Article V. Waterway Overlay Zone (WOZ)

2.7.600 Waterway Overlay Zone (WOZ).

2.7.610 Purpose.

A.    Purpose. The Deschutes River and Tumalo Creek stream corridors within the urban growth boundary of the City of Bend are valuable economic, recreational, scenic and natural resources for the community. The Waterway Overlay Zone (WOZ) is inclusive of all special purpose provisions that pertain to these stream corridors. The WOZ is intended to conserve and enhance the natural resource values of areas along the Deschutes River and Tumalo Creek within the City by:

•    Recognizing and respecting the unusual natural beauty and character of the City’s major waterways;

•    Protecting and enhancing water quality for human use and aquatic life;

•    Conserving and restoring habitat for wildlife, fish and other aquatic life;

•    Conserving wetlands;

•    Controlling erosion and reducing the effects of flooding;

•    Improving coordination between the City and agencies regarding development activities near waterways;

•    Promoting development that is compatible with the purposes of the WOZ;

•    Promoting the preservation and restoration of native riparian vegetation;

•    Maintaining the scenic quality of the canyon and rimrock areas along these waterways;

•    Conserving and protecting property values; and

•    Encouraging development, preservation and enhancement of reasonable public access to major waterways for recreational use and visual enjoyment.

B.    Applicability. Provisions of this section apply to all property within the boundaries of the WOZ as shown on the Bend Urban Area Zoning Map and consistent with WOZ boundary determination procedures of subsection (C) of this section. Many parcels within the WOZ are affected by more than one sub-zone. Where this is the case, applicable development standards for each sub-zone shall apply within that sub-zone’s boundaries. Standards of this section shall apply in addition to applicable standards of the underlying zone. Where there are conflicts between sub-zone standards, the more restrictive standards shall control. The WOZ includes the following sub-zones which are included in this chapter as BDC 2.7.620 through 2.7.650:

1.    Riparian corridor.

2.    Deschutes River Corridor Design Review.

3.    River Corridor Areas of Special Interest.

4.    Floodplain.

C.    WOZ Boundary Determination. The WOZ boundary is inclusive of all WOZ sub-zones, as specified in this section. Except for the River Corridor Areas of Special Interest and the Floodplain Sub-Zone, the boundary of all sub-zones shall be determined by distance measurement from the designated waterway. The boundary for the River Corridor Areas of Special Interest Sub-Zone is designated on the Bend Comprehensive Plan Map, and shall be considered to be the outer (upland) edge of the mapped boundary line. Unless otherwise provided for specific WOZ sub-zones, boundary measurements shall be made from the ordinary high water mark. Distance measurements shall be made horizontally and at right angles to the edge of the waterway.

D.    Tree Removal.

1.    Removal. Consistent with the purposes of this section, and because trees contribute to the overall health of the riparian corridor, removal of existing trees greater than four inches in diameter within the WOZ is prohibited, except as follows:

a.    Where necessary to accommodate an approved development activity; or

b.    Where the tree is determined by a qualified professional to be diseased or hazardous; or

c.    Where necessary to mitigate potential fire hazard in accordance with the Fire Protection Act of 1997.

2.    Findings. Tree removal under this subsection may be authorized by the Review Authority, based on findings demonstrating conformance with criteria in subsection (D)(1)(a), (b), or (c) of this section. Where tree removal is proposed apart from an approved development activity, the Review Authority may authorize removal as a development action. If no hazard will be created, a tree or snag requested for removal may be required to be left in place as wildlife habitat.

E.    Review Process.

1.    State Agency Coordination. Within the WOZ, the State of Oregon has jurisdiction over certain development activities. In order to ensure coordination between the City of Bend and affected State agencies, notice of proposed activities within the WOZ will be provided to the Division of State Lands, the Oregon Department of Fish and Wildlife, the Oregon Parks and Recreation Department, and the Department of Environmental Quality, in accordance with provisions of BDC 4.1.245, Notice to Public Agencies.

