CASE FILE: PC PART I. INTRODUCTION

Transcription

1 MULTNOMAH COUNTY LAND USE AND TRANSPORTATION PROGRAM 1600 SE 190 TH Avenue Portland, OR PH: FAX: Staff Report, PC STAFF REPORT TO THE PLANNING COMMISSION FOR THE PUBLIC HEARING ON DECEMBER 3, 2012 ZONING CODE IMPROVEMENT PROJECT FOR AREAS DESIGNATED AS SIGNIFICANT ENVIRONMENTAL CONCERN FOR WILDLIFE HABITAT (SEC-H) PART I. INTRODUCTION CASE FILE: PC At the June 4, 2012 Planning Commission meeting, staff introduced proposed zoning code amendments to address the Significant Environmental Concern for wildlife habitat (SEC-h) 2012 work program task. Staff followed up with a second work session on September 10, 2012 to answer Commissioner s questions and proposed amendments to the SEC-h criteria. The task is to consider revisions to the Significant Environmental Concern for wildlife habitat (SEC-h) zoning code text by developing nondiscretionary standards for additions and new development. These changes are intended to streamline the land use approval process with a focus on residential development. The proposed amendments will create a Type I administrative review option for property owners, clarify the status of existing driveways in relation to proposed development, and expand the exemptions in Chapters 33 (West Hills) and 34 (Sauvie Island/Multnomah Channel) to be consistent with Chapter 36 (West of Sandy River). The County s SEC-h regulations were initially adopted in the West Hills (1996) and Sauvie Island/Multnomah Channel (1997) rural area plans and in the West of Sandy River rural area plan (2002). The code remains substantially the same today. The current standards have two options for obtaining a permit for new development, but both require the issuance of a land use decision. The Land Use Planning Division is continuing to seek opportunities to improve clarity of regulations and to improve permit processing times for property owners while reducing costs to the County and our customers. Because the division receives a relatively larger number of SEC permit requests, and the existing approval standards for SEC-h permits are already nearly nondiscretionary, this proposal is a good fit with our code improvement objectives. This staff report is organized into the parts listed below. The zoning code citations reference MCC Chapter 33, and in some cases Chapter 36. Conforming amendments between Chapters may be needed. Part II. Conflicts between Dwellings & Wildlife Habitat Part III. Wildlife Conservation Plan Discussion Part IV. Proposed Code Modifications Part V. Attachments 1 of 11 Staff Contact: Lisa Estrin

2 PART II. CONFLICTS BETWEEN DWELLINGS & WILDLIFE HABITAT Staff Report, PC This portion of the staff report provides an overview of the key factors that prior study has identified as impacting wildlife habitat. These effects should be considered along with changes to existing standards to ensure that existing protection measures are not undermined. Wildlife habitat experts conducted a study in 1992 of the habitat within the West Hills, followed by the formal Environmental, Social, Energy, and Economics analysis (ESEE) in May The earlier study, included here as Attachment E, was a baseline study used in crafting the West Hills Reconciliation Report and ESEE. Forest cover is identified as a key habitat element to support viable populations of species, and continued fragmentation of forest cover without restoration or mitigation results in disconnected patches of lower quality forested habitat. Forest canopy reduction is cited as contributing to isolation of Forest Park from the Coast Range, reducing migration routes for larger animals between the two. The County, when it adopted the Reconciliation Report and the Significant Environmental Concern criteria, made a conscious decision to allow conflicting uses within wildlife habitat areas. The approval criteria provide some wildlife habitat protection, but not complete protection. Public roadways and areas along them are considered as developed areas and the SEC-h regulations seek to limit new construction to these areas by requiring clustering of dwellings close to roadways. The Reconciliation Report states that the following strategies are being employed to mitigate impacts to wildlife habitat:.limit additional clearing of forested areas in association with non-forestry related development;.promote clustering of rural residential and rural service development adjacent to existing public roads and existing residential and service development; and prohibit the planting or maintaining of nuisance and non-native invasive plant species as part of a proposed development. Forest canopy logged by commercial interests is re-established to a minimum level within years after replanting. Development of new dwellings within an area does not allow for re-establishment due to the impacts created. As discussed at the last Commission meeting, the impacts to wildlife habitat from residential development are many and include: Direct Loss of Habitat removal of native vegetative cover, water quality reduced and human intrusion increases. Edge Effects Deleterious effects of increased edge to area ratios due to human activity on plant and animal communities. Edge effects and the adjacency of highly contrasting plant communities like pasture and forest enhanced the wildlife habitat value of an area. Creation of Barriers Road and fences create an edge effect and fragmentation of habitat. Roads increase impervious surface areas, remove vegetation, and can have a major adverse impact on water quality. Roads create barriers for animal movement. Fragmentation Fragmentation results in breaking up forested habitat areas, such that there is insufficient area with diversified structure to accommodate a wide range of animal species. Native Vegetation Removal Native vegetation includes forest canopy, understory in forested areas, brush and dead/fallen trees. Removal of native vegetation causes diminished fish & wildlife habitat. 2 of 11 Staff Contact: Lisa Estrin

3 Staff Report, PC Application of Herbicides Unrestricted use of herbicides can destroy habitat diversity necessary for survival of wildlife species. Herbicides also kill plants which contribute to overall structural diversity, and may provide species-specific cover and food for wildlife. Soil Excavation Removes vegetation, increases erosion and sedimentation to streams & wetlands. Topsoil Removal Removal makes it impossible for native vegetation to be reestablished, and thus eliminates most wildlife habitat. Human Intrusion Associated with residential development and along access roads. This impact ranges from shooting wildlife, to vandalism, to off-road recreational driving, to frightening animals by human presence. Pet Impacts prey on small & large animals including shrews, woodpeckers, black-tailed deer, elk, and weasels, coyote and bobcats. Increased Impervious Surface Area Removal of native vegetative cover and ground disturbance increases & concentrates surface water runoff. Additional runoff can cause erosion and stream-bank de-stabilization and decreases water quality. Use of Insecticides and Poisons Insects are part of the wildlife food chain, the loss of insects, per se, contributes to a loss in habitat value. Many insecticides directly harm small animals and birds. Application of Fertilizers Over-use of fertilizer increases nutrient loading in streams and decreases water quality. Fertilizers & irrigation allow non-native vegetation species to thrive, to the detriment of native plant species which provide superior wildlife habitat. The above impacts are set once a property is developed, but where a property still contains forest canopy and is secluded from the dwelling compound, wildlife habitat can exist and can contribute with adjacent properties in creating habitat areas. It can be surmised that the replanting or improvement of native plantings and forest canopy in these areas can help to reduce habitat fragmentation. PART III. WILDLIFE CONSERVATION PLAN DISCUSSION At the September 2012 Planning Commission meeting, Commissioners wanted additional information on mitigation measures included in prior Wildlife Conservation Plans for SEC-h permits so that they could better evaluate the proposed mitigation measures for building additions. A Wildlife Conservation Plan is required when the applicant cannot meet the development standards of MCC (B). The code provides for an alternative Wildlife Conservation Plan when the project could meet those standards, but a different location is proposed. For properties with physical characteristics that prevent proposed development from meeting the Development Standards of MCC (B), the wildlife conservation plan must show that the proposed development results in the minimum departure necessary from the standards in order to allow the use. Attachment F(1) (4) demonstrates the type of plan that Land Use Planning has been approving in 2011 and 2012 for properties unable to meet the minimum standards. The most relevant decision is Attachment F(4) as it permits a deck and trellis addition to an existing single family dwelling. The proposed mitigation provisions would be applicable to this type of application. 3 of 11 Staff Contact: Lisa Estrin

4 Staff Report, PC The development approved by T (Attachment F(4) is a 720 sq. ft. deck addition to an existing dwelling. The mitigation measures required by the Wildlife Conservation Plan (pages 12 and 13) include control of nuisance plants if found anywhere on the property including the riparian area (see Condition 1 see page 2 of Attachment F(4)). For comparison, the proposed optional mitigation measures for additions are shown below. These optional measures are only available for properties that cannot meet the development criteria. Staff analyzed the deck addition below with hypothetical findings (staff comments) to see how these mitigation measures would treat it. Bold = Existing Code Language Double Underline = New Code Language Strikethrough = Language to be Deleted (C) Wildlife Conservation Plan. An applicant shall propose a wildlife conservation plan if one of two situations exist. (1) The applicant cannot meet the development standards of Section (B) because of physical characteristics unique to the property. The applicant must show that the wildlife conservation plan results in the minimum departure from the standards required in order to allow the use; or (3) The wildlife conservation plan must demonstrate the following: (4) For a property meeting (C)(1) above, the applicant may utilize the following mitigation measures for additions instead of providing a separate wildlife conservation plan: (a) Each tree removed to construct the proposed development shall be replaced on a one to one ratio with a six foot tall native, conifer tree such as Douglas fir or Western Red Cedar. Staff Comment: To construct the deck, no trees were removed, so no replacement trees required. (b) For each 100 square feet of new building area, the property owner shall plant, one, 3-4 foot tall native tree or three native tree seedlings. The trees shall be planted to improve wildlife habitat first within non-forested cleared areas contiguous to forested areas, second within any degraded stream riparian areas before being placed in forested areas or adjacent to landscaped yards. Staff Comment: For an addition that is 720 sq. ft. in size, seven, 3-4 foot tall native trees or 21 native tree seedlings would need to be planted. (c) Existing fencing located in the front yard adjacent to a public road shall be consistent with MCC (B)(6). Staff Comment: The fencing to be constructed along the front property line is for agricultural purposes and is exempt from MCC (B)(6) pursuant to MCC (A)(1). No modification would be required. 4 of 11 Staff Contact: Lisa Estrin

5 Staff Report, PC (d) For non-forested cleared areas that require nuisance plant removal pursuant to MCC (B)(7), the property owner shall set a specific date for the work to be completed and the area replanted with native vegetation. The time frame must be within two years from the date of the permit. Staff Comment: The southwest portion of the property is a treed, riparian area, but there does appear to be an area of blackberries without trees in the region. As part of this mitigation measure, the applicant would need to establish timelines for clearing and replanting the area with the trees under mitigation measure (2) above. With a set timeline, staff could track the work after building permit approval. For this project, the proposed mitigation measures would provide specific number of native trees to be planted in an area that would provide the most benefit for wildlife habitat. In addition, timelines would be established for nuisance plant removal and replanting. Many times, applicants ask what is needed for the wildlife conservation plan. The optional mitigation measures will give them this direction. The optional mitigation measures would not require individuals to hire an expert, but would provide habitat enhancement based on two of the three strategies found in the Reconciliation Report:.limit additional clearing of forested areas in association with non-forestry related development; prohibit the planting or maintaining of nuisance and non-native invasive plant species as part of a proposed development. If the Planning Commission finds that the above Optional Mitigation Measures would be a benefit to implementing the SEC-h overlay, it may recommend the amendment to the Board for adoption in MCC , and [Attachment G]. PART IV. PROPOSED CODE MODIFICATIONS Planning staff is proposing three significant areas of change for the SEC-h code. The first is to establish Type I application criteria to reduce processing time for homeowners. The second proposal is to update exceptions to the Significant Environmental Concern language to ensure consistency across rural plan areas. The final is an update to the Applicable Approval Criteria section to include the Type I Permit for the SEC-h permit. A. Type I Modifications. The proposed language for Chapters 33 and 34 utilize the non-discretionary Development Standards of MCC (B) without significant modification to produce the Type I application criteria. The current SEC-h criterion in MCC (B)(4)(d) which allows the deviation from the driveway standards by the County Road Official is discretionary and is the only criterion that will not be used for the Type I criteria. It is the County s intention to protect wildlife habitat while expediting development proposals. Projects that don t meet the Type I standards have the option of applying under the current Type II standards. The proposed language below refers applicants to specific approval criteria instead of duplicating the language in a separate section. Bold = Existing Code Language Double Underline = New Code Language Strikethrough = Language to be Deleted 5 of 11 Staff Contact: Lisa Estrin

6 SEC-H CLEAR AND OBJECTIVE STANDARDS SEC-H CLEAR AND OBJECTIVE STANDARDS. Staff Report, PC At the time of submittal, the applicant shall provide the application materials listed in MCC (A) and (A). The application shall be reviewed through the Type I procedure and may not be authorized unless the standards in (B)(1) through (4)(a)-(c) and (B)(5) through (7) are met. For development that fails to meet all of the criteria listed above, a separate land use application pursuant to MCC may be submitted. The proposed revisions for Chapter 36 to establish the Type I criteria are more complicated due to its format. The approval criteria for SEC-h permits are found in MCC and The criteria in MCC are currently discretionary and will need to be modified to allow for their review under a Type I process GENERAL REQUIREMENTS FOR APPROVAL IN AREAS DESIGNATED AS SEC-WR OR SEC-H. The requirements in this section shall be satisfied for development in the SECwr and SEC-h areas in addition to the provisions of or as applicable. (A) Areas of erosion or potential erosion shall be protected from loss by appropriate means. Appropriate means shall be based on current Best Management Practices and may include restriction on timing of soil disturbing activities. (B) Outdoor lighting shall be of a fixture type and shall be placed in a location so that it does not shine directly into undeveloped water resource or habitat areas. Where illumination of a water resource or habitat area is unavoidable, it shall be minimized through use of a hooded fixture type and location. The location and illumination area of lighting needed for security of utility facilities shall not be limited by this provision. (C) The following nuisance plants, in addition to the nuisance plants defined in , shall not be used as landscape plantings within the SEC-wr and SEC-h Overlay Zone: Table 1 Nuisance Plant List SEC-H CLEAR AND OBJECTIVE STANDARDS. At the time of submittal, the applicant shall provide the application materials listed in MCC (A) and (D). The application shall be reviewed through the Type I procedure and may not be authorized unless the following are met: (A) The proposed development meets the standards listed in (A)(1) through (5); 6 of 11 Staff Contact: Lisa Estrin

7 Staff Report, PC (B) The proposed development shall meet the applicable storm water and grading and erosion control requirements of Chapter 29. Ground disturbance within 100 feet of a watercourse as defined by MCC shall be limited to the period between May 1st and September 15th. Revegetation and soil stabilization must be accomplished no later than October 15 th. (C) New and replacement exterior lighting fixtures shall be of the "cut off" or fully shielded type so that no light is emitted above the horizontal. The location and illumination area of lighting needed for security of utility facilities shall not be limited by this provision. (D) The nuisance plants in , Table 1, in addition to the nuisance plants defined in , shall not be used as landscape plantings within the SEC-h Overlay Zone: For development that fails to meet all of the standards listed above, a separate land use application pursuant to MCC may be submitted. B. Exceptions. Planning staff reviewed the exceptions section of the Significant Environmental Concern provisions to ensure that Chapters 33, 34 and 36 were consistent with one another. Staff identified instances where exempt uses were not listed in the applicable code sections. In addition, staff is proposing to delete the exemption specific to the Type B home occupation. As the home occupation code is proposed, they are allowed in a dwelling or accessory building. A new accessory building or an addition over 400 sq. ft. to an existing dwelling would be subject to a SEC permit. The existing exemption may confuse a property owner into believing that a SEC permit is exempt EXCEPTIONS (A) Except as specified in (B) below, a SEC permit shall not be required for the following: (8) Uses legally existing on January 7, 2010; provided, however, that any change, expansion, or alteration of such use shall require an SEC permit, (except for changes to a structure that: [1](a) for For the SEC, SEC-w, and SEC-v overlays, do not require any modification to the exterior of the structure,; and [2](b) for For the SEC-h and SEC-s overlays, require the addition of less than 400 square feet of ground coverage to the structure). This provision is intended to allow a maximum of 400 square feet of additional coverage to the structure that existed on the above date; and (c) For the SEC-h overlay, one extension of up to 400 square feet to an existing driveway shall require an SEC permit as provided herein; (10) Type B Home Occupations that require the addition of less than 400 square feet of ground coverage to the a structure; 7 of 11 Staff Contact: Lisa Estrin

8 Staff Report, PC (17) Routine repair and maintenance of structures, roadways, driveways, utility facilities, and landscaped areas that were in existence prior to the effective date of this ordinance; EXCEPTIONS An SEC permit shall not be required for the following: (H) Uses legally existing on November 17, 1994; provided, however, that any change, expansion, or alteration of such use shall require an SEC permit, (except for changes to a structure which (1) for the SEC, SEC-w, and SEC-v overlays do not require any modification to the exterior of the structure, and (2) for the SEC-h and SEC-s overlays require the addition of less than 400 square feet of ground coverage to the structure. This provision is intended to allow a maximum of 400 square feet of additional coverage to the structure that existed on the effective date of this ordinance; and (3) For the SEC-h overlay, one extension of up to 400 square feet to an existing driveway shall require an SEC permit as provided herein; (I) All type A Home Occupations; (J) Type B Home Occupations that require the addition of less than 400 square feet of ground coverage to the structure.; (K) Alteration, repair, or replacement of septic system drainfields due to system failure; (L) Single utility poles necessary to provide service to the local area; (M) Right-of-way widening for existing rights-of-way when additional right-of-way is necessary to ensure continuous width; and (N) Stream enhancement or restoration projects limited to removal by hand of invasive vegetation and planting of any native vegetation on the Metro Native Plant List; (O) Enhancement or restoration of the riparian corridor for water quality or quantity benefits, or for improvement of fish and wildlife habitat, pursuant to a plan that does not include placement of buildings or structures and does not entail grading in an amount greater than 10 cubic yards. This exemption is applicable to plans that are approved by Soil and Water Conservation District, the Natural Resources Conservation District, or the Oregon Department of Fish and Wildlife under the provisions for a Wildlife and Habitat Conservation Plan, and submitted to the County; (P) Routine repair and maintenance of structures, roadways, driveways, utility facilities, and lawns that were in existence prior to the effective date of this ordinance EXCEPTIONS. An SEC permit shall not be required for the following: 8 of 11 Staff Contact: Lisa Estrin

9 Staff Report, PC (J) Type B Home Occupations that require the addition of less than 400 square feet of ground coverage to the structure; (O) Single utility poles necessary to provide service to the local area EXISTING USES. Uses that legally existed on January 1, 2003, that are not included as Exceptions in section , may utilize the provisions of this section. This section is intended to define the circumstances under which existing development can be improved or replaced under limited requirements in recognition of the pre-existing status. The SEC provisions are also not intended to make existing uses non-conforming. However, approval of proposals for alteration of uses that were non-conforming prior to the SEC ordinance, must obtain an SEC permit in addition to demonstrating compliance with the non-conforming use provisions of this Chapter. (A) Change, expansion, or alteration of existing uses shall require an SEC permit as provided in through , except for changes to a structure as described in Sections (1) or (2) below; (1) In areas subject to the provisions of the SEC-sw, change, or alteration of existing uses which do not require any modification to the exterior of the structure; (2) Within the SEC-wr and SEC-h - addition of less than 400 square feet of ground coverage to the structure. This provision is intended to allow a maximum of 400 square feet of additional coverage to the structure that existed on the effective date of this ordinance; and (3) Within the SEC-h overlay, one, 400 square feet or less extension to an existing driveway; C. The final change needed to create the Type I permit for the wildlife habitat overlay is to add the new code sections to MCC (A) and MCC (B) APPLICABLE APPROVAL CRITERIA. For Chapter 36, MCC (A) AREA AFFECTED will be modified. These code sections specify the approval criteria for each of the Significant Environmental Concern areas APPLICABLE APPROVAL CRITERIA (A) The approval criteria that apply to uses in areas designated SEC-w, SEC-v, SEC-h and SEC-s on Multnomah County zoning maps shall be based on the type of protected resources on the property, as indicated by the subscript letter in the zoning designation, as follows: 9 of 11 Staff Contact: Lisa Estrin

10 Zoning Designation Approval Criteria (MCC#) SEC-w (wetlands) SEC-v (scenic views) SEC-h (wildlife habitat) Type I Permit Type II Permit SEC-s (streams) Staff Report, PC APPLICABLE APPROVAL CRITERIA (B) The approval criteria that apply to uses in areas designated SEC-w, SEC-v, SEC-h and SEC-s on Multnomah County zoning maps shall be based on the type of protected resources on the property, as indicated by the subscript letter in the zoning designation, as follows: Zoning Designation Approval Criteria (MCC#) SEC-w (wetlands) SEC-v (scenic views) SEC-h (wildlife habitat) Type I Type II SEC-s (streams) AREA AFFECTED. The SEC overlay zone shall apply to those lands designated SEC-sw, SEC-wr, and SECh on the Multnomah County Zoning Map. (A) The approval criteria that apply to uses in areas designated SEC-sw, SEC-wr, and SEC-h shall be based on the type of protected resources on the property, as indicated by the subscript letter in the zoning designation, as follows: zoning designation approval criteria- MCC SEC-sw (scenic waterway) SEC-wr (water resource) and SEC-h (wildlife habitat) Type I Permit Type II Permit and of 11 Staff Contact: Lisa Estrin

11 PART V. ATTACHMENTS & REFERENCED DOCUMENTS Staff Report, PC Attachment H: Draft Resolution for PC Referenced Documents: Attachment A: Significant Environmental Concern for Wildlife Habitat Permits from July 2007 through December Attachment B: Chapter 33 Significant Environmental Concern for wildlife habitat regulations Attachment C: Chapter 36 Significant Environmental Concern for habitat regulations Attachment D: June 2012 Work Session Staff Report Attachment E: A Study of Forest Wildlife Habitat in the West Hills Attachment F: Examples of SEC-h Permits with Wildlife Conservation Plans (1) T Option 1 WCP for a Farm Help Dwelling (2) T Option 1 WCP for an Accessory Building (3) T Option 1 WCP for an in-ground pool and ground-mounted solar array (4) T Option 1 WCP for deck and trellis addition Attachment G: October 2012 Draft Ordinance Language for Chapters 33, 34 and of 11 Staff Contact: Lisa Estrin

12 BEFORE THE PLANNING COMMISSION FOR MULTNOMAH COUNTY, OREGON RESOLUTION NO. PC Recommend to the Board of Commissioners the adoption of an ordinance amending the significant environmental concern provisions for MCC Chapters 33, 34 and 36 to provide a non-discretionary permit for additions and new development. The Planning Commission Finds: a. The Planning Commission is authorized by Multnomah County Code Chapter and by ORS to recommend to the Board of County Commissioners the adoption of Ordinances to amend County s Comprehensive Plan and land use regulations. b. The Significant Environmental Concern for wildlife habitat regulations was adopted initially in 1996 in the West Hills and Sauvie Island plan areas, and in 2002 in the West of Sandy River plan area. The code remains substantially the same today. The proposed amendments seek to improve clarity of the regulations, standardize exemptions, and improve the permit processing time for property owners while reducing costs to the County and its customers. c. The proposed amendments are intended to maintain existing protection measures for conflicting uses and provide optional mitigation measures for properties with unique physical characteristics that prevent compliance with the non-discretionary standards being developed. d. No regulations are being proposed that further restrict the use of property and no mailed notices to individual property owners are required ( Ballot Measure 56 notice ). Notice of the Planning Commission hearing was published in the Oregonian newspaper and on the Land Use Planning Program internet pages. The Planning Commission held a public hearing on December 3, 2012 where all interested person were given an opportunity to appear and be heard. The Planning Commission resolves: The proposed Ordinance amending MCC Chapter 33, 34 and 36 is hereby recommended for adoption by the Board of County Commissioners. ADOPTED this 3 rd day of December, PLANNING COMMISSION FOR MULTNOMAH COUNTY, OREGON John Ingle, Chair Page 1 of 1 - Resolution