Chapter 17.46
NATURAL RESOURCE OVERLAY (NR) ZONE
Sections:
17.46.010 Purpose.
17.46.020 Definitions.
17.46.030 Application.
17.46.040 Uses allowed.
17.46.050 Natural resources development review.
17.46.060 Natural resources development variance.
17.46.070 Existing structures and uses.
17.46.080 Lot creation.
17.46.090 Claims of map error.
17.46.100 Plan amendment option (ESEE).
17.46.010 Purpose.
The purpose of the natural resources overlay zone (NR) is to conserve, protect, where appropriate develop, and where appropriate restore the resources and benefits of coastal shorelands, natural resources, and scenic areas, recognizing their value for protection and maintenance of water quality, fish and wildlife habitat, water-dependent uses, economic resources, recreation and aesthetics. (Ord. 2000-11 § 6; Ord. 84-2 § 3.111(1))
17.46.020 Definitions.
For the purposes of this chapter, the following words are defined as follows:
“Buildable area” means the area of a lot or parcel exclusive of all applicable setbacks or areas within restrictive overlay zones.
“Goal 17 planning area” means all lands west of the Oregon Coast Highway (Highway 101), all lands within 500 feet of the ordinary high water mark of Devils Lake or Spring Lake, and all lands within 1,000 feet of the mean higher high water elevation of the Schooner Creek, Drift Creek, and Siletz Bay estuaries.
“Native riparian vegetation” means plants historically found in wet and streamside areas of the Pacific Northwest. “Flora of the Pacific Northwest” (1973) by Hitchcock and Cronquist is a primary reference for native plant determinations.
“Ordinary high water mark” means a line delineating the highest water level that has been maintained for a sufficient period of time to leave evidence upon the landscape, such as a clear, natural line impressed upon the bank, shelving, changes in the character of the soil, change from predominantly aquatic to predominantly terrestrial vegetation, or the presence of organic litter or debris.
“Qualified professional” means an individual who has proven expertise and experience in a given natural resource field. A qualified professional conducting a wetland delineation must have the delineation approved by the Oregon Division of State Lands.
“Responsible party” means the property owner and any party acting on behalf of or for the benefit of the property owner including construction contractors and subcontractors.
“Riparian area” means the area adjacent to a river, lake, or stream, consisting of the area of transition from an aquatic ecosystem to a terrestrial ecosystem.
“Riparian area, significant” means a riparian area that is shown as significant on the significant natural resources maps in the comprehensive plan.
“Significant natural resource” means wetlands, riparian areas, and wildlife areas within the urban growth boundary and shown on the significant natural resources maps in the comprehensive plan.
“Stream” means a channel such as a river or creek that carries flowing surface water, including perennial streams and intermittent streams with defined channels, and excluding artificial irrigation and drainage channels.
“Water area” means the area between the banks of a lake, pond, river, perennial or fish-bearing intermittent stream, excluding artificial farm ponds.
“Water-dependent use” means a use or activity which can be carried out only on, in, or adjacent to water areas because the use requires access to the water body for waterborne transportation, recreation, or energy production, or as a source of water.
“Water-oriented use” means a use whose attraction to the public is enhanced by a view of or access to coastal waters.
“Water-related use” means a use which is not a water-dependent use, but which provides goods or services that are directly associated with a water-dependent use or waterway use, and which, if not located adjacent to water, would result in a loss of quality in the goods or services offered, affecting a significant proportion of the public.
“Wetland” means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands are mapped in the city’s Local Wetland Inventory (January 12, 1996).
“Wetland, significant” means a wetland shown on the significant natural resources maps in the comprehensive plan.
“Wildlife area” means an area upon which wildlife depend in order to meet their requirements for food, water, shelter, and reproduction. Examples include wildlife migration corridors, big game winter range, and nesting and roosting sites.
“Wildlife area, significant” means a wildlife area shown on the significant natural resources maps in the comprehensive plan. Where a significant wildlife area includes a significant riparian area, the extent of the significant wildlife area is the same as the extent of the significant riparian area. (Ord. 2004-05 § 3; Ord. 2000-11 § 6; Ord. 84-2 § 3.111(2))
17.46.030 Application.
A. The natural resource overlay zone consists of the land identified in the city comprehensive plan as “significant natural resource areas,” including significant riparian areas, significant wetlands, and significant wildlife areas.
B. These provisions are to be applied in conjunction with the provisions of the underlying zone. Where the provisions of the NR overlay zone conflict with those of the underlying zone, the more restrictive provisions must be applied.
C. Limitation on Extent of Significant Riparian Areas. The significant riparian area extends a certain distance upland from the ordinary high water mark and includes everything within the area between the ordinary high water mark and the upper edge of the significant riparian area, to a maximum distance of 50 feet. If the area of transition extends less than 50 feet from the ordinary high water mark, then the significant riparian area will be less than 50 feet in width. The significant riparian area may be more than 50 feet if the significant riparian area is adjacent to a significant wetland, in which case the maximum 50-foot distance is to be measured from the upland edge of the wetland. If it is necessary, for purposes of an application, to determine the extent of a significant riparian area, the property owner is responsible for having a qualified professional conduct a delineation to determine the significant riparian area boundaries. (Ord. 2004-05 § 3; Ord. 2000-11 § 6; Ord. 84-2 § 3.111(3))
17.46.040 Uses allowed.
A. By Underlying Zoning. Except as limited below, the uses allowed in the natural resource overlay zone are the same as, and only, those allowed by the underlying zoning.
B. In the Natural Resource Overlay Zone. All development is excluded from the natural resource overlay zone, with the following exceptions:
1. Structures and uses for which the natural resource exclusion has been reduced through the provisions of LCMC 17.46.060.
2. The following uses are allowed outright:
a. Uses not involving a structure and which do not impede vegetation growth, result in removal of vegetation, alter hydrology, introduce sediment, lead to erosion, or involve ground disturbance or impervious surfaces.
b. Mowing of lawns existing on the effective date of the ordinance codified in this chapter (but not expansion of lawns into significant natural resources), and other cutting necessary for hazard prevention.
c. Pedestrian footbridge, provided installation and maintenance do not disturb the natural resource function and do not involve removal of riparian vegetation, require development below the ordinary high water mark, or result in sedimentation or erosion.
d. Riparian restoration activities limited to the planting of native riparian vegetation and the removal of non-native understory species. Removal of non-native understory species must be accompanied by replanting with native riparian vegetation or maintenance of remaining vegetation such that bare soil is not exposed and non-native species are not allowed to establish themselves.
e. Trimming and pruning of willows and similar vegetation in a way that does not reduce the survivability or root strength of the vegetation.
3. The following uses are allowed subject to compliance with the following activity standards. Failure to comply with the activity standards may result in fines and mandatory mitigation requirements.
a. Activity Standards.
i. For in-water work the responsible party must follow the Oregon Department of Fish and Wildlife guidelines for in-water work.
ii. The responsible party may not remove native vegetation except for that in the space occupied by the use.
iii. Within six months of vegetation removal, the responsible party must replant areas from which vegetation is removed with native vegetation at densities at least equaling those of the removed vegetation, unless vegetation would not allow the use to function.
iv. The responsible party must keep sediment from entering the water area.
v. The responsible party must obtain all required federal and state permits (e.g., U.S. Army Corps of Engineers permit, Oregon Water Resources Department permit, Division of State Lands fill/removal permit).
b. Uses.
i. Replacement drainage facilities, utility facilities, domestic and irrigation water pumps, and minor facilities authorized by the Oregon Water Resources Department (such as stream gauges).
ii. Vegetation removal for maintenance of existing bridges, roads, clear-vision areas as described in LCMC 17.52.060, drainage facilities, domestic or irrigation pumps, utility facilities, and facilities approved by the Oregon Water Resources Department; provided, that trees are not trimmed in a manner that causes them to die (unless complete removal of the tree is necessary to avoid imminent hazard to the use).
iii. Replacement of a stream crossing (bridge or culvert) or expansion of an existing land transportation facility within an existing right-of-way, provided all applicable Oregon Department of Fish and Wildlife fish passage guidelines are followed.
iv. Dock or moorage.
v. Water-dependent uses, where permitted in the underlying zone. (Ord. 2004-05 § 3; Ord. 2000-11 § 6; Ord. 84-2 § 3.111(4))
17.46.050 Natural resources development review.
A. A property owner must apply for a natural resources development (NRD) review prior to the commencement of any development on property within the NR overlay zone. For purposes of this section, “development” means any construction, alteration of landforms, or removal of vegetation. If the NR overlay zone applies to a portion of a parcel, an NRD review is required only for that portion of a development located inside the NR overlay zone. No development may take place until the director completes the NRD review and authorizes the development.
B. The director will review all reports submitted, including but not limited to delineations and environmental reviews, to determine if the development complies with the requirements of this chapter. Within 10 days of the filing of the reports, the director must prepare a written statement with findings authorizing, denying, or conditionally approving the development. Findings must be consistent with the provisions of this chapter, the comprehensive plan and statewide planning goals.
C. The written statement of the director must be published in the next available edition of the newspaper. Notices of the action must be mailed to all property owners within 250 feet of the exterior boundary of the property where the development is to take place. Required notices must be mailed by regular first class mail and must be postmarked no later than the date of publication in the newspaper. The director also must mail a notice of the action to the following public agencies, as appropriate: the Oregon Department of Fish and Wildlife, Oregon Division of State Lands, Oregon Department of Land Conservation and Development, U.S. Fish and Wildlife Service, Environmental Protection Agency, and U.S. Army Corps of Engineers.
D. All permit applications for development on parcels located within or adjacent to the NR overlay zone must identify the location of each significant natural resource area on the site plan. The director must review all development permit applications to verify compliance with the requirements of the NR overlay zone. Development permit applications not in compliance with the requirements of the NR overlay zone must be denied.
E. Emergency Waivers. The director may waive the NRD review if he or she determines that there is an immediate threat to life or property. Emergency waivers must be conditioned on the property owner applying for NRD review for all work performed under the emergency authorization within five days of issuance of the waiver. Emergency waivers must be further conditioned on the property owner, if the application for NRD review is not approved, restoring the site to its original condition within 30 days of final action on the NRD review. Waivers must be in writing and a record of waivers must be kept on file at the department. (Ord. 2000-11 § 6; Ord. 84-2 § 3.111(5))
17.46.060 Natural resources development variance.
A. A variance must be granted per the provisions of Chapter 17.68 LCMC for all permitted uses not specified in LCMC 17.46.040, prior to any development occurring within the natural resource overlay zone. The planning commission must determine that the variance request meets all the following criteria in addition to those found in LCMC 17.68.020:
1. Strict adherence to the natural resource overlay zone standards would effectively preclude a use of the lot or parcel that reasonably could be expected to occur in the zone, and that the property owner would be precluded a substantial property right enjoyed by the majority of the landowners in the vicinity; and
2. The variance requested, of the possible variances necessary to create a buildable area outside of the natural resource overlay zone, has the least impact to the natural resource functions; and
3. The proposed development, including actions to mitigate impacts to natural resource functions, can be accommodated without substantial negative impact to the applicable natural resource functions.
B. Development Guidelines. Variances for proposed development within the natural resource overlay zone will be considered only when the following development guidelines are met:
1. The yard setback opposite the natural resource area may be reduced by up to one-half of the standard setback, but not to less than three feet.
2. The allowed reduction must be the minimum necessary to site the proposed use. At most, exclusions may be reduced to create a buildable area of no more than 1,750 square feet. (Ord. 2004-05 § 3; Ord. 84-2 § 3.111(6))
17.46.070 Existing structures and uses.
Existing structures and uses that are not allowed in the natural resource overlay zone may be continued at the size and intensity at which they were legally established. These existing structures and uses may be expanded in area or intensity within the significant natural resource only with approval under LCMC 17.46.060. Expansion (in size or intensity) of structures or uses where the expansion occurs entirely outside of the significant natural resource is allowed to the extent allowed by the underlying zoning. (Ord. 2004-05 § 3; Ord. 2000-11 § 6; Ord. 84-2 § 3.111(7))
17.46.080 Lot creation.
Any lot or parcel created must contain sufficient building area outside the natural resource overlay zone to allow for development without requiring reduction of the natural resource area. Lots or parcels created or modified after the effective date of the ordinance codified in this chapter so as to no longer contain sufficient buildable area outside the natural resource overlay zone to allow for development without requiring reduction of the natural resource area are not eligible for the small lot exclusion reduction or variance provided for in LCMC 17.46.060. (Ord. 2004-05 § 3; Ord. 2000-11 § 6; Ord. 84-2 § 3.111(8))
17.46.090 Claims of map error.
A responsible party may request to be excused from compliance with the requirements of this chapter if the proposed development area was mapped as a significant natural resource in error. If the request is approved, then the significant natural resources map will be amended to remove the proposed development area from the map. In the case of wetlands, the claim of map error must be confirmed by the Oregon Division of State Lands. (Ord. 2000-11 § 6; Ord. 84-2 § 3.111(9))
17.46.100 Plan amendment option (ESEE).
Any owner of property on which development otherwise would be limited by the natural resource overlay zone may apply for a quasi-judicial comprehensive plan amendment. The amendment must be based on a specific development proposal. The effect of the amendment would be to remove the natural resource overlay zone from all or a portion of the property. The applicant must demonstrate that an amendment is justified by completing an environmental, social, economic, and energy (ESEE) consequences analysis in accordance with Oregon Department of Land Conservation and Development administrative rules (OAR 660-23-040). If the application is approved, then the ESEE analysis will be incorporated by reference into the city comprehensive plan and the significant natural resources map will be amended to remove the significant natural resource overlay zone from the inventory. If the application is approved, the city at its discretion may impose conditions on any resulting development approval in order to ensure that the development is consistent with the ESEE analysis. The ESEE analysis must comply with the following requirements:
A. The ESEE analysis must demonstrate that the adverse economic consequences of not allowing the conflicting use are sufficient to justify the loss, or partial loss, of the resource.
B. The ESEE analysis must demonstrate why the use cannot be located on buildable land outside of the significant natural resource and that no other sites within the city can meet the specific needs of the proposed use.
C. For resources located within the Goal 17 planning area, in addition to the above requirements, the ESEE analysis also must address the Goal 2 exception process as set out in OAR Chapter 660, Division 004. (Ord. 2000-11 § 6; Ord. 84-2 § 3.111(10))