HomeMy WebLinkAboutR-1992-D6118 Columbia Asphalt / Gravel / ShorelineRESOLUTION NO. I 6 1 18
A RESOLUTION adopting and approving the Findings, Conclusions,
and Decision with Conditions in the matter of the
application by Columbia Asphalt & Gravel, Inc.
for shoreline permits and zoning ordinance ap-
provals to conduct gravel mining operations and
to construct concrete and asphalt plants.
WHEREAS, Columbia Asphalt & Gravel, Inc., (hereinafter
"Columbia Asphalt") has applied jointly with the City of
Yakima and the County of Yakima for a Shoreline Substantial
Development Permit, a Shoreline Conditional Use Permit, and a
zoning approval for expansion of a nonconforming use for
gravel mining operations and the construction of concrete and
asphalt plants; and
WHEREAS, after three public hearings, the City Council
and the County Commissioners made a decision on May 4, 1992 to
approve the gravel mining operations and to deny construction
of the concrete and asphalt plants, now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The Mayor and the City Clerk are hereby authorized and
directed to execute the attached Findings, Conclusions, and
Decision with Conditions concerning the application by Colum-
bia Asphalt. The City of Yakima Shoreline Administrator is
hereby authorized and directed to issue the permits and ap-
provals in accordance with this decision and to forward the
Conditional Use Permit and other necessary documents to the
Department of Ecology.
ADOPTED BY THE CITY COUNCIL this ZI day of May, 1992.
ATTEST:
XJ,
City Clerk
fres/columbia.rp)
C;),at
Mayor
CITY COUNCIL OF THE CITY OF YAKIMA, WASHINGTON
In the matter of the application )
by Columbia Asphalt & Gravel,
Inc. for a Shoreline ) FILE NO.: SH 91-9
Substantial Development Permit, )
a Shoreline Conditional Use ) FINDINGS, CONCLUSIONS, AND
Permit, and a Zoning Approval ) DECISION WITH CONDITIONS
for expansion of a Nonconforming )
Use for Gravel Mining and a
Concrete and Asphalt Plant
This matter having come on regularly for joint public hear-
ing by the City Council of the City of Yakima and the Board of
Yakima County Commissioners on April 21, 1992, and continued to
April 28, 1992, and further continued until May 4, 1992, upon the
request of Columbia Asphalt & Gravel Inc. for a Shoreline Sub-
stantial Development Permit to construct a dike across Willow
Lake and conduct gravel mining operations, and for a Shoreline
Conditional Use Permit for gravel mining and concrete and asphalt
plants, and for approval under the Yakima Urban Area Zoning
Ordinance for expansion of a nonconforming gravel mining opera-
tion in the B-1 Zone; the legislative bodies having heard testi-
mony from numerous private citizens and their attorneys both for
and against the application; and the legislative bodies having
considered all the files, records, testimony, and exhibits sub-
mitted herein; now, therefore, the City Council of the City of
Yakima hereby makes the following Findings of Fact, Conclusions
of Law, and Decision with Conditions.
FINDINGS OF FACT
1. Richard Wachsmith and Constance Wachsmith, husband and wife,
own certain real property located at the west end of Willow Lake
and bordering the south side of State Highway Route 12, and
within Section 10, 11, and 15, Township 13 North, Range 18 East,
W.M. within the City of Yakima and Yakima County (hereafter
"parcel").
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2. Columbia Asphalt & Gravel, Inc. a Washington corporation
(hereinafter "Columbia Asphalt") operates and uses the parcel and
has a leasehold interest therein. Further, Columbia Asphalt has
entered into a conditional sales contract with Richard Wachsmith
and Constance Wachsmith, husband and wife, to purchase the par-
cel.
3. On or about June 1, 1991, a portion of the parcel was an-
nexed into the City of Yakima.
4. A portion of the parcel is located within a Shoreline area,
as designated by the Shoreline Management Act, RCW Chapter 90.58,
and the Yakima County Shoreline Master Program. The portion of
the parcel which falls within the designated Shoreline area has a
Master Program environment designation of "Urban."
5. In August 1991, City of Yakima and Yakima County staff
inspected the parcel and observed that a dike had been con-
structed across Willow Lake.
6. On or about September 1991, City of Yakima staff observed
that the dike across Willow Lake was still intact and further
observed dewatering of Willow Lake behind the dike.
7. In November 1991, City of Yakima staff observed surface
mining occurring in the dewatered portion of Willow Lake behind
the dike.
8. On or about January 30, 1992, the Washington State Depart-
ment of Ecology, City of Yakima, and Yakima County issued a joint
Enforcement Order and Notice of Penalty Incurred to Columbia
Asphalt and to Mr. and Mrs. Wachsmith under Docket No.
92 -SH -02.
9. Columbia Asphalt filed an application jointly with the City
of Yakima and Yakima County for Shoreline Management Substantial
Development Permits, Shoreline Management Conditional Use Per-
mits, and a Class 3 Zoning approval. Columbia Asphalt's applica-
tion for a Shoreline Substantial Development Permit involved the
construction of a dike across Willow Lake, the conducting of
gravel mining operations, and the operation of concrete and
asphalt plants on the parcel. Columbia Asphalt's application for
a Shoreline Conditional Use Permit involved surface mining and
the operation of a concrete plant and asphalt plant on the par-
cel. Columbia Asphalt's application for Class 3 approval was to
expand a nonconforming surface mining operation within the B-1
Zone on the parcel.
10. Columbia Asphalt proposed to operate the concrete plant and
asphalt plants only within the jurisdiction of Yakima County.
The operations for which City of Yakima approval was sought
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involved surface mining and the construction of a dike across
Willow Lake.
11. The application describes an increase in mineral extraction
from 100,000 cubic yards at 20,000 cubic yards annually to
500,000 cubic yards at 50,000 cubic yards annually.
12. The entire portion of the parcel which lies within the City
of Yakima is currently zoned B-1, Professional Office.
13. Property surrounding the parcel have the following charac-
teristics:
Zoning Land Use
North SR SR -12
South M-1 Fruit Warehouse
East M-1 Warehouse
West B-1 Myron Lake
The Willow Lake condominiums are located at the opposite end of
the lake about one-half mile east of the parcel. The Aspen
Village Single Family Residential Subdivision and Aspen Lake
Planned Development are located east of Willow Lake on Aspen
Lake. Willow Lake and Aspen Lake are reclaimed gravel pits.
14. A portion of the parcel has been mined intermittently since
the 1960's or earlier. The parcel was leased by Triangle Sand &
Gravel Company from 1965 to March 1987, at which time it was
leased by Columbia Asphalt.
15. On October 27, 1989, the Yakima County Planning Department
determined that the mining of sand and gravel, stockpiling of top
soil and overburden, rock crushing, sorting, screening of mining
materials, and the stockpiling of sand and gravel are legal non-
conforming uses on the parcel. However, none of these activities
have occurred within the lake itself in recent years.
16. On March 20, 1989, Columbia Asphalt received a revised
surface mining permit from the Washington Department of Natural
Resources.
17. Construction of the dike across Willow Lake and the subse-
quent mining of the dewatered portion of Willow Lake were con-
ducted without the necessary Shoreline Management Act permits and
Urban Area Zoning Ordinance approval. These operations ceased
upon issuance of the joint Shoreline Management Act Enforcement
Order in January 1992.
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18. The proposed concrete and asphalt plants would emit smoke,
particulates, and other air pollutants.
19. The surface mining activities and vehicular traffic would
result in dust emissions into the ambient air.
20. Operation of the concrete and asphalt plants would cause
audible noise pollution that could be detected in surrounding
residential areas.
21. Mining operations and rock crushing would create audible
noise pollution that could be detected in surrounding residential
areas.
22. Operation of the concrete and asphalt plants would have a
high probability of causing pollutants to enter the groundwater
and nearby surface waters, including Willow Lake, through pollut-
ant discharges and surface water runoff. Such water pollutants
would have a high probability of affecting water quality and
habitat.
23. The subsurface aquifer under the parcel is a source of
domestic drinking water for nearby residential properties, and
therefore, public health requires that water quality not be
diminished in this area.
24. Gravel mining and processing have the potential of dis-
charging pollutants into surface waters and groundwater.
25. The construction and maintenance of the dike across Willow
Lake, together with the dewatering of that portion of Willow Lake
to the west of the dike, have the potential to affect the water
level of Willow Lake.
26. The operation of vehicles and other machinery on the parcel
has the potential to release hazardous substances onto the land
and into surface and groundwaters. Such hazardous substance
releases could degrade water quality.
27. Vehicular traffic generated by the mining and processing
operations would negatively impact residential areas adjacent to
River Road.
28. Alternative sites for the concrete and asphalt plants are
potentially available both within and without the Yakima Urban
Area.
29. The property values in nearby residential areas would be
significantly depressed by operation of the concrete and asphalt
plants.
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30. The property values in nearby residential areas would not be
significantly depressed by the gravel mining operation if proper-
ly conditioned.
31. There is no existing lawful public use of the Shoreline
areas within the parcel.
32. There is an aesthetic requirement to provide vegetative site
screening of the gravel extraction/processing operations from
State Highway Route 12 and nearby residential areas.
33. There are a substantial number of single family and multi-
family dwelling units within one mile of the parcel that would be
affected by air, water, and noise pollution and other project
impacts.
34. The parcel has been identified as a good source of gravel
for concrete by the inventory of mineral resource areas conducted
by Yakima County as required under the 1990 Growth Management
Act. Other areas identified in the upper Yakima Valley share
many of the characteristics of this parcel, but most of the other
sites are also within dedicated 100 year flood plains, a charac-
teristic that this parcel does not have. Also, this is the only
site not currently being mined for concrete production that is
within an urban shoreline designation, the most suitable of the
environment designations for this type of activity.
35. A Mitigated Determination of Non -Significance (MDNS) was
issued by the lead agency SEPA responsible official on December
11, 1991 and reissued on March 12, 1992. The 15 day SEPA comment
period ended March 27, 1992, and no appeal was filed.
36. Pursuant to RCW 42.36.060, the substance of all ex parte
communications was placed on the record at the commencement of
this quasi-judicial hearing, and no objections were made to the
participation of any member of the decision-making body.
37. City Councilman Lynn Buchanan did not participate in any
aspect of these proceedings.
Based upon the foregoing Findings of Fact, the City Council
of the City of Yakima makes the following:
CONCLUSIONS OF LAW
1. The City Council of the City of Yakima has jurisdiction.
2. The existing gravel mining operation is a nonconforming use
within the B-1 Zone under the Yakima Urban Area Zoning Ordi-
nance.
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3. Gravel mining operations within the dewatered portion of
Willow Lake constitute an expansion of the nonconforming use.
4. Expansion of this nonconforming use would not be contrary to
the public health, safety, or welfare.
5. Expansion of this nonconforming use is compatible with the
character of the neighborhood and does not significantly jeopar-
dize future development of the area in compliance with the provi-
sions and intent of the B -I Zoning District. Willow Lake and
Aspen Lake are reclaimed gravel pits.
6. The significance of Columbia Asphalt's hardship is more
compelling than, and reasonably overbalances, the public interest
resulting from denial of the request for expansion of this non-
conforming use.
7. The gravel mining operation was lawful at the time of its
inception.
8. The value of nearby properties will not be significantly
depressed by approving the requested expansion of gravel mining
as a nonconforming use.
9. Columbia Asphalt has met its burden of proving that the
gravel mining operations are consistent with the criteria for
expansion of a nonconforming use, including, but not limited to,
City of Yakima Municipal Code § 15.19.080.
10. Gravel mining on the parcel complies with the applicable use
regulations of the Yakima County Shoreline Master Program, in-
cluding, but not limited to, Chapter 15.04 thereof.
