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Washington State Boundary Review Board for Yakima - Settlement Agreement
SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT ( "Settlement Agreement ") is entered and effective as of O ) t.y 3 , 2001 (the "Effective Date "), by and between THE WASHINGTON STATE BOUNDARY REVIEW BOARD FOR YAKIMA COUNTY ( "BRB "), a local agency of the state of Washington, and THE CITY OF YAKIMA ( "City "), a municipal corporation, and John S. Moore, an individual with an address of 1308 South 72 Avenue, Yakima, Washington 98908 ( "Moore "). The City and the BRB are referred to collectively hereinafter as the "Respondents." RECITALS A. Moore owns certain property located within Yakima County as set forth in Exhibit A to this Settlement Agreement ( "Moore Property "). B. Pursuant to chapter 35.13 RCW, the City commenced proceedings to annex the South 72 Avenue annexation area consisting of approximately 988 acres of territory located within Yakima County ( "South 72 Avenue Annexation ") into the City's boundaries, and duly filed a notice of intention regarding the South 72 Avenue Annexation with the BRB. Subsequently, Yakima County Fire Protection District No. 12 ( "FPD# 12 ") requested that the BRB review the proposed annexation. On June 26 and June 28, 2001, the BRB held a public hearing regarding the City's proposed South 72 Avenue Annexation. On July 30, 2001, the BRB set forth its written decision regarding the proposed annexation (See In re the Matter of the Proposed City of Yakima South 72nd Avenue Annexation attached hereto as Exhibit B). The area approved for annexation by the BRB includes the Moore Property. C. Moore appealed the BRB's decision and asserted certain claims against the Respondents relating to the annexation of the Moore Property into the City pursuant to the BRB's decision in Moore v. Washington State Boundary Review Board et al., Yakima County Superior Court No. 01 -2- 02094 -2 (the "Litigation "). D. The purpose of this Agreement is to forever settle and resolve all claims, disputes and controversies between the parties of whatever nature arising out of or in any way relating to the City's proposed South 72 Avenue Annexation, the BRB's decision regarding the South 72nd Avenue Annexation, the Litigation, and /or the annexation of the Moore Property, including without limitation Moore's claims as described above. TERMS In consideration of the covenants contained herein, and for other good and valuable consideration, the parties hereto agree as follows: 1. Incorporation of Recitals. The foregoing recitals and the definitions contained therein are incorporated herein by this reference. 2. In consideration of the release set forth in Section 3 below, the parties hereby agree to the following: a. Within three (3) business days following the Effective Date, Moore will execute and deliver to the Respondents: (i) the Stipulation and Order of Dismissal with Prejudice attached hereto as Exhibit C ( "Order ") and (ii) the reimbursement agreement attached hereto as Exhibit D ( "Reimbursement Agreement "). b. Upon delivery of the executed originals of the Order and the Reimbursement Agreement, the City will execute the Reimbursement Agreement attached hereto as Exhibit D. 3. Release. a. As of the Effective Date, the parties release and forever discharge each other and their respective former, current, or future agents, employees, attorneys, predecessors, successors, affiliates, heirs, and assigns, from any and all claims, damages, debts, attorneys' fees, loss of services, costs, expenses, compensation, rights of action, and causes of action, or suits of any kind or nature, including, but not limited to, constitutional, statutory, tort, contract or equity, of whatsoever kind, nature or description, whether past, present, or future, known or unknown, which either may have against the other arising out of or in any way relating to the annexation proposed by the City, the BRB's decision, and /or the annexation of the Moore Property, including without limitation Moore's claims as described above (collectively "Released Claims "). The parties represent that they have not assigned or transferred any such Released Claims. b. Moore agrees that if the Litigation results in a remand to the BRB for further proceedings, Moore shall not participate in said proceedings or take any action that would interfere with the City's efforts to annex all or any part of the area approved for annexation by the BRB decision that is attached as Exhibit B hereto. c. This release does not apply to any claims or rights for enforcement of the terms of this Settlement Agreement, or to the parties' obligations pursuant to the terms of this Settlement Agreement. Settlement Agreement Page 2 4. Consent to Annexation. Moore hereby consents to the City's annexation of the Moore Property, waives any right he may have to object to or protest such annexation, agrees that his signature on this Agreement shall be regarded as equivalent to the current signature of the owner of the Moore Property on a petition for any annexation to the City of any area including the Moore Property, and agrees that this consent to annexation shall be a covenant running with the land that comprises the Moore Property. 5. Fees and Costs. The parties agree to pay their own attorneys' fees and costs incurred through the Effective Date and otherwise relating to the negotiations leading to this Settlement Agreement. 6. Disputed Claims. The parties to this Settlement Agreement understand and agree that this settlement is the compromise of disputed claims, and that their entry into it is not to be construed as an admission, and that each party expressly denies any liability, defect, or lack of legal right. 7. Binding Nature. Each of the covenants, terms, and provisions in this Settlement Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors, and assigns. 8. Entire Agreement. This Settlement Agreement, including the Exhibits attached hereto which are hereby incorporated by this reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications and proposals, whether electronic, oral or written, between the parties with respect to such subject matter. This Settlement Agreement shall not be modified except by a written agreement dated subsequent to the date of this Settlement Agreement and signed on behalf of the parties by their respective duly authorized representatives. 9. Governing Law; Jurisdiction & Venue. This Settlement Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Washington as such laws apply to contracts performed within Washington by its residents. The parties irrevocably consent to exclusive jurisdiction and venue in Yakima County, Washington, concerning any action arising out of or relating to this Settlement Agreement. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including attorneys' fees. 10. Captions. Any titles or captions of paragraphs contained in this Settlement Agreement are for convenience of reference only, and the words contained in them shall not be held to expand, modify, amplify, or aid in the interpretation, construction, or meaning of this Agreement. Settlement Agreement Page 3 11. Authority. Each person signing this Settlement Agreement represents and warrants that he or she is authorized to do so on behalf of the respective party beneath whose name that person's signature appears. WASHINGTON STATE BOUNDARY REVIEW JOHN S. MOORE BOARD FOR YAKIMA COUNTY By: Y• Its: Its: Re b vy Coulel: Reviewed by Counsel: By By: Its: Its: THE CITY OF YAKIMA Signed this 3 day of c.61o; 2001. By: s �� R. A. Zais, City Manager > Y ATTEST: City Clerk Contract Number: G 2 0 0 1 - it 0 Resolution Number: Reviewed by Counsel: By: 5 '1,7 . c «' Z- Prk d /4) a /k Its: C - m, - " Settlement Agreement Page 4 EXHIBIT A Description of Moore Property Parcel A Parcel No. 181329 -34006 All that part of the Southeast quarter of the Southwest quarter of Section 29, Township 13 North, Range 18, E. W. M., described as follows: Commencing at the Southeast corner of said subdivision; thence North 1 °3' West along the East line of said subdivision 1046 feet to the true point of beginning; thence South 1 °3' East 100 feet; thence South 88 °57' West 434 feet, thence North 1 °3' West to a point West of the true point of beginning; thence East 433.5 feet to the true point of beginning, EXCEPT, the East 25 feet for road. Parcel B Parcel No. 181329 -34007 All that part of the Southeast 1 /4 of the Southwest 1 /4 of Section 29, Township 13 North, Range 18, E. W. M., described as follows: Beginning at a point on the East line of said subdivision 876.7 feet North 1 °3' West of the Southeast corner thereof; thence South 1 °3' East 315 feet; thence North 87 °35' West 434 feet, thence North 1 °3' West to a point South 88 °57' West of the point of beginning; thence North 88 °57' East to the point of beginning, EXCEPT road on the East. Parcel C Parcel No. 181329 - 34008: That part of the Southwest 1 /4 of Section 29, Township 13 North, Range 18, E. W. M., described as follows: Beginning at a point on the East line of said subdivison a distance of 876.7 feet North 1°3' West of the Southeast corner thereof; thence North 1°3' West 69.3 feet; thence South 88 °57' West 434 feet, thence South 1 °3' East 69.3 feet to a point South 88 °57' West from the point of beginning; thence North 88 °57' East 434 feet to the point of beginning, EXCEPT road on the East side thereof. EXHIBIT B BRB 01 -02 Findings and Decision In the Matter of the Proposed City of Yakima South 72 Avenue Annexation WASHINGTON STATE BOUNDARY REVIEW BOARD FOR YAKIMA COUNTY IN THE MATTER OF THE PROPOSED ) BRB 01 -02 CITY OF YAKIMA SOUTH 72 ) FINDINGS AND DECISION AVENUE ANNEXATION ) This matter came before the Board on June 26 and June 28, 2001, for a public hearing upon the request made by Yakima County Fire Protection District No. 12 for review of the South 72 Avenue Annexation as proposed by the City of Yakima: The City of Yakima was represented by Lawrence Peterson, Assistant City Attorney. Fire District No. 12 was represented by Clark Snure of the Snure Law Office, P.S.C. The Board heard testimony in favor of the proposed annexation from City of Yakima officials and staff; including the mayor, city council members, the director of the Department of Community and Economic Development and the fire chief as well as residents of the area. The Board heard testimony in opposition to the proposed annexation from two fire district commissioners, the chief of Fire District 12, and residents of the area. In addition to the testimony and evidence received at the hearing, the Board considered the contents of the file and the exhibits submitted at the hearing. SUMMARY OF DECISION The Board finds that modification of the proposal is necessary in order to further the statutory objectives of the use of physical boundaries, creation and preservation of logical service areas, prevention of abnormally irregular boundaries, and annexation to cities of unincorporated areas which are urban in character. The Board finds that two areas of unincorporated territory should be added to the annexation: (1) The area south of Summitview Avenue and east of South 72 Avenue, illustrated as "Area A" in the attached exhibit; and, (2) the area south of Wide City of Yakima - South 72 Avenue Annexation — Page 1 Hollow Road and east of South 