March 6, 2002
Mayor Vera Katz
Commissioner Jim Francesconi
Commissioner Charlie Hales
Commissioner Dan Saltzman
Commissioner Erik Sten
Dear Mayor Katz and City Commissioners:
On February 20, 2002 Portland City Council held a public hearing on implementation of the Land Division Code Rewrite project. At that time the Council voted to approve numerous uncontroversial housekeeping amendments to the new regulations. Specifically the Council voted to approve:
• land hazard amendments described on page 11-12 of the Implementation Report;
• amendments under topics 1-6 and 8-42, described on pages 12-13 of the Implementation Report; and
• Issues 1, 3, and 4, described in February 20, 2002 memo from Gil Kelley.
The City Council continued the hearing to March 14, 2002 and requested that staff bring back specific amendments relating to the following topics:
• Measurement of trees on large sites (described on page 11 of the report);
• Allowing right-of-way flexibility for trees and other natural features through the use of easements (described in the February 20, 2002 memo from Gil Kelley);
The City Council requested that staff bring back discussion and, where appropriate, specific amendments relating to the following outstanding issues:
• Measurement of seeps and springs (raised as an issue in testimony);
• Interaction of rights-of-way and lot access with resource tracts, such as tracts for seeps, springs, and streams (described on page 11 of the report); and
• Balancing requirements (described in February 20, 2002 memo from Margaret Mahoney).
Subsequently, staff has worked collaboratively on approaches and has crafted specific amendments to the new land division regulations based on the Council’s direction. Sections 1 and 2 of this letter present amendments that implement the Council’s direction related to measurement of trees and right-of-way flexibility. Sections 3 and 4 of this letter present discussion and potential amendments relating to seeps and springs, resource tracts, and balancing.
We ask that you consider the discussion presented on the following pages and adopt the amendments being recommended. Thank you for your consideration.
Sincerely,
Gil Kelley, Director
Bureau of Planning
Dean Marriott, Director
Bureau of Environmental Services
Margaret Mahoney, Director
Office of Planning and Development Review
Vic Rhodes, Director
Portland Office of Transportation
enclosures
c: Stevie Greathouse, Don Gardner, Dawn Hottenroth, Rebecca Esau, Lana Danaher, Elizabeth Papadopoulos, interested persons
1. Trees on Large Sites
Discussion:
The City Council directed staff to prepare an amendment that would allow sites larger than an acre to base tree preservation on tree canopy, rather than total tree diameter. This alternate method could reduce the cost impacts of a total tree survey on larger forested sites. Staff recommends that both small and large sites be allowed to evaluate trees through a statistical method rather than a total tree survey when they will be preserving trees based on tree diameter and significance, rather than canopy. The amendment below would implement this direction.
Amendment:
33.630.100 Tree Preservation Standards
A. Existing trees must be preserved. The applicant must choose one of the following options. Significant trees are listed in Table 630-1:
5. Option 5: If the site is larger than one acre, preserve at least 35 percent of the total tree canopy area on the site.
D. Calculations.
1. Tree diameter and significant trees. When calculating the amount of tree diameter and the number of significant trees on the site, the applicant may choose one of the following methods of measurement:
a. Tree inventory. A tree inventory identifies all trees on the site, specifying location, species, and diameter of each tree; or
b. Statistical sampling. Statistical sampling may be used to estimate the total tree diameter and total number of significant trees present. Sampling must be carried out by a professional forester based on standard methodologies.
2. Tree canopy. When calculating the amount of tree canopy on the site, the total canopy area is based on the most recent aerial photograph available. If the most recent aerial photograph available is more than 5 years old, the applicant must provide a more recent photograph.
2. Right-of-Way Flexibility
Discussion:
The City Council directed staff to prepare an amendment that would allow some flexibility to put sidewalks in easements when a tree or other natural feature would provide a barrier to their installation within the right-of-way. The amendment below would implement this direction.
Right-of-Way Flexibility, cont.
Amendment:
33.654.150 Ownership, Maintenance, and Public Use of Rights-Of-Way
B. Ownership. The following standards must be met. Adjustments are prohibited.
6. Public rights-of-way. All elements of public rights-of-way must be dedicated to the public, except as allowed by Paragraph B.8., below.
7. Private rights-of-way. For rights-of-way held in common ownership or owned by the Homeowners’ Association, all elements of the right-of-way must be in a tract, except as allowed by Paragraph B.8., below. This standard does not apply to alleys serving one or two lots.
8. Right-of-way elements in easements. Right-of-way elements may be in an easement if the following standards are met:
a. Temporary turnarounds. Temporary turnarounds allowed under this Chapter may be placed in easements that also include a public access easement that allows public access on all parts of the turnaround;
b. Street elements. Sidewalks and other street elements may be placed in easements adjacent to a right-of-way if the the following standards are met:
(1) A tree, rock outcropping, or other natural feature within the right-of-way precludes construction of the sidewalk or other element within the right-of-way;
(2) The easement may be up to 50 feet long, measured along the right-of-way, and up to 10 feet wide. See Figure 654-1;
(3) The easement must also include a public access easement that allows public access on all parts of the easement; and
(4) The City Engineer has approved the use of an easement adjacent to a public street or the Office of Planning and Development Review has approved the use of an easement adjacent to a private street.
Figure 654-1
3. Seeps, Springs, and Streams and Stormwater Management Tracts
Discussion:
• Measurement of seeps and springs: The Implementation Report and February 20, 2002 memo from Gil Kelley recommended amendments to the new regulations that would clarify the measurement of seeps, springs, and streams. The Report recommended that the edge of streams be defined as top-of-bank and recommended that a wetland delineation be used to identify the “edge” of seeps and springs. Concern was raised in testimony that this method could exclude seeps and springs that did not exhibit all characteristics of a wetland.
The Council directed staff to bring back additional information on this topic and to propose replacement language if appropriate. The amendments shown below would rely on wetland delineation for the purposes of measuring seeps and springs, but would resolve the issues raised in testimony by clarifying how seeps and springs would be measured when one or more wetland characteristics were absent. Seeps and springs would be identified based on the definition of seep and spring, not the definition of wetland.
• Interaction of resource tracts with access to site or lot: The Implementation Report identified an issue that had been raised by staff related to allowing access across tracts protecting streams, springs, and seeps and across tracts protecting shared stormwater facilities. There are three primary situations related to these tracts that could be problematic:
• Tract would separate one or more lots from its legally required street frontage.
• Tract would prevent platting and construction of a necessary right-of-way.
• Presence of a tract at the development stage would prevent the construction of required driveways.
The amendments shown below would clarify under what circumstances a tract could be crossed by a right-of-way and under what circumstances a particular resource could be preserved in an easement rather than a tract. The amendments also clarify what types of activities and development could occur within the tract boundaries.
Amendment:
33.640.200 Stream, Spring, and Seep Standards
A. Preservation in a tract. Streams, springs, and seeps must be preserved in a tract. The edges of the tract must be at least 15 feet from the edges of the stream, spring, or seep. as follows:
1. The edges of the tract must be at least 15 feet from the edges of the stream, spring, or seep. The edges of a seep or spring are determined through a wetland delineation, performed by an environmental scientist, and approved by OPDR. If one or more wetland characteristics are absent from the resource, the delineation will be based on the wetland characteristics present. The edges of a stream are defined as the top-of-bank. Where the edge of the stream, spring, or seep is less than 15 feet from the edge of the site, the tract boundary will be located along the edge of the site;
2. Existing structures within the area described in Paragraph A.1 may be excluded from the tract;
3. Exception. Where the tract required by Paragraph A.1 would preclude compliance with the front lot line requirements of Chapters 33.610 through .615, the stream, seep, or stream may be in an easement that meets the other requirements of Paragraph A.1.
B. Development allowed in the tract or easement. The following development, improvements, and activities are allowed in the tract or easement:
1. Disturbance associated with discharging stormwater to the stream channel, if BES has determined that the site’s storm water cannot discharge to a storm sewer and OPDR has determined that on-site infiltration is not an option;
2. Removal of non-native invasive species with hand held equipment;
3. Planting of native vegetation listed on the Portland Plant List when planted with hand held equipment;
4. Erosion control measures allowed by Title 10 of Portland City Code;
5. Construction of required driveway connections or required connections to services when there is no practicable alternative to locating the driveways or service connections within the tract or easement; and
6. Maintenance and repair of existing utilities, services, and driveways;
C. When tract or easement may be crossed by a right-of-way. Public or private rights of way may cross the seep, spring, or stream tract or easement if the following approval criteria are met:
1. There is no reasonable alternative location for the right-of-way;
2. The applicant has demonstrated that it is possible to construct street improvements within the right-of-way that will meet all of the following:
a. The street improvements will not impede the flow of the stream, spring, or seep;
b. The street improvements will impact the slope, width, and depth of the stream channel, spring, or seep to the minimum extent practicable; and
c. The street improvements will not impede fish passage in a stream, spring, or seep has been identified by the Oregon Department of Fish and Wildlife as fish-bearing.