11. Operation of the proposed concrete and asphalt plants would
not comply with the applicable use regulations of the Yakima
County Shoreline Master Program, including, but not limited to,
Chapter 15.04 thereof.
12. The gravel mining operations comply with applicable develop-
ment standards of the Yakima County Shoreline Master Program
including, but not limited to, Chapter 14.00 thereof.
13. The proposed concrete and asphalt plants do not comply with
the applicable development standards of the Yakima County Shore-
line Master Program, including, but not limited to, Chapter 14.00
thereof.
14. The gravel mining operations comply with the policies of the
Shoreline Management Act, RCW Chapter 90.58, and the policies of
the Yakima County Shoreline Master Program.
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15. The proposed concrete and asphalt plants do not comply with
the Shoreline Management Act, RCW Chapter 90.58, and the Yakima
County Shoreline Master Program.
16. The gravel mining operations, including the ultimate site
reclamation, are consistent with the general public interest
concerning the shorelines.
17. The proposed concrete and asphalt plants are not consistent
with the general public interest concerning the shorelines and
would be contrary to the public health, safety, and welfare.
18. Columbia Asphalt has met its burden of proving that the
gravel mining operations satisfy the requisite criteria for
granting a Shoreline Substantial Development Permit, including,
but not limited to, the criteria set forth at Washington Adminis-
trative Code § 173-14-100(2) and Yakima County Shoreline Master
Program § 17.05.
19. Columbia Asphalt has not met its burden of proving that the
concrete and asphalt plants satisfy the requisite criteria for
granting a Shoreline Substantial Development Permit, including,
but not limited to, the criteria set forth at Washington Adminis-
trative Code § 173-14-100(2) and Yakima County Shoreline Master
Program § 17.05.
20. The gravel mining operations are consistent with the poli-
cies of RCW 90.58.020.
21. The proposed concrete and asphalt plants would not be con-
sistent with the policies of RCW 90.58.020.
22. The gravel mining operations are consistent with the specif-
ic policies and their underlying element goals in Chapter 4 of
the Yakima County Shoreline Master Program.
23. The proposed concrete and asphalt plants are not consistent
with the specific policies and their underlying element goals in
Chapter 4 of the Yakima County Shoreline Master Program.
24. The gravel mining operations will not interfere with the
normal public use of public shorelines.
25. The gravel mining operations will be compatible with other
permitted uses within the area.
26. The proposed concrete and asphalt plants would not be com-
patible with other permitted uses within the area.
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27. The gravel mining operations will cause no unreasonably
adverse effects to the urban shoreline environment designation.
28. The concrete and asphalt plants would cause unreasonably
adverse effects to the urban shoreline environment designation.
29. The public interest will suffer no substantial detrimental
effect from the gravel mining operations.
30. The public interest would suffer substantial detrimental
effect from the proposed operation of concrete and asphalt
plants.
31. Columbia Asphalt has met its burden of proving that the
criteria for issuing a Shoreline Conditional Use Permit for
gravel mining operations have been met, including, but not
limited to, the criteria set forth at Washington Administrative
Code § 173-14-140 and Section 18.04 of the Yakima County Shore-
line Master Program.
32. Columbia Asphalt has not met its burden of proving that the
criteria for issuing a Shoreline Conditional Use Permit for the
proposed concrete and asphalt plants have been met, including,
but not limited to, the criteria set forth at Washington Adminis-
trative Code § 173-14-140 and § 18.04 of the Yakima County Shore-
line Master Program.
Based upon the foregoing Findings of Fact and Conclusions of
Law, the City Council of the City of Yakima hereby makes the
following:
DECISION
1. Columbia Asphalt's request for approval under the Yakima
Urban Area Zoning Ordinance of expansion of a nonconforming use
for gravel mining operations in the B-1 Zone is approved subject
to compliance with all of the following conditions.
2. Columbia Asphalt's request for a Shoreline Substantial
Development Permit to construct a dike across Willow Lake and to
conduct gravel mining operations is approved subject to compli-
ance with all of the following conditions.
3. Columbia Asphalt's request for a Shoreline Substantial
Development Permit for the construction and operation of concrete
and asphalt plants is denied.
4. Columbia Asphalt's request for a Shoreline Conditional Use
Permit for gravel mining operations is approved subject to com-
pliance with all of the following conditions.
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5. Columbia Asphalt's request for a Shoreline Conditional Use
Permit for the construction and operation of concrete and asphalt
plants is denied.
CONDITIONS
The foregoing decision is subject to compliance with all of
the following conditions:
1. Reclamation Plan. Mining and reclamation shall comply
with all surface mining permits issued by the Depart-
ment of Natural Resources. In addition, a site recla-
mation plan shall be prepared and submitted for joint
approval by the City of Yakima Director of Community
and Economic Development and the Yakima County Planning
Director. This reclamation plan shall, at a minimum,
contain the following elements:
a. revegetation of the shoreline areas;
b. enhancement of fish and wildlife habitat;
c. reclaimed slopes shall be no steeper than 3 feet
horizontal to 1 foot vertical from the ordinary
high water mark to 5 feet below the ordinary high
water mark;
d. reclaimed slopes shall be no steeper than 4 feet
horizontal to 1 foot vertical above the ordinary
high water mark along the east shore of the exca-
vation where it abuts Willow Lake, and along the
west shore of the excavation where it abuts Myron
Lake; and
e. shallow areas shall be established as shown on the
mining and reclamation plan together with the
establishment of irregular shorelines with bays
and peninsulas at least along the shallow areas of
the reclaimed excavation as shown on the site
plan. In addition, if the dike is breached, it
shall be done in a manner that leaves a remnant or
remnants to serve as islands. If it is not
breached, pipes shall be established in the dike
to permit flow between the two portions of Willow
Lake. Whether or not the dike is breached, an
irregular shoreline and shallow areas shall be
established, at minimum, along the west side of
the remnants of the dike.
2. Excavation Depth. Excavation depth shall be limited to 30
feet below the existing surface level.
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3. Excavation Setback. Excavation shall maintain a 25 foot
setback from the property lines.
4. Water Pollution Prevention. No pollutants shall be dis-
charged into Willow Lake, Myron Lake, the Naches River, or
any other surface body of water. The on-site settling ponds
and percolation canal shall not be allowed to discharge into
Willow Lake, the Naches River, or any other water body and
shall comply with the requirement of all Department of
Ecology waste discharge permits.
5. Hazardous Substance Treatment. Handling of fuel and chemi-
cals, and spill prevention measures shall comply with De-
partment of Ecology regulations and a spill -prevention plan
approved by the Department of Ecology.
6. No Off -Site Materials. No processing or stockpiling of
gravel mined off-site shall occur on the parcel.
7. Air Pollution Prevention. All operations shall comply with
air quality standards as required by the Yakima County Clean
Air Authority and the Washington Department of Ecology,
including the best available control technology to control
and abate dust and other airborne particulates from the
gravel operations. Regular water truck operations shall be
used to prevent airborne fugitive dust. Operations shall
temporarily cease whenever high winds make dust abatement
procedures ineffective. A notice of construction permit
shall be obtained prior to the resumption of any opera-
tions. The Yakima County Clean Air Authority shall be
responsible for ensuring compliance with these require-
ments.
8. Vegetative Site Screening. A natural vegetative site screen
shall be planted in two staggered rows along the Willow Lake
dike, the north property line adjacent to Highway 12, and
the west property line adjacent to Myron Lake. The vegeta-
tive site screen shall be comprised of two offset rows of
Pines and Hybrid Poplars which are trispaced on five foot
centers. All vegetative site screens shall be regularly
irrigated and maintained.
9. Paved Access Road. The access road shall be paved from
River Road to the site.
10. Truck Traffic Restrictions. No traffic entering or exiting
the site shall use River Road to the east of the property
entrance except when necessary to make gravel deliveries in
that particular area; provided, however, that these restric-
tions shall not apply when all other transportation routes
are blocked.
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11. Dike Structural Integrity. The structural integrity of the
existing dike shall be investigated by an independent
licensed professional engineer who is qualified by experi-
ence and eduction to analyze the physical and structural
requirements of such a dike. The engineer shall prepare a
report detailing any necessary structural improvements or
enhancements which are required or recommended for structur-
al integrity. Columbia Asphalt shall improve or reconstruct
the dike in accordance with the report's recommendations.
The structural engineering report, together with "As Built"
dike drawings, shall be submitted to both the City and
County Engineers for approval prior to commencement of any
operations.
12. Structure Setback. Structures and processing equipment
shall maintain a 50 foot setback from the ordinary high
water mark of Willow Lake (along the east side of the
dike).
13. Water Level Monitoring Plan. A Water Level Monitoring Plan
for nearby lakes shall be prepared at Columbia Asphalt's
expense and shall be approved by both the City Engineer and
County Engineer prior to resuming any operations on the
parcel. This plan shall be prepared by a licensed profes-
sional engineer who is qualified by education and experience
to evaluate the hydrologic effects of the dike, dewatering,
and mining operations upon water levels of nearby lakes.
The Water Level Monitoring Plan shall include, at a minimum,
the following elements:
a. a description of the surface and subsurface hydrology
of the area;
b. a process for periodic data collection and monitoring
the water levels of nearby lakes and groundwater aqui-
fers;
c. a contingency plan for mitigating any significant water
level reductions; and
d. the plan and all water level monitoring information
shall be promptly provided to the City Engineer, County
Engineer, and any nearby affected landowners who make a
written request for such information.
If at any time the City and County determine that the mining
operations, dewatering, or dike have caused, are causing, or
will cause a significant reduction in water levels of any
nearby lake, then Columbia Asphalt shall, at the City's and
County's direction, cease or modify mining operations and
dewatering, or any portion thereof, to the extent and under
such conditions as the City and County in their sole discre-
tion may prescribe.
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14. Water Quality Monitoring. If at any time the City and
County determine that the mining operations, dewatering, or
dike have caused, are causing, or will cause a degradation
in water quality of any nearby lake, then Columbia Asphalt
shall, at the City's and County's direction, cease or modify
mining operations and dewatering, or any portion thereof, to
the extent and under such conditions as the City and County
in their sole discretion may prescribe.
15. Signs. No sign shall be established adjacent to Highway
12.
16. Term. All gravel extraction operations shall cease 5 years
from the date of issuance of the shoreline permit, unless
that date is extended by court order or by official action
by the shoreline administrators having jurisdiction in
accordance with WAC 173-14-060.
17. Concomitant Agreement For Consultant Expenses. Columbia
Asphalt shall comply with all terms and conditions of this
permit. If violations are discovered, the City or County
shall inform Columbia of necessary corrective actions. If
Columbia fails to carry out any prescribed corrective ac-
tion, the City and the County may, in addition to any other
legal remedies, jointly retain an independent consultant to
review Columbia Asphalt's compliance with the conditions
herein and develop a compliance program, if necessary.
Columbia Asphalt shall execute the Concomitant Agreement
attached hereto as Exhibit A and incorporated by reference
herein, whereby Columbia Asphalt promises and agrees to pay
for all costs and expenses incurred by the City and County
pursuant to this paragraph. As security for the obligations
set forth in this paragraph and in the attached Concomitant
Agreement, Columbia Asphalt shall post a Performance Bond or
Standby Irrevocable Letter of Credit in the amount of
$25,000.00 which has been issued by a financial institution
approved by the City and County. The Performance Bond or
Letter of Credit may be unconditionally drawn on by the City
and County on sight when presented with a signed statement
from either the City Engineer or the County Engineer certi-
fying that Columbia Asphalt has not performed or complied
with the conditions set forth in this decision.
18. Conditional Use Permit Approved. Issuance of the Shoreline
Conditional Use Permit must be approved by the Department of
Ecology prior to commencing any operations under the terms
of this permit.
19. Noise Abatement. Noise levels from operations shall comply
with maximum environmental noise levels as specified in
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Revised Operating Permit No. 10317 issued by the Department
Of National Resources on March 20, 1989)
20. Hours of Operation. Any noise generating activity (in-
cluding but not limited to mining, processing, loading, and
equipment operations) shall be conducted only between the
hours of 6:00 a.m. and 6:00 p.m. Mining and crushing shall
be prohibited on weekends and holidays.
21. Permit Revocation. The City and County may jointly revoke
the permits and approvals herein granted if the City and
County determine that there is substantial noncompliance
with any of the foregoing conditions.
Adopted and approved this day of May, 1992.
ATTEST: CITY OF YAKIMA
City Clerk Pat Berndt, Mayor
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CONCOMITANT AGREEMENT
THIS AGREEMENT is made and entered into this day of
, 1992, by and between COLUMBIA ASPHALT & GRAVEL,
INC., a Washington corporation (hereinafter "Columbia Asphalt") and
the CITY OF YAKIMA, Washington and YAKIMA COUNTY, municipal corpo-
rations of the State of Washington (hereinafter respectively "City"
and "County").
WHEREAS, Columbia Asphalt has requested
County permits and approvals under the Shoreline
the Yakima Urban Area Zoning Ordinance for the
dike across Willow Lake and for gravel mining
from the City and
Management Act and
construction of a
operations within
Sections 10, 11, and 15, Township 13 North, Range 18 East, W.M.
within the City of Yakima and Yakima County (hereinafter "Parcel");
and
WHEREAS, the City and County have granted such permits and
approvals subject to compliance with all of the conditions con-
tained in the City and County decision document; and
WHEREAS, one condition required by the City and County speci-
fied that Columbia Asphalt shall execute a concomitant agreement
whereby Columbia Asphalt promises and agrees to pay for all costs
and expenses incurred by the City and County to monitor and assure
compliance with the conditions of the project approval, now, there-
fore,
IN CONSIDERATION of the mutual promises and covenants made
herein, the parties hereto agree as follows:
1. Compliance with Conditions of Decision. Columbia Asphalt
promises and agrees to fully comply with all of the conditions
set forth in the Findings, Conclusions, and Decision of the
Yakima City Council and the Board of Yakima County Commission-
ers dated May 26, 1992. Columbia Asphalt further promises and
agrees to comply with all compliance orders and directions
issued by either the City or the County regarding this proj-
ect.
2. Reimbursement of Consultant Expenses. Columbia Asphalt prom-
ises and agrees to promptly pay and reimburse the City and the
County, and both, for all costs and expenses incurred by the
City and County pursuant to Condition 17 of the Findings,
Conclusions, and Decision of the City Council and Board of
County Commissioners dated May 26, 1992, including, but not
limited to, all fees, costs, and expenses incurred to hire or
retain an independent environmental consultant, engineer,
scientist, or other expert to review and monitor Columbia
Asphalt's compliance with the decision, to develop any neces-
sary compliance programs, and to implement the compliance
programs and conditions of the decision. All payments shall
be made to the City and County in accordance with the billing
EXHIBIT A
and collection procedures prescribed by Yakima County Code §
20.02.010(D)(3) concerning fees for Environmental Impact
Statement administration.
3. Indemnity. Columbia Asphalt shall protect, defend, indemnify,
and hold the City of Yakima and Yakima County harmless from
and against all costs, expenses, damages, liabilities, direct
claims, third -party claims, and causes of action (including
attorney's fees and expenses) relating to, arising out of, or
connected with any necessary repair or reconstruction of the
dike across Willow Lake, environmental cleanup or remediation
of hazardous substances on the Parcel or in the vicinity of
Willow Lake, and the direct and consequential expenses re-
sulting from the degradation of water quality in nearby lakes
or subsurface aquifers.