2.    Application Information. In addition to application information required under BDC 4.1.220, Application Requirements, an application for a development or land use action within the WOZ shall include the following:

a.    A detailed written explanation of the proposal, including the location, amount, and type (species) of any vegetation to be removed or planted, and any material to be graded, excavated, or filled.

b.    An explanation of why any proposed grading, excavation, or fill of material and/or vegetation is necessary.

c.    A site plan drawn to scale, accompanied by such drawings, sketches, photos, and descriptions as are necessary to describe and illustrate the proposed activity. The site plan shall, at a minimum, include:

•    Any proposed structures or impervious surfaces on the site;

•    Location of property lines, easements, existing and proposed structures;

•    Identification of existing vegetation on the site, indicating areas of native and nonnative plant species;

•    Any proposed modifications to existing vegetation;

•    A grading and drainage plan, showing existing and proposed site contours at two-foot intervals, or less;

•    All applicable WOZ sub-zone boundaries;

•    Location of the ordinary high water mark;

•    Location of designated wetlands on or abutting the site; boundaries of designated wetlands shall be delineated using methods accepted by the Oregon Division of State Lands;

F.    Enforcement and Penalties. In addition to the enforcement and penalty provisions of BDC Chapter 1.3, Enforcement, the Review Authority may require the replacement of vegetation removed in violation of the Waterway Overlay Zone. The City may require greater than one-to-one replacement. The amount of replacement trees, shrubs and ground cover shall be determined by the area of removed vegetation. The property owner shall enter into a mitigation agreement plan approved by the City. The mitigation plan shall include:

1.    Mitigation Plan. A plan providing for the planting and maintenance of the replacement vegetation. The plan shall make provisions for the replacement of plants that die within three years of planting.

2.    Agreement. Failure to enter into a mitigation agreement plan as required by this section or failure to comply with any condition of that plan shall be a Class A civil infraction. Such failure shall be a separate infraction each day the failure to comply continues. In addition, the City may refuse to accept any development permit application for the subject property or stop work on any development approved for the subject property until an acceptable mitigation plan has been executed or complied with.

3.    Relief. In addition to monetary penalties, the City may seek injunctive relief to require the property owner or other responsible party to restore the property to the conditions prior to the violation. The injunctive relief may include imposition of a mitigation plan.

G.    Replacement of Existing Structures. Notwithstanding other provisions to the contrary in the City of Bend Zoning Ordinance, in the event that an existing structure is partially or entirely damaged or destroyed by fire, natural disaster or other casualty, the subject structure may be repaired or replaced in the same location; provided, that additional riparian surface area is not disturbed. A property owner who has been convicted of any degree of arson (including inchoate offenses) in relation to a fire that damages or destroys the subject structure will not be permitted to utilize this section as a basis for rebuilding the damaged or destroyed structure. [Ord. NS-2016, 2006; Ord. NS-1931, 2004; Ord. NS-1846, 2002]

2.7.620 Riparian Corridor Sub-Zone.

A.    Riparian Corridor Boundary. The width of the Riparian Corridor Sub-Zone adjacent to various waterway segments is specified in Tables 2.7.620.A, 2.7.620.B and 2.7.620.C. Boundary distances shall be measured from the ordinary high water mark, or from the upland edge of any designated wetlands, whichever is more landward. For purposes of riparian corridor boundary determination, steep slopes are considered to exist in an area having:

•    Sixty percent or greater slope; and

•    A vertical rise of 20 feet or more; and

•    A continuous horizontal length of 50 feet or more.

Table 2.7.620.A – West Side Riparian Corridor Boundary: Deschutes River 

Deschutes River – West Side

Distance

From the South UGB line to the COID intake

30/75 feet1

From the COID intake to the Southern River Crossing alignment

30/50 feet2

From the Southern River Crossing alignment to the north boundary of McKay Park

40 feet

From the north boundary of McKay Park to the Tumalo Irrigation District intake (south boundary of Block 15, Awbrey Heights Subdivision)

30 feet

From the Tumalo Irrigation intake (south boundary of Block 15, Awbrey Heights Subdivision) to the Mt. Washington Drive bridge

30/50 feet3

From the Mt. Washington Drive bridge to the south boundary of Sawyer Park

30 feet

From the south boundary of Sawyer Park to the north UGB line

30/50 feet4

1    Where steep slopes are present within 75 feet horizontally of OHW, the riparian corridor boundary is 30 feet from OHW. Where steep slopes are not present within 75 feet horizontally of OHW, the riparian corridor boundary is 75 feet from OHW.

2    Where steep slopes are present within 50 feet horizontally of OHW, the riparian corridor boundary is 30 feet from OHW. Where steep slopes are not present within 50 feet horizontally of OHW, the riparian corridor boundary is 50 feet from OHW.

3    Between the River’s Edge Golf Course and the Mt. Washington Dr. bridge, where steep slopes are present within 50 feet horizontally of OHW, the riparian corridor boundary is 30 feet from OHW. Where steep slopes are not present within 50 feet horizontally of OHW, the riparian corridor boundary is 50 feet from OHW.

4    Where steep slopes are present within 50 feet horizontally of OHW, the riparian corridor boundary is 30 feet from OHW. Where steep slopes are not present within 50 feet horizontally of OHW, the riparian corridor boundary is 50 feet from OHW.

Table 2.7.620.B – East Side Riparian Corridor Boundary: Deschutes River 

Deschutes River – East Side

Distance

From the South UGB line to the COID intake

30/75 feet1

From the COID intake to the Southern River Crossing alignment

30/50 feet2

From the Southern River Crossing alignment to the south boundary of the Mill Addition subdivision

40 feet

From the south boundary of the Mill Addition subdivision to the north boundary of the Bend Riverside Motel Condominiums

30 feet

From the north boundary of the Bend Riverside Motel Condominiums to the Mt. Washington Drive bridge

30/40 feet3

From the Mt. Washington Drive bridge to the south boundary of Sawyer Park

30 feet

From the south boundary of Sawyer Park to the north UGB line

30/50 feet4

1    Where steep slopes are present within 75 feet horizontally of OHW, the riparian corridor boundary is 30 feet from OHW. Where steep slopes are not present within 75 feet horizontally of OHW, the riparian corridor boundary is 75 feet from OHW.

2    Where steep slopes are present within 50 feet horizontally of OHW, the riparian corridor boundary is 30 feet from OHW. Where steep slopes are not present within 50 feet horizontally of OHW, the riparian corridor boundary is 50 feet from OHW.

3    Between the North Unit Dam and the Mt. Washington Dr. bridge, where steep slopes are present within 50 feet horizontally of OHW, the riparian corridor boundary is 30 feet from OHW. Where steep slopes are not present within 50 feet horizontally of OHW, the riparian corridor boundary is 50 feet from OHW.

4    Where steep slopes are present within 50 feet horizontally of OHW, the riparian corridor boundary is 30 feet from OHW. Where steep slopes are not present within 50 feet horizontally of OHW, the riparian corridor boundary is 50 feet from OHW.

Table 2.7.620.C – Riparian Corridor Boundary: Tumalo Creek

Tumalo Creek – Both Sides

Distance

Entire segment inside City limits

50 feet

B.    Activities Subject to Review and Approval. Within the Riparian Corridor Sub-Zone, permanent alteration by grading, removal of native vegetation, excavation or fill of soils or rocks, or by placement of structures or impervious surfaces is prohibited, except as provided in subsections (C), (E), (F) and (G) of this section.

C.    Land Use Actions. The following may be approved within the riparian corridor by the Review Authority as a land use action:

1.    Streets, roads, bridges and driveways.

2.    Hard surface pedestrian and bicycle paths, unpaved trails, and boardwalks.

3.    Public and private utility transmission and distribution lines, including irrigation pumps and facilities, and drainage facilities.

4.    Water-related and water-dependent uses, including parks, interpretive areas, and viewpoints.

5.    Maintenance or repair of existing streets, roads, paths, and lawfully existing structures that involves grading, fill, or excavation of more than 10 cubic yards of material, including vegetation.

6.    Restoration of the riparian corridor, including site grading and re-contouring, when carried out in conformance with an approved restoration plan (see subsection (E) of this section).

D.    Approval Criteria for Land Use Actions. The Review Authority may approve a land use permit for uses listed in subsection (C) of this section, based on findings that the following criteria are satisfied:

1.    All necessary State and Federal permits have been obtained, or will be obtained by the applicant, as a condition of approval.

2.    The proposed development or activity is designed and constructed to minimize intrusion into the riparian corridor. This criterion shall not preclude placement of permitted uses in the riparian corridor at intervals and locations for purposes of providing reasonable public access to, and views of, the waterway. The following shall be specifically addressed in demonstrating conformance with this criterion:

a.    Removal of riparian vegetation shall be limited to the minimum amount necessary to accommodate the proposed use; any vegetation removed in excess of this standard shall be nonnative species. The proposal shall specify replacement of that vegetation with riparian species that are native to the Bend area, and similar to existing plant species in the vicinity (excluding noxious weeds as identified by the Deschutes County Soil and Water Conservation District).

b.    Any proposed construction shall be designed in such a manner as to minimize adverse impacts upon a designated wetland, native riparian vegetation, fish and wildlife habitat and water quality within this sub-zone.

c.    Erosion within the riparian corridor shall be prevented during and after construction by the use of mulch, erosion blankets, debris fencing, or similar preventative practices.

d.    Demonstrate that surface runoff from impervious areas will not flow unfiltered or untreated into the adjacent waterways.

E.    Restoration Plan. The Review Authority may require that a restoration plan be prepared by a qualified professional and submitted with an application for a development or land use action within the Riparian Corridor Sub-Zone. The Review Authority may require that the applicant post a performance bond in an amount sufficient to ensure fulfillment of an approved planting plan. A restoration plan shall demonstrate conformance with criteria of subsection (D) of this section; the plan shall include the following elements, in addition to those items required under BDC 2.7.610(E)(2):

1.    The location, type, and volume of material to be graded, dredged, filled, or removed.

2.    Identification of existing walls, riprap, or previously filled steep slopes to be altered or removed.

3.    Location, species, and amounts of existing vegetation to be removed.

4.    A detailed planting plan for any site area where vegetation is proposed to be removed or replaced.

5.    A plan to maintain new vegetation.

a.    The restoration plan shall indicate the minimum grading, dredging, or excavation necessary for any proposed activity. Bio-engineered bank stabilization measures may be required by the Review Authority.

b.    Species of vegetation to be planted shall be well suited to soil types and slopes. Limited use of nonnative species may be approved on an interim basis where necessary to retain soils, prevent noxious weeds, or otherwise facilitate the establishment of native species. The plan shall indicate replacement of all nonnative vegetation with native species within a maximum period of five years from the date of approval.

c.    The plan shall indicate maintenance measures for new vegetation sufficient to ensure successful establishment, including irrigation methods, surface water containment, and measures to prevent overspray of herbicides and pesticides.

F.    Exempt Activities. The following activities are exempt from review within the Riparian Corridor Sub-Zone:

1.    Normal maintenance of yards and landscaped areas with existing plantings of lawns, ornamental plants, and other nonnative vegetation.

2.    Normal maintenance and repair of lawfully existing buildings, structures, streets, roads, bridges, dams, paths, utilities, drainage facilities, and irrigation pumps and facilities.

3.    Alterations of lawfully existing buildings or accessory structures that do not increase building coverage within the Riparian Corridor Sub-Zone.

4.    Removal of nonnative vegetation and noxious weeds, as identified by the Deschutes County Soil and Water Conservation District, and replacement in equal or greater volume with species that are native to the Bend area and similar to existing plant species in the vicinity.

5.    Tree removal in accordance with BDC 2.7.610(D).

6.    In all instances exempted above, related disturbance inherent to the exempted activity and intrusion into the riparian area shall be kept at a minimum.

G.    Exceptions.

1.    Exemptions. The following exceptions to applicable standards of the Riparian Corridor Sub-Zone may be authorized by the Review Authority as a land use action:

a.    A legally created lot or parcel which is located entirely within the Riparian Corridor Sub-Zone may be developed with permitted uses, subject to the applicable land use review, in a manner that will have the least impact to inventoried resources of the riparian corridor.

b.    Required yard setback distances may be reduced when such reduction is necessary to enable a proposed structure to be placed outside the Riparian Corridor Sub-Zone.

c.    Structures and impervious surfaces may be placed within the Riparian Corridor Sub-Zone when the Review Authority, in consultation with the Oregon Department of Fish and Wildlife, determines that the proposal will provide equal or better protection of riparian resources than would be achieved by excluding the proposed improvements from the sub-zone. Equal or better protection of riparian resources shall be ensured through restoration of riparian areas, enhanced buffer treatment, or similar measures. In no case shall such alterations occupy more than 50 percent of the width of the Riparian Corridor Sub-Zone on properties upstream of the COID intake; alterations shall not occupy more than 40 percent of the width of the Riparian Corridor Sub-Zone downstream of the COID intake. [Ord. NS-2016, 2006]

2.7.630 River Corridor Areas of Special Interest Sub-Zone.

A.    Approval Criteria. Proposed development or land use actions on property subject to the River Corridor Areas of Special Interest Review shall be subject to the following provisions:

1.    The proposal shall be designed and constructed so as to maintain the integrity of the existing natural features and biological system by utilizing exterior building materials that have earth tone colors. Removal of native vegetation shall be limited to the minimum amount necessary to accommodate the proposed development or land use action; any vegetation removed in excess of this standard shall be nonnative species.

2.    Structures located along the canyon rim of the river shall be set back a minimum of 30 feet from the River Corridor Area of Special Interest boundary for a building 20 feet or less in height. For buildings over 20 feet in height, the building shall set back one additional foot for every additional foot over 20 feet. The maximum building height shall not exceed that of the underlying zone.

3.    The permanent alteration of a River Corridor Area of Special Interest by grading, excavation or fill, the placement of structures or impervious surfaces, or by the removal of existing vegetation is only permitted as authorized within the Riparian Corridor Sub-Zone, or as provided as follows:

a.    Streets and Crossings. Public or private streets and river crossings may be placed within a River Corridor Area of Special Interest to access development activities if it is shown that no other practicable method of access exists. If allowed, the applicant shall demonstrate that:

i.    No other practicable access to the buildable area exists, or access from an off-site location through the use of easements is not possible;

ii.    Roads and driveways are designed to be the minimum width necessary and the minimum intrusion into the River Corridor Area of Special Interest while also allowing safe passage of vehicles and/or pedestrians;

b.    Utilities, Irrigation Facilities, and Drainage Facilities. Public and private utilities, irrigation facilities, or drainage facilities may be placed within a River Corridor Area of Special Interest when it is shown that no other practicable alternative location exists. If allowed, the applicant shall demonstrate that:

i.    No other practicable access exists or access from an off-site location through the use of easements is not possible;

ii.    The corridor necessary to construct utilities shall be the minimum width practicable;

iii.    Removal of existing trees and native vegetation shall be avoided unless absolutely necessary;

iv.    Minimal visual impact to the river corridor will result from the construction of the facility.

c.    Removal of Vegetation. Removal of existing vegetation from a River Corridor Area of Special Interest is prohibited, except as indicated below:

i.    Existing trees may be removed as provided in BDC 2.7.610(D).

ii.    The removal of noxious weeds and nonnative grasses (e.g., knap weed, toad flax or cheat grass) is encouraged when practicable with minimal disturbance to the ASI.

iii.    The removal of existing vegetation, other than trees, when the amount of vegetation removed is the minimum necessary to reduce fire fuels as determined by a qualified professional.

d.    Enhancement of a River Corridor Area of Special Interest. Planting of additional vegetation within a River Corridor Area of Special Interest is permitted as indicated below:

i.    Plant materials that are or will be visible from the river shall be native to Central Oregon and similar to the existing plant species in the vicinity of the River Corridor Area of Special Interest.

B.    Development Credit. When an applicant preserves a River Corridor Area of Special Interest, the development potential for the preserved area may be transferred to the balance of the parcel for development or applied to the subject property as indicated below:

1.    For residential lands where the property owner preserves a River Corridor Area of Special Interest, the property owner shall receive a density credit equivalent to the area being preserved as determined through the land use permit process.

2.    Where the applicant preserves a River Corridor Area of Special Interest, the property owner may initiate one or more of the activities listed below; provided, that the compensation does not exceed the benefit of the ASI protection as determined through the land use permit process.

a.    Substitute the area of the preserved ASI as the equivalent required on-site landscaping;

b.    Receive up to 10 percent reduction in the required on-site parking spaces;

c.    Reduce the front yard setback up to 50 percent of the standards required for the applicable zone.

3.    For subdivision development, where the applicant proposes to preserve a River Corridor Area of Special Interest, the property owner may apply the PUD development standards to the subject property without the additional CUP application.

C.    Exceptions. An exception to the provisions of the River Corridor Areas of Special Interest sub-zone may be permitted as provided below:

1.    For existing legal lots where the location of a River Corridor Area of Special Interest results in a lot depth for a single-family dwelling of 50 feet or less or a building envelope of 800 square feet or less, the front and side yard setbacks may be reduced up to 50 percent of the standard required for the applicable zone.

2.    For existing residential lots where the entire lot is located within an ASI, the property may be developed with permitted uses, subject to the applicable land use review, in a manner that will have the least impact to the ASI.

3.    For the construction of public trails or paths that provide public access into the preserved River Corridor Areas of Special Interest.

4.    For lots or parcels existing prior to the adoption of this code, where there are buildings on both of the abutting lots with canyon rim setbacks less than the required depth, the setback need not exceed the average setback on the abutting buildings. If there is a building on only one abutting lot or parcel with a setback less than the required setback depth, the setback need not exceed the average of the setback of the abutting building and the required setback.

D.    River Corridor Areas of Special Interest Mitigation Requirements.

1.    Proposed development or land use actions in the River Corridor Areas of Special Interest Sub-Zone may trigger a requirement for mitigation. The purpose of mitigation is to restore the value of the visual resource lost due to development activity. It is the burden of the applicant to demonstrate how mitigation restores visual significance. When a proposal impacts a River Corridor Area of Special Interest by grading, excavation, or fill, the placement of structures or impervious surfaces, or by the removal of vegetation, a mitigation plan prepared by a qualified professional shall be submitted to the Review Authority. The mitigation plan shall include the following:

a.    The location of the impact;

b.    Existing conditions and size of the resource area prior to impact;

c.    Location and size of the proposed mitigation area.

2.    The mitigation plan shall be approved by the Review Authority upon finding conformance with the following criteria:

a.    Proposed vegetation to be removed shall be replaced on the site at a ratio of at least 1:1;

b.    All proposed vegetation planted within the mitigation area shall be native to the region and similar to the vegetation to be removed;

c.    Additional mitigation measures may be required, based on the nature of the impact, such as:

•    Site reclamation;

•    Screening of structures, cuts or fills;

•    Increased vegetative quantities and/or sizes.

E.    Standards for Designating Additional River Corridor Areas of Special Interest.

1.    Any individual or organization may apply for designating new River Corridor Areas of Special Interest. Designation of new areas shall be coordinated with the affected property owners. A “River Corridor Area of Special Interest” designation may be applied or modified pursuant to BDC 2.7.700(G). A new designation shall be processed as a map amendment to both the Bend Comprehensive Plan and Zoning Maps pursuant to BDC Chapter 4.1, Development Review and Procedures, and this section. [Ord. NS-2271, 2016; Ord. NS-2016, 2006]

2.7.640 Floodplain Combining Zone.

A.    Purpose. It is the purpose of this zone to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed:

1.    To protect human life and health;

2.    To minimize expenditure of public money and costly flood control projects;

3.    To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

4.    To minimize prolonged business interruptions;

5.    To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in areas of special flood hazard;

6.    To help maintain a stable tax base by providing for the sound use and development of areas of special flood hazards so as to minimize future flood blight areas;

7.    To ensure that potential buyers are notified that property is in an area of special flood hazard; and

8.    To ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.

B.    Application of FP Zone.

1.    The FP Combining Zone shall apply to the areas identified on the Flood Insurance Rate Map (FIRM) as special flood hazard areas inundated by 100-year flood and floodway areas. The FIA Flood Insurance Study for “Deschutes County, Oregon and Incorporated Areas” and the FIRM map dated September 28, 2007, are hereby adopted and by this reference included herein. The Flood Insurance Study is on file at the Planning Division. The A and AE Zones shown on the FIRM map are hereby zoned FP.

2.    The Planning Director is hereby appointed to administer and implement the Floodplain Combining Zone by granting or denying development permit applications in accordance with its provisions. Duties and responsibilities of the Planning Director shall include, but not be limited to:

a.    Review all development permits to determine that the permit requirements of this code have been satisfied.

b.    Review all development permits to determine that all necessary permits have been obtained from those Federal, State, or local governmental agencies from which prior approval is required.

c.    Review all development permits to determine if the proposed development is located in the floodway. If located in the floodway, assure that the encroachment provisions of subsection (M)(1) of this section are met.

d.    Make interpretations, where needed, as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). A person contesting the location of the special flood hazard boundary shall be given an opportunity to seek a declaratory ruling or to appeal the interpretation as provided in BDC Chapter 4.1.

3.    When base flood elevation data has not been provided on the FIRM, the Planning Director shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a Federal, State or other source, in order to administer this section.

4.    Information to Be Obtained and Maintained.

a.    Where base flood elevation data is provided through the Flood Insurance Study, FIRM, or required as in subsection (B)(3) of this section, verify and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement.

b.    For all new or substantially improved floodproofed structures, verify and record the actual elevation (in relation to mean sea level) to which the structure was floodproofed and maintain the floodproofing certifications required in subsection (G)(2) of this section.

C.    Warning and Disclaimer of Liability. The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This code does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This code shall not create liability on the part of the City of Bend, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on this code or any administrative decision made hereunder.

D.    Alteration of Watercourses.

1.    Prior to any alteration or relocation of a watercourse, notice of the proposed alteration shall be given to affected, adjacent communities and appropriate State agencies such as the Department of Land Conservation and Development and the State Department of Water Resources. The Planning Director shall also submit evidence of such notification to the Federal Insurance Administration.

2.    The applicant shall maintain the altered or relocated portion of said watercourse so that the flood carrying capacity is not diminished.

E.    Permit for Use or Development in an FP Zone. No development shall occur in an FP Zone unless a permit has been received for the work. Except for improvement of an existing structure which is less than substantial, as determined by the City, no permit shall be issued unless the work will be reasonably safe from flooding, otherwise complies with this code, and all necessary State, Federal, and local permits will be obtained as a condition of approval on any permit in an FP Zone. The following information shall be submitted with the permit application:

1.    The location of the property with reference to channel stations and flood profile elevations.

2.    The existing topography and proposed grading plan for the property. Contour intervals shall not be more than one-foot for ground slopes up to five percent and, for areas immediately adjacent to a stream, two-foot for ground slopes between five and 10 percent, and five-foot for greater slopes.

3.    The location of existing and proposed diking or revetments, if any.

4.    Review of Building Permits. Where elevation data is not available either through the Flood Insurance Study, FIRM, or from another authoritative source, applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The test of reasonableness is a local judgment and includes use of historical data, high water marks, photographs of past flooding, etc., where available. Failure to elevate at least two feet above the highest adjacent grade in these zones may result in higher flood insurance rates.

F.    Structural Elevation Data Required.

1.    A building permit application for substantial improvement to an existing structure or for a new structure within an FP Zone shall contain the following data referenced to mean sea level:

a.    The level of the lowest habitable floor and of any basement floor whether or not intended to be habitable. This information shall be submitted on FEMA Form 81-31.

b.    The level to which the structure is to be floodproofed, if applicable.

2.    A statement which notes whether the structure contains a basement.

3.    The information required by this subsection shall be maintained in the files of the Building Department with the subject building permit.

G.    Regulation of Structures in an FP Zone.

1.    Residential Construction.

a.    New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated a minimum of one foot above base flood elevation.

b.    Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:

i.    A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

ii.    Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters.

iii.    The bottom of all openings shall be no higher than one foot above grade.

2.    Nonresidential Construction. New construction and substantial improvement of any commercial, industrial, or other nonresidential structure shall either have the lowest floor, including basement, elevated to the level of the base flood elevation; or, together with attendant utility and sanitary facilities, shall:

a.    Be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water;

b.    Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy;

c.    Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the City’s Building Official.

d.    Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in subsection (G)(1)(b) of this section.

e.    Applicants floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g., a building constructed to the base flood level will be rated as one foot below that level).

3.    Crawlspace Construction. Below-grade crawlspaces are allowed subject to the following standards as found in FEMA Technical Bulletin 11-01, Crawlspace Construction for Buildings Located in Special Flood Hazard Areas:

a.    The building must be designed and adequately anchored to resist flotation, collapse, and lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Hydrostatic loads and the effects of buoyancy can usually be addressed through the required openings stated in subsection (G)(3)(b) of this section. Because of hydrodynamic loads, crawlspace construction is not allowed in areas with flood velocities greater than five feet per second unless the design is reviewed by a qualified design professional, such as a registered architect or professional engineer. Other types of foundations are recommended for these areas.

b.    The crawlspace is an enclosed area below the base flood elevation (BFE) and, as such, must have openings that equalize hydrostatic pressures by allowing the automatic entry and exit of floodwaters. The bottom of each flood vent opening can be no more than one foot above the lowest adjacent exterior grade.

c.    Portions of the building below the BFE must be constructed with materials resistant to flood damage. This includes not only the foundation walls of the crawlspace used to elevate the building, but also any joists, insulation, or other materials that extend below the BFE. The recommended construction practice is to elevate the bottom of joists and all insulation above BFE.

d.    Any building utility systems within the crawlspace must be elevated above BFE or designed so that floodwaters cannot enter or accumulate within the system components during flood conditions. Ductwork, in particular, must either be placed above the BFE or sealed from floodwaters.

e.    The interior grade of a crawlspace below the BFE must not be more than two feet below the lowest adjacent exterior grade.

f.    The height of the below-grade crawlspace, measured from the interior grade of the crawlspace to the top of the crawlspace foundation wall must not exceed four feet at any point. The height limitation is the maximum allowable unsupported wall height according to the engineering analyses and building code requirements for flood hazard areas.

g.    There must be an adequate drainage system that removes floodwaters from the interior area of the crawlspace. The enclosed area should be drained within a reasonable time after a flood event. The type of drainage system will vary because of the site gradient and other drainage characteristics, such as soil types. Possible options include natural drainage through porous, well-drained soils and drainage systems such as perforated pipes, drainage tiles or gravel or crushed stone drainage by gravity or mechanical means.

h.    The velocity of floodwaters at the site should not exceed five feet per second for any crawlspace. For velocities in excess of five feet per second, other foundation types should be used.

4.    Manufactured Homes. All manufactured homes to be placed or substantially improved within Zones AH or AE shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is a minimum of one foot above the base flood elevation and be securely anchored to an adequately anchored foundation system in accordance with the provisions of subsection (I)(2) of this section.

5.    Recreational Vehicles. Recreational vehicles placed on sites are required to either:

a.    Be on the site for fewer than 180 consecutive days;

b.    Be fully licensed and ready for highway use, on its wheels or jacking system, be attached to the site only by quick disconnect type utilities and security devices, and have no permanently attached additions; or

c.    Meet the requirements of subsection (G)(3) of this section and the elevation and anchoring requirements for manufactured homes.

H.    Construction Materials and Methods.

1.    All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

2.    All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

3.    Electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

I.    Anchoring.

1.    All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure.

2.    All manufactured homes must likewise be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors (reference FEMA’s “Manufactured Home Installation in Flood Hazard Areas” guidebook for additional techniques).

J.    Land Development Standards in a Flood Hazard Area.

1.    In addition to the terms of subsections (J) and (K) of this section, a subdivision or other land development, including all utility facilities, within an FP Zone shall be designed, located, and constructed to minimize flood damage, including special provisions for adequate drainage to reduce exposure to flood hazards.

2.    A land development which will alter or relocate a watercourse shall be designed, constructed and maintained to retain the flood carrying capacity of the watercourse.

3.    Where base flood elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or five acres (whichever is less).

K.    Manufactured Home Development Standards.

1.    All manufactured homes to be placed or substantially improved within Zones AH and AE shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is a minimum of one foot above the base flood elevation and be securely anchored to an adequately anchored foundation system in accordance with the provisions of subsection (I)(2) of this section.

2.    The placement of a manufactured home in the floodway is prohibited.

L.    Utilities Standards in a Flood Hazard Area.

1.    A public utility or facility associated with a land development within a FP Zone shall be designed, located and constructed to minimize or eliminate flood damage and to avoid raising the water elevation in a regulatory floodway.

2.    Any new or replacement water supply system shall be designed, located and constructed to minimize or eliminate infiltration of floodwaters into the system.

3.    Any new or replacement sewerage system shall be designed, located and constructed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into the floodwaters.

M.    Floodways. Located within areas of special flood hazard established in subsection (B)(1) of this section, Application of FP Zone, are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply:

1.    Prohibit encroachments, including fill, new construction, substantial improvements, and other development unless certification by a registered professional civil engineer is provided demonstrating through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

2.    If subsection (M)(1) of this section is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of subsection (G) of this section, Regulations of Structures in an FP Zone.

N.    Before Regulatory Floodway. In areas where a regulatory floodway has not been designated, no new construction, substantial improvements, or other development (including fill) shall be permitted within Zone AE on the community’s FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community.

O.    Critical Facilities. Construction of new critical facilities shall be, to the extent possible, located outside the limits of the Special Flood Hazard Area (SFHA) (100-year floodplain). Construction of new critical facilities shall be permissible within the SFHA if no feasible alternative site is available. Critical facilities constructed within the SFHA shall have the lowest floor elevated three feet or to the height of the 500-year flood, whichever is higher. Access to and from the critical facility should also be protected to the height utilized above. Floodproofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into floodwaters. Access routes elevated to or above the level of the base flood elevation shall be provided to all critical facilities to the extent possible.

P.    Technical Variances. A technical variance from the requirements of this section may be granted by the Hearings Body for new construction and for improvements to existing structures which could not otherwise be authorized, provided the construction or improvements are to be erected or installed on a parcel of land one-half acre or less in size, contiguous to or more or less surrounded by lots with existing structures constructed below the minimum floor elevation established for flood protection purposes. A parcel of land in excess of one-half acre in single ownership on the effective date of the ordinance codified in this code is not excluded from the granting of a technical variance, but the burden of proof required for issuing the variance increases as the size of the property under single ownership increases, and the variance shall be granted only if required to equalize circumstances, considering previously developed land adjