Community Round Table on Sensitive Lands

Citizen Comments and Questions

August 8, 2009

Below is a list of citizens’ questions from the August 8 Round Table.  The City has provided some short answers to questions posed at the meeting.  Following the questions is a list of comments and suggestions recorded at the same meeting.

What is current [Sensitive Lands] code and what are amendments (changes)?

What is a citizen’s ability to get written copies of the “rules”?

The Sensitive Lands chapter of the Development Code is available on-line here.  The entire Development Code is also on-line, here.  Copies are also available for review at City Hall and in the Lake Oswego Library.

A summary of recent changes is available here, and a line-by-line review of the text is available here.

What is the impact of the amended ordinance?

The amendments had five main goals:

• To meet Metro Titles 3 and 13 by updating the purpose statement, updating the procedures for delineating resources and amending natural resource maps, and prohibiting hazardous materials storage in sensitive lands;

• To clarify terms and correct unintentional errors and omissions;

• To improve the graphics included in the code;

• To simplify or eliminate review of very small projects, such as repairs;

• To ensure homeowners could rebuild a non-conforming house if it was destroyed in a disaster.

None of the changes reduced the amount of development allowed on properties with Sensitive Lands.

Definition of tree grove and stream corridors?

A protected tree grove is a group of trees that has high habitat value, as assessed with a Habitat Assessment Score worksheet. (to see a HAS worksheet click here.)  A tree grove must score at least 35 points to be considered significant.  To achieve this score, a tree grove must usually be more than one acre in size and have intact native understory vegetation.

Streams that flow year-round are considered significant.  Streams are also assessed using the HAS worksheet, and a seasonal stream that scores at least 35 points also considered significant.  To achieve a score of 35, a stream should have good vegetative cover and connectivity. 

Fence / decks / play structures – how does a Sensitive Land [Overlay designation] affect them?

Decks and play structures with foundations are usually not allowed in Sensitive Lands areas because, like other development, they require clearing the land.

Items which can be moved about, like lawn furniture, trampolines, and hammocks, are not structures, and are not regulated by the Development Code.  They may be placed anywhere on a property.

Fences are allowed in Sensitive Lands areas as long as they are designed to allow wildlife to escape.

What is the status of map update project?  Opportunities for input?

The map update project is on hold until the Second Look Task Force’s review of the Sensitive Lands code is complete.  When the map updates are restarted, the City will provide notices to all potentially affected landowners and opportunities for input and participation, including informal workshops and formal hearings.

What has been excluded (Willamette River, Foothills area, etc.) from Sensitive Lands Maps?  Don’t sensitive lands protections apply to all equally?

Portions of the Willamette River shoreline, the Oswego Lake shoreline, and the Foothills area all receive Sensitive Lands protections.  When a resource is very large (e.g. a lake or river) the edges are evaluated in sections, and only sections that have intact ecological function are protected.  Seawalls, lawn areas, etc. are generally not included.

What is City trying to accomplish with tree grove overlay?  Is it wildlife?  What is goal?

The Tree grove overlay exists to accomplish the purposes of the Sensitive Lands chapter, as stated in the code:

• protect wildlife habitat;

• protect and improve water quality;

• control and prevent water pollution for the protection of public health and safety;

• comply with federal laws including the Clean Water Act and the Endangered Species Act;

• comply with State Land Use Goal 5; and

• comply with Metro’s Urban Growth Management Functional Plan.

Tree groves contribute to water quality by promoting rainfall interception and groundwater recharge, thus reducing polluted runoff to streams and wetlands.  They also provide habitat for insects, birds, and some terrestrial wildlife.

Is this a means to upzone?

Upzoning means changing the zoning on a property to allow greater density, larger, taller buildings, or a more intense use.  The Sensitive Lands code does not change the base zone on a property, so no extra density or height is allowed.  The allowed uses also remain the same.  Sensitive Lands do not permit upzoning.

QUESTIONS ABOUT METRO PROGRAMS

Definition of sensitive habitat / land? City versus Metro interpretations?

The City identified lands for inclusion in the Sensitive Lands Atlas based on a physical inventory of sites and their Habitat Assessment Scores (HAS).  The HAS assigns points to a site according to the quantity of water, cover, and food available to wildlife on a specific site.  To see a HAS worksheet click here.  Wetlands, streams, and tree groves were evaluated in the same way, and all resources that scored above 35 points were considered “significant.”

The City initially used aerial photos and published maps from Metro, the USGS, and others to identify sites that should be evaluated with the HAS.  The City has not modified its maps (except for annexations) since the original inventory was completed in the mid-1990s.

Metro used aerial photos and published maps from the City and the USGS to identify potentially significant resource areas.  Metro evaluated streams according to their drainage area, regardless of water or habitat quality.  Metro evaluated wetlands according to their score on the Oregon Freshwater Wetland Assessment Methodology, which assigns points for the amount of water stored in the wetland (hydrological function).  Metro evaluated upland habitat areas according to their proximity to water, their value as habitat, and their urban development value.  Metro published its Title 3 water resource map in 1998, and updated it when it published its Title 13 habitat areas map in 2007.

Lake Oswego and Metro resource maps are not identical.  However, Metro’s Title 13 Map and the City’s Sensitive Lands map are substantially similar.

Are single-family residential lots exempt from Metro’s requirements?  Does Goal 5 application apply to existing structures?  To both developed and undeveloped land?

Metro’s Titles, like City codes, do not exempt developed residential lots.  Rather, Metro rules, like City codes, allow people with existing homes to continue to use and maintain their property, but not necessarily to remove trees or build, expand, or add things that require additional permits.  Goal 5 applies to developed areas, and does not discriminate between developed and undeveloped lands.

What about a voluntary, incentive-based plan [to meet Title 13]? A regulatory versus voluntary approach?  Metro expectations in 2004 were for education, incentives, property tax reduction, stewardship, recreation and volunteer programs.

Title 13 is the Metro code for habitat protection.  Metro allows local jurisdictions to comply with Title 13 through any combination of private incentives, public restoration, and regulation that meets the quantitative standards of the code.  So far, no jurisdiction has complied with Title 13 using incentive programs only.  Metro’s model code to meet Title 13 is also regulatory.  Lake Oswego has proposed to meet Title 13 with a combination of its existing Sensitive Lands program, which is regulatory, and with incentive programs and voluntary restoration of public lands.

Lake Oswego could seek to comply with Title 13 through non-regulatory programs only.  In that case, the City would need to develop a significant program of acquisition and incentives to achieve compliance.  The City would also still be required to maintain minimum stream buffers on both public and private property in order to comply with Metro’s Title 3 Water Quality program (which does not have a voluntary compliance path).

Does Title 13 require maintaining publicly owned land?

Title 13 requires local jurisdictions to protect (that is, not develop) significant riparian and upland habitat areas in public ownership.  It also provides “credit” towards compliance for expanding and restoring publicly-owned lands.  However, Title 13 does not require “maintenance” such as trail repair or invasive species eradication.

GENERAL QUESTIONS ABOUT LAND VALUES

Impact of overlays on value of land?  Impact on value of property with sensitive lands?  Impact on property value?  Devaluing of property because of limitations of use?

Economics research is rarely clear-cut.  However, there is a good deal of peer-reviewed economic research showing that streams, wetlands, and large trees increase property values, and that this affect is greater when the resources are permanently protected.  Some of this research was done in the Portland area.  The City of Portland also commissioned an independent study in 2003 to see whether their e-zones (very similar to Lake Oswego’s RP zones) reduced property values; their finding was that it had no discernable impact.  So, the economic evidence seems to be that the protected resource designation does not reduce property values.

Of course, many things impact the selling price of a house, from its color to the landscaping.  For some people, a natural resource overlay would not be appealing.  (Similarly, a feature like a swimming pool or a greenhouse might be appealing to some people, and a headache to others.)  However, the City’s Sensitive Lands code is written to allow flexibility in site design, and to preserve development densities (units) on a lot.  In this case, it seems plausible that the benefit of having a protected natural resource on a property does outweigh any negative impacts from the development rules.

Private property rights?  Compensation for takings?  Compensation for takings of sensitive lands?

Many desirable characteristics are protected by zoning:  convenient parking, historic character, privacy, views, trees and nature, quiet neighborhoods.  Because of these benefits, zoning generally increases property values.

Zoning achieves its benefits by applying limits to development.  The type of development and the height, bulk, and design of structures are regulated by zoning.  Zoning also creates setbacks from property lines, utilities, water features, and structures.  From a legal standpoint, zoning regulations that serve a public purpose, treat like properties alike, and allow each landowner to maintain an economic use of their property, are not “takings.”

Because City zoning regulations do protect public safety and welfare and allow an economic use of property, the City does not provide compensation to landowners when it applies zoning.  If a landowner finds that they are unduly burdened by a particular zoning regulation—for example, because their lot has an unusual shape-the City provides exceptions and variances to allow economic use of the property.

The Sensitive Lands article is a zoning regulation.  Given the development opportunities permitted, and the opportunities for exceptions if necessary, the Sensitive Lands article does not result in a “taking.”

Impact – Measure 49 claims?  Measure 49 ramifications / costs?  Measure 49 – appraisal issue?

The State of Oregon Department of Land Conservation and Development provides the following information about new claims under Measure 49:

Measure 49 claims may be based on land use regulations enacted only after January 1, 2007….  Measure 49 defines the category of land use regulations that are eligible for relief more narrowly, to include only those regulations that limit residential uses of property or that restrict farming or forest practices.  In addition, under Measure 49, relief is provided only if the owner demonstrates that the new regulations have reduced the value of property.  For claims based on regulation of residential uses, claimants are exempted from regulation only to the extent necessary to allow additional residential development of a value comparable to the value lost as a result of the regulation.

Because the Sensitive Lands chapter of the Community Development Code was adopted in 1998, Lake Oswego landowners (including later annexing properties) would generally be ineligible to make claims for Sensitive Lands “losses” under Measure 49, except to the extent any amendments adopted after January 1, 2007 can be shown to meet the Measure 47 requirements.

The property owner would be responsible for demonstrating, by a real estate appraisal, any economic loss from the Sensitive Lands article.  That might be difficult to do in light of the City’s flexibility to accommodate development.  Additionally, as the “Impacts to Property Values” discussion suggests, it may be difficult for a claimant to demonstrate any measurable economic loss due to the Sensitive Lands overlay.

Other Suggestions and Comments from Meeting Attendees

• Televise meeting

• Everyone doesn’t have email – send information to everyone not just sensitive land owners (everyone within urban service boundary)

• Make sure maps are correct – City fix

• Excess of exuberance of overlays already in place?  Take a look.

• Process = Public awareness process

• Why = State + Metro requirements

• Inference = private property owner not taking care of property

• Maximize benefit of protection versus minimize negative impacts on individual

• Commonly held community values

• Tragedy of the commons

• Appropriate balance – role of government

• Non-sensitive land owners play economic role in supporting sensitive land – burden not wholly born by sensitive land owners

• Look for middle ground

• Work in harmony with natural systems

• Avoid disproportionate burden

• Polarization not positive

• Protection of natural resources necessary: “leave alone” doesn’t work

• “Takings” in past notice?

• Compliance with Constitution (US and Oregon)

• Existing tree protection ordinance

• Non-punitive methods / solutions; separate water features from development

• Master gardener approach

• “Trust us”

• Discriminates against 1/5 of Lake Oswego

• Encumbrance on property

• Land “in sights” of City

• Fairness and distribution of burden and value of property impact

• Land key part of financial plan

• Validate processes:  map nomenclature, file naming, map of 1997 Sensitive Lands

• Citizen involvement:  understandable information, complex issues

• Don’t have to do go City Hall and say “may I.”

• Civility is important

• It does effect lakefront properties

• Misunderstandings – how can City help? Example: spa on deck?

• Voluntary versus no regulation example: clear cutting

• Use of tree codes to abuse neighbors

• Flexibility is key – not arbitrary

• Steward for the future

• Regulations versus common sense

• Changes in mindset by all à preserve and protect à make regulations that treat property owners with respect

• Too much emphasis on tree protection

• Work with and educate citizens

• Challenge:  model city – works with – cherish – value up – because of sensitive land designation

• Sensitive land / delineation / trees – negative when comparing City versus Clackamas County property – tree codes devalue – City building codes – SDCs all negatives – time / expense / restrictions [to develop in City versus County]

• Lack of ability to be rational and reasonable – black / white decisions

• Delineation too long and involved

• Impact of City development (indoor tennis courts) on City Park property (Rasheek property)

• Wildlife protection – rethink – reasons / value

• Value of environment – restrictions are primary issue

• If one is threatened then we all are

• Affordable housing goals clashes with property rights

• Streams are different than trees – non-renewable

• Trees are not wildlife habitat.  Designation doesn’t make sense.  Protecting trees not wildlife.  Compensation for landowners if public goal is to maintain wildlife corridor

• Confidence in process

• Like Metro maps – can be changed / not stagnant

• Where property located more important than what is on the ground

• Some tree groves are not on map

• Preserve things intelligently

• What realtors say about impact

• Specific question – landscaping p 9 of 19 – Section I – Section 6 – existing landscaping, maintenance of existing gardens, etc.

• Status of being grandfathered