HomeMy WebLinkAbout10/31/78 UNAPPROVED ~INUTES
COUNCIL
GITY COMMISSIONERS' MEETING MINUTES APPROVED
October 31, 1978 NOV - 7 1978
CAPE #143 Regulak meeting of the City Commissioners of the City'of Bremerton, Washington,
(B) 2356 was held in the City Council chambers at City. Ha!l, 239 Fourth Street, with
Mayor Jarstad presiding. Also present were Commissioner Stewart, Commissioner
Swanson, City Clerk Mandio', Asst. City Attorney McCluskey and representatives
of the press and radio.
Meeting was opened with the Pledge of Allegiance and invocation was given by
Rev. Henning.
MINUTES OF OCTOBER 24, 1978
Motion by Commissioner Stewart and Mayor Jarstad to approve minutes as circu-
lated, carried unanimously.
SEPARATIONS
Sandra K. Brilinksi, Wastewater, Office Asst. I, 10/27/78.
Franklin Fitch,· Water Supply, Serviceman II, 10/27/78.
Ruby Eyler, Mayor's Office, Part-Time, 10/27/78.
Cy Fritchard, Parking System Revenue, Extra Help, 9/8/78.
Rebecca McMichael, Garage, Temporary Secretary, 10/26/78.
Motion by Mayor Jarstad and Commissioner Swanson to approve, separations,
carried unanimously.
NOTICES OF EMPLOYMENT
Kim Kvistad, Police Dept., Extra Help, Matron, $3.50 per hr., 10/28/78. ·
Victoria A. Porter, Police Dept., Extra Help, Matron, $3.50 per hr., 10/25/78.
Helen Rena Brown, Police Dept., Extra Help, $3.50 per hr., 10/30/78.
Motion by Mayor Jarstad and Commissioner Stewart to approve notices of employ-
ment, carried unanimously.
CttANGES OF PAY STATUS
Joan V. Larson, Police Dept., Office Asst. II, Step A to B, $4.20 to $4.32 per
hr., 11/7/78. .
Michael D. McKinley, Fire Dept., 1st Yr. to 2nd Yr. Firefighter, $1,202.76 to
$1,252.80 per mo., 10/12/78.
Motion by Commissioners Swanson and Stewart to approve changes of pay status,
carried unanimously.
LICENSE APPLICATIONS
Dancing & Entertainment: Jean E. Wilke for Boat Shed and Dean E. Gehring for
Deano's, Inc., approved by Asst. Chief of Police Kvistad.
Music Machine: Dean E. Gehring for Deano's, .Inc.
Parade: Larry Kelly for American Legion Post 149.
Motion by Mayor Jarstad and Commissioner Swanson to approve license applications,
carried unanimously.
SUMMONS & COMPLAINT - Kenyon Material CO. vs. Randall, et al
Clerk presented Summons & Complaint regarding K&nyon Material Co., Inc. vs.
Randall, et al. She stated copses have been sent to the City Attorney's office
and to the insurance company.
BID CALL WAIVER - Municipal Court
Clerk read letter from Municipal Court, dated Oct. 30, 1978, requesting waiver
of bid call to purchase necessary IBM Computor forms from Trick and Murray of
Seattle. The letter stated they are the sole authorized printers of the court
forms and have presented an estimate of $3,1OO.OO for the calendar year 1979.
Motion by Commissioner Stewart and Mayor Jarstad to approve waiver of bid call,
carried unanimously.
SURPLUS EQUIPMENT - Street Dept.
,Clezk ready, memo from Street Superintendent, dated Oct. 27, 1978, which re~u~stad
that 1967 Ford Dump Truck, ID #T8OFRB844356 be declared surplus and disposed of
in the best interest of the C~ty.
Motion by Commissioners Stewart and Swanson to declmre dump truck surplus and
dispose of in the best interest of the City, carried unanimously.
CITY CO~IISSIONERS' MINUTES
October 31, 1978
Page two
RESERVOIR NO. 18
Clerk read memo from Water Superintendent, dated Oct. 30, 1978, which stated
that Pittsburgh-Des Moines Steel Co. has completed Construction of Reservoir
No. 18 and the reservoir is now in service.
Motion by Commissioner Swanson apd Mayor Jarstad to accept Reservoir No. 18
as complete and approve'release of retainage, .carried unanimously.
TRAFFIC LIGHT IN VICINITY OF HEARTHSTONE ON KITSAP WAY
Clerk read memo from City Engineer, dated Oct. 25, 1978, which suggested
changing the cross-walk signal from flashing yellow to steady green between
pedestrian calls.
Motion by Commissio'ners Swanson and Stewart to approve changing the cross-
walk signal in the vicinity of the Hearthstone on Kitsap Way from flashing
yellow to steady green between pedestrian cai.is for a six-month trial period.
Under discussion; Commissioner Swanson 'stated it is a no-cost project; 'that
it is just a matter of resetting the meehanisTM in the switch box. Motion
carried unanimously.
STOP SIGN AT HARKINS & PITT
Clerk read memo from Police Traffic Divisio'n, dated Oct.' 27, 1978, which
stated it is their opinion that the intersection at Harkins & Pitt is signed
properly at this time; that there is a stop sign on the northwest corner of
this intersection at the present time.
LID FOR IMPROVEMENT OF EDGEWOOD DR.
Clerk read letter from City Engineer, dated Oct. 26, 1978, which gave a tabu-
lation of signatures on the petition for the formation of a Local:Improvement
District for the improvement of Edgewood Drive: Total area - 61,360 sq. ft.,
Valid signatures - 41360 sq. ft 'or 67.41%; Total Front Footage - 42~.49 ft.,
Valid signatures - 327.9 ft. or )7.43%.
Motion by Commissioners Stewart and Swanson to proceed with LID for improve-
ment of Edgewood Dr., carried unanimously.
OUTSIDE UTILITY AGREEMENT - Wheeler, Perry Ave.
Clerk read memo from City Engineer, dated Oct. 25, 1978, attached to which was
an Outside Utility Agreement for 2627 Perry Ave. The memo stated that this
property is located adjacent to a sewer line which was constructed with Federal
Funds.
Motion 'by Commissioner Swanson and Mayor Jarst'ad to approve Outside Utility
Agreement with Kenneth and Deborah Wheeler for 2627 Perry Ave., carried
unanimously.
BLOCK GRANT INTERIM CITIZEN ADVISORY COMMITTEE
Clerk read memo from Planning Director, dated Oct. 31, 1978, which requested
that the City Council extend the life of the Interim Committee and its current
membership to December 31, 1978 in order that they can undertake a more
thorough review of the Citizen Participation Plan prior to making a recommenda-
tion to the City Council.
Motion by Mayor Jarstad and Commissioner Swanson to extend the current member-
sh~p to Dec. 31, 1978, carried unanimously.
SRORELINE MASTER PROGRAM
Clerk read letter from D. Rodney Mack, DOE, dated Oct. 24,. '1978, which stated
the amendment to the City of Bremerton's Shoreline MaRter Program, which estab-
lishes a 25-ft. minimum setback from the ordinary high water line, is acceptable
and approved.
ARCHITECTURAL FEES FOR KI%SAP DAY CARE CENTER
Clerk read memo from Asst. City Attorney Conoley, dated Oct. 30, 1978, which
stated that it is her opinion that additional architectural fees should be
paid to Malcolm Campbell for the Kitsap Day Care Center.
~MotJon.by Commissioner Stewart and Mayor Jarstad to pay t~e additional fees,
carried unanimously.
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CITY COMMISSIONERS' MINUTES
October 31, 1978
Page three
BARRICADE CERTAIN STREETS FoR SLEDDING
Clerk read memo from Parks Superintendent, dated Oct. 25, 1978, which r~quested
authorization to barricade certain streets in case sufficient snow falls this
winter. A list of these streets is on file in the City Clerk's office.
Motion by Commissioners Stewart and Swanson to approve barricading streets for
sledding subject to approval by City Engineer and Street Dept., carried unanimously.
ORDINANCE NO. 3474 - Municipal Taxes
Clerk read, first reading, "AN ORDINANCE amending Section l.of Ordinance No. 3469
levying municipal taxes against all the taxable property within the city limits
of Bremerton for the year 1978 and approving the assessment roll made'by the
Assessor of Kitsap County, therefore, to be collected in the year 1979, and
declaring an emergency".
Motion by Commissioner S~ewart and Mayor Jars~ad to pass Ordinance No. 3474,
by title only, carried as follows: Mayor Jarstad, Yes; Commissioner Stewart,
Yes; Commissioner Swanson, Yes.
ORDINANCE NO. 3475 - Islam Change in Land Use Restrictions
Clerk read, second reading, "AN ORDINANCE amending the Land Use Restrictions
adopted by Ordinance No. 3251 (Islam)".
Motion by Mayor Jarstad and Commissioner Swanson to pass Ordinance No. 3475,
on second reading, by title only, carried as follows: Mayor Jarstad, Yes;
Commissioner Stewart, Abstain; Commissioner Swanson, Yes.
ORDINANCE NO. 3476 -.Islam Rezone
Clerk read, second reading, "AN ORDINANCE amending the use and area maps of
Ordinance No. 1792 as amended (Islam)".
Motion by Commissioner Swanson and Mayor Jarstad to pass Ordinance No. 3476,
on second ,reading, by title only; carried as follows: Mayor arstad~ Yes;
Commissioner Stewart, Abstain; C6mmissioner Swanson, Yes.
ORDINANCE, FIRST READING - Strassberg/Lary
Clerk read, first reading~ "AN ORDINANCE amending the use and area maps of
Ordinance No. 1792, as amended ('Strassberg/Lary).f'
Motion by Commissioners Stewart and Swanson to approve ordinance on first
reading, by title only, carried as follows: Mayor Jarstad, Yes; Commissioner
Stewart~ Yes; Commissioner Swanson, Yes.
BILLS
Motion by Commissioners Stewart and Swanson to give blanket approval to vouchers
07051 thru 07150 inclusive in the amount of $50,635.87 and vouchers 7044 thru
7047 inclusive in the amount of $62,822.51, audited by John Ross, carried
unanimously.
PUBLIC'RECOGNITION
John Malgarini, representing the Non-Uniform Employees, requested clarification
of Resolution No. 1787 regarding excluding confidential and supervisory personnel
in the Union and the intention of the Council as to what they planned to do with
the'resolution at this point. Pamela Bradburn, attorney for the non-uniformed
employees, stated sba had discussed the matter with Jim Sells of the City
Attorney's office. Mayor Jarstad stated that in talking with Mr. Sells and.
Mr. Donworth, they have decided to leave the resolution dormant at this time.
He stated that this resolution is an attempt to clarify this area of dispute
and he hopes that it can be taken care of in negotiat%ons. Ms. Bradburn stated
she felt that negotiations are one of the best forms of resolving problems like
this; that if they can get down to specifics, it will make things much easier.
She expressed concern that a unilateral action ~ike this could cause problems
for everyone. She stated, they would prefer to determine the matter through
negotiations. Mayor Jarstad stated that every commissioner may speak for himself
but the intent from talking to counsel, is to take no action on the 8ffect of
the resolution until negotiations. Mr. Malgari~i asked if the commissioners
~ero~.going to let the resolution ride~on the basis of negotiations taking care
of it' and if Mr. Donworth is the City of Bremerton negotiator. Mayor JarStaa
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CITY COMMISSIONERS' MINUTES
October 31, 1978
Page four
responded yes. Mr. Malgarini expressed his concern in keeping communications
open with Mr. Donworth as to what is going on. Mayor Jarstad felt that was a
fair request, as there ig new represen%ation on both sides. Ms. Bradburn
requested in writing an indication that~ Resolution Nol 1787 will be held in
abeyance. Commissioner Stewart stated ~hat the City Attorney and Mr. Donworth
will be getting together on this matter again shortly.
Meeting recessed from 9:40 A.M. until 10:O0 A.M.
COMMISSIONERS' REPORTS
Commissioner Stewart:
1. Discussed his vacation in December and stated there is a chance he will
be gone more than 30 days..
Motion by Mayor Jarstad and Commissioner Swanson to approve Commissioner Stewart's
absence more than 30 days, carried unanimously.
2. He stated he can update the computer to a higher model for very little extra
cost and he would like the concurrence of the Council to pursue this.
Motion by Commissioners Swanson and Stewart to pursue updating the computer and
to spend up to $1OO.OO more a month, carried unanimously.
Commissioner Swanson:
1. Stated he had received a letter from Dept. of Social and Health Services
which stated that a Certificate of Competency is being issued to Kenneth E.
Donleycott, Jr. as a Water Distribution Specialist II. He stated he is always
very proud of his employees when they pass that exam.
2. Discussed the situation of Chester St. ~nd Olympic College and stated that
something will have to be done. Ji~ Root, City Engineer, stated a meeting has
been set up tomorrow morning at 8:30 with Mike Conno].~y and he invited any of
the commissioners to attend. He stated this is strictly a meeting of the
administrators and they will meet with the attorneys at a later date.
Asst. City Attorney McCluskey:
Discussed his'trip'to the Scanda~avian Countries and stated he expects to have
a great influx of visitors coming to our country because it is so expensive
over there. He stated it was a very enjoyable trip.
Mayor Jarstad:
Discussed the election next Tuesday and stated he hopes the City gets a favor-
able vote on the Fire Station. He urged all the citizens to take a careful
look at all the issues and vote.
Me~ting recessed from 10:20 A.M. until 10:30 A.M.
HEARINGS - Seattle-First Site Plan Change Continuance and Vockrodt Appeal
Motion by Mayor Jarstad and Commissioner Stewart to hold hearings in order
listed above, carried unanimously.
7APE #144 SEATTLE F~RST NATIONAL BANK..SITE PLAN CHANGE (continuance)
(A) 250 Clerk stated she had received.no more cqrrespondence regarding this matter.
Jim Root, City Engineer, explained a modification'in the driveway entry and
recommended that the driveway be moved one foot to the west to allow better
access for vehicles. Commissioner Swanson stated this falls within the City
Engineer's realm of control because he issues driveway permits.
Motion by Commissioners Swanson and Stewart to approve Seattle-First Site
Plan Change, subject to Planning~Commission restrictionS,.carried unanimously.
~APE #144 VOCKRODT APPEAL
(A) 300 Clerk stated the hearing had been advertised and posted as required by law.
She read Planning Commission Resolution No. 502 which concurred with the
interpretation of the Planning Director that the requirements of Section 414 '
rather than Section 506 would apply~to the Charter House development.
~Ken Att.ahery, Planning Director, explained that Glenn Vockrodt requested a
hearing on his interpretation of the zoning ordinance regarding the height Of
a building for the Charter House development. He stated the Charter House
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CITY COMMISSIONERS' MINUTES
October 31, 1978
Page five
development is a 30-unit apartment structure for the elderly located on Wheaton
Way between E. 13th and E. 14th; that this property is zoned "C" Commercial.
Me stated that uses allowed in R-1 zones are also allowed' in commercial zones
providing that regulations pertaining thereto as heretofore provided are com-
plied with (Section 500 of Ord. No. 1795). Mr. Attebery stated residential
development in a commercial zone would be covered by regulations for R-2 and
Mr. Vockrodt feels that is. not the proper interpretation.
Mr. McCluskey stated this particular problem has been presented to his office
and they have agreed with Mr. Attebery's interpretation.
PETITIONER:
Glenn Vockrodt, 1409 Marlow, stated that this property is adjacent'to residential
property and in all cases,'the most restrictive requirements of an ordinance shall
apply. .He read Sections 506, 13OO, 1301, i3Q8.1,~ 1308.2(e) and 1308.4 of the
zoning ordinance and stated there was no public hearing to allow a 40-foot
building; that it was an administrative decision. He stated the zoning ordin-
ance tries to keep business heights to a minimum when it is adjacent to
residential property. He requested that the Council declare the Charter House
building height to be in violation of Zoning Ordinance No. 1792 and request
corrective action and restore the public's faith in the zoning ordinance.
Mayor Jarstad stated that the City Attorney concurred that all limitations
in R-2 are encompassed in commercial zones. Mr. Vockrodt slated that this
development is in a commercial zone and the ordinance states the structure
shall not be over 20 feet in height when adjacent to residential property. He
stated they want their view back. He asked what could prevent this building
from becoming offices and Mr. McCluskey explained that the ordinance itself
will keep it from converting to offices.
Discussion followed regarding the different heights allowed in R-2 and commer-
cial zones and Mr. Attebery explained that the thing he relied on p~im4~ily
was the idea that if this were an R-2 zone, it would be allowed to go to this
height and above and the ordinance does say that those residential uses are
allowed in a business zone providing all regulations pertaining fihereto are
complied with. Commissioner Stewart stated tbey should certainly thihk about
clarifying this ordinance in the future.
Motion by Mayor Jarstad and Commissioner Stewart to concur in conclusion of
Planning Commission that the requirements of Section 414 rather than Section
506 would apply to the Charter House Dmvelopment~ carried unanimously.
BID OPENINGS - Concrete, Concrete Products~ etc.; Concrete Saw; Official Publicatio~
Motion by Mayor Jarstad and Commissioner Stewart to open bids at this time,
carried unanimously.
Concrete, Concrete Products, Reinforcing Iron, Sand, Gravel & Related Manufacturing
Items:
Brem Ready Mix': $50.00 cashier's check enclosed.
Bremerton Concrete: $50.00 certified check enclosed.
Bids are on file in the City Clerk's office.
Motion by Commissioner Stewart and Mayor Jarstad to refer bids to proper commit-
tee and award at a later date, carried unanimously.
Concrete Saw:
Star Machinery: bid bond enclosed, $2,953.90.~
Pacific Northwest I~dustries, Inc., $50..O0 check enclosed, $3,655.40.
Wedge Co., $50.00 check enclosed, $2,744.45.
Motion by Commissioners Swanson and Stewart to refer bids to Street Superinten-
dent for evaluation and award at a later date, carried unanimously.
Official Publication:
Bremerton Sun: $50.00 cashier's check enclosed, $3.49 per column inch.
Clerk stated this was the only bid received.
Motion~by'Mayor Jarstad and Commissioner Stewart to award bid tO Bremerto~ Sun,
carried unanimously.
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CITY COMMISSIONERS' MINUTES
October 31, 1978
Page six
SUNN FJORD ACCESS (Across Watershed Property)
Commissioner. Swanson read ·letter from Lynda Martinsen, dated Oct. 30, 1978,
requesting a 2OD-ft. wide access across the Watershed'Property to facilitate
a bus turnout from the new Third Street'. The letter stated they own property
adjacent to the watershed property and they are in the process of rezoning.
for a multi-family complex.; that the County wishes the traffic from the complex
to exit via a new route in order to avoid the Bayview/SR 3 traffic problem.
The letter requested access across the Watershed property in order to use the
new route (Third St. to Pointdexter). Discussion was held and Mr. McCluskey
stated that if an agreement is made as to a size, the City should convey that
agreement to the County by letter and wait until the rezone is approved before
taking any legal action in granting the access.
Motion by Commissioner Swahson and Mayor Jarstad to work with the City Attorney's
office to develop an easement between their ~roperty and·across Watershed pro-
perty to the street, subject to approval of the rezone, carried unanimously.
Motion by Commissioners Swanson and Stewart to recess until 7:30 P.M., Nov. 1,
1978, for KLEA Appeal Regarding Mercer Enterprises Hearing, carried unanimously.
APE #144 KLEA APPEAL REGARDING MERCER ENTERPRISES
(A) 988 Recessed City Commissioners' Meeting was called to order at 7:30 P.M., Wednesday,
November 1, 1978, with Mayor Jarstad presiding. Also presept were Commissioner
Stewart, Commissioner Swanson, City Clerk Mandio, Asst. City Attorney Riehl and
a representative of the press.
A complete transcript of this hearing is attached hereto and incorporated
as a part of these minutes.
SURPLUS ITEMS
Clerk presented memos from Street Superintendent, Water Supply Supervisor and
Water Dept. requesting the following items be declared surplus and disposed
of in the best interest of the City: Model #HD15 Crawler Cat Tractor, ?D15
BP25295; log arch; Eveready concrete saw, Model ~E-25 PD, Serial #171AB; 5-yd~
dump box; Assorted fire hoses; Electric pump; ;Gas powered pump; Pump, no power;
Two (20 canopies for short, wide box; Small tar pot; Misc. eledtric motors;
Lawn Boy Lawn Mower; Paint Agitator; Power auger for sewer rod; and. Twelve (12.)
little containers.
Motion by Commissioner Swanson and Mayor Jarstad/to declare above items surplus
and dispose of in the best interest of the City,,carried unanimously~
LOCAL NO. 2052 (Letter from Pamela Bradburn)
Cl~rk read letter from Pamela Bradburn, attorney for Local'No. '2052, dated Oct.
31~ 1978, requesting written confirmation of the City's intention to withhold
implementation of Resolution No, 1787 while the parties negotiate bargaining
unit exclusions. ~
Motion by Mayor Jarstad and Commissioner. Swanson' that City Clerk'send a letter
to Ms. Bradburn stating that Resolution· No. 1787. not be implemented until
negotiations are concluded, carried unanimouslyt
'Meeting adjourned at 9:30 P.M.
KATHLEEN L. MAND!O, City Clerk
Approved.:
GLENN K. JARSTAD, Mayor
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NOV 1 1978
TRANSCRIPT K1TSAP LAKE ENVIRONMENTAL ASSOCIATION APPEAL
REGARDING MERCER ENTERPRISES
MAYOR JARSTAD: Recessed City Council Meeting will be in order now for hearing
the Kitsap Lake Association Appeal. City Clerk, would you read the correspondence?
I think, probably, we should have a statement by the City Attorney's office or
the Planning Director, on the basis of tonight's hearing prior to that, unless
you have that background there.
CITY CLERK MANDIO: I have the resolution from Planning Commission. It probably
states what happened there. And there are some letters that I don't know if we
want read or not. It is from Donald Harrison, the attorney for Kitsap Lake
Environmental Association regarding the appeal to the Bremerton Planning Commission.
COMMISSIONER STEWART: They're here, aren't they?
MAYOR JARSTAD: I just wanted, as far as groundwork was concerned, the basis for
the hearing.
CITY CLERK MANDIO: The resolution should definitely'show that.
MAYOR JARSTAD: All right, we'll listen to what you have to say.
C1TY CLERK MANDIO: (She read Planning Commission Resolution No. 498. This is on
file in the Planning Dept. She then read letter from Donald C. Harrison, dated
Sept. 6, 1978 regarding KLEA Appeal of Administrative Determination Regarding
Mercer Enterprises Development and letter from Kenneth W. Attebery to Jim Buckley,
dated July 28, 1978 regarding Kitsap Lake "Forest Ridge" Residential Condominiums,
Site Plan A-2, 1/6/77. These letters are also on file in the Planning Dept.)
That's all I have.
MAYOR JARSTAD: Okay. At this time, Mr. Attebery, our Planning Director, would
you speak to this?
MR. ATTEBERY: The information presented in the three items that were read
summarize quite well, in my mind, the procedure that I followed following Judge
Maddock's decision of this past summer. The court ordered that the City of
Bremerton again review the building permit application that wam submitted in
January of 77 and determine whether or not it met the concept and intent outlined
in Ordinance 3210, the 9 unit per acre ordinance. Upon receipt of this order and
conference with the Bremerton City Attorney's office, the.first action I undertook
was one of involving out City Engineering Dept. and requesting exactly what they
felt was the most accurate acreage of the parcel involved. And the Field Engineer
of the City Engineering Dept. undertook a good deal of effort and calculations in
determining the acreage and came up with a square footage figure which was the
lowest of three that had been previously discussed. I felt the most conservative
route to take was to take the advice of our City Engineering Dept. I divided that
number of square feet by 4800 and that brought me to 270 units. And it was that
number of units which I torwarded to Mr. Buckley as the allowable number of units
under 3210 on that site. It is my feeling that that kind of an adjustment is not
an adjustment which would be unusual in a project of that size, building permit
procedure across the building permit counter is oftentimes a matter of give and
take of information and interpretations. I feel that the reduction in the number
of units in a project of that size based on the square footage and new evidence
which had come to the attention of Mr. Nelson, the architect for Mercer Enterprises,
and his work with our City Engineer, arrived at a lesser number of square feet
than Mr. Nelson had initially estimated in 1977. In working with the Building
Dept. across the counter, their clients, so to speak, oftentimes there are
reductions and changes in building permit applications.. It would not be unusual
for a large mult. i-family development to, when ut.ilizing the rather complex types
of calculations that are required to determine the number of units allowable in
a multi-family zone, for example, that the City may find a different number of
units than they had originally thought was allowable when they were calculating
for their initial site plan purposes. A change in a yard setback.by a number of
feet because of a misinterpretation by a private applicant is nos unusual.
