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HomeMy WebLinkAboutIL268 Interlocal Agreement ) : 200409 9 0 5 Skagit Coutnty Auditor 9/29/2004 Page 1 of 610:10AM INTERLOCAL AGREEMENT • Regarding PERMITTING AND MITIGATION FOR THE • ANACORTES AIRPORT FENCING PROJECT • Between 0;ti• co, N:111 THE PORT OF ANACORTES, a municipal corporation of the State of Washington, and • ti;":"7TNa' • 14(.1W; THE CITY OF ANACORTES, a municipal corporation of the State of Washington, INTERLOCAL AGREEMENT Regarding PERMITTING AND MITIGATION FOR THE ANACORTES AIRPORT FENCING PROJECT THIS AGREEMENT(the"Agreement"), dated this day of September 2004, is made pursuant to Ch. 39.34 RCW, by and between: THE PORT OF ANACORTES, a municipal corporation of the State of Washington; and THE CITY OF ANACORTES, a municipal corporation of the State of Washington; (collectively, the "Parties"). A. RECITALS WHEREAS, the Port of Anacortes ("Port") owns and operates the Anacortes Airport which is located within the city limits of the City of Anacortes ("City"); and WHEREAS, beginning in 2001 and continuing through March of 2004, the Port and the City were involved in litigation entitled Port of Anacortes, of al. v. City of Anacortes, et. a!, Skagit County Cause No. 01-2-00834-2 (the"Lawsuit") concerning the relative rights of the Port and the City concerning development at the Anacortes Airport; and WHEREAS, on November 30, 2001, the Court entered an interlocutory order entitled Order Granting and Denying Partial Summary Judgment on Preemption (the "Order"). In the Order, the Court held that federal and state law preempts City regulation and law in the fields of aircraft operations, safety and noise. The Court specifically noted that the City is preempted from regulating the location and type of security fencing at the airport. However, the Court also held that the City could enforce reasonable permitting and mitigation requirements for activities at the Anacortes Airport. The City agreed, in open court, to abide by the terms of the order; and WHEREAS, on March 23, 2004 the Port, in part relying on the statement of the City to abide by the terms of the Order, voluntarily dismissed the Lawsuit, without prejudice, and prior to any final or binding determination by the Court; and WHEREAS, in August of 2004, the Port applied to the City for a building permit and a clearing permit to erect security fencing at Anacortes Airport, to erect a perimeter fence at the Anacortes Airport and to remove vegetation and trees within the FAA designated "object free area" (the Fencing Project"); and 1111111111111111111111011)11 20040929003 Skagit County Auditor 9/29/2004 Page 2 of 610:10AM Interlocal Agreement Anacortes Airport Fencing Project ;_ J Page 2 WHEREAS, the Port issued a Determination of Non-Significance for the Fencing Project. After changing the fence location on the south and north ends of the runway, the Port revised the SEPA checklist and reissued a Determination of Non-Significance for the Fencing Project; and WHEREAS, the Interlocal Cooperation Act, Ch. 39.34 RCW, permits governmental entities, including municipal corporations like the Port and the City, to enter into interlocal agreements, such as this Agreement. THEREFORE, for and in consideration of the mutual terms and conditions contained herein, the Parties hereby agree as follows: B. TERMS AND CONDITIONS 1. Fencing Project. Pursuant to the commitment made by the City and in the spirit of the Order, the City shall, upon execution of this Agreement, take all steps necessary to under the applicable codes and regulations to grant and issue all necessary permits to the Port to construct and complete the Fencing Project subject only to the mitigation described herein. 2. Mitigation on the West Side of the Anacortes Airport. The Fencing Project permit application includes, at the request of the City, a vegetative screen along the west side of the Anacortes Airport where the chain link security fence is located within four(4) feet of the property line. Low growth bushes,will be planted between the fence and the property line except where an adjoining landowner requests that no bushes be planted adjacent to their property. The exact detail concerning the bushes is contained in the Port's building permit submittal. The Port accepts the City's mitigation requirement for the purpose of reaching agreement with the City herein. The City finds the proposed mitigation to be reasonable for the purpose of reaching agreement with the Port herein. If other mitigation is imposed this Agreement shall be null and void.. 3. Voluntary Mitigation on East Side of the Anacortes Airport. An adjacent property owner on the east side of the Anacortes Airport has indicated that he will challenge the Port's SEPA determination as well as all of the City issued permits based upon the clearing of vegetation in the object free area. This adjacent property owner asserts that his property will be impacted by the vegetation and tree removal. The Port does not believe that such vegetation or tree removal will be a substantial environmental impact but notes that this is the only property that is potentially impacted by the vegetation removal. Therefore, the Port, (without admitting the validity of the challenge) in order to avoid litigation agrees with the adjacent property owner to the following voluntary mitigation features: a. Construct an eight (8) foot high wood screen above the adjacent grade consisting of two sides. Side 1 will be offset twelve (12) feet from the north property line. It will be approximately fifty (50) feet in length running from the Northwest corner of the property to the east. Side 2 will be offset four(4) feet from the west property line. It will be approximately sixty (60) feet in length running from the Northwest corner of the property to the south. . b. Plant low growth bushes (in the same manner as specified for the mitigation identified for the west side of the airport in Paragraph 2 above) between the screen and the property line. The City will permit this construction as part of the Fencinf IIN11141101111111111P 0 4 9 2 9 3 Skagit County Auditor - e-fn•inam Interlocal Agreement ) ) Anacortes Airport Fencing Project Page 3 4. Movement of the Safety Fence or the Mitigation Screens. The City understands that the Port has agreed with the FAA to move the safety fence, at the Port's sole expense, to accommodate any aeronautical need for a parcel of land at the Anacortes Airport. Likewise, the Port may have to remove all or a portion of the mitigation screens to accommodate any aeronautical need. This Agreement does not apply to or preclude movement of the safety fence or removal of the • mitigation screen as part of a subsequent project. The Port and the City reserve all their respective rights in this regard. 5. - Port's Right to Contest Any Additional Mitigation. The Port reserves the right to contest any additional mitigation imposed on the Fencing Project. 6. Timing. It is anticipated by the Port and the City that the Fencing Project will be constructed as soon as practicable. However, the City recognizes that the • construction of the Fencing Project is subject to the final approval of the Commission of the Port. Therefore, nothing in this Agreement shall be construed to impose a requirement upon the Port that it construct the Fencing Project or complete construction within a certain period of time. However, once the construction is undertaken, the Port will complete the construction or abandon the construction with one (1) year from the date construction. commences. 7. No Precedential Use. The Port and the City recognize and agree that this Agreement expresses their respective desires to cooperate in matters involving the Anacortes Airport in a manner that will meet the needs of both governments and best serve the interests of all the citizens of Anacortes. However, the Port and the City recognize and agree that this Agreement and the statements and agreements contained herein are of no precedential effect in any future disputes or agreements between the Port and the City. Therefore, this Agreement shall not be cited by either party in support for or opposition to any other action by either party. 8. Dispute Resolution. The Parties shall attempt to resolve all claims, disputes, and other matters in question, arising out of or related to this Agreement, first through informal discussions and then through formal written notification and opportunity to cure, before resorting to arbitration or litigation. 9. Term. This Agreement shall be effective when signed and notarized by the duly authorized representatives of the Port and the City. It shall expire upon the completion of the Fencing Project, or two (2)years whichever is sooner. 10. Entire Agreement. This Agreement, including its Recitals, embodies the Parties'entire agreement on the issues covered by it, except as supplemented by subsequent written agreements the Parties make. All prior negotiations and draft written agreements are merged into and superseded by this Agreement. 11. Modifications. •This Agreement may be amended and modified by a written agreement signed by the Parties, in the same manner as the signing of the original Agreement. 12. Severability. If any term or condition contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in ariv rAsnect. such invalidity, illegality or unenforceability shall not affect any 11111111111111ffilfin 2 0 4 9 2 9 3 5 _ _ Skagit County Auditor „-, Interlocal Agreement ) _I, Anacortcs Airport Fencing Project ' Page 4 hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 13. Waiver. No failure by the Parties to insist upon the strict performance of any term or condition of this Agreement, or to exercise any right or remedy upon a breach thereof, shall constitute a waiver or breach of any other term or condition of this Agreement. 14. Governing Laws. This Agreement and the rights of the Parties hereto shall be governed by and construed in accordance with the laws of the State of Washington. 15. Execution. The persons signing below represent and warrant that they have the requisite authority to bind the Party on whose behalf they are signing. MiTIIMENE111PAI 0409290 Skagit County Auditor 0/29/2004 Pau= crf 010:10AM Interlocal Agreement Anacortes Airport Fencing Project Page 5 IN WITNESS HEREOF, the Port and the City have caused this Agreement to be executed in their names and to be attested by their duly authorized officers this aU day of September 2004. PORT 0 ANACORTES By: tahl, Executive irector Date: Ze Oa) State of Washington ) Skagit County Signed and attested to before me on September -1 2 , 2004 by Dan Stahl. E I' 19-4 fiY ©� 'i Notary Public ; 5L\ _ Print or type nar,�e wAs = My appointment expires D?- (77-{. CITY OF ANACORTES By: Ian Munce, Director of Planning & Community Development Date: 9 " S—©4 State of Washington ) ) Skagit County Signed and ,4e0vd tobefoLe me on Seto e- )d0' 2004 by tan Munce. % Notary Public ' [ T41411n° e ~� � = �.:.� ram'. w I. 1,rl ;^X 4H 7',� Y� = r r-r.1 : .. +JAY t....r me ° My appointment expires 'q!•2-$—�f F.'PORT NMCORTEAEeeaA.(Mskr Oepa4nNMipa1 FenNny6Oocs Stow. 17.]bMVn..4.k a0B1709,hC 9 ,rr,W■■■^^ 200409 9 0 S akaglt County Auditor oreoi)nnd Pane 6 of 610:10AM • , • 01#11114 IN2 0 MN 929 n Skagit Count - 6 9/29/2004 Page y Auditor 1 Of 310:11AM VOLUNTARY MITIGATION AGREEMENT FOR THE ANACORTES AIRPORT FENCING PROJECT THIS AGREEMENT (the"Agreement"), dated this 2$ day of September, 2004, is by and between the Port of Anacortes (the "Port") and Hoboy Family Trust and Loren Hoboy. WHEREAS, the Port of Anacortes ("Port") owns and operates the Anacortes Airport which is located within the city limits of the City of Anacortes ("City"); and WHEREAS, the Port issued a Determination of Non-Significance for the Fencing Project which was challenged by Mr. Hoboy. After changing the fence location on the south and north ends of the runway, the Port reissued a revised SEPA checklist and a new Determination of Non- Significance for the Fencing Project which was not challenged; and WHEREAS, in August of 2004, the Port applied to the City for a building permit and a clearing permit to erect security fencing at Anacortes Airport (the Fencing Project"); and WHEREAS, the Hoboy Family Trust owns property adjacent to the eastern boundary of the Anacortes Airport. The removal of the vegetation in the object free area may have some impact on the trust property in that some existing vegetation that screens Anacortes Airport operations from view from Hoboy Family Trust property will be removed; and WHEREAS, Mr. Hoboy, as trustee of the Hoboy Family Trust, has indicated that he will challenge the Port's SEPA determination and will challenge the City issued permits for the Fencing Project; and WHEREAS, the Port believes that the impact, if any, is not significant. However, the Port desires to cooperate with its neighbor by providing this voluntary mitigation of the impacts perceived by Mr. Hoboy. NOW THEREFORE, for and in consideration of the mutual terms and conditions contained herein, the Parties hereby agree as follows: 1. Waiver of Any Challenge to Fencing Proiect. Mr. Hoboy, individually and as trustee of the Hoboy Family Trust hereby agrees not to challenge the Port's SEPA determination for the Fencing Project and agrees not to challenge the issuance of the permits by the City for the Fencing Project as currently submitted to the City. In the event that the Fencing Project plans change, this agreement shall be null and void. 2. Mitigation by the Port. Concurrently with the construction of the Fencing Project, the Port will provide the following voluntary mitigation features: A. The Port will construct an eight(8) foot high wood-screen above the adjacent grade within four feet of the property line adjacent to the Hoboy Family Trust property. The wood screen 1 ' ) ) will consist of two(2) sides. Side 1 will be offset twelve (12) feet from the north property line. It will be approximately sixty (60) feet in length running from the Northwest corner of the property to the east. Side 2 will be offset four(4) feet from the west property line. It will be approximately fifty (50) feet in length running from the Northwest corner of the property to the south. B. The Port will plant low growth bushes in the same manner as specified for the mitigation identified for the Fencing Project) on the west side of the Anacortes Airport between the fence and the property line, except that low growth bushes will not be planted in front of the wood screen on the north side of the property as existing plantings are satisfactory. C. The Port will reasonably maintain the wood screens. • 3. Future Use of Property for Aeronautical Need. Mr. Hoboy, individually and on behalf of the trust, acknowledges that the Port has stated that it must make property at Anacortes Airport available,to accommodate any aeronautical need. Therefore, it may be necessary in the future to remove all or a portion of the wood screen that is not within four(4) feet of the property line as part of a further development at Anacortes Airport. In such an event, Mr. Hoboy or the successor • trustee shall be entitled to challenge the SEPA determination for that project and shall be entitled to challenge any permits issued for that project and to discuss the impact of the removal of the wood screen as part of those challenges. This agreement shall not provided a basis, in law or in • equity, for Mr. Hoboy or the successor trustee to prevent the removal of the wood screen, except as such relief may be granted pursuant to a challenge to a future project's SEPA process or permits under appropriate legal process. With regard to future projects which involve the loss of the wood screen, the existence and effectiveness of the wood screen shall be considered in any SEPA process.. 4. No Precedential Use. The Port, Mr. Hoboy, and the Hoboy Family Trust agree that this Agreement expresses their respective desires to cooperate in matters involving the Anacortes Airport Fencing Project. The Port, Mr. Hoboy and the Hoboy Family Trust reserve their respective rights with regard to all future actions, including their right to protest any future movement of the safety fence closer to his property or any additional vegetation clearing or tree removal. 5. Modifications. This Agreement may be amended and modified by a written agreement signed by the Parties, in the same manner as the signing of the original Agreement. 6. Execution. The persons signing below represent and warrant that they have the requisite authority to bind the party on whose behalf they are signing. 7. Entire Agreement. This Agreement, including its Recitals, embodies the Parties' entire agreement on the issues covered by it, except as supplemented by subsequent written agreements the Parties make. All prior negotiations and draft written agreements are merged into and superseded by this Agreement. IN WITNESS HEREOF, the Port and the City have caused this Agreement to be executed in their • 1102INIIIMMRIIN 0 9 9 0 6 • Skagit County Auditor 2 9/29/2004 Page 2 of 3 10:11AM names and to be attested duly authorized officers this day of September 2004. PO OF ANACORT By: Da , Executive ec or By: 1-47,4 LOREN OBOY, indivi ually, on behalf of his marital community and as truste of the Hoboy Family Trust Date: S4V--79 6), Z., ;sc)I- F:WORT ANACORTES1Execut1ve Director DepartmentlAirpoit Fencino1Docs September 27.2004lHoboyagreementfic092804.doc f Vert-C.. t „r•VAIO t 4 tk:),P4114 )4-•k 40 2 Skagit County Auditor 3 of 3 10:11ANI 9/29/2004 Page 3