B.D. Minimum density. Minimum density is waived in order to better meet these standards.
33.665.340 Proposals Without A Land Division
The approval criteria of this section apply to Planned Developments that do not include a land division. The approval criteria are:
F. Streams, Springs, and Seeps.
1. If there is a stream, spring, or seep outside of an Environmental Overlay Zone on the site, then the stream, spring, or seep must be preserved in a tract an easement. The edges of the tract easement must be at least 15 feet from the edges of the stream, spring, or riparian seep. The edges of a seep or spring are determined through a wetland delineation, performed by an environmental scientist, and approved by OPDR. If one or more wetland characteristics are absent from the resource, the delineation will be based on the wetland characteristics present. The edges of a stream are defined as the top-of-bank Where the edge of the stream, spring, or seep is less than 15 feet from the edge of the site, the easement boundary will be located along the edge of the site.
2. The following development, improvements, and activities are allowed in the easement:
a. Disturbance associated with discharging stormwater to the stream channel, if BES has determined that the site’s storm water cannot discharge to a storm sewer and OPDR has determined that on-site infiltration is not an option;
b. Removal of non-native invasive species with hand held equipment;
c. Planting of native vegetation listed on the Portland Plant List when planted with hand held equipment;
d. Erosion control measures allowed by Title 10 of Portland City Code;
e. Construction of required driveway connections or required connections to services when there is no practicable alternative to locating the driveway or service connections within the easement; and
f Maintenance and repair of existing utilities, services, and driveways;
3. Public or private rights of way may cross the seep, spring, or stream easement if the following approval criteria are met:
a. There is no reasonable alternative location for the right-of-way;
b. The applicant has demonstrated that it is possible to construct street improvements within the right-of-way that will meet all of the following:
(1) The street improvements will not impede the flow of the stream, spring, or seep;
(2) The street improvements will impact the slope, width, and depth of the stream channel, spring, or seep to the minimum extent practicable; and
(3) The street improvements will not impede fish passage in a stream, spring, or seep has been identified by the Oregon Department of Fish and Wildlife as fish-bearing.
2.4. Minimum density is waived in order to better meet the standard of paragraph F.1, above.
33.653.030 Stormwater Management Standards
Stormwater management facilities must meet the following standards. Adjustments are prohibited.
C. A stormwater facility that serves more than one lot must be in a tract or within a right-of-way; however, it may be in an easement where the location of the tract would preclude compliance with the front lot line requirements of Chapters 33.610 through .615. If the facility is in a tract, it must be either owned in common by all of the owners of the lots served by the facility, by a Homeowners’ Association, by a public agency, or by a non-profit organization; and
D. Driveways may cross stormwater tracts and easements.
4. Balancing
Discussion:
The adopted regulations include provisions for balancing land division requirements when there is a conflict between requirements. These provisions are contained in Section 33.700.075 of the adopted regulations. The provisions provide authority to the OPDR director or the Hearings Officer to balance land use and technical requirements when a conflict between these requirements is identified within the context of a land division review.
At the hearing on February 20, 2002, the Office of Planning and Development Review, the Office of Transportation, and the Bureau of Environmental Services each identified concerns with these provisions. Margaret Mahoney provided additional analysis of the issues related to these provisions in her March 20, 2002 memo to the City Council.
The Council directed staff to bring back additional discussion related to the topic. All of our bureaus support the intent behind the regulations, which was to create a formal process for resolving regulatory conflicts. However, the regulations as stated do not fully address the problem they were designed to solve for several reasons:
• as described in Margaret Mahoney’s memo the requirements may not adequately define what situations would be considered conflicts under the new code. The requirements may not take into account the type of conflicts that could become issues under the new code;
• by assigning the role of conflict resolution to the land use decision maker, the balancing requirements could allow a technical requirement to be modified through the land use process; this would not reflect the intent of the decision-making assignment split; and
• the requirements do not identify a specific process for their application, which could create considerable uncertainty among staff, citizens, and developers.
Recommended Actions:
• Direct staff to monitor and analyze issues related to regulatory conflict as part of the monitoring process for the new land division regulations, and direct staff to return to the Council with a report on these issues in the future;
• Delete section 33.700.075, Balancing Requirements For Land Divisions from the adopted regulations.