Therefore, it was my conclusion that the reduction in the number of units from
276 to 270 was not an unusual ~tem to have happen across the building permi't
counter and proceeded on that judgment.
COMMISSIONER' STEWART: Mr. Attebery, I also reme~aber hearing in that complaint
from their attorney that he ignored all setbacks.
MR. ATTEBERY: Well, that issue, as ! stated in my approval to Mercer Enterprises,
that this level, that my conceptual approval was simply the number of units. I
nor the building dept. have yet gone into the detail of the site plan as to exact
building location, height, setback, location of utilities, etc.
COMMISSIONER STEWART: You're just saying that reducing the units from 276 to 270
is insignificant and is normal procedure?
MR. ATTEBERY: That's part of it. The other part is that basic approach to multi-
family development in the R-1 zone under the provisions of Ordinance 3210 is
consistent.
COMMISSIONER STEWART: Is there other cases where ordinances like this have been
set up where you reduce the number of units?
MR. ATTEBERY: Well, as I said, in reviewing the zoning ordinance requirements,
it is not unusual for there to be a difference of opinion between the private
applicant and the public official. And there's a matter of discussion of those
issues and a resolution which can result in an adjustment of a~building permit
application.
COMMISSIONER STEWART: This happens time and time. .
MR. ATTEBERY: Oh, all the time.
COMMISSIONER STEWART: And had-this ordinance still been in ef.fect, it would be
happening to, probably.
MR. ATTEBERY: Certainly.
COMMISSIONER STEWART: But, this is the only issue we're talking about tonight.
Right?
MR. ATTEBERY: As I understand the scope of this hearing~ and I would like Mr.
Riehl to comment on this, is at this stage the only thing that is being appealed
is my determination that the 270 unit proposal, in terms of numbers of units on
a specific size site, meets the scope, or the intent and purpose, of Ordinance
3210 which allowed one unit per 4800 sq. ft. of land area.
COMMISSIONER STEWART: Ken, some other things were brought up in that letter, 1
would like an opinion, too, from the attorney. What is the scope of this hearing
so we know what we are talking about.
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MR. RIEHL: I think in order to arrive at that, we need to look at the Judgment
that was rendered in the case of Mercer Enterprises vs. the City of Bremerton
in which Judge Maddock determined that and directed the City of Port Orchard to
issue a definite opinion as to whether the concept of
COMMISSIONER STEWART: What does Port Orchard got to do with this?
MAYOR JARSTAD: City of Bremerton.
MR. RIEHL: Excuse me, City of Bremerton. That the City of Bremerton should issue
a definite opinion as to whether the concept set forth in this January 6, 1977
site plan complies with the 9 dwelling unit per acre requirement in the ordinance
3210. So in doing that, the Planning Director went ahea~ and took a look at it,
and as Mr. Attebery pointed out, he made a determination that it falls within the
concept. And that is the important word to look at. That is the judgement of the
Court that he was to look at the concept and in doing so, as Mr. Attebery pointed
out, that he felt that it fell within the concept although there was some adjustment
in the number of units. Now the Plan~ing Comm~ksion, on their hearing of Sept. 19th,
determined and concurred wi~h the opinion of the Planning Director. And it is our
opinion that the hearing this evening is narrowed to the issue of whether or not
the City Council would concur with the decision of the Planning Commission in
concurring with the opinion of the Planning Director. It is pretty clear also,
that the representative for the Kitsap Lake EnVironmental Association has additionally
narrowed the issue to, speaking in terms of how many units, whether or not the
number of units, possibly reducing from 276 to 270 or 27~ whether or not that falls
within the concept. And that is within the letters that the City Clerk read. So
it is our opinion that that is the issue before the City Council this evening and
it is a very narrow issue in determining whether or not the City Council would
concur with the Planning Commission's concurrence with the Planning Director.
MAYOR JARSTAD: At this time, we will hear from the parties bringing the appeal
before the City Council, the Kitsap Lake Environmental Association.
LINDA COCHRAN: My name is Linda Cochran, I am the attorney for the Kitsap Lake
Environmental Association. I think I should make three points clear. First of
all, this is not the usual case. Mr. Attebery kept saying, "in the usual case
this is the type of thing we do -- that we can reduce the number of units in the
usual case". But you will have to understand that this case is being processed
under Court order. And the case itself involved whether Mercer Enterprises had
vested rights in a building permit. And the vested rights doctrine clearly says
that in order for an applicant to have vested rights in a building permiti that
permit has to be in compliance with the zoning and building code. Well, if they
are not in compliance with the zoning, it is not up to the City now to come in and
say, "Well, you can now submit an application which is in compliance with the
zoning". The point is that there is a cutoff and their application is the cutoff.
At the time the ordinance was repealed, that application had to have been in
compliance with the zoning. If it had too many units per acre, even if it is only
slightly over the number of units, the vested rights doctrine would operate to
cut off their rights. And that is why that is important here. This is not the
usual case. In the usual case, they may be able to amend their application, but
in a vested rights case, they're not able to do that. And that is why'it is important
for you to consider whether their January 6th site plan, not the site plan Mr. Attebery
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approved, but a site plan which has 276 units, not 270 units, complies with
Ordinance 3210. The second point to keep in mind is that Judge Maddock ruled
that under Ordinance 3210, as interpreted, by the City, and this was the inter-
pretation that he bought -- you don't have to have any setback requirements,
you don't have to have lot lines. Now Mr. Attebery kept saying, "Well, later
on we can find out whether they meet the setback requirements." Mercer Enter-
prises, I mean the Kitsap Lake .Environmental Association, when it intervened
in the case in order to appeal, made a motion for reconsideration. And its motion
was grounded on the fact that'if Mercer Enterprises~ January site plan was accepted,
it didn't meet the setback requirements and the lot line requirements of the code.
In fact, you could not have a multi-building project, such as Mercer Enterprises
proposed, that did meet the setback requirements and the lot lines of the code.
I w~ll quote you from what the judge said in his denial of bur motion for reconsiderati¢
which is on appeal now. He said: "Furthermore~ even if the ordinance were
ambiguous and thus subject to the ordinary rules of statutory construction, the
legislative history of the ordinance and the construction placed upon the ordinance
by the administrative official charged with this enforcement established that 9
dwelling units per acre developments under Ordinance 3210 are not subject to strict
lot lines and setback requirements." If they were, this plan would not be in
compliance and again, it would not be in compliance with the zoning and again,
they would not have vested rights in their permit. The third point you should
keep in mind is that the judge ordered the City Planning Dept. to ~ule whether
the January 6th site plan was in compliance, not whether some other plan might
be in compliance. Mr. Attebery ruled that a plan having only 270 units was in
compliance. Me did not rule that a plan having 276 units was in compliance and
that is the only question before you. Now, whether Mercer Enterprises can now
come back and amend its permit is not up for you to decide. That would up for
the Courts to decide. For you to decide is only whether a plan that shows 276
units is in strict compliance with the requirements of Ordinance 3210.
MAYOR J~aRSTAD: Do you have questions of the attorney?
COMMISSIONER STEWART: Do you have any other cases where this has happened? To
quote? I mean, that's what you get into with this thing. I'm not a lawyer, but
I've got to become one in order to make these kind of decisions, it seems like.
Now do you have any cases that back up what you're stating that has happened in
law?
MS. COCHRAN: Are you talking aboht the vested rights doctrine?
COMMISSIONER STEWART: Yes.
MS. COCHRAN: Yes. I can cite several cases to you. The leading case, leading
two cases are the Eastlake Community Council vs. Roanoke Reef Associates. And
that was, I believe, in 1973 Supreme Court Case. And would you llke me to explain
the facts of that case?
COMMISSIONER STEWART: Yes.
MS. COCMRAN: In that case, Roanoke Reef Associates was a developer who was trying
to develop an apartment or condominium complex out over Lake Union. And they
applied for a building permit and their permit was processed and granted by the
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City. And then the neighborhood association challenged the grant of that building
permit. Meanwhile, Roanoke Reef had built a reef out over the water. They had.
spent about three million dollars building thins reef and.it was going to build its
project on top of the reef. The Supreme Court of. the State of. Washingt.on ruled
that there was a defect in the application f~r a. permit and this defect was based
primarily on the fact that when the City of Seattle had issued the per~it, it had
told the developer that even though it wasn't yet in strict technical compliance,
there was still a few minor things to do, as Mr. Attebery said are the normal things
to do in processing a building permit, it would give it conditional approval. The
Supreme Court said that it could not do that. It was not given authority to give
conditional approval and therefore, the application and t.he grant, subsequent grant
of the permit was invalid. It also said that because the developer had not filed
all the plans that it was required to file by the building code of the City of
Seattle, its application was not complete and t~erefore did not have vested rights
and Roanoke Reef was not'allowed to bui.ld its project.. In that:case, there was no
vested rights and in that case, the Supreme Court.said that vested rights,'in order
to have vested rights, you have to comply with the zoning and you have to comply
with the building code. In the more recent case of Parkridge.vs. the City of
Seattle, that was in 1978, Parkridge had applied for a.building permit to build
a high rise development in one of the inner-city heighborhoods in Seattle. And
in that case, they had applied for their permit and the court found that their
permit was in compliance with the zoning and the bui~lding ordinance. However,
subsequent to that application as they were processing the Environmental Impact
Statement, the City had apparently dragged its heels and the developer, while it
was preparing the impact statement did not prepare it within the time limits
specified by the City. And therefore, the City said your application has expired.
The Supreme Court said that they had operated in good faith, that because their
application was in compliance with the zoning and the building code and there was
no question but that they were in compliance with the zoning ordinances, they did
have vested rights. I can mention another case and that is a~ earlier case, Hull
vs. Hun, I think from 1956. In that case, that's the leading case and that case
again was a case of vested rights -- whether an applicant for a building permit
had vested rights and the Supreme Court set forth what it called the Washington
vested rights rule.. And that was that whenever an applicant for a building permit
was in compliance with the zoning ordinance and the building code, then its right
is vested. And it further distinguished the fact that Washington:.has a minority
rule on vested rights. In most states, the vested rights rule applies only if the
developer has gone ahead in reliance on a building permit application or a building
permit and expended considerable sums of money, generally in building his project.
In this case, I don't think that under the majority rule Mercer Enterprises would
have vested rights. Because Washington is a minority rule, they do have vested
rights, or so the trial court has ruled and again, that is on appeal. But, it is
very clear in all these cases that if you're not in compliance with the zoning
ordinance, you don't have vestod rights. And that is never an issue in any of these
cases because that is the primary hurdle you have to get over.
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COMMISSIONER STEWART: You're telling me this bas never happened, to your know-
ledge, that, where they have had minor changes in the plan and the court has never
ruled in their favor?
MS. COCHRAN: How about minor changes in a zoning ordinance?
COMMISSIONER STEWART: What I'm talking about -- this is kind of a minor change
from 276 .
MS. COCHRAN: Now, I'm distinguishing minor changes in something to be i.n compliance
with the zoning ordinance from minor changes to be -- for example, we're not saying
that Mercer Enterprises had to have all its plans ready under the building code,
but to be i~ compliance with the zoning ordinance when it is something very clear
as this was, where something that was in the control of Mercer when they knew well
in advance that-this ordinance was going to be repealed, there has never been a
case in a situation like this where they said, well t.hey're almost in,compliance
on something they could have been in compliance wlth,before and therefpre they kave
vested rights. There has never been a case in Washington like that.
COMMISSIONER STEWART: Never been a case?
MS. COCHRAN: No.
COMMISSIONER STEWART: In their favor, in other words?
MS. COCHRAN: Either way.
COMMISSIONER STEWART: So we don't -- don't -- we have no cases to go by? -
MS. COCHRAN: The cases are very clear. Every single vested rights case in
Washington say you have to be in compliance with the zoning ordinance. And in
fact, in every single case where vested rights have been found, there has never
been any question but that they are in compliance with the zoning ordinance.
It generally comes down to a question whether they are in compliance with the
building code or not. But as far as the zoning ordinance goes, there has never
been even a question. (Pause)
COMMISSIONER STEWART: But that hasn't been decided yet?
MS. COCHRAN: Oh, I think it has been decided when they say they have to be in
compliance with the zoning.
COMMISSIONER STEWART: Who said that now?
MS. COCHRAN: The Supreme Court has said it in all three of those cases I cited.
And, in fact, I think that their reasoning in the Eastlake case -- they were
concerned in the Eastlake case that builders would use the minority rule in
Washington on vested rights in order to speculate in building permits when they
knew there was going to be a zoning changed. And they specifically said the
burdens imposed on the developer in making sure that his application complied
with the zoning code and the building ordinances were enough to keep away the
speculation. In this case, if they can be almost right -- if you don't put the
burden on them to make sure then you're just doing away with the whole rationale
of the Supreme Court said in the Eastlake case was his reason for adopting the
vested rights rule here in Washington.
MAYOR JARSTAD: Did the judge in his order speak to a -- direct to a concept or
to a, a numbers?
MS. COCHRAN: I think he was speaking to numbers when he -- you've got to consider,
this is an odd type of zoning ordinance.
MAYOR JARSTAD: I know, but ! was just asking a question. I haven't got the judge's
ruling here. I heard that it was a concept we're talking about and our Planning
Director has said that it does meet the ruling of the judge's concept.
MS. GOGHRAN: Well, he was talking about a concept, but he was talking about it
in a very specific way. He was meaning t~e number~o He wasn't saying -- when
he talked about concept, you have to realize that Mercer, thoughout this, had
changed their application several times and had changed the numbers each time.
And it hadn't submitted other things that it needed to submit because it didn't
know what, quote, the concept was. And that was-in .the number of units. And
specifically, the judge in his oral opinion stated for example, we have the
building official, I feel, substantially agreeing with the plaintiff's approach
which was that they really needed the approyal of their overall concept and
primarily the number of buildings and units they could have in a given amount of
space before they could proceed with the processing of t~e details of the water
and sewer and other manj items that the City indicated had not been completed at
that time. That is on page 12 and 13 of the judge's oral opinion. I think that
is clear that he was talking about the number of units. (Pause.~
MAYOR JARSTAD: Tom, do you have any questions?
GOb~ISSION~R SWANSON: No.
(PAUSE)
MAYOR JARSTAD: Do we have further testimony from the' plaintiff? (Pause) if not,
then we will hear from the ~ercer Enterprises people.
RICHARD WILSON: Members of the City Council, my nam~ is Richard Wilson. ~ am
one of the attorneys for Mercer Enterprises. 2 sympathize ~ith Cou~uissioner
Stewart tonight. This seems to have .turned into a Supreme Court argument rather
than a City Council meeting. ~ think it is interesting to' note ~hat the Kitsap
Lake Environmental Association is a~tempting to make the~same arguments to you
that they are making in their Supreme Court brief. Wh£ch is presently pending
in the court. And it is my feeling that this isn't the proper form to distinguish
that. ~ think we should get back to the issue which, is to be decided tonight,
And that is, as the attorney, Mr. Riehl from the City Attorney's office, has
clearly stated, to determine whether as Judge Maddock ruled, the Planning Director
was right in his decision as to whether the concept set forth in Mercer Enterprises
site plan complies ~ith t~e ~ dwelling unit per acre requirement of Ordinance 3210.
its conceptual approval we're talking about. As Mr.-Attebery has said, it.is
common practice in all building permit applications whether they are under Ordinance
3210 or any other ordinance of the zoning code to make minor changes as you go
along. If one could not do so, there would be chance of anyone ever getting a
building permit because everything would have to be in perfect apple-pie order
when you went in the first time to the zoning counter. It simply does not happen.
As a practical matter, it would be impossible. We have had a long dissertation
on the vested rights doctrine in Washington tonight. I don't want to belabor that
issue more than I have to, but I don't think that everything has been totally
stated the way the courts in our state have stated them. The vested rights doctrine
in Washington from the earliest cases onwards, and Mr.. Riehl can bear me out on
this, says that an applicant has a vested right to a building permit when be applies
for a building permit. Not when that permit is issued but when he makes application
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for a building permit. That is the basic reason Judge Maddock ruled in favor of
Mercer Enterprises. That is why we are here tonight. Because Mercer Enterprises
building permit application went in before Ordinance 3210 was repealed. Now the
Roanoke Reef case, the Eastlake case, which Ms. Cochran has referred to, is a
case in which the permit when it issued was not in compliance with the building
code. We don't have a permit issue here. We agree totally that when Mercer
Enterprises gets its permit for the 270 condomiumium units, that everything had
better be perfect at that time~ that all building code requirements that are
applicable have to be met same as with the zoning code. But not at this stage
when we are going in for conceptual approval to say to the City, "Hey, how many
units can we build?" As Mr. Attebery stated to you, and as ! think you prpbably
know, we have been back and forth a number of times with the City to try and figure
out a project which complies with the ordinance as it is interpreted and so that
we know that the City will accept this number of units so that ~e can go ahead.
This was the brunt of a, the gist of a lot of the testimony at trial. Tbe
building official agreed, Mr. Costello, that until the applicant knew bow many
units he could build the Building Dept. couldn't go ahead and process all the
building permit plans and specifications and the applicant couldn't submit them
because he didn't know how many units to design for. So it was the site plan
approval we were waiting for. The concept to get the green light that the number
of units was correct. Now Ms. Cochran saying, "Well, it wasn't 276, it,was.only
270 or 272 that would be proper and therefore, this one had to be thrown out and
Mercer Enterprises is dead in the water and they simply have to fold their tents
and go home". Well, of course, that is not the case. You can amend a bui'lding
permit application as you go along. You have to be able to make these minor
changes and Judge Maddock, even in his oral opinion alluded to this when he
observed that the first order of business was for the City to decide whether the
January 6th site plan complied with the 9 dwelling unit per acre ordinance. If
it does, he says, it is on page 17 of his opinion -- the City should then set
forth in some detail what it requires of the plaintiff which will set the wheels
in motion for the plaintiff to proceed to do what it should be doing t° complete
the processing. Of course, if it does not, if the City concludes that that
application does not comply with their current interpretation, then the plaintiff
will once again have the opportunity of appealing or attempting to comply. So
the way Judge Maddock saw it when Mr. Attebery said, No, 276 units will not do it,
you're over the 4800 sq. ft. minimum, Mercer Enterprises could have said, Oh yeah.
Yes we are and we'll go to court to prove it or it could have said, Okay, you're
right. We'll reduce the number of units and that is exactly what it did. We
attempted to comply -- we are complying. We're down to 270 units well below
anybody's version of how many units would apply. So the Kltsap Lake Environmental
Association is attempting to use this kind of a minor stumbling block which is
'seen in every building permit application that ever goes through a building dept.
to try and stop this project cold by using the same kinds of legal arguments, the
identical legal arguments that they are making in the Supreme Court. Well, this
is not the proper form to decide that. We don't want to try this case before you
people. It is before the Supreme Court and that's where we intend to make our
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case and rather than go through a free-for-all to terms of what lot lines apply
and don't apply. Conceptual approval is t.he issue here and that is exactly what
we have. ! think in essence, they've got a wrong headed and impractical approach
in insisting that everything has to be perfect when we went in the first time.
Because it simply can't happen. We don't think the City Council should become
embroiled in this kind.of an issue. The site plan that we have submitted for
270 units does indeed comply wit.h the 9 dwelling unit per acre ordinance and
this appeal should simply be denied here and your Planning Commission a~d
Planning Director should be upheld. Now, one other case -- I promise, this is
the last case I'll cite to you, is the Parkridge case which Ms. Cochran alluded
to. Now, she said that in answering a question by you, Commissioner Stewart,
that there never had been a 'case where this kind of a situation was presented to
the court. In the Parkridge situation, however, it Was an apartment house, it
wasn't a high rise. It was an apartment house just across from Volunteer Park
in Seattle, which is not really inner-city, but in any case, they went in for a
building permit for a number of units. In.the course of that,' they reduced that
application down to a lower number of units. Well, the Supreme Court still
held they had vested rights, even though they had reduced the number of units.
It didn't.affect their vesting of rights because the cutoff point, the Supreme
Court says, is have you applied or have you not applied for a building permit.
It said we don't want to sort through the moues and counter-moves of the parties
to see how much money did you spend and this and that.~ It said, have you applied
for a building permit. If so, your, rights are vested. If it ~s a good-faith
application for a building permit, you're,under the wire and that is what we have
done here. We have attempted to comply, with every request of the City all the way
along. That's what we've done with Mr. Attebery's latest request. And we
certainly intend to do so with every other request. And I, therefore, think
that City Council should uphold the Planning Commission and let us get on with
the business of complying with the rest of the requirements of the City. I
would be happy to answer any questions you have.
· MAYOR JARSTAD: Have you any questions of the attorney?
COMMISSIONER STEWART: I have no questions~
MAYOR JARSTAD: Commissioner Swanson?
COMMISSIONER SWANSON: No.
MR. WILSON: Thank you, Mr. Mayor.
COMMISSIONER STEWART: I have some questions of the other attorney, though. I
would like to get her back. (Pause) In reading page 12, he said page 17, but in
reading page 12 here, I'm going to quote it again and see if it doesn't make
some sense. II the defendant concluded that the application does not comply with
the § unit per acre, then Mercer Enterprises shall have the opportunity of appealing
or attempting to comply. Now that is what the judge is saying now. Do they have
the right of attempting to comply or don't they? And he is saying they do have
the right of attempting to comply. Isn't that what he is saying?
MS. COCHRAN: I don't think so. He is saying that they have the right to either
appeal or attempt to comply but he doesn't say that no matter what type of changes
-9-
they have to make in their permit, they will comply or they will have vested
rights. He is saying that they have a right to try to comply and that's --
we're not trying to preclude that here. ~All we're asking is for you to say
whether the January 6th 276 units was not in compliance. If you say that, then
they can come back and attempt to comply. And then it will become a .legal question
as to whether they can in fact, if ever. But you're not being asked to rule on
whether they can change their application from 276 to 270 units. Ail you're being
asked to rule is whether the 276 units complied with the ordinance.
COMMISSIONER STEWART: Well, I'm reading the judge's statement again h~re. I'm
just trying to come up with a -- he's saying they have the right to attempt' to
· comply. I guess that's what he is telling us to do. Give him the right to comply.
Isn't he?
MS. COCHRAN: That's all you have to do here. You can say this is what you have
to do to comply and then it is up to them to txy to change their permit.. And
then if we wish to chal.lenge that and say that they can't do that under the vested
rights doctrine, then that is a legal argument and that is where you get into
the Supreme Court as Mr. Wilson has been talking about. But the point here is
not whether they can later attempt to comply and whether they can legall~ do that,
and I think the judge left that wide open on his opinion, whether they ~an legally
do that. Because the judge didn't know what the City would say when it went back
to review the ordinance.
COMMISSIONER STEWART: Let me just read this to you again. And I have ·a tough
time -- then Mercer Enterprises shall again have the opportunity of appealing or
attempting to comply. If they attempt to comply, then they have the right to
attempt to comply, don't they?
M~ COCHRAN: No., he doesn't say they have ~he right to comply. He doesn't say
that whatever the City says they must do, they can do that without losing their
vested rights. He doesn't say that. And that is a very important point in the
vested rights doctrine.
COMMISSIONER STEWART: What did he say it at all for then?
MS. COCHRAN: Because he is saying what course of action is open to them after the
City -- he is just saying that they are not foreclosed from having vested rights
if the City rules immediately that they are not in compliance with the ordinance.
Because the City may rule that they are not in compliance with the ordinance for
some reason that the Supreme Court may later on say it doesn't matter to their
vested rights. In this case, ali you're being asked to decide is whether their
January 6th site plan of 276 units complies with the ordinance. I think it is a
legal question as to whether they can later on amend their application and he left
it open. He said they can attempt to comply. He doesn't say, well whatever they
do to attempt to comply will still get them vested rights.
MAYOR JARSTAD: Didn't the judge say, to evaluate, to say if the concept was
applicable?
MS. COCHRAN: That's right.
MAYOR JARSTAD: Now, you're twisting that around to say that the actual plan would
conform with the ordinance, and you know, you can't have two things for us to
decide here. The judge and everything that I have read here said that our decision
has to be based on the conceptual approach of the proposed plan. You're saying that
the conceptual approach is not what the judge meant, that the judge meant that
that had to be accurate to the exact square footage in that plan. I don't read
that in the judge's orders. I mean, we're . . .