80 Avenue, illustrated as "Area B" in the attached exhibit. With the addition of these two areas, the annexation is approved. FINDINGS 1. The Proposed Annexation. The proposed annexation consists of approximately 988 acres, 1.53 square miles. The area borders the existing city limits of Yakima along its northeast boundary and the "Condgon Annexation ", previously approved by the Boundary Review Board, along its remaining eastern boundary. The annexation is bordered on the north by Summitview Avenue, on the west by South 88 and South 80 Avenues, and on the south by West Washington Avenue. The annexation is sought pursuant to the direct petition method set forth in RCW Chapter 35.13. One thousand three hundred forty-one of the 1,815 parcels in the annexation are subject to outside utility agreements (OUA's) by which property owners consented to city annexation as a condition of receiving city sewer service. The properties covered by OUA's account for approximately 77 percent of the total assessed valuation of the annexation area. 2. RCW 36.93.170 Factors. 2.1 Population and Territory; Population Density; Land Area and Land Uses; Comprehensive Plans and Zoning; Comprehensive Plans and Development Regulations. The population of the proposed annexation area is approximately 5,075. There are approximately 2,030 residences and 25 businesses within the area. Land uses are predominately residential with commercial clusters located along Tieton Drive and at the intersections of South 72 Avenue with Tieton Drive and West Nob Hill Boulevard. The surrounding areas are devoted to residential and agricultural uses. City of Yakima - South 72 Avenue Annexation — Page 2 The area is subject to the Yakima Urban Area Comprehensive Plan and is designated "urban" by the plan. The area is within the City of Yakima Urban Growth boundary. Land use is regulated by the Yakima Urban Area Zoning Ordinance. Existing zoning in the annexation area consists of: R -1, single- family residential; R -2, two - family residential; R -3, multi - family residential; B -1, professional business; B -2, local business; and, LCC, large convenience center. Most of the area is zoned R -1 and single- family residential development is the predominant land use. Commercial and multi - family zoning exists along Tieton Drive and at the intersection of South 72n Avenue and Nob Hill Boulevard. The land uses and population of the annexation area demonstrate that it is developed to urban level densitites. 2.2 Applicable Service Agreements Entered Into Under Chapter 36.115 or 39.34 RCW. The 1976 Four Party Agreement has structured the extension of sewer service into the West Valley area. Including schools, properties accounting for more than 80 percent of the areas total assessed valuation are currently receiving sewer service from the City of Yakima. The availability of the City of Yakima sewer service has fueled the significant urban level development which characterizes the annexation area. Consistent with RCW 39.34, the city and county share certain "mutual aid" agreements that allow the two jurisdictions to cooperate when providing police and fire services within the entire Yakima Urban Growth Area. There are no relevant agreements entered into among the county and the cities and special districts within the county pursuant to RCW Chapter 36.115. Fire District 12 argues that the City of Yakima could mitigate the impact of this and future annexations in the West Valley area through negotiation of a service agreement. Through such an agreement, the city would contract with the district to provide fire service in annexed areas. The revenue loss to the district which would otherwise result from annexation would be offset by City of Yakima - South 72n Avenue Annexation — Page 3 the contract payments for fire service. Such an agreement would also remove the uncertainties associated with future annexations and allow the district to engage in long range planning for its station, equipment and personnel needs. Fire District 12 made the same arguments to the Board in the proceedings on File No. 562, the South 40 Avenue Annexation, File No. 575, the Nob Hill /South 40 Avenue Annexation, and File No. 01 -01, the Congdon Annexation. As the Board has previously found, the negotiation of a service agreement is within the discretion of the fire district, the city, and perhaps the county. The Boundary Review Board is not in a position to require the parties to enter into a service agreement to mitigate the impacts of this annexation or for the potential impacts of future annexations. The City of Yakima and the fire district did engage in negotiations in 1998 and again in 2000 concerning annexation and fire service. Negotiations were broken off with no agreement having been reached. According to the mayor and the fire chief, the City of Yakima remains willing to engage in negotiations with the fire district on the issue. The City of Yakima's annexation report dated February 6, 2001, concerning the South 72 Avenue Annexation recommends that the city make a good faith effort to structure a contract for service between the City of Yakima and West Valley Fire District 12 as part of the annexation implementation strategy. 2.3 Applicable Interlocal Annexation Agreements Between the County and Its Cities. In November 2000, Yakima County and the City of Yakima entered into the " Interlocal Agreement Between the City of Yakima and Yakima County for Growth Management Act implementation ". Subsection G of the agreement, titled "Annexation" provides as follows: 1. Development Contiguous to City Boundaries - Annexation to be Promoted. City of Yakima - South 72 Avenue Annexation — Page 4 It is the intent of the parties to promote orderly development of the city through annexation. The county agrees that it will not provide utility services to properties contiguous to city boundaries without the specific approval of the city, unless the property is in an existing utility service area of the county. Other paragraphs of Subsection G provide for development review, building permit issuance, code enforcement, early transfer of authority, and record transfers between the county and the city for intended annexation areas. The Board finds that the annexation will further the orderly development of the city through annexation as contemplated by the Interlocal Agreement. 2.4 Per Capita Assessed Valuation. The per capita assessed valuation of the proposed annexation area is approximately $46,795. The per capita assessed valuation of the existing City of Yakima is approximately $48,178. The per capita valuation comparison suggests that the annexation area is relatively densely populated, valuable land and underscores the fact that the area is urban in character and appropriate for annexation. 2.5 Topography, Natural Boundaries and Drainage Basins, Proximity to Other Populated Areas. The topography of the proposed annexation is relatively flat. The area slopes from the north to south and is within the Wide Hollow Creek drainage basin. Wide Hollow Creek and its associated flood plain traverses the southern portion of the annexation area, flowing from west to east. The proposed annexation is contiguous to other populated areas within the existing city limits of Yakima. The area is also contiguous to the Congdon Annexation area to the east which will develop to urban densities pursuant to the Congdon Development Plan. The area's proximity to populated areas again underscores that it is urban in character and appropriate for annexation. City of Yakima - South 72 " Avenue Annexation — Page 5 2.6 The Likelihood of Significant Growth In the Area and In Adjacent Incorporated and Unincorporated Areas During the Next Ten Years. As a matter of state and local governmental policy, the Urban Growth Area established pursuant to the GMA is expected to grow and urbanize within the next twenty years. As a practical matter, the likelihood of significant growth in the area of the proposed annexation and in the adjacent unincorporated areas during the next ten years in quite high. As noted above, the area is already substantially developed. However, there are currently 186 approved but vacant residential lots and 71 acres of vacant undeveloped land in the annexation area. Of the 71 acres, approximately 24 acres are zoned for future commercial use. It is estimated that an additional 355 homes could be built on the remaining 47 acres of undeveloped residential zoned land if development was to occur at the rate of 5 lots per acre. Approximately 541 additional single - family homes remain to be built on the currently available land. A new shopping center is currently being developed at Tieton Drive and 72 Avenue. The concentration of sewer connections in the area and in the unincorporated area to the west, the growth projections stated in the draft Nob Hill Water Association Comp Plan, data on growth in subdivisions provided by Yakima County, and the development plans of Congdon Orchards are all indicators that the growth and urbanization of the West Valley area will continue. The Board finds it significant that the Moultray & Associates, the developers of the Orchard Shopping Center, at 72 Avenue and Tieton are strongly in favor of annexation. It is their feeling that the availability of urban services from the City of Yakima will be important to the success of their project as well as other retail businesses which may develop in the West Valley. City of Yakima - South 72 Avenue Annexation — Page 6 2.7 Municipal Services and Effect on Other Governmental Units. The proposed annexation area is currently served by a number of municipal service providers. The current service providers and any changes which would be occasioned by the annexation are as follows: • Wastewater Service — City of Yakima sewer system or individual septic tanks. The service provider would not change as a result of the annexation. Rates and connection fees will be lowered in the annexed area. • Fire Service — Fire protection service is currently provided by Fire District 12. Upon annexation, fire service would be provided by the City of Yakima. • Police Service — The annexation area is currently served by the Yakima County Sheriff s Department. Upon annexation, police protection will be provided by the City of Yakima Police Department. • Schools — The area is currently served by the West Valley School District and would continue to be so after annexation. • Roads — Roads within the area are currently maintained by Yakima County. Upon annexation, roads will be become city streets with the responsibilities for planning and maintenance transferred to the city. • Transit — The annexation area is currently not served by public transit. Upon annexation, the City of Yakima will provide public transit services. • Library System — The Yakima Valley Regional Library system serves the area and would continue to do so after annexation. Much of the testimony and evidence received by the Board had to do with the impact of the proposed annexation on Fire District 12 and the quality and character of fire and emergency medical services in the area. The City of Yakima argues that the proposed annexation is City of Yakima - South 72 Avenue Annexation — Page 7 consistent with GMA policies that the cities are the most appropriate unit of local government to provide urban governmental services. RCW 36.70A.110(4) "Urban governmental services" are defined by GMA as being those services and public facilities at an "intensity historically and typically provided by cities, specifically including storm and sanitary sewer systems, domestic water systems, street cleaning services, fire and police protection services, public transit services, and other public utilities ... ". RCW 36.70A.030(19). GMA defines "rural governmental services" as including those public services delivered at an "intensity usually found in rural areas, and may include domestic water systems, fire and police protection services, transportation and public transit services, and other public utilities associated with rural development . . ." Rural services do not ordinarily include storm or sanitary sewers. RCW 36.70A.030(16). The city argues that Fire District 12 provides a fundamentally rural service in that, by statute, fire protection districts are authorized to protect life and property "outside of cities ". RCW 52.02.020 Upon annexation, the City of Yakima Fire Department will provide urban level, 24 -hour fire protection with full time personnel on duty at all times. The average response time for the City of Yakima Fire Department to all emergency calls in the city is less than 4.5 minutes. Fire District 12's average response time in the annexation area is about three minutes slower. Since fire doubles every minute, the city argues that life and property in the proposed annexation area will better protected by the city fire department. The City of Yakima has a fire rating of 4 and Fire District 12 has a rating of 5. Upon annexation, the annexed area will have the benefit of the city's higher rating which will result in some fire insurance savings to the residents of the area. The fire protection district is not opposed to the annexation if it is approved by voters at an election held on the issue. The district is opposed to the use of outside utility agreements City of Yakima - South 72 " Avenue Annexation — Page 8 (OUA's) and the petition method of annexation, arguing that the proposed boundaries are "gerrymandered" to be meet the statutory 75 percent of assessed valuation requirement. It is the district's position that the annexation procedures utilized by the city are in violation of previous commitments made by the city to only utilize the election method of annexation in the West Valley area. The district also challenges the constitutionality of the landowner petition method of annexation as violating the one person, one vote principle. A case challenging the constitutionality of the petition method of annexation brought by the fire district against the City of Yakima is currently pending in the Washington State Supreme Court. The district questions the jurisdiction of the Boundary Review Board to hear the matter because of alleged deficiencies in the petitions. The fire district further argues that it already provides good fire and emergency medical services to the area and that the infrastructure, equipment and personnel to serve the area are already in place. Consequently, the district argues, there is no need for fire protection and emergency medical services from any other source. In addition, the district questions the ability of the City of Yakima to adequately serve the annexation from its present stations and with the equipment and personnel that it presently has. Finally, the district argues that the loss of tax base and potential loss of assets caused by the annexation will have a major impact on district finances. The district has a total assessed valuation of $1,134,107,697 and encompasses an area of approximately 125 square miles. The annexation will remove approximately 20.9 percent of the district's tax base and approximately 1.2 percent of its area. Estimated annual revenue loss to the district is $246,000. In addition, the district is concerned that the cumulative impacts of multiple city annexations in the urban growth boundary will have "devastating" financial consequences to the district and its ability to City of Yakima - South 72n Avenue Annexation — Page 9 provide fire protection and emergency medical services to the remaining unincorporated territory. The district urges that the uncertainty surrounding its future could be settled with the execution of a service agreement pursuant to RCW 36.115. To illustrate its point concerning cumulative impacts, the district points to the recently completed South 40 Avenue annexations and the currently proposed Congdon and South 72 Avenue Annexations. Together, the annexations would reduce the district's assessed valuation by 26 percent while reducing its gross area by only 3.7 percent. Accordingly, the district will be left with the responsibility of serving 96 percent of its current territory with 74 percent of its current revenue. The Board understands the district's arguments concerning cumulative impacts, however, this annexation is entitled to be judged on its own merits. There is no question, that a 20.9 percent reduction in revenue is significant. However, the evidence does not support the district's position that the annexation will negatively impact its ability to serve the remaining area of the district. The evidence is that the district will have adequate revenues to carryout its functions after the annexation. The district's assessed valuation has increased 89.2 percent in the last 7 years, going from $607,643,131 in 1993 to $1,143,431,875 in 2000. Over $225,000,000 of that increase is attributable to new construction. The availability of city sewer was no doubt a substantial contributor to the growth in the district. Since 1994, district revenues have