Chapter 59 CONSERVATION EASEMENTS

Article 59.02 In General.

Section 59.02.010 Purpose.

    The purpose of this Chapter is to encourage the voluntary retention and protection of the natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property by private property owners through donation or dedication of conservation easements to the City or other non-profit or governmental organizations whose purpose is to protect or enhance such open space, cultural or natural values.
    (Ord. No. 2124, Enacted, 09/17/96)


Section 59.02.015 Applicability.

    1.  The Chapter applies to any interest created after October 17, 1996, that complies with this Chapter, whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise.
    2.  This Chapter applies to any interest created before October 15, 1983, if it would have been enforceable had it been created after October 17, 1996, unless retroactive application contravenes the Constitution or laws of this state or the United States.
    3.  This Chapter does not invalidate any interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise, that is enforceable under other law of this state.
    4.  The public hearing requirements of this Chapter shall not apply to a conservation easement that is dedicated to the City in order to comply with a condition of approval imposed on a land use application pursuant to LOC Chapter 50, where such application was subject to public notice and the opportunity for a hearing.
    5.  The incentive provisions of this Chapter shall not apply to a conservation easement that is dedicated to the City in order to comply with a condition of approval imposed on a land use application pursuant to LOC Chapter 50, unless the person dedicating the easement elects to dedicate a larger easement or an easement with a greater impact on private use of the property than would otherwise be required.
    (Ord. No. 2124, Enacted, 09/17/96; Ord. No. 2161, Amended, 12/16/97)


(Ord. 2316, Amended, 03/05/2002, Prior Text)

Section 59.02.020 Definitions.

    As used LOC Chapter 59, unless the context otherwise requires:
    Conservation easement means an interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property. Although generally a non-possessory interest, a conservation easement can include the right of limited City access for surface water repair and maintenance, a public pathway or right of public access at the election of the donor.
    Holder means:
        a.    The state or any county, city or park and recreation district acting alone or in cooperation with any federal or state agency, public corporation or political subdivision; or
        b.    A charitable corporation, charitable association, charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open space values of real property, assuring the availability of real property for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.
    Third-party right of enforcement means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder.
    (Ord. No. 2124, Enacted, 09/17/96)


Section 59.02.025 Acquisition and creation of conservation easement.

    1.    The city may acquire by purchase, agreement or donation, but not by exercise of the power of eminent domain, unless specifically authorized by law, conservation easements in any area within or without the city limits wherever the City Council determines that the acquisition will be in the public interest.
    2.    Except as otherwise provided, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements.
    3.    No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and recordation of the acceptance.
    4.    Except as provided in this Chapter, a conservation easement is unlimited in duration unless the instrument creating it otherwise provides.
    5.    An interest in real property in existence at the time a conservation easement is created is not impaired by it unless the owner of the interest is a party to or consents to the conservation easement.
    (Ord. No. 2124, Enacted, 09/17/96)


Section 59.02.030 Hearing; notice.

    1.    Before the acquisition of a conservation easement, the city shall hold one or more public hearings on the proposal and the reasons therefor. The hearings shall be held in the community where the easement would be located and all interested persons, including representatives of other governmental agencies, shall have the right to appear and a reasonable opportunity to be heard.
    2.    Notice of the hearing shall be published at least twice, once not less than 12 days and once not less than five days, prior to the hearing in a newspaper of general circulation in the community. The notice may also be published by broadcasting or telecasting generally in the community.
    3.    At the conclusion of the hearing, the City Council shall decide whether to accept or reject such easement.  If the City Council decides to accept such easement, the City Manager is empowered thereby to execute all necessary documents pursuant to this Chapter.
    (Ord. No. 2124, Enacted, 09/17/96)


Section 59.02.035 Validity of conservation easement.

    A conservation easement is valid even though:
    1.    It is not appurtenant to an interest in real property;
    2.    It can be or has been assigned to another holder;
    3.    It is not of a character that has been recognized traditionally at common law;
    4.    It imposes a negative burden;
    5.    It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;
    6.    The benefit does not touch or concern real property; or
    7.    There is no privity of estate or of contract.
    (Ord. No. 2124, Enacted, 09/17/96)


Article 59.04 Cooperation and Incentives.

Section 59.04.010 Cooperative Agreements Authorized.

    The City Manager is hereby authorized to enter into cooperative agreements with any other entity authorized to be a holder pursuant to LOC Chapter 59 in order to accomplish the purpose of this Chapter.  Such an agreement may include provision of staff support, waiver of any applicable city fees and charges and extension of the incentive program set forth in LOC Chapter 59 to persons who donate conservation easements to the holder.  Such an agreement shall include a requirement that any conservation easement within the city limits of the City of Lake Oswego conveyed to the holder other than the City shall grant the City a third party right of enforcement before the donor or the holder may take advantage of any fee waivers or incentives.
    (Ord. No. 2124, Enacted, 09/17/96)


Section 59.04.015 Incentives for Donation of Conservation Easement.

    1.    At the time of conveyance of a conservation easement to the City or to another holder who has entered into a cooperative agreement with the City under LOC 59.04.010, the donor may elect to take advantage of one of the following incentives for the donation:
        a.    A credit against any Park and Recreation Systems Development Charge (SDC) imposed against the property pursuant to LOC Chapter 39 at the time of future development, if the conservation easement is determined by the City Manager to further the City's Park, Recreation and/or Pathways Master Plans or Capital Improvement Plans;
        b.    A credit against any Transportation SDC that may be imposed against the property subject to the easement at the time of future development, if the easement provides for public pathway or walkway access and is determined by the City Manager to further the City's Pathway Master Plan or Capital Improvement Plan;
        c.    A credit against the surface water management component of the City Utility User Fee imposed pursuant to LOC Chapter 38, if the conservation easement protects a wetland or stream corridor that provides for conveyance of surface water or enhances the water quality of surface water and if the conservation easement includes a right of entry for City staff (as opposed to the general public) for the purpose of operating, maintaining and/or enhancing the stream or wetland subject to the easement to improve surface water conveyance or quality; or
        d.    A credit against the percentage of open space reservation or dedication required pursuant to LOC Article 50.46 (Park and Open Space) at the time of future development of the property, upon a determination by the City Manager that allowance of such a credit would not leave unprotected another significant natural area on the property that otherwise would be required to be protected.
    2.    The incentive credits provided in subsection 1 of this section shall be personal to the donor of the conservation.  Such credits or the rights to such credit shall expire upon sale or transfer of the property subject to the conservation easement to a new owner.
    3.    The implementation of each incentive credit will differ on a case by case basis, taking into consideration the size, value, impact on the property and nature of the donated conservation easement.  The credit will be implemented by agreement between the City Manager and the donor which shall set forth the nature and duration of the credit based upon these factors.
    (Ord. No. 2124, Enacted, 09/17/96)


(Editorial addition, Amended, 07/16/2004, Section 1, corrected citation "...LOC" to read as "LOC 59.04.010")., Prior Text; Ord. 2316, Amended, 03/05/2002, Prior Text)

Section 59.04.020 Taxation.

    1.    Property Taxation.    ORS 271.785 requires that real property that is subject to a conservation easement shall be assessed on the basis of the real market value of the property less any reduction in value caused by the conservation easement or a highway scenic preservation easement.  The statute provides that such an easement shall be exempt from assessment and taxation the same as any other property owned by the holder.  Every time the City accepts a conservation easement, it shall notify the assessor of the County in which the property subject to the easement is located and call to the assessor's attention ORS 271.785.
    2.    Other Tax Issues.  The City may inform the donor that election to accept a credit could affect his or her tax situation.  In no event shall the City be held responsible for any negative tax consequences of acceptance or non-acceptance of an incentive credit under this section.
    (Ord. No. 2124, Enacted, 09/17/96)


Article 59.06 Enforcement.

Section 59.06.010 Action affecting conservation easement; Standing to bring action.

    1.    An action affecting a conservation easement may be brought by:
        a.    An owner of an interest in real property burdened by the easement;
        b.    A holder of the easement;
        c.    A person having a third-party right of enforcement; or
        d.    A person authorized by other law.
    2.    This Chapter does not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity.
    3.    In addition to any other remedy, the violation of the terms of a conservation easement held by the City or in which the City has a third party right of enforcement is a civil violation that may be enforced pursuant to LOC Chapter 34.
    (Ord. No. 2124, Enacted, 09-17-96)


(Ord. 2231, Amended, 03/21/2000, Prior Text)

Section 59.06.015 Rules governing conservation easements.

    The City Council may make and enforce reasonable rules governing the care, use and management of its conservation easements by resolution.  A violation of such rules is a civil violation that may be enforced pursuant to LOC Chapter 34.
    (Ord. No. 2124, Enacted, 09-17-96)


(Ord. 2231, Amended, 03/21/2000, Prior Text)