MS. COCHRAN: Yes, I think that is what the judge was ~aying.
MAYOR JARSTAD: We're mnder the judge's.orders. -we may have personal feelings
aboot development of property, but we're under a judge's ruling that under the
rules of the ball game at that point in time, was that conceptual approach under
our ordinance. Our Planning Director has said in, and I don't know what the
original acreage was, but he said he took the most conservative part of the
acreage and said that they could come up with 273 .instead of 276. And he said
the 270 is conceptual in the original-plan of 276. So, you know, you guys in
the courts can split some of these legal hairs, but us laymen sitting up here
trying to understand, you know -- we don't want to be misled in what you're
saying here. ,You're trying to say .that we can consider nothing else except
does 276 fit the acreage?
MS. COCHRAN:, Well, that is what the judge said from the portion I read of his
oral opinion. Now~ let me ask you a question.
MAYOR JARSTAD: But that is what you are saying and I'm trying to find it in the
judge's ruling.
MS~ COCHRAN: I'm talking -- the oral opinion. If you would like -- That's the
findings of fact and conclusions of law~ That is not the oral opinion~ but the
findings of fact and conclusions of law incorporate as part o.f it the oral
opinion of.the judge. And there'is a transcript taken down by a court.reporter,
on page 12. Do you have a copy of that? '
COMMISSIONER STEWART: Well, this is the one he sent back to us, ~houghT. Re
didn't address this to the Supreme Court. This came back t·o the City of Bremerton.
MS. COCHRAN: The oral opinion is part of that and it is made specifically a part
of that. This is page 12 of the oral decision and'this paragraph here was the
part I read. (They read portions of the oral opinion)
COMMISSIONER SWANSON: I am not going to make any judgment at .this point.in time
until I have read the entire judge's oral opiniQn, I can assure you of that. I
have been stung too many times by things taken out of context.
(Pause)
COMMISSIONER STEWART: I wish these guys, when they give opinions, would just
say exactly what they want and what they mean when they do it. Now I have to
read 17 pages there and 12 pages here and, you know, either he has vested rights
or be doesn't. Why doesn't he say so? You know, we go through this stuff and
you've got to read all this stuff to figure it out and it's almost impossible.
I have to and I have to read the English language to try to understand it. The
judge says .they can attempt to comply. That would leave me to think they were
going to give them some say to attempt to da something different if they didn,t
comply. That's what I would think it would mean. But you say he don't mean that.
I don't understand what we're talking about here. So I'm with Tom, I think. I
feel the same way. I guess ]want to read this thing in detail and find out just
exactly what is in here and make the best judgment I can. Because all I'm trying
to do here is I'm trying to -- You know, if lawyers all agree they wouldn't have
any work, and it's just real hard to do this. (A lady in the audience asked if
he would read it out loud.) Well, I can read this part out loud for you. This
is the part that concerned me. If that sentence wasn't in there, ! would have no
trouble deciding it at all and I could go along with 'you.. Let me read you what it
says, . . . Mercer Enterprises again has the opportunity of appealing or attempting.
to comply. You know, that means they've got some attempt to comply to something.
And they can do .something different to comply. (A lady in the audience spoke
again, but the tape did not pick St up.)
MAYOR 3ARSTAD: 3usc a moment.. If, I want all your input, but when you ask questions
or anything you must come up and get on the microphone because we have to have it
on the tape. If you start flying questions out-there and just for the purposes
of having it on the tape, if you have any questions, just come up. We have lots
of time.
COMMISSIONER STEWART: I'm sorry. I shouldn't even have answered any questions.
I'll state what concerns me. And this is why I'have some doubts about what you're
saying. And only because I read this in there. Mer.cer Island, Enterprises, shall
again have the opportunity of appealing or attempting to comply. Now, if the
word attempting to comply doesn't mean they have to change something, it seems to
me if they already complied and didn't have to attempt to comply,they wouldn't have
to change anything.
MS. COCHRAN: Well, let me ask you this. Why did they put the word attempt in
there if instead of saying they can appeal or comply?
COMMISSIONER STEWART: I wish he would have said that. I could make my mind up
very clear if he said that. When he put the word attempt in theme, it means he
Fs going to allow them to make some changes, I would think. But Iwant to read the
whole thing to make a decision on it. But that's what I would.th£nk he would
mean by that. Leave it out of there if you don't mean it.
MS' COCHRAN: I would think that, instead of, by putting the word attempt in
there, he means that they can try to comply and then it's up to the judge tp
determine whether they can do that under the vested rights rule. You don't have
to rule on-.whether they can, whether they can change their application and still
have vested rights. That's up for the judge. It is for you to decide whether
they comply.
COMMISSIONER STEWART: Well, I think what he is saying here is that they have
the attempt to comply with this thing, lie didn't want to put that in there --
he sends it back to us to read, he shouldn't have put it in there. I would
like to read the whole thing and find out where we-stand on it and get some
legal advice if we can get some on it. But, 1 don't think they use the same
dictionary I do when they make these decisions. I think it is very simple,
you know, if they could just write a~d s~x' he can't make any changes, this is
what he's got to live with. I can u~dersta~d that. But he hasn't done that.
He is saying here that they have the opportunity of appealing or attempting to
comply. And I guess when he says attempting to comply, I would guess he could
know. l!m asking you. How do you attempt to do anything? If you don't make
changes?
MS. COCHRAN: Well, by putting the word attempt in there, he implied that they
won't necessarily make -- they will not be able to make the appropriate changes
in every single case. Or otherwise he would have put in there they can comply.
.
COMMISSIONER STEWART: Yeah, if he wanted to be real clear, he would say you
live with the plans you got and you don't make any changes. I could~.understand
that, too. You know, he!leaves it vague like this so you've got to make some
judgment, but attempting to me means yo6 have to make some changes.
MS. COCHRAN~ But it doesn't mean that those changes have to be acceptable.
COMMISSIONER STEWART: Well, I don't hhink he means any major changes, but I
think he says minor changes at least when he says attempting. When you attempt
to do something you got to do something different. That requires action to
attempt. Doesn't it?
MS. COCHRAN: It requires action but it doesn!t mean that the action in every
case has to be allowable action. It just means you have to try to do something.
COMMISSIONER STEWART: But it means you got to allow them to do something. Now,
I don't know.
MS. COCHRAN: Well, for example, you could allow them to try to comply with
having detailed plans for the sewerage system. Supposing the City after
COMMISSIONER STEWART: He's not talking about sewer systems. He is talking
about 9 unit per acre in this whole
MS. COCHRAN: But suppose -- he didn't know what the City would say the concept
of 9 units per acre was. Suppose the City had said the concept means that
you have to have a detailed sewer plan?
COMMISSIONER STEWART: You're getting off the question. Now, I don't want to
argue with you, but you ~now, in that sentence that is preceding that, if the
defendant concludes that the application does not comply with 9 units per acre,
then Mercer Enterprises again has the opportunity of appealing or attempting to
comply. That's what the words here are saying. ! don't know how else to inter-
pret it. Attempting to comply means he has to do something. Different from
what he's got now. Now, if it is something that we don't want to allow, --
all I want to do now is find out if Ken has made a mistake or didn't make a
mistake. That's really what I'm here trying to do according to the attorney.
And that's all I'm talking about. I'm with Tom. I think it's going to take
a lo~ more study but right now that is the thing that sticks'with me. ]f the
judge wanted to be clear, all he had to say was, hey, either you comply with the
rules and you can appeal it to us if you want to make a change, otherwise you
live with what you got. But he didn't say that. And if he would have, I could
have understood it.
MS. COCHRAN: But he didn't say in every case they can comply.
COMMISSIONER STEWART: No, but he says they have the attempt to comply. They are
attempting to comply. And ] wo. ld think that wou]d require some changes.
MS. COCliRAN: But the way you're, i~terpreti,,g that, that means that any change
they can make. For example, suppose they had 400 units and a conceptual review
of the site plans found they could only have 270 units. Would that be -- and
then they changed their plans. Would that be an attempt to comply. Would you
say that they complied conceptually with the ordinance with 400 units?
'GOM~t~S'S ONER S~EWAR. T t pt b~b~y ld~
:I~ -' :': NO~'"' ' '0 -W~- t ~ ..... ' · .' ....... ' : .... .~'.' · :' ·
MAYOR 3ARSTAi): Well, that's one ol the thin,ga in this lawsuit we got into was the
processing of the 9 units per acre and be that, in uther words, the judge has said
that if they comply, now maybe they had 290 units and I think that, to my knowledge
that 290 units, even if they dropped it back to 270, that would maybe be up to the
court to decide.
COMMISSIONER STEWART: I know.
MAYOR JARSTAD: But the legal, you know, barometers that we have to work under --
it is really that we are~sitting here as if the 9 unit per acre is in effect right
now in the City of Bremerton and they are before us with a plan. You've got to give
these people the opportunity to present a plan that fits the concept of the 9 units
per acre. We've got a million dollar lawsuit sitting on our backs-here and we're
going to be very careful and we're going to really look at this judge's order pretty'
darn carefully. You know, whether we feel one way or another about how that land
should be developed. Now as I understand it, that judge said these are rules that
you're going to be operating under.
MS. COCHRAN: But he didn't make them very clear..
MAYOR JARSTAD: Well, he said that well, under Ordinance 3210 as it existed at
that time, as if it had never been repealed.
MS. COCHRAN: But there is one difference and that is that if it had never been
repealed, then Mercer could come in a change their application and there would
never be any problem. But when you have vested rights, you can't change your
application. And that's where the problem comes in, whether they can change
their application. I don't think that is up for you to decide. Ail you have
to decide is whether 276 units complies with the ordinance or not.
COMMISSIONER STEWART: Well, the Planning Director already said it didn't. That's
why he reduced it.
MS. COCHRAN: Well, then, that's all you need .to say. But I think the Planning
Commission didn't say that. They said that it did comply.
MAYOR JARSTAD: They said that it complied in the concept.
MS. COCHRAN: Well, then, let me ask you this. If they comply with the concept,
why can't they build 276 units?
(Pause)
COMMISSIONER STEWART: Let me ask my attorney some questions.
MR. RIEHL: Before you do, I think probably Mr..Attebery can answer some of those
questions regarding why they didn't accept 276 and what, in fact, his opinion is.
I think he pointed that out and he can reiterate that. He didn't approve certain
items. He approved the concept and that's what we're dealing with.
COMMISSIONER STEWART: I want to ask you this question, though. Is this judge
writing' to us when he writes this opinion or is he writing the Supreme Court?
MR. RIEHL: You're asking me to int~,rpret what he was . . .
COMMISSIONER STEWART: We]l, you know, our name is o~ it. The Supreme Court's
name isn't on it. That's why I wondered.
MR. RIEHL: What we're looking at is the Findings of Fact and Conclusions of Law.
It is my understanding that they draft those up at the time from the oral opinion,
from the opinion of the Court. Those are signed and incorporated into a Judgment.
interpreting those, t suspect we have to interpret what he means. I don't know
who he writes it for. He writes it, I suspect, on that particular item abou't
-14-
requiring the City to do something, he is compelling the City to do something.
And the City has done that. At least is in the process of doing that. In that
respect, he is writing it for us. Telling us what to do. And we have to follow
those guidelines. This particular time we're attempting to determine whether or
not the decision made by the Planning Director is
COMMISSIONER STEWART: Now is he appealing, when he talks about the opportunity
of appealing or attempting to comply, does that mean he is appealing to us, can
he appeal it to us, Mercer Enterprises, and he is asking us to make that decision
or does he want that to go back to court again and make a decision again?
MR. RIEHL: It is my understanding that it would not be appealing to u~, but I
think it is p~obably, if you want an answer from parties who are directly involved,
which I was not directly involved in the lawsuit -- Mr. Wilson was and Miss Cochran
WaS --
COMMISSIONER STEWART: Okay. Maybe I'm wrong then.
MR. RIEHL: So.
GOMMISSIONER STEWART: Would you answe9 me, though? .Why don't you answer me this,
then? What be is talking about here then -- this whole sentence doesn't talk
about the City then. He is talking about the Courts again. I don't know who is
making decisions any more. I guess the Courts make them all, but, you know, if
he is talking to me, then I guess I can make a decision. If he is talking to
some other judge, I guess I'll have to let that judge make the decision. I guess
that's my question. He has written a sentence here -- that M~rcer Enterprises
shall be given the opportunity of appealing or attempting t~o comply. Now who.
is he going to appeal to and who is he going to attempt to'comply? And I guess
I'.m asking you -- I don't want a vested interest by either side. I want you to
tell me.
~IR. RIEHL: I understand that. As I said, 1 was not directly involved tn the
lawsuit itself.
COMMISSIONER STEWART: You don't understand it either. (Laughter)
MR. RIEHL: I don't know if anybody understands it. As far as attempting to comply,
I think that is obvious what he means regarding who he's got ~h what Mercer
Enterprises has to apply to as far as the building permit.
COMMISSIONER STEWART: I still don't -- my question is real simple. Is he-talking
about us or is he talking about another judge? That's what I want to know. I
mean, if he is talking about another judge, then I would have to rule against him.
Let the judge make the decision. If he is talking to us, then I've got to look
at this thing again. And that's al! I want to know. Who is he talking to here?
(Pause.) You don't know. Okay.
MR. WILSON: Mr. Mayor, may I make a couple of further remarks?
MAYOR JARSTAD: Sure.
MR. WILSON: Richard Wilson again. I appreciate your quandry, Mr. Stewart. It's
not always that easy to know what is meant and I appreciate the good faith effort
that the Council is making. I think what the judge is referring to, and I was in
the court room when he entered the oral decision and of course I was involved with
the Findings of Fact and ConclusJous of Law. ~t is the very same process we're
involved in tonight. If Mr. Attebery ruled that our January 6th site plan did not
comply, Mercer Enterprises had the option of appealing that decision the same way
the Kitsap Lake Environmental Association did, to the Planning Commission, to the
City Council, and if we disagreed, to the Superior Court again, the same way, or
attempt to comply. Now by attempting to comply, I think the Court was simply
hedging its bets because the Court couldn't know whether we could comply or not.
Well, could we cut out 5 or 6 units or w0uld we have to abandon the project?
Could we make some of these changes? Well, I don't think the Court knew whether
Mercer Enterprises could make those changes. And still be able to move ahead wi~h
its project. So that's why, I think, he put in that attempt to comply language.
But, I think you're absolutely right, Mr. Stewart, and I think your instincts are
perfect on tbis. I don't think you have to be a legal scholar because~you're
absolutely right. If the language attempting to comply meant something else, the
Court would have said something else. By attempting to comply, the Court meant
that we, Mercer Enterprises, has the right to come back and give it another try.
Because we are under the wire. Because the rights are vested and we're, as Mayor
Jarstad has stated, we're here tonight just as if 3210, in our situation, had
never been repealed.
COMMISSIONER STEWART: Well, I think someone ought to get the judge in here and
ask him what he is talking about. You know, if you say one thing, their attorney
says the other and my attorney says I don't know, then I've got to ask the judge.
COMMISSIONER SWANSON: I think that by reading the entire judge's verbal opinion,
I at least get a reasonably clear picture of what he told the City of Bremerton
we should be doing and I'm sure that given to a bunch of attorneys, we could
develop a whole lot of differing opinions and technicalities, but my impression
reading that entire opinion and going over it, and I haven't done it in depth,
and I'm not sure that one copy can be properly studied to the extent that apparently
they would like to have us study it, but I'think that directive of the judge is
quite clear.
COMMISSIONER STEWART: Well, it's clear to you, Tom, but it's not clear to our
attorney and it isn't clear to these two people. They certainly don't agree.
And I don't know
MI{. RIEtlL: That's hardly unexpected, Mr. Stewart.
COMMISSIONER STEWART: I can understand that, but if our own attorney doesn't
understand it, then I'm a little in doubt what to do. I guess I want to get
clarification before I do anything. Maybe I should just subpeona the judge and
get him in here and ask him what he is talking about. Who he is talking to.
MR. RIEHl.: Mr. Stewart, let me clear up something when you're talki~g in terms
of, of not -- the City Attorney not being aware of what is going on. I think
what you're doing is, and I am reiterating what I originally said, the scope of
the hearing tonight has to do with whether you concur ~n the Planni~g ('~mm~ssion'~
determination that Mr. Attcbcry's decision regar¢lin~ the concept was correct.
Now, the decision is whether or not the concept is correct or fails within the
concept. What-happens from there at this point, the judge goes on to say ~ you
don't believe that is the case, then something is going to happen. It will be
an appeal and possibly an attempt to comply. What I suggested to you is, I
.... . ~- d~n~t.~i~.a~yb~dy:~ea~y.kn~s~w~t~:g~ing.~t~h~a~en~i~t~:~i~de~ied.~`Th~n .,.....~.,~.
we may be back in court. It's going t-o .be an appeal process followin~ and as
Mr. Wilson pointed out, it's going to take the same type of steps as we're seeing
tonight. And that eventually may end up in the courts. That's why I indicated
-16-
there's no clear cut answer as to what is going to happen if you deny it. We
know what would happen if the Council would accept it. The question, ! think
it is clear and I don't think we have any.misunderstanding on this or we do
understand this, that the City is compelled now through this appeal process to
determine whether or not Mr. Attebery's decision was correct. Wh~ther it falls
within the concept. Now, I think you'll find that any judge's decision, lengthy
decision, could be picked apart sentence by sentence. At this particular time,
it would be my advice that you need to narrow the issue. We need to look directly
at whether or not it falls within, under the concept. Whether or not Mr. Attebery's
decision was right. If the Council decides it was not correct, then we have to
wait and see what results through the appeal process, possibly the court decision
and another judge's decision. But I'm certainly not going to second-guess what
the appeal process is going, how it's go.lng to take place or what another judge's
opinion is going to be. So, I at least wanted to clear that Up. I think we're
clear as to what position the Council should be in tonight. What avenues it may
take later on or what comply means or attempt, to com~ly at this point in time is
not a decision, at least in our office's opinion, that you have to make tonight.
COMMISSIONER STEWART: How can I hetp it? I mean, the Planning Director has
already said be had too many units on the acre. I mean, that would mean right
offi the bat, if that's the case, it didn't comply. And that would be the end
of it. But that's not what the judge says'here. Now he says he has the right
to appeal or attempt to comply. Now if he is attempting to comply to us, this
isn't a very significant change in his plan. You know, from 276 to 270. That's
not very significant. It's something that is done all the time in our process.
But, is he giving me the right, or this Council the right to let him attempt to
comply or isn't he? That is very significant. And if I don't know that, I can't
make my decision. Who is he talking to? She says he is talking to the Supreme
Court or some other judge. He says he is talking to us. And you don't tell me
who. And therefore,I can't make the decision.
MAYOR JARSTAD: The judge states when he is agreeing on this case, he says that
the court should not be involved in supervision or management in the processing
of this application. Iwant to make one rule, however, which I think is at the
heart of the whole problem here and that is, that the City should begin, issuing
a definite opinion as to whether the concept set forth in the January 6, 1977
site plan complies with the City's present interpretation of the 9 dwelling units
per acre requirement for Ordinance 3210. If it does, the City should then set
forth in some detail what ~t requires from the pla~ntlff which w~ll set the
wheels in motion ~or the plaint~I~ to proceed t~ do what it should be doing to
complete the processing.
CObiM]SSIONER STEWART: Yeah, it's the.same thing he is saying here. I can under-
stand that. When you read on, though, in the next paragraph, you know, you have
to find out who he is talking to. I don't think it is a very significant change
he has made. Now
'~RsT~D: And if we decide that it is not then the plaintiffs will once
agaJn"have Lhe opportunity Of appealing, you knOW. What they're saying that 270
is in the concept or attempting to comply which means dropping it down. I don't
I think the judge is very clear in his instructions to this City that Mercer
-17-
Enterprises had the right under the existing ordinance 3210 at the time that
it was to design a development according to 9 units per acre. And if we don't
believe in the concept fact, he is giving them the opportunity to reapp~y with
a different site plan. Our planner has said that in the concept of it, and then
he had to get three opinions from the Engineering to make sure the acreage was
proper and I guess in the concept there was that they could get 273 units on.
Is that right, Ken? (Mr. Attebery spoke from the audience, but it was not
picked up on tape.) 273 and something in that area and so we're talking about
a variation here, however slight it is, that I think the attorney is making that
she feels that is a fine enough point that we cannot say that it is a concept.
That it had to be exactly the quota under the 9 un~ts per acre. I can interpret
what her testimony has been here. But the judge, I think, leaves that discretion
to the City.
COMMISSIONER STEWART: Okay. Get the attorney to say that and I can make a
decision.
MAYOR JARSTAD: Well, he's asking the City to -- he's saying right here the City
should begin by issuing a definite opinion. He didn't say nobody else should,
the City should.
COMMISSIONER SWANSON: I think that, in my reading of that, the instructions to
the City were quite clear.
COMMISSIONER STEWART: Where does it say the instructions to the City?
COMMISSIONER SWANSON: Well, I'm not going to enter into a legal debate with you.
COMMISSIONER STEWART: Well, I just don't know. I'm looking for information here.
I don't know.
COMMISSIONER SWANSON: I don't see any poimt in sending this back to a judge and
having him tell us twice.
COMMISSIONER STEWART: But somebody in the legal business should be able to give
me an opinion who he is talking to here.
MR. WILSON: Mr. Stewart.
COMMISSIONER STEWART: I got two opinions, but they're opposite right now.
MR. WILSON: I think Miss Cochran will agree with me on this. When a lawsuit is
completed, there are a lot of papers. They are filed. .You've got an oral decision,
you've got Findings of Fact and Conclusions of Law, you've got a 0udgment and in
this case you've got a Writ of Mandamus. That last paper, that Writ of Mandamus,
is the actual order to the City.
COMMISSIONER STEWART: Where does it say that now? Give me that and I'll read
that.
MR. WILSON: Well, I've got a ~'opy here. but ~t'$ -- it amounts to the same th~ng.
It is an order to th~· Citw and these Fieldings o~ Fact and Conclusions o~ l~aw are
an order to the ~i~ty ~ mak~ a decisJom whe{her or not the s~te plan compl~es.
LOMMiSS]ONER STEWARF: Do yot~ agree with that? ~
MR. RIEHL: Yes, I do.
MR. WILSON: It utilizes the same language. It is a different title
COMMI, SSIONER STEWART: Okay, what you're telling me that w~. have the right to allow
him to comply or attempt to comply. Then I can make a decision very easy.
MR. WILSON: Mr. Stewart, I submit that is the only reading that you can make of that
language. You can't make it mean anything else.
-18-
COMMISSIONER STEWART: Well, but, tbis attorney just got through saying that's not
what it means.
MR. WILSON: I can't understand what Miss Cochran means and I know you cam't and
I, I -- it's quite confusing.
COMMISSIONER STEWART: Well, I mean, that's why I want to look into our legal advice
to get a clear answer from them and then I would follow whatever advice they told me.
You know, if he tells me that's for my decision and mine to do this, then I'm
willing to make a decision. If it's for some court to make this decision, I don't
have the right to do it and I won't make o~e. It is just that simple.
MS. COCHRAN: Could I say something here that m~ght possibly clarify this thing?
I don't disagree with what Mr. Wilson said. I think you are directed to determine
whether the January site plan complies with the ordinance and then that's one
decision. Then if you say it does not, then you make another decision or they
make the decision of what they're going to do.if you say it is not. They either
appeal or they attempt to.comply. Then, that is the time to make another decision,
whether they can attempt to comply. Whether it is legally permissable. But tbat
is not the issue here tonight. The only issue her is that first issue whether
they are in compliance. Then after that, depending on what they do if you say
they'r~ not in compliance, there's another issue.
MAYOR JARSTAD: Could, now -- you keep saying compliance. And I come back to
the judge's interpretation that he says a conceptual compliance. And, you know,
I want you to be perfectly clear when you're addressing this Council what the
judge has told us to rule upon. Which is a conceptual compliance. Npw, what in
your mind of thinking is conceptual compliance? Is, if I'm driving 56 miles an
hour in a 55 mile speed limit, is that conceptual compliance, or if I~m driving
54?
MS. COCHRAN: I th~nk you're taking that ont of conte×t.
MAYOR JARSTAD: No, I'm not. I'm just trying to understand what the judge said.
MS. COCHRANt Normally I would agree with you that a concept is something very
broad. However, in this case, he is talking about the concept of the 9 units per
acre as opposed to whether they have to comply with every single detail of the
building code. And so when he talks about concept, he is talking about something
that in the context of this application for a building permit is something that
is very broad. That is the number of units, tlc is not talking about all the
minor little details such as the setback requirements, the type of sewerage and
that type of thing. He is just talking about the number of units and that is
what he means and that is what he stated in his opinion the number of units.
MAYOR ,L,\RSTAD: But he is st ill talking: ,,1,,,,! t}~,' contept.
biS. GOCHRAN: He is talking about the ~e~,,'pl in this context. Because you have
to remember that it was argued at trial l]!,tl Lht~\ weren't, Mercer wasn't in
compliance because they didn't meet all these little requirements of the building
code. So he is saying, well let's forgel 4~bout all these little requirements and
let's just look at the concept of 9 units [)er acre. Do they have enough units?
Andtfiat'is what he W~nts them t°' rUle on.'"Bec'&use MerCer claim~d that they could'
not meet all these other requirements uutil they knew the number of units they
could have. So he is not asking you to say, well, are they almost right, but are
they in compliance?
-19-
MAYOR JARSTAD: I don't see where he says are they in compliance at this point.
I see him telling us to rule
MS. COCHRAN: If you look at page 12 of the oral opinion he says the number of
units.
COMMISSIONER SWANSON: Would you explain to me why the judge used the word concept
if he meant in strict compliance? I'm a little bit confused by that.
COMMISSIONER STEWART: I am too.
MS. COCHRAN: Well, I was trying to explain. When at trial it was argued that
this application for a building permit was not in compliance, in strict compliance,
with all the requirements because they didn't meet all these little requirements
of the building code. For example, they didn't show such things as where the
roads would go; they didn't have a soil test; they didn't have their electrical
wiring plans; the didn't have their plumbing plans done; they didn't have any of
their sewerage plans done. He is saying that they don't have to show that
immediately. What they have to show i~ediately is whether they are in compliance
with the concept and if you look at it that way, the concept is something very
broad meaning the number of units. They don't have to talk about compliance
with all these other little things, but they do have to comply with the number
of units. And that is why he uses the word concept to distinguish between
strict compliance with ali the other requirements of the building code.
COMMISSIONER SWANSON: In other words, you're telling me that the word concept
means strict compliance with the units per acre and not strict compliance with
anything else?
MS. COCNRAN: Yes.
COMMISSIONER SWANSON: That is kind of difficult to follow.
MS. COCHRAN: I think if you look at the transcript and perhaps if the City
Attorney looked at the transcript, they would agree with that.
MAYOR JARSTAD: .The judge, to go on page 13, following page 12, and he is quoting
the building official, substantially agreeing with the plaintiff's approach and
they have to know, the buiding department, the number of buildings and units in
a given amount of space before they could proceed with the processing o£ details
of water and sewer and roads and everything. Then the judge gets down here and
he says you are, and otherwise, if you don't have that you need to know how many
units, you're going to waste not only the plaintiff's time but also the time the
City official~ in going through a detailed analysis red]ining and making comments
on something that might have to be totally revised. I am thinking, referring
back to what he has just said, that the units are important. I am thinking in
terms of the original 408 multiple family dwelling units which was on the Sept.
3rd applicatio~, which were reduced to 276 in the ,lanu~ry 6th apptic'ation. This
would have required substantial changes. Now that is what he is referring to
when you're sayffng quoting page 12 of what the building o~iicial is saying. Well,
the judge is very clearly saying that he's ~aking that in the context that that
was substantial when you're talking about 408, and so, I don't -- you've got to
do a-long bit of convincing me that on this actual compliance in your arguments.
MS. COCHRAN: Well, I think that the judge was using that as an example. I don't
think the judge anywhere in his opinion states what you can -- whether Jn fact,
-20-
if they had more than the number of allowable units whether they could be in --
be said to be in compliance.
COMMISSIONER STEWART: Well, that's what he says here, though.
MS. COCHRAN: He is saying that the City is now to say how many units they can
have. All right, the City has done that. They said they can have 272.u~its.
Then if they come back and want to amend their application, that's a different
matter. I don't think that is before you. And I think the City Attorney will
back me up on that. That is another question
COMMISSIONER STEWART: Let's hear from him.
MR. RIEHL: It is clear that all three attorneys agree that we're dealing with
one decision tonight. Whether or not the plans submitted on January 6th falls
under the concept of Ordinance 3210. Decisions later on should not be controlling
this and what the judge meant if what decision you make a certain way. You need
to make one decision and I really do, I think all three of us agree that there
is only one decision to be made.
COMMISSIONER STEWART: Okay, I can make a decision .real easy if I understand you
now. What you're telling me is I have one decision and that decision is did the
plan come in operate with 9 units per acre. And I have to go by what the City
Planner said that it didn't. Now, if I don't give him any attempt to comply,
that's not a decision here tonight, and I can make a decision very easy.
MR. RIEHL: I think you may want to ask Mr. Attebery what his decision that Mr.
Attebery made to the Planning Commission was derived from. And Mr. Attebery
may want to speak as to what his decision was within the order specified to the
City.
MR. ATTEBERY: As I outlined earlier, if an applicant comes forth to the building
counter with an application and a site plan, he is in effect asking the City,
does this, I'll use the term concept, comply with your interpretation of the
regulations. And at that point a building permit can be applied for and there
is always going to be some negotiation after that point if we find things that
aren't exactly in line with our interpretation of the ordinance. I would say
that the application of January '77 was a request on the part of Mercer Enterprises
of us, does this meet the concept of 3210 and our response was that with this
reduction of units, yes and that is their attempt to comply. And they agreed
to comply. They have said yes 270 was fine.
COMMISSIONER STEWART: I can understand your logic- What I'm trying t~ tind out
is do they have the right to attempt to comply now or don't they? That's all I
want to know. If they don't have the right to attempt to comply in front of this
body, then I think it all over wi~h.
}~R. ATTEBERY: ] think there are
kSOMMISS1ONER STEWART: If they cio h;tx~' the right, then I think it is all insignificant
change we're talking about in that big el ullits.
MR. ATTEBERY: 1 would -- their atlempt to comply is over the building permit
counter. And if they choose not to nttcmpt to comply with our interpretation of
the ordinance, then their first appeal is to the Planning Commission, their
second appeal is to the City Council aud their third is to Superior Court. And
they did attempt to comply, and in my view hnve and I'm ready for the next step.
COMMISSIONER STEWART: Okay, I think that's -- ] go along with your log}c. My
only question right now, and 1 cnn make a decision real easy if I can find this
out. Is she says I don't have that right. All I'm concerned is that original
plan that came before me, nbw are we saying did it comply or didn't it? That's
the only chance I've got of doing it. Now if that's the case, I've got to vote.
Hey, ~his did not comply. They've got three units too many according to what
you're telling me. And according to the engineers who figured it out. Now,
if I have a right -- if they do have a right and the judge is ordering us to
give them an attempt to comply, I would have to say when they cut their units
six units, that is a pretty insignificant change on 200 and that many units, it
doesn't -- they have the right to do that. Now, I'm just trying to find out
kind of narrow this thing down to that point. I can go along if they do have
their attempt -- if this body here decides they have the right to attempt to
comply. If that's the case, I can make a decision now. It's that simple, I
think, right now. And I would like to get that clear in my mind and I can go
vote either way on it.
MR. ATTEBERY: I think if you try, if you boil'things back to normalcy, if there
is such a thing in this particular case, that first.you work at the very lowest
administrative level you can to try to solve the problem. You keep coming to
the next level administratively and legislatively and finally to the courts.
COMMISSIONER STEWART: I think if I read this thing in here what he is saying,
because he is tal'k~ng about the 9 units per acre, he is not talking about lot
lines.. He is not talking about anything else, he is talking about the 9 units
per acre. And he says if he doesn't comply, then you have the opportunity of
appealing or attempting to comply. And if we're going to give him that opportunity
to attempt to comply, which you gave him, if that's a legal act, I can make a
decision on it. If he doesn't have that right and she's right, if he doesn't
have any rights to make any changes, then I can vote the other way. It is just
that simple. Ail I'want to do is find out. And I'll make a decision on it.
But it boils down to that thing. There is no doubt in my mind that 276 units
and they are not even arguing about that, did not comply 100%. But is that
what we're deciding tonight? If it is, I can make a decision on that. If we
are saying he does have the attempt to comply in front of this body or in front
of you, then I can make a decision on that basis. And that's all I want to know.
She says I don't have -- shouldn't consider that. The second paragraph says I
shouldn't make any decision on it. This attorney says I should. I want to know.
] can make the decision reading th~s it 1 know he is talking about the whole
thing. This is the body where he can comply, then I can -- ~ think he has done
that. What you're doing, I think you're right. ]~ he doesn't have that right
in front of this body, then ~ would have to vote the other way. And I want to
lind ot~t.
(Pause)
MR. WT],SON: R~ch Wilson ,~ain. well, Mr. Stewart, mayb- ] misunderstood the
nature of the appeal, but if the issue tonight is not whether Mercer Enterprises
second submission amended the submission of 270 units complies or doesn't comply
I don't know why we're here.
COMMISSIONER STEWART: I don't either.
MR. WILSON: As you say, Mercer Enterprises has amended or resubmitted
COMMISSIONER STEWART: Attempted ~o ~omply
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MR. WILSON: Attempted to comply. I think we may be able to clear up some of
the confusion by looking at other parts of the Findings of Fact and Conclusions
of Law the judge entered. Page 8 of those refers to the January 6th submittal.
Now Mercer Enterprises shot one in in Sept. of 76 which was for 408 units. Then
in January we resubmitted one for 276 units. The court says the January 6th
plans were an amendment of its Sept. 3 application for the following reasons.
The court felt that it was amended. And the court notes on the next page, page 9,
at that point after Mr. Plescher's Dec. 29 letter, Mercer Enterprises had only
three choices. One, stand on the Sept. 3, 1976 application and appeal; Two, to
file a new application and at that point run the risk of losing its vested rights
position; or three, to continue full cooperation with the City, which had been its
procedure all along, by amending the application to comply with the 9 dwelling unit
per acre interpretation that it received at this point.
COMMISSIONER STEWART: You lost me. Where does it say that? Are you still on
page 8?
MR. WILSON: About the top of page 9, Mr. Stewart. .I turned the page. The court
talks about the three choices Mercer Enterprises had. Mercer Enterprises chose
that third course, to continue full cooperation with the City by amending the
application to comply with the 9 unit per acre ordinance. We finally got the
answer we had been asking for all along from the City. Look, does this plan
comply? The City had said, no 408 does not comply. We put in one for 276. Does
this one comply? Mr. Attebery's letter said 276 won't comply, but 272 will. Ail
right,said Mercer Enterprises, how about 270 and there is no question about 270
because 272 would. So in effect, we -- the court's recognizing here that you do
have the right to amend as you go along to comply. And if that's not the issue
before us, I don't know what is because you say we're not contending that we have
the right to build 276 at this point.
COMMISSIONER STEWART: Yeah.
MR. WILSON: And I guess I would like some clarification from Ms. Cochran. I don't
know if the Council does, but I certainly don't understand what the issue is if
it's not that. It seems to me we're here to decide whether Mr. Attebery's letter
that can we submit one for 270 units is that proper or not? That's the decision
I think, as he has explained it. That's the one we have agreed to submit and
that is the decision the City Council is being asked to approve or disapprove.
MEETING RECESSED FOR FIVE MINIITES.
MAYOR JARSTAD: Recessed meeting will be back in order. I think that the pro-
cedure that the Council will follow this evening because we have had a request
from Commissioner Swanson and, ] think it is a va]id enough one, that he does
want to go over the transcript~. We will not make a decision this evening, but
we will take all the testimony and we will render a decision at a proper time
when we have }iud legal coun~el and had t]lc opportunity to evaluate the testimony
ourselves. I think that everybody in this room understands that this is a very
important case and this is a case where certainly the City Council wants to do
that khich the facts and testimony will bear out and help them in making a fair
decision as we can. So we will not be making a decision this evening. Conm~issioner
Swanson made the recommendation that he would like to read the entire background
-23-
and I certainly concur. We would like to continue to take testimony and any
questions that anybody might have, feel free to come forward and approach the
Council. I know that the Council did receive a letter from Kitsap Lake
Neighborhood Association cdmplaining that they did not have the opportunity
to speak and present all matters that they wanted to at the Planning Commission
hearing. And we certainly don't ever want that concept to develop at the Council.
We'll stay here as long as anybody wants to give testimony. We always have. And
we plan to do so. So if you have further testimony to give, please use the
speaker's podium here and give your name and address.
MR. JOHNSON: My name is Russ Johnson, President of the Kitsap Lake Neighborhood
Association, 6530 Lake Drive. Our letter was put down the documental we felt
happened at the Planning Commission Meeting and I guess one of the bottom lines
of that letter and I noticed that the meeting opened tonight, the same thing
came up, that discussion was to be that the intent and the concept of the City
ordinance. Whereas all the discussion has been on the concept. Not necessarily
the intent, which I would think would lead into something else. The'9 unit per
acre law extend to the entire city limits. Was that the intent or was it just
inner-city or was it around Kitsap Lake or was it in open space? I'm not exactly
sure. And we didn't discuss that and I know that when you read the judge's
opinion, he talked concept. When we read everything the, when the City Attorney
opened the meeting he talked intent and concept. And that was one of the things
we were complaining about at the Planning Commission.
MAYOR JARSTAD: I can understand that.
(Pause)
MR. MERHAUT: Bob Merhaut, 1431Northlake Way, Kitsap Lake. One of the questions
that I had was to the City Attorney. A statement he made in the previous dis-
cussion. If the appeal was denied, he knew what would happen from that point.
I would like to ask a question, what would happen from that point?
MR. RIEHL: If the City Council
MR. MERHAUT: Denied the appeal.
MR. RIEHL: Then it is my assumption that the permit, the application would go
forward as any other application does and certain requirements would then be
negotiating back and forth as to whether or not the building permit applied and
finally there would either be a compliance or there wouldn't be. And then there
would be an issuance of the Fir. Attebery can probably answ~r that
better than I'can.
MR. MERHAUT: If it is denied, then it will be processed?
MR. RIEHL: Right. ~ guess that's the right terminology.
~.lR. MERHAUT: Then your assumption is it would be possible [or them to go ah~d
and start building?
~R. RIEHL: Depending on the dc~ i~ion of thc City. Wh('ther or not it complied.
MR. MERHAUT: You said that you knew for sure that i( the appeal was denied and
the City's decision was to not go in favor of the appeal, that you knew exactly
whab would happen. From that point.
MR. RIEHL: I know th~ procedure which would be -- that's what I'm talking about.
MR. MERHAUT: Oh, okay. The procedure.
-24-
MR. RIEHL: I don't know what the outcome -- I don't know whether there would be
a building or not. I know what the procedure would be to follow the procedure
as it is always done in a building permi.t and negitations and if the City Planning
Dept. made a determination and everything was in compliance, then I suspect it
would go forward. And that's what I meant when I said I knew what would happen.
MR. MERHAUT: It's still not quite clear in my mind, but I'm assuming then the City
is going to go ahead and say this number of sewer lines and so on and so forth would
be in compliance. Okay. Now let me put this to you. If that's the case between
now and the time the court action is up in Supreme Court which Kitsap Lake Environ-
mental Association will pursue, and the Supreme Court says, hey, they were not in
compliance with their original site plan, what happens to the land that has already
been torn up?
MR. RIEHL: That would be up to the Court to decide.
MR. MERHAUT: It has already been decided, but what happens at this point if the
Sup~eme.:~Court says Kitap Lake's appeal was a good one?
MR. REIHL: Then depending on what the decision of the court is going to be, they're
going to determine what amount of compensation or what's going to proper. I can't
tell you what's going to be decided on that. I can't tell you what would happen.
Ail I can tell you is if the appeal tonight is denied, that the process will go
forward as would any application would go forth.
MR. MERHAUT: Okay, now let me direct my next question to Mr. Attebe~y. If he feels
that procedures are going to be in conformance with the on site plan. that has been
changed many times now, what's going to happen between the time it actually gets to
Court, Supreme Court?
MR. ATTEBERY: Commissioner Stewart was coughing and I didn't hear the question.
MR. MERHAUT: What is going to happen between the time it gets to the Supreme
Court. Are you going to allow them to go ahead and build?
MR. ATTEBERY: As I understand it, the Superior Court, well, we've been ordered to
proceed as if everything as it was in January of 1977. There has been no, as I
understand, no stay on our processing of this application. We've been asked to
process it. That's a good question -- I don't know.
MR. MERHAUT: Let me put this to you, then. Supposing now they've gotten 130 units
up, almost half. And the Supreme Court says, 'no it's no good. What are you going
to do?
MR. ATTEBERY: 1 don't have an answer for that. I really don't.
MR. MERHAUT: 1 think maybe you' should address that answer. Because that is our
question. As residents of this lake --
MR. ATTEBERY: ] c:orl~ur w~th your concern. ~m ~oncer~ed ii that happens to~.
~4e've got a site out thor,, that is a x~ry valnable asset ~c~ Ibc community
FIR. MERHAUT: And it's ;,!~eady been raped.
MR. ATTEBERY: That's a concern, ] think, the Court should haw. too.
MR. MERHAUT: Ali right, supposing we were, as individuals, putting in for two units
an ~cre and the units per acre plan by the City was 1~. Would you allow two units
per acre? For each individual?
MR. ATTEBERY: Well, the zoning ordinances
MR. MERHAUT: Would it t~t the concept ot ]~ units per acre ~nstead of 2?
-25-
MR. ATTEBERY: Well, if the zoning ordinance allowed 1~ units per acre, it would
seem to me that you couldn't apply for 2 units per acre.
MR. MERHAUT: I'll bet you dollars to doughnuts you wouldn't allow it. And that
is exactly the point here. Regardless ~f what the figure, what the number of
letters that have been changed back and forth as to the number, the strict compliance
of 9 units per acre is what should be adhered to. Not 9.1, 9.5 or 9.8, but 9 units
per acre. Not 8.9, not 8.5. We're not rounding off numbers. We're talking about
strict co~}liance to the ordinance 3210. And concept is something that was not to
be concerned with, a Webster's dictionary, after the hearing was closed. In particular.
I address that to Mr. Towne. I was the person who wrote the letter. I admit to
this. A~d I ~elt it was justified.. Now since that time, the question of concept
-- thank you, Mr. Attebery, since that time, which, was a month and a half ago,
when the Planning Commission muddled through their definition of the concept which
we had little or not say in the matter, now we find ourselves again talking about
concept. We're right back where we started from a month and a half agQ. Obviously,
nobody has read the oral reports of the judge's briefs, of his opinion. Nobody
has even possibly sat down and even discussed it. I don't know. There is one
other point
MAYOR OARSTAD: I want to assure you that this Council doesn't come to a public
meeting with their minds made up. I mean, you know, I feel good when I, you know,
we've got hearings every week, very delicate decisions as you well know, and I
think there is no problem with me in saying, well the commissioners should already
have read all the stuff and have their minds made up. I think that is why we're
having a public hearing is to have testimony read to us, interpretations that you
put upon that testimony and then, I think in our judgment, we're going to have to
make a decision.
MR. MERHAUT: My question, then Mr. Mayor, was what was your concept of the 9 units
per acre?
MAYOR JARSTAD: Well, my concept in the 9 units per acre as applied to the larger,
small area or whichever area. I don't think the judge has asked me to address
that.
MP,. MERHAUT: No, I'm asking that. What is your concept of the 9 units per acre?
MAYOR JARSTAD: I think my concept of the 9 units per acre as it was developed by
the City, we were talking about smaller acreages throughout our city and I think
that led to us, you know, revising the, putting a moratorium on the ordinance.
And that was the feeling of the Council when we got into questions that we got
into when it was applied to large acreages. So we rescinded that ordinance.
But the judge has said that they have their rights under the ordinance to develop
that property.
MR. MERHAUT: That's true.
MAYOR OARSTAD: That's what he is
MR. MERHAUT: That's true. That the intent and concept was for inner-city develop-
ment. Not open space. That was the intent and concept
M~¥~'~A~b~TAD: '~n.or~tn'ance'is applicable to all areas of the City of Brt.merto~.
MR. MERHAUT: Yes, but you, yourself, publicly stated that Ordi~ance 3210 was not
intended for large developments in open space areas, rather it was intended ior
inner-City development and you addressed this association as having the intent.
MAYOR JARSTAD: That was the major part in us rescinding it.
]
MR. MERHAUT: And, I always thought once an on-site development plan was submitted
and accepted by the City, that no change for basic concept if you will, or the
intent of the development, would be allowed, and if it was, if there was a change
there, it would revert back to the origins! zoning. And I see a lot of latitude
and a lot of flexibility here and there is no real rigid, strict adherence to any
City zoning ordinance here. And I think it is bad. I think the who~le matter is,
leaves~a lot to be desired. And I feel that from an area where the comprehensive
plan submitted by the neighborhood association in 1975, by the request of the City,
we hurried up and got our polls taken and our amendments made to our comprehensive
plan submitted to the City, when the people, by a large majority, were not in favor
of that type of development in that particular type of zoning which was R-1. It
has been ignored by the City. It has been ignored, it has been tossed around like
a political football. And that is not the way City government should work. And
I'm sorry if I feel like I'm reprimanding the City, but that is exactly what I'm
doing. Thank you. .
MAYOR JARSTAD: Do we have further testimony to come before this Council on this
issue? Yes, Ann.
MRS. MALOOF: My name is Mrs. Anne Maloof 278 Northlake Way NW. I just want to
ask a question. If you delay your decision on tonight's hearing, will that be an
advertised public hearing?
MAYOR JARSTAD: I think we'll give a day that our decision will be rendered. I
mean in our regular council notice.
MRS. MALOOF: But --
MAYOR JARSTAD: We can certainly address anybody you wish out in the neighborhood
association and tell you the day that we'll make our decision on. We will not
just pick a day and announce it. I think we can give you an advance three or four
days if you feel that will be sufficient.
MRS. MALOOF: And will that be published?
MAYOR JARSTAD: I think we can.
MS. MANDIO: We can continue until a certain date and there's no publishing
required. You should continue your decision date to another date.
MAYOR JARSTAD: Well, we probably should pick a date prior to probably the last
week in November.
COMMISSIONER SWANSON: ]'1] be gone the next to the last week.
MAYOR JARSTAD: That last week?
COMMISSIONER SWANSON: No, the next to the last week.
MAYOR 3ARSTAD: The Council Meeting on what, the 28th?
MS. MANDIO: The 28th ot Nox'~,~!,~'~'.
MAYOR JARSTAD: We're ail going. 1,, h,, h~,re on that date. Right?
COMMISSIONER SWANSON: ] don'i think ,,,m want to continue' the hearing to that
date.
MAYOR JARSTAI): Well, Kathy sa d that we should continue the hearing, rather to
make the decision to a set date so that everybody knows.
MS. MANDIO: They need a set date given tonight for that and then we can follow
it up with a letter to the Association.
MAYOR OARSTAD: I think that tonight we'll set a set date and it would appear that
it will be Tuesday, the last week in November, which will be the 28th, November 28.
-27-
MRS. MALOOF: That isn't definite yet, but you will announce
MAYOR JARSTAD: Well, Kathy said she can send you, also send you a letter to
remind you, but we'll set it tonight.
MRS. MALOOF: And may I ask also, Kathy, ~hat you see that a notice does go to
the paper, the Bremerton Sun? That that is on the agenda for that particular
meeting? Thank you.
MAYOR JARSTAD: Is there any further testimony? If not, I'll rule the
COMMISSIONER SWANSON: I don't want you to rule the meeting closed.
MAYOR 3ARSTAD: No, no. I was just going to close the hearing for testimony.
I just was going to rule that the meeting for taking testimony will be closed
and that would move that the decision on this matter be given and the meeting
concluded on the City Council Meeting date on November, Tuesday, November the 28th.
COMMISSIONER SWANSON: Second.
MAYOR JARSTAD: You've heard a motion and a second. Any further discussion?
COMMISSIONER STEWART: Question.
MS. MANDIO: Mayor Jarstad?
MAYOR JARSTAD: Yes.
MS. MAND10: Commissioner Stewart?
COMMISSIONER STEWART: Yes.
MS. MANDIO: Commissioner Swanson?
COMMISSIONER SWANSON: Yes.
MAYOR JARSTAD: Did you wish to speak on the question?
COMMISSIONER SWANSON: No, I would like to ask the City Clerk to supply copies
of the trial transcripts to myself and any other commissioners who may want them.
-28-