significantly exceeded operating expenses every year ranging from a minimum of 24.6 percent in 1994 to maximum 36.6 percent in 2000. The district is building a reserve to cover capital improvements and equipment replacement costs. City of Yakima - South 72 Avenue Annexation — Page 10 In the first year after annexation, the district's assessed valuation will be 863 million. Assuming no new construction, the fire district's revenue would be $888,890. which is higher than annual operation of maintenance expenses in recent years. Assuming normal growth, the district's revenues in year 2003 will exceed operating expenses by 17 percent. Even though the district will no longer have the responsibility to serve the annexed areas, its revenues will exceed current operating expenses which includes service to the area. Moreover, the district produced no specific evidence of how the revenue loss would specifically impact its ability to provide fire emergency services to the remainder of the district. The Board notes that the financial impacts of annexation on the fire district are the same whether the annexation is by the election method or the petition method. Yet, the district is willing to bear the financial impacts of annexation by election while arguing that the financial impacts of annexation by petition are devastating. While the district's commitment to annexation by election is laudable and understandable it is not consistent with its arguments concerning the financial impacts of annexation on its operations. The issues raised by the fire district concerning annexation procedures are not within the jurisdiction of the Boundary Review Board. Those matters will be decided by the Washington State Supreme Court in its decision on the pending case. The Board specifically finds that it has jurisdiction over this matter. Jurisdiction was conferred by the city's filing of its Notice of Intention and the fire districts invocation of jurisdiction Finally, the Board is not in a position to impose service agreements on the city in order to mitigate the impacts of this proposed annexation. That is a matter for the city and district to negotiate and resolve. The district's arguments concerning the ability of the city to provide fire service to the annexed area with present facilities and personnel is not well taken. The city acknowledges that City of Yakima - South 72 Avenue Annexation — Page 11 it will need to locate a fire station in the annexed area and will do so either by acquiring the existing Fire District 12 station or establishing a station at a new location. The city's annexation reports takes into account the cost of adding additional fire fighters and supervisory personnel to serve the area. The Board finds that there is a demonstrated need for urban level governmental services of all types in the annexation area. The area requires sewer service which only the City of Yakima can provide. Annexation will reduce the cost of the sewer service to the existing and future customers. Nob Hill Water Association already serves the area and has the capacity to accommodate future developments. Moreover, the area requires urban levels of police, fire and urban transit service. The Board finds that the City of Yakima is able to provide such services and that the annexation is consistent with the GMA mandate that cities are the appropriate providers of urban services. 2.8 The Effect of the Proposal or Alternative on Adjacent Areas, on Mutual Economic and Social Interests, and on the Local Governmental Structure of the County. The annexation will bring a developed area into the City of Yakima. As previously found, this is appropriate under GMA. The city will represent and govern residents and property owners whose lives are essentially joined in a community that is already centered around the City of Yakima. 3. Modification of The Proposed Annexation/RCW 36.93.180 Objectives. The Board finds based upon consideration of all of the evidence presented and the factors set forth above, that modification of the proposal is necessary in order to further the statutory goals of use of physical boundaries, creation and preservation of logical service areas, and prevention of abnormally irregular boundaries and annexation of areas which are urban in character. The City of Yakima - South 72 °a Avenue Annexation — Page 12 Board finds that the area south of Summitview Avenue and east of South 72 Avenue illustrated as "Area A" in the attached exhibit should be included within the annexation. The area is developed to urban residential densities and is indistinguishable from surrounding properties. Its exclusion would leave a small section of Summitview Avenue within county jurisdiction for road maintenance and law enforcement purposes. While it is feasible for the county and other key service providers, such as the fire district, to continue to provide service for area, it is by no means practical. The logical boundary of the annexation is Summitview Avenue. Inclusion of the area will create a more logical service boundary. The Board further finds that the area south of Wide Hollow Road and east of South 80 Avenue, illustrated as "Area B" in the attached exhibit should be included in the annexation. The area includes the West Valley Junior High School which currently receives City of Yakima sewer service. By statute, the assessed value of the school may not be considered in assessing the adequacy of an annexation petition if the school is annexed with other properties. The Board finds, however, that annexation of the area is otherwise appropriate. As they border the subject property, 80 Avenue is the western boundary and Zier Road is the southern boundary of the service area established by the 1976 Four Party Agreement. It has long been contemplated that this area would annex to the city. Further, the annexation as proposed would leave a small section of South 72 Avenue within county jurisdiction for road maintenance and law enforcement purposes. The same considerations applicable to "Area A" are equally compelling here. The more logical boundary of the annexation area is South 80 Avenue and Zier Road. It creates a logical service area by including territory which is already receiving city sewer service. It is also appropriate that the city be responsible for police and fire protection for the school. Property owners in both Area A City of Yakima - South 72n Avenue Annexation — Page 13 and Area B were notified by the city that the Board might add these areas to the annexation in order to "square up the boundaries ". The Board finds that the annexation, as modified, furthers the statutory goal of preservation of natural neighborhoods and communities. The area is a natural extension of the City of Yakima and its annexation as a unit, will help preserve its identity as a neighborhood, under the jurisdiction of one political entity. The annexation, as modified, likewise furthers the statutory goal of an annexation to cities of unincorporated areas which are urban in character. As noted above, the area is indistinguishable from developed areas of the existing City of Yakima. DECISION The City of Yakima proposed South 72n Avenue Annexation is hereby modified to include Areas A and B illustrated in the attached exhibit. As modified, the annexation is approved. Done this 30 day of July, 2001. WASHINGTON STATE BOUNDARY REVIEW BOARD FOR YAKIMA COUNTY Neal Springer, Chair Mary E. Te ey, e -, ber Gene Jenkins, a ember p E aine Snow, Member ATTEST: Clerk f the Board -10,-1-4 d.e,--/e Tern Cyr City of Yakima - South 72 Avenue Annexation — Page 14 EXHIBIT C IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF YAKIMA JOHN S. MOORE, No. 01 -2- 02094 -2 Appellant, STIPULATION AND ORDER OF v. DISMISSAL WITH PREJUDICE THE WASHINGTON STATE BOUNDARY REVIEW BOARD FOR YAKIMA COUNTY, a local agency of the state of Washington, and THE CITY OF YAKIMA, a municipal corporation, Respondents, And YAKIMA COUNTY FIRE PROTECTION DISTRICT NO. 12, a municipal corporation, Necessary Party. STIPULATION Appellant John S. Moore ( "Moore ") and the Respondents the Washington State Boundary Review Board for Yakima County and the City of Yakima ( "Respondents ") by and through their respective undersigned attorneys stipulate that this Court enter an Order in the above - referenced case mandating that the causes of action in Moore's Notice of Appeal be Dismissed with Prejudice and without allocation of fees or costs to either party. JOHN S. MOORE CITY OF YAKIMA J • n S. Moore, WS A #0 6 By Ra mond L. Paolella, WSBA #16634 ppellant Pro Se Attorney for Respondent City of Yakima By Terry Austin, WSBA #6708 Attorney for Respondent Washington State Boundary Review Board for Yakima County By Clark B. Snure, WSBA #3070 Attorney for Yakima County Fire Protection District No. 12 ORDER The Court being fully advised on this matter, it is ORDERED, ADJUDGED AND DECREED that the Appellant Moore's Notice of Appeal in the above - captioned action, and all the causes of action alleged in those pleadings, are hereby Dismissed with Prejudice and without allocation of costs or fees to either party. DATED this day of October, 2001. JUDGE /COURT COMMISSIONER WASTEWATER SYSTEM REIMBURSEMENT AGREEMENT AND CONVEYANCE HIS AGREEMENT (the "Agreement ") is entered into and effective on this 3°' T day of OC , 2001, by and between the CITY OF YAKIMA, a municipal corporation located in Yakima County, Washington, hereinafter referred to as "CITY" and JOHN S. MOORE, hereafter referred to as "DEVELOPER "; WHEREAS, The Developer may wish to have certain sewer lines and appurtenances thereto installed at, near, or within the property described in Section 1 below and connect same to the City's wastewater System so that such improvements constitute an integral part thereof; and WHEREAS, no other property owners or users are presently available to share in the cost and expense of construction of such improvements and the parties hereto having in mind the provisions and teens of RCW 35.91.020; and WHEREAS, Developer and the City anticipate that the Property will be annexed into the City upon resolution of the litigation that is pending in Moore v. Washington State Boundary Review Board et al., Yakima County Superior Court No. 01 -2- 02094 -2 (the "Litigation "); and WHEREAS, the City and Developer agree the construction and installation of said improvements is in the public interest and in furtherance of public health and sanitation; NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, it is agreed by and between the City and the Developer as follows: 1. Property Owned by Developer. The Developer represents that it is the owner of the following described property (the "Property"): Yakima County Parcel No. 181329 -34006 (hereafter "Parcel A "); Yakima County Parcel No. 181329 -34007 (hereafter "Parcel B "); and Yakima County Parcel No. 181329 -34008 (hereafter "Parcel C "). 2. Wastewater System Improvements. The following described wastewater system improvements will be installed by the City upon the request of Developer in connection with the Property (the "Improvements "): The Improvements will consist of the installation of approximately one hundred forty five (145) feet of wastewater collection piping that will cross 72nd Avenue and includes a manhole at the eastern boundary of Parcel B. 3. Compliance with Applicable Codes /Regulations. The Developer agrees . that said Improvements shall be designed to comply with all applicable codes and regulations of the City of Yakima. The Developer agrees that said Improvements Moore Reimbursement Agreement 1 amount due from any benefited owner /party who wishes to hook up to said Improvements, shall be final and conclusive in all respects. 7. City Assumption of Developer Obligation to Pay for Improvements. In consideration of Developer's voluntary dismissal with prejudice of the Litigation and Developer's assignment to the City of its right to reimbursement payments, the City hereby agrees to assume all of Developer's obligations to pay for Improvement Costs under Section 4 above. Such assumption of obligations shall be effective upon the later of (a) the Yakima County Superior Court's entry of an order dismissing Developer's complaint in the Litigation with prejudice and without attorney's fees or costs; and (b) recordation of this Agreement as set forth in Section 11 below. 8. Developer Assignment to City of Right to Reimbursement. In consideration of the City's assumption of Developer's obligation to pay Improvement Costs, Developer hereby agrees to dismiss the Litigation as set forth in the Settlement Agreement entered into between the parties dated October 2, 2001, and to assign to the City Developer's right to partial reimbursement of payment for Improvements. Such assignment shall be effective upon the City's assumption of the payment obligation as set forth in Section 7 above. 9. Ownership of Improvements by City. Improvements shall be part of the City of Yakima wastewater system and shall be owned exclusively by the City. Notwithstanding the waiver of Developer's obligation to pay a base collection charge in Section 5, the Developer agrees to pay the City such service fees or other charges that are or may be imposed by ordinance of the City of Yakima to like users of the same class. 10. Extension /Addition. The City reserves the right, without affecting the validity or terms of this Agreement, to make or cause to be made, extensions or additions to said Improvements and to allow service connections to be made to said extensions or additions, without liability on the part of the City. 11. Recordation. This Agreement shall be recorded by the City Clerk with the Auditor of each county in which any of the benefited Property is situated, and shall remain in full force and effect for a period of fifteen (15) years after the date of such recording, or until the Developer, or its successors or assigns, is fully reimbursed all Improvement Costs, whichever event occurs earlier; provided, that in the event the Improvements described herein shall, during the term of this Agreement, be rendered useless by the redesign or reconstruction of a portion of the City's wastewater system facilities, such determination of uselessness to be in the absolute judgment of the City Engineer, then the City's collection obligation pursuant to Section 6.B. of this Agreement shall cease. 12. Binding Nature. Each of the covenants, terms, and provisions in this Settlement Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective legal representatives, successors, and assigns. The Moore Reimbursement Agreement 3 EXHIBIT A Description of Moore Property Parcel A Parcel No. 181329 -34006 All that part of the Southeast quarter of the Southwest quarter of Section 29, Township 13 North, Range 18, E. W. M., described as follows: Commencing at the Southeast corner of said subdivision; thence North 1 °3' West along the East line of said subdivision 1046 feet to the true point of beginning; thence South 1 °3' East 100 feet; thence South 88 °57' West 434 feet, thence North 1°3' West to a point West of the true point of beginning; thence East 433.5 feet to the true point of beginning, EXCEPT, the East 25 feet for road. Parcel B Parcel No. 181329 -34007 All that part of the Southeast 1 /4 of the Southwest 1 /4 of Section 29, Township 13 North, Range 18, E. W. M., described as follows: Beginning at a point on the East line of said subdivision 876.7 feet North 1 °3' West of the Southeast corner thereof; thence South 1 °3' East 315 feet; thence North 87 °35' West 434 feet, thence North 1 °3' West to a point South 88 °57' West of the point of beginning; thence North 88 °57' East to the point of beginning, EXCEPT road on the East. Parcel C Parcel No. 181329- 34008: That part of the Southwest 1 /4 of Section 29, Township 13 North, Range 18, E. W. M., described as follows: Beginning at a point on the East line of said subdivison a distance of 876.7 feet North 1 °3' West of the Southeast corner thereof; thence North 1 °3' West 69.3 feet; thence South 88 °57' West 434 feet, thence South 1 °3' East 69.3 feet to a point South 88 °57' West from the point of beginning; thence North 88 °57' East 434 feet to the point of beginning, EXCEPT road on the East side thereof. 3 26 27 28 .rJ 31003 to 31006 31409 31429 3/430 31431 .70 .23 a 6 0 Ine o of • F.S. --I W 31016 31410 31425 31427 31426 ov\ 1 .35 7 24 • L. — J111_ _ 23 .31444 11 ; 31411 23 - 1 4 `., B WE'S' Cl 22 31425 ,ter NT. CY 2/ 31412 Y /9 r �, p 20 1446 « , F.S. 31422 31423 31424 6 - t 31015 C m : 314 47 • • 7.39 31413 I— • ' ■ /0 _ 7 F W 31121 31420 31419 31414 /8 /7 16 r 0 • /2 /3 t / 4 /3 31450 " 31415 / 31416 31417 31475 VIOLA AVENUE WEST R O 31014 1.80 ^ ! .': 457' b O � ` 34002 W -. N 2.04 0 34001 Q HOLLOW m 1. 79 34;5' CREEK 39.S'„ ■ 34407 a 34006 N, 34009 I.44 a .95 �' 8.83 0, 34 ooe P -22 . 62 �': \ . , `� 34 00 7 • ' 2,78 h e: n 34414 © I 34404 62 9/-0 I I 10.37 34412 3 •32 ze O 91 -8 WILLOW CT. M 344/0 S. I i 006 .99 1 ® C' I 89- 135 P 22 awl ®r ru -- sir 7: 2643.99' i N 89 22' E I L. D. AUG. - 78 1