4. License. Columbia Asphalt hereby grants to the City and the
County, their agents and employees, an irrevocable license to
enter the Parcel at any reasonable time for the purpose of
monitoring, reviewing, and implementing compliance programs
required by the Concomitant Agreement and the conditions of
project approval.
5. Independent Enforcement. This Concomitant Agreement may be
enforced independently by either the City or the County, or
both, in an action for damages, specific performance, injunc-
tive relief, or other available procedures.
6. Covenant Running With the Land. The parties hereto intend
that the promises and agreements made by Columbia Asphalt
shall constitute covenants running with the Parcel and shall
be binding upon the landowners, operators, contract purchas-
ers, and their successors and assigns.
7. Notices. Any notices required or desired to be given under
this Agreement shall be in writing and personally served,
given by overnight express delivery, or given by mail. Any
notice given by mail shall be sent, postage prepaid, by certi-
fied mail, return receipt requested, addressed to the party to
receive at the following address or at such other address as
the party may from time to time direct in writing:
City:
City of Yakima
City Engineer
129 North 2nd Street
Yakima, WA 98901
County:
County of Yakima
County Engineer
128 North 2nd Street
Yakima, WA 98901
Columbia Asphalt: Columbia Asphalt & Gravel, Inc.
P.O. Box 100
Parker, WA 98939
Express delivery notices shall be deemed to be given upon
receipt. Postal notices shall be deemed to be given three (3)
days after deposit with the United States Postal Service.
8. Integration. This written document constitutes the entire and
exclusive agreement between the parties hereto. No other
understandings, oral or otherwise, regarding the subject
matter of this Agreement shall be deemed to exist or bind any
of the parties hereto. No changes or additions to this Agree-
ment shall be valid or binding upon either party unless such
change or addition be in writing and executed by both par-
ties.
9. Litigation. In the event that any suit or action is insti-
tuted by either party to enforce compliance with or interpret
any of the terms, covenants, or conditions of this Agreement,
the prevailing party shall be entitled to collect, in addition
to necessary court costs, such sums as the court may adjudge
as reasonable attorney fees. The venue for any action to
enforce or interpret this Agreement shall lie in Superior
Court of Washington for Yakima County, Washington.
DATED this day of , 1992.
ATTEST: CITY OF YAKIMA
City Clerk Richard A. Zais, Jr.
City Manager
ATTEST: COUNTY OF YAKIMA
Clerk County Commissioner
County Commissioner
County Commissioner
COLUMBIA ASPHALT & GRAVEL, INC.
By:
Its:
STATE OF WASHINGTON )
:ss.
County of Yakima
On this day of , 1992, before me, the
undersigned and Notary Public in and for the State of Washington,
duly commissioned and sworn, personally appeared
, known to me to be the
of Columbia Asphalt & Gravel, Inc. who executed the within and
foregoing instrument, and acknowledged that he signed the same as
his free and voluntary act and deed, for the uses and purposes
therein mentioned.
WITNESS by hand and official seal hereto affixed this day and
year first written above.
NOTARY PUBLIC in and for the State
of Washington, residing at
My commission expires:
Richard Wachsmith and Constance Wachsmith, husband and wife,
hereby represent and certify that they own the parcel affected by
this Concomitant Agreement, and they expressly consent to the
license hereinabove granted to the City and the County and to the
hereinabove described covenant running with the land.
Richard Wachsmith
Constance Wachsmith
STATE OF WASHINGTON )
:ss.
County of Yakima
On this day of , 1992, before me, the
undersigned and Notary Public in and for the State of Washington,
duly commissioned and sworn, personally appeared Richard Wachsmith
and Constance Wachsmith, husband and wife, known to me to be the
individuals described herein and who executed the within and fore-
going instrument, and acknowledged that they signed the same as
their free and voluntary act and deed, for the uses and purposes
therein mentioned.
WITNESS by hand and official seal hereto affixed this day and
year first written above.
NOTARY PUBLIC in and for the State
of Washington, residing at
My commission expires: