Anacortes City Zoning Code
Division 8
Development Agreements
19.82 Development Agreement for Port-Owned Property
The following exhibits are incorporated into this chapter:
19.82.010 Purpose of agreement.
The purpose of this chapter is to establish, permit and mitigate for certain land uses and land disturbance activities, together with a comprehensive mitigation plan applicable to certain land uses, and to certain land disturbance activities, such as tree removal and land clearing, and the removal of the FAR Part 77 obstructions. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.020 Exhibits.
The following exhibits are incorporated into this chapter:
Exhibit “A” | Airport Property, Land Use, and Zoning | This exhibit displays the various land use areas described in this agreement and the location of both the operational safety fence and the perimeter fence. |
Exhibit “B” | Fence Alignment Detail | This exhibit displays the alignment detail for construction of the operational safety fence and the perimeter fence. |
Exhibit “C” | Part 77 Tree Removal | This exhibit identifies some of the trees that protrude into Part 77 airspace. |
Exhibit “D” | Landscape and Wetland Mitigation Plan | The landscape and wetland mitigation plan describes both the mitigation by area for tree removal and also outlines a preliminary wetland mitigation plan. |
Exhibit “D: Figure 1" displays the five areas. | ||
Exhibit “D: Figure 2" depicts the plant type, and spacing for the operational safety fence. | ||
Exhibit “D: Figure 3" of the exhibit depicts proposed replacement shrubs for Part 77 tree removal. | ||
Exhibit “D: Figure 4" depicts a proposed off-site mitigation area at ship harbor or alternative location. | ||
Exhibit “E” | Outright Permitted and Vested Land Uses | This exhibit describes the outright permitted uses that are also vested in the aeronautical zone. |
Exhibit “F” | Development Standards | This exhibit describes the development standards. |
Exhibit “F” is a preliminary stormwater analysis report. | ||
Exhibit “F: Figure 1" depicts a conceptual stormwater plan. | ||
Exhibit “F: Figure 2" shows the design of the proposed screening berm. | ||
Exhibit “F: Figure 3" shows a cross section of the screening berm. | ||
Exhibit “F: Figure 4" shows the location of alternate run-up apron. | ||
Exhibit “G” | Anticipated Development Phasing | This exhibit displays the anticipated development phasing inside the aeronautical area. |
Exhibit “H” | Conditionally Permitted Uses |
(Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.030 Property.
The property subject to this chapter is depicted on Exhibit “A” and includes the following designated areas:
A. The aeronautical area;
B. The Panhandle Reserve Area;
C. The Rockwell Reserve Area;
D. The Anacopper Future Process Area; and
E. The North Aeronautical Area.
These areas each have distinctive rights and restrictions with regard to (i) development rights, (ii) tree removal and (iii) mitigation requirements. Exhibit “A” depicts these various areas and this chapter describes the rights in each area. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.040 Fencing.
Exhibit “A” also depicts the location of the operational safety fence that will be constructed by the port, to FAA specifications, on the property. In addition, Exhibit “A” depicts the location of the perimeter fence that will be constructed by the port on the property. The alignment detail for these fences is depicted on Exhibit “B.”
A. Vested Permits. Subject to the requirements of this herein, this chapter shall be deemed the final land use, critical areas, construction and related land disturbance permit/approval for the construction of these fences.
B. Fence Mitigation. Mitigation for the operational safety fence is set forth in Exhibit “B” and “D.” There is no mitigation required for the perimeter fence. The plants required, the spacing of the plants and the location of the screening required as mitigation for the operational safety fence is depicted on Exhibit “D.” Subject to reasonable approval by the city, the port may substitute different species of plants if the United States Department of Agriculture (“USDA”) determines that the selected species may attract birds to the Anacortes Airport. The mitigation described herein may not be eligible for FAA grant funding; however, the lack of grant funding shall not relieve the port of this obligation. In addition, the port and the city may agree on different species of plants that would accomplish the purpose of screening the fence.
