated he was leaning towards doing a little more work on
this issue and encouraging more public comment. He appreciated
receiving both of the letters, which were read into the record. A
couple of the points identified in those letters reinforced his
belief that when public comment is limited in some form to one open
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meeting and proceed from there, that the record Council bases the
testimony, at the closed hearing, can't be left up to chance. He
did not believe requesting each of the Council members to view a
video tape for 3-4 hours of a Planning Commission meeting is
appropriate or would serve the purpose. He leans toward the only
factual way to leave an auditable trail and that is to have a
professionally prepared transcript. He realizes that process would
come at a cost, but in his opinion it would be required. This
process has to afford fairness to the appellant and Council needs
to take all the steps necessary to allow the appellant to have a
reasonable chance to present their case, but at the same time it
has to afford a degree of fairness to the folks who made the
original action in that the appeals process. If that process is
abused and left with too many loopholes, it turns into delays that
prohibit construction and can be exceptionally costly in the form
of delays. He did not feel some of the suggestions by the letter
writers can be accommodated since they leave it too open and at
point there has to be a closure to the process.
Mr. Montgomery stated he feels the Legislature made a great mistake
in passing this law. He asked for clarification of the meaning of
Paragraph 2(4) - if a hearing is a closed record hearing, or
appeal; or should the "or" be changed to "o__n"? Mr. Sievers agreed
the "or" should be changed to "on" and the only time there would be
a closed hearing would be on an appeal. To make it more clear he
recommended deleting the words "hearinq, or". Mr. Montgomery
referenced the last line of sub-paragraph 4: "Speakers are asked to
request admission of new evidence under 5(b) at the beginning of
their argument". He asked what is considered new evidence? Mr.
Sievers stated Mr. Montgomery needed to read that in the context of
the rest of sub-paragraph 4...the Council President announces that
limited new evidence described in 5(b) may be allowed" and then he
will simply add if you do have some of that new information please
state your request for admission at the beginning of their
presentation. Mr. Montgomery asked who will determine what is new
evidence? Mr. Sievers stated it could be left up to the Council
President as a ruling on procedure, or Council vote. Mr.
Montgomery stated to him a closed hearing means that it would be
closed to any further public comments and that no new evidence
should be heard. He referenced sub-paragraph 5(3) - "New evidence
discovered after the open record hearing. " and noted he finds it
· . ,
very difficult to figure out what could be newly discovered if the
person had done their homework when they applied for the permit and
during the open hearing. He did not believe the City Council
President should ever have the burden of ruling on whether or not
someone has new evidence. He highly recommended to Council that
all appeals come directly to the City Council to be heard before
the elected officials, not the Planning Commission, who are
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#2954
appointed officials. Mr. Sievers stated in the interim ordinance
the Council is allowed to form its own decision based upon the
testimony presented at the Planning Commission level. Council may
view the weight of the testimony differently after reading the
record. Council is given that flexibility based on the closed
record hearing. Mr. Montgomery stated he understood if someone
appeals something they must have a reason for that appeal, not just
that they do not like the decision. Mr. Sievers quoted from
Ordinance 4550..."The Council may modify or reverse the decision of
the Planning Commission based on its findings and conclusions that
approval criteria for the particular project permit have or have
not been met." Mr. Montgomery stated he did not understand was how
an appeal could get before Council if the appellant did no know
what he was appealing. Mr. Overson asked if that was part of Rule
12 discussion? He emphasized a person has a legal right to appeal
a decision.
Mr. Colvin stated he agreed with Mr. Montgomery that this issue
need further review and he believes the City Attorney was also
somewhat unclear as to how it affects the City. Mr. Sievers stated
the problem with this rule is that there are a lot of options for
Council's consideration.
Public comment - none.
Mr. Overson stated he did not support the idea of postponing action
on this item since it is not a new issue nor does he find it that
difficult. He believed the only question unanswered is whether
Council uses a direct transcript or an audio or video tape. It was
his opinion that a direct transcript was the best method for
providing the information necessary for a closed hearing. He asked
any Council member, who sees the needs for a change to the rule, to
give specifics to staff rather than a general statement "rewrite it
because we don't like it".
M/S/C(Montgomery/Winters) to hold up this
discussion at Council Study Sessions.
item for further
President Law stated his biggest concern on this issue is the
possibility of having to incur a cost of approximately $126.00 per
hour for a typed transcript to be used in an appeal. He was not
sure who would be responsible for that cost. Mr. Montgomez7
questioned who provides the transcript in lawsuits? Mr. Sievers
stated if there is an appeal of a Council decision to Superior
Court the appellant assumes the cost of a transcript. Mr. Law
asked what if the person making the appeal says they can't afford
that cost would the City have to cover the cost? Mr. Sievers
stated that would be up to the Council and they could dictating the
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appellant will cover the cost of the appeal as well as a filing
fee. An average cost of a transcript could be included in the
filing fee as a set amount, otherwise the City will be responsible
for the cost because the current filing fee will not cover it.
President Law stated then this is something that has to be resolved
and made part of the rule. Mr. Sieves stated it is a budget issue,
but that came with the State law, its not really a part of the
procedure before Council.
Mr. Overson stated Mr. Law's point is correct in that it needs to
be determined before Council hears their first appeal under the new
law because we want to apply it universally. Mr. Sievers stated
Council will not have all of the options for their first appeal,
such as a video tape because an appeal has been filed where there
was only an audio tape, which gives the option of either an audio
tape or a transcript.
Mrs. Huff-Menees stated she supports Mr. Montgomery's motion and
President Law statement, at the very least Council needs to
understand the entire document or the implications of it and she
did not feel they had that understanding. She was not comfortable
voting on something until there is a better understanding of the
issue.
Vote on motion:
Motion carried.
In Favor:
Opposed:
Neville, McConnell, Colvin, Winters,
Montgomery, Huff-Menees, Farr, Law
Overson
7E - MUTUAL AID AGREEMENT - DUI TASK FORCE, #AB96-149
Kitsap District Curt has ruled that this long standing agreement
must be approved by each Governmental Unit each year for it to
remain valid.
Police Chief Paul Du Fresne stated he would standby for any
questions.
Ian Sievers, City Attorney, stated the only thing he had to add was
the fact of being mid-term in the agreement and that there is
authority under the Police Officers' Mutual Aid Statute, but the
agreement does recite an Interlocal Agreement under a different
statute and that does require approval by Council and filing.
Public comment - none.
TAPE #1392
Mr. Neville asked if all references to DWI in the Mutual Aid
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#0064
Agreement should be changed to DUI? Chief Du Fresne stated he was
not sure that needed to be done, but he would look into it. Mr.
Meville posed the question: "doesn't one have to do with alcohol
and the other alcohol and drugs? Ohief Du Fresne stated Mr.
Neville was correct. The statute under which the actual
enforcement is carried out is probably independent of this
agreement. Mr. Sievers stated he believed the "I" was the important
element, it includes drug and alcohol in both cases.
Mr. Montgomery asked if there was a reason why this agreement had
to be approved annually? Chief Du Fresne stated he would explore
the possibility of approving the contract for a longer period of
time, i.e. 5 years, etc.
M/S/C/U(Montgomery/Farr) Approval to enter into the agreement for
1996/1997.
8A - RESOLUTION #2550 ADOPTING CITY OF BREMERTON EMERGENCY
OPERATION PLAN, #AB96-150
Pursuant to Chapter 38.52 RCW, this plan is intended as a
comprehensive framework for City side disaster mitigation,
preparedness, response and recovery. It details authority,
functions and responsibilities to establish a mutually cooperative
plan of action between local, state and federal governments and
public and private organizations.
A1 Duke, Assistant Fire Chief, stated this plan has been developed
over the past 18 months and it was used for a mock disaster drill
as well as more recent wind storm. All of the Department Directors
and Department Heads have thoroughly reviewed the plan.
Elizabeth Bus11 questioned the nature of the plan? President Law
explained that in the event of a disaster the plan will provide the
guidelines for City personnel assisting the public. The plan is
available for the public's review in the public libraries and City
Hall.
Mr. Montgomery commended the Fire Department staff for their effort
in putting the plan together.
Mr. Winters raised a point about the role of the Mayor Protem as
identified in the City Charter and the fact the subject plan does
not show that same line of responsibility. He referenced Page 14
of the Plan, Section IX - CONTINUITY OF GOVERNMENT...to insure the
orderly continuity of leadership in any emergency situation, the
following line of succession is established: Mayor, Council
President, Council Vice President"; and page 36 - Section III
RESPONSIBILITIES (B) it states "The Mayor of Bremerton or the
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#0439
Council President is responsible for directing all emergency
operations and programs throughout Bremerton and preserving City
records." Then, he referenced Section V - ORGANIZATIONAL CHART
which shows Mayor, Council President, and Council Vice President;
and on the following page, which seems identical, a section reads:
"The Mayor of Bremerton or Mayor Pro-Tem is responsible for
directing all emergency operations and programs throughout
Bremerton and preserving City records." Stated for a need-to-know
basis as acting Mayor Protem, he thinks in an emergency situation
he needed this clarified.
Mayor Lynn Horton explained she was the second Council President,
who chose not to serve as Mayor Protem. Historically, the Council
President was designated Mayor Protem. When the position was split
there was no recognition or thought that the Mayor Protem was the
succession in the Charter. If in fact Council feels that the
Charter must be followed in that regard, she would recommend that
Council review those positions. In the past, the Mayor Protem
position has been simply a figure head in ceremonial position, it
has not had the responsibilities that the Council President has
experienced. As far as succession of responsibility in power, she
feels the Council President is the most knowledgeable person on
Council at that given time. Based on reality, it is recommended
that succession go to Council President, then Council Vice
President. If Council feels there is a problem, they should take
a re-vote, having the Council President being elected as the Mayor
Pro Tem. If you want an officer to fill in ceremonially, then she
recommends going in that direction.
Mr. Overson asked again why page 106 is in the document? Mayor
Ho:ton stated she believes it is a "typo". Mr. Oolvin stated he
agrees with the Mayor, however, if the Mayor Pro-Tem is a
ceremonial person, the Charter should state that. Mayor Hotton
expects that is a matter Council will debate. She felt the Council
President should be the successor to the Mayor based on the reality
that the Council President is the most knowledgeable in City
business. Mr. McConnell clarified "most knowledgeable" in terms of
City affairs only.
Mr. Winters questioned why the revision of April 157 Mayor Hotton
stated she assumed it followed a staff discussion about what was
actually happening at this point as far as the continuity, so it
was revised.
M/S/C(Montgomery/Overson) to pass Resolution #2550 adopting the
City of Bremerton Emergency Operation Plan, with the exception of
page 36, with revised date of April 4, 1996.
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Vote on motion:
Motion carried.
In Favor:
Opposed:
McConnell, Colvin, Montgomery,
Huff-Menees, Farr, Neville, Overson,
Law
Winters
Mr. Neville encouraged citizens to contact the K-Prep program and
learn what this is all about, to be prepared in case of an
emergency disaster. Mayor Herton clarified that the document being
discussed tonight is an "internal" emergency management manual. K-
Prep is the program to help citizens be prepared. Mr. McConnell
stated this is a detailed specifications of what the City
Administration and employee's function would be during an
emergency, such as preserving City documents, etc.
President Law thanked the TV crew for their services: James Noble,
Martin Stows, Nadine Price, and Bruce Hall.
With no further business meeting adjourned at 7:20 P.M.
KATHLEEN L. McCLUSKEY. City Clerk
.~~uncil Pre<ident
City of Bremerton
KLM/JL/me
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