C. West Side Operational Safety Fence Coating. The parties recognize that the plantings used to screen the operational safety fence will take several years to grow to maturity, therefore, the chain link of the operational safety fence along the west side of the Anacortes Airport will be black vinyl coated to reduce its visual impact as the plants mature. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.050 Part 77 obstruction removal.
The port and the city recognize that FAA regulations require that a certain airspace above and adjacent to the Anacortes Airport be kept free of obstructions. The lower edge of the approach and transitional surfaces is known as the “Part 77 surface.” Certain trees on the property intrude into the Part 77 surface. This chapter permits topping or removal of all trees that now or for the duration of this chapter protrude into the Part 77 surface subject to the mitigation requirements specified herein. Exhibit “C” depicts the trees that protrude into the Part 77 surface as of a 2003 survey. The port and the city recognize that additional trees may protrude into the Part 77 surface. This chapter shall be deemed the final land use, critical areas and related land disturbance permit/approval for the removal of all trees that now, or for the duration of this chapter, intrude into the Part 77 surface.
A. Tree Topping. The port and the city agree that, except for wetland and wetland buffers, there is no permit required to top trees to comply with Part 77 on the property. For the purposes of this chapter, topping is allowed to occur at a reasonable distance below the Part 77 surface to prevent short term growth of the tree that would intrude into the Part 77 surface.
B. Tree Removal Mitigation. The port and the city have agreed to a mitigation plan for tree removal. The property is divided into the following areas depicted on Figure 1, Exhibit “D” and subject to the landscape and wetland mitigation plan described in Exhibit “D.” Subject to reasonable approval by the city, the port may substitute different species of plants if the USDA determines that the selected species may attract birds to the Anacortes Airport. In addition, the port and the city may agree on different species of plants that would accomplish the purpose of mitigation. The mitigation described herein may not be eligible for FAA grant funding; however, the lack of grant funding shall not relieve the port of this obligation.
Designation | Description | Mitigation Required | Reference |
|---|---|---|---|
Area 1 | Non-wetland/non-wetland buffer clearing area inside operational safety fence. | Mitigation provided by creation of reserve areas. No additional mitigation required. | Exhibit “D: Figure 1” |
Area 2 | Wetland and wetland buffer inside operational safety fence and in the North End Aeronautical Area. | Replacement of plants per the landscape and wetland mitigation plan. | Exhibit “D: Figure 1” |
Area 3 | Non-wetland/non-wetland buffer areas inside the Panhandle Reserve and the Rockwell Reserve and a portion of the North End Aeronautical Area. | Replacement of plants per the landscape and wetland mitigation plan. | Exhibit “D: Figure 1” |
Area 4 | Wetland and wetland buffer inside Panhandle Reserve and Rockwell Reserve and Anacopper Reserve. | Replacement of plants per the landscape and wetland mitigation plan. | Exhibit “D: Figure 1” |
Area 5 | Non-wetland and non-wetland buffer inside Anacopper Road Area and a portion of the North End Aeronautical Area. | Screening plants in the location shown on Exhibit “B.” | Exhibit “B” and Exhibit “D: Figure 1” |
C. Vested Permits and Rights. Subject to the requirements of this herein, this chapter shall be deemed the final land use, critical areas and related land disturbance permit/approval for the removal of all trees on the property penetrating the Part 77 surface during the term of this chapter. The topping or removal of trees as provided herein and subject to the terms of this chapter shall be an outright permitted and vested land use on the property.
D. Notification to City. Prior to commencement of any activity permitted by this chapter, the port shall notify the city planning director in writing of the date of the commencement of any such activity, provide a description and scope of the activity planned. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.060 Aeronautical area.
This area is depicted on Exhibit “A” and represents the area that is available for aeronautical uses.
A. Vested Rights. The permitted land uses and conditional land uses identified in Exhibit “E” are entitled to and vested on the aeronautical area of the property and shall be subject only to those rules, requirements and mitigation set forth in this chapter; provided, however that any structure shall be subject to the applicable building code requirements. The uses allowed in the aeronautical area are not limited by dimension or location, except as required by any setback, buffer, or height limitations set forth herein. The port shall, in its sole discretion, subject to these limitations, have full discretion without any requirement of further mitigation or condition, to configure the layout of structures for such uses as it determines.
B. Conditional Uses. The port or its tenants shall follow the process set forth in the Anacortes Municipal Code (AMC) Chapter 17.10 et seq., to seek a conditional use.
C. Variances. Nothing herein shall limit or prohibit the port or its tenants from seeking a variance from any of these standards pursuant to the variance criteria set forth in the AMC Chapter 19.38, and the processes set forth in AMC Chapter 19.20.
D. Open Space Requirements. For the purposes of calculating the buildable area as required for land development authorized by this chapter, the requirements set forth in the AMC Section 17.80.080 (open space requirement), shall apply. In satisfying these open space requirements, the port may allocate any portion of the Panhandle Reserve or Rockwell Reserve Areas to any portion of property within the aeronautical area in its discretion in order to meet the open space requirements of this section.
E. Anticipated Development Phasing. Exhibit “G” depicts three development areas within the aeronautical area. The port anticipates that it will conduct development in accordance with the three development areas starting with Area 1, then Area 2 and then Area 3. However, nothing herein shall preclude the port from deviating from the development phasing described herein, or redeveloping existing developed areas of the aeronautical area to comply with FAA regulations or meet the needs of those seeking property for aeronautical development. The port, in its own discretion and without obligation, may further review and mitigate any impacts from development of these areas, regardless of their significance.
F. Areas Outside the Development Phasing Areas. Nothing herein precludes the port, subject to the limitations and conditions in this chapter and applicable wetland regulations, from (i) clearing any area within the aeronautical area or (ii) using any property within the aeronautical area for development. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.070 Panhandle Reserve and Rockwell Reserve Areas.
These areas are depicted on Exhibit “A” and represent areas that will be left undeveloped except as provided herein. The primary purpose of these areas will be to locate mitigation of impacts arising from development occurring within the aeronautical area. Notwithstanding the foregoing, the port may top or remove trees to comply with Part 77 subject to the mitigation required herein.
A. No Uses Incompatible with Aeronautical Uses. The Panhandle Reserve and/or Rockwell Reserve areas may not be used for any use that is incompatible with aviation and or aeronautical uses at the Anacortes Airport.
B. Native Growth Protection Easement. A native growth protection easement shall be established by the port for the Panhandle Reserve and Rockwell Reserve areas shown in Exhibit “A” within a reasonable timeframe, recognizing and subject to the processes required by the FAA to de-obligate the Panhandle Reserve and Rockwell Reserve areas from restrictions contained in the FAA grant assurances made by the port when the Panhandle Reserve and Rockwell Reserve areas were acquired. Subject to reasonable approval by the city, the port may remove native plants and substitute different species of plants if the USDA determines that the selected species is encouraging birds at the Anacortes Airport. The replacement plants will provide equal or better mitigation. The mitigation described herein may not be eligible for FAA grant funding; however, the lack of grant funding shall not relieve the port of this obligation. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.080 Anacopper Future Process Area.
This area is available for aeronautical uses; however, no development within the Anacopper Future Process Area is anticipated to occur until the city and the port complete a future land use planning process, including the adoption of reasonable zoning entitlements for aviation and aeronautical related uses, reasonable mitigation (including wetland mitigation), development standards/regulations and approval processes. In order to assure that this process occurs and is completed prior to development pressures occurring, the parties agree that, upon the request of the port, the city shall, in consultation with the port, initiate and reasonably conclude a comprehensive plan and development regulation adoption process, to allow reasonable aviation/aeronautical and related land uses within the Anacopper Future Process Area. This process shall be compliant with law and part of the city’s annual Growth Management Act batching process. The city’s consultation with the port is intended by the parties to be a participatory process of each party with the goal of developing jointly proposed new comprehensive policies and development regulations for the “Anacopper Future Process Area” consistent with law and FAA regulations.
A. Aeronautical Uses Pending Completion of the Process. Until such time as the planning process is complete, aeronautical use, aviation related uses only shall be permitted as a conditional use following the process set forth in the AMC Sections 17.10.100 through 17.10.105, to seek a conditional use and subject to the imposition of reasonable mitigation and compliance with wetland regulations. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.090 North aeronautical area.
This area is available for aeronautical uses; however, because of its location under the runway protection zone and its elevation, development is unlikely in this area.
A. Aeronautical Uses. Aeronautical use, aviation related uses and other uses shall be permitted only as a conditional use following the process set forth in the AMC Sections 17.10.100 through 17.10.105, to seek a conditional use and subject to the imposition of reasonable mitigation and compliance with wetland regulations. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.100 Off-site mitigation.
In developing a plan for the Anacopper Future Process Area or other wetland mitigation as required, the port and the city may work cooperatively to utilize the proposed off-site mitigation area as described in Exhibit “D” and depicted in Exhibit “D: Figure 4." Other approved offsite mitigation locations, as mutually agreed upon, could also be considered in replacement of the one shown in Exhibit “D: Figure 4." (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.110 SEPA review.
The State Environmental Policy Act (SEPA) review conducted for this chapter was done considering a defined potential impact or impact ceiling within which the port or its tenants may engage in the land uses authorized herein and construct the structures subject to the conditions set forth herein, without further SEPA review required. By way of example only, the SEPA review has considered the capacity of the existing stormwater system and has defined, as a result, the amount of impervious surfaces that can be added to the port’s property without development of additional facilities subject to modification as may be required by a change in federal stormwater regulations. That capacity limitation, in terms of area of square footage of impervious surfaces, is defined herein. If the port was to propose additional impervious surfaces, further stormwater facilities would be required to be designed and approved by the City of Anacortes. By way of further example, the port has developed a tree removal landscape and wetland mitigation plan that shall apply for the duration of this chapter as it applies to tree/obstruction removal on the port’s property without further review or approval of the city. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.120 Impact fees/latecomer agreements.
Impact fees applicable to any project on the property shall be limited to those impact fee types and latecomer agreements in effect as of January 1, 2005. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.130 Lot line adjustment/land divisions.
It is anticipated that lot line adjustments and/or land divisions, including condominiums will be required over the life of this chapter. The parties agree that such applications shall be deemed vested in the use of the rules set forth in this chapter, subject only to the procedural requirements set forth in this Code implementing RCW 58.17 et seq. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.140 Recording.
This chapter shall, when approved by the city council and executed by the parties hereto, be filed as a matter of public record in the office of the Skagit County auditor and shall be in the nature of a covenant running with the property. It is the intent to have this chapter, so long as it is in force, to be considered, interpreted, and regarded as a covenant running with the land as to the port’s property. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.150 Applicability of RCW 36.70B.170—.210.
Any provision of RCW 36.70B.170 through .210 in existence as of the date of recordation of the agreement codified in this chapter shall govern the interpretation of this chapter. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.160 Dispute resolution.
In the event of any dispute as to the interpretation or application of the terms or conditions of this chapter, the port and the city, through their designated representatives, shall meet within ten days after the receipt of a written request from any party for the purpose of attempting in good faith to resolve the dispute. Such a meeting may be continued by mutual agreement to a date certain to include other persons or parties, or to obtain additional information.
A. Mediation. In the event that such a meeting does not resolve the dispute and prior to commencing any litigation except for a request for a temporary restraining order and preliminary injunction, the parties shall first attempt to mediate the dispute. The parties shall mutually agree upon a mediator to assist them in resolving their differences. If the parties are unable to agree upon a mediator, a list of seven mediators with experience in land use matters and applicable Washington State land use law shall be requested from the Skagit County Superior Court Presiding Judge. Each party shall take its turn in striking one name from the list until one name remains. A flip of a coin shall determine which party strikes the first name. Any expenses of the mediator shall be borne equally by the parties. However, each side shall bear their own costs and attorney fees arising from participation in the mediation. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.170 Applicable law.
This chapter shall be governed by and be interpreted in accordance with the laws of the State of Washington. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.180 Binding effect.
This chapter shall be binding upon the city, the port and any port tenants on the airport. The port will be responsible to insure that its tenants comply with this chapter. The parties acknowledge that the port shall have the right to lease, divide, assign, or transfer all or any portion of the interests, rights and obligations under this chapter to other parties acquiring an interest or estate in the property. Consent by the city shall not be required for any such lease, assignment, transfer or rights pursuant to this chapter. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.190 Severability.
If any provision of this chapter is determined to be unenforceable or invalid by a court of law, then this chapter shall thereafter be modified to implement the intent of the parties to the maximum extent allowable under law. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.200 Modification.
This chapter shall not be modified or amended except in writing signed by the city and the port or their respective successors in interest. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.210 Further good faith cooperation.
Each party hereto shall cooperate with the other in good faith to achieve the objectives of this chapter. The parties shall not unreasonably withhold requests for information, approvals or consents provided for, or implicit, in this chapter. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.220 No presumption against drafter.
This chapter has been reviewed and revised by legal counsel for all parties and no presumption or rule that an ambiguity shall be construed against the party drafting the clause shall apply to the interpretation or enforcement of this chapter. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.230 Notices.
All communications, notices, and demands of any kind which a party under this chapter is required, or desires to give to any other party, shall be in writing and be either (1) delivered personally, (2) sent by facsimile transmission with an additional copy mailed first class, or (3) deposited in the U.S. mail, certified mail postage prepaid, return receipt requested, and addressed as follows:
City:
City of Anacortes
904 6th Street
P.O. Box 547
Anacortes, WA 98221
Port:
Port of Anacortes
First and Commercial Avenue
P.O. Box 297
Anacortes, WA 98221
Notice by hand delivery or facsimile shall be effective upon receipt. If deposited in the mail, notice shall be deemed received forty-eight hours after deposit. Any party at any time by notice to the other party may designate a different address or person to which such notice shall be given. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.240 Duration.
This chapter and the rights and obligations set forth in the agreement codified in this chapter shall be for a period of twenty years.
A. Inability to Obtain De-obligation. The port fully anticipates that the FAA will approve de-obligation of the Panhandle Reserve and the Rockwell Reserve areas thereby permitting the port to record a native growth protection easement. In the unlikely event that the FAA is unable or unwilling to approve the de-obligation then the port and the city will meet and confer concerning the effect of the FAA’s inability to de-obligate. These discussions will include, but not be limited to, (i) termination of the agreement codified in this chapter, (ii) reduction in the agreement term, (iii) reduction of future vested development rights in the aeronautical area and/or (iv) addition of other reasonable mitigation requirements.
B. Airport Additional Attributes. Within three years of the execution of this agreement codified in this chapter the port shall install and thereafter maintain the facilities set forth in Exhibit “F: Figure 4,” or an alternative facility that achieves the same off-airport noise attenuation effect, subject to final design by an engineer qualified to design these structures. The port acknowledges that the construction of the facilities mentioned herein may not be eligible for FAA grant funding.
C. Tree Removal Term. Notwithstanding this term limitation, all tree and other obstruction removal and clearing shall be vested and be subject to the terms and condition of the agreement codified in this chapter for the period of thirty years. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
19.82.250 Effective date.
The effective date of the agreement codified in this chapter for the purposes of vesting shall be the date noted below. Any rule or requirement of the City of Anacortes or other applicable jurisdiction that is inconsistent with or more stringent than any term or condition of this chapter shall not apply or bind the port for the term of this chapter. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)
Note: Adoption date of the development agreement is March 29, 2005.
19.82.260 Entire agreement.
The agreement codified in this chapter represents the entire agreement of the parties with respect to the subject matter hereof. There are no other agreements, oral or written, except as expressly set forth herein. This chapter supersedes all previous understandings or agreements between the parties concerning the subject matter of this chapter. (Ord. 2992 § 1 (Att. A), 2016; Ord. 2794 § 1 (Att. A), 2008; Ord. 2696 § 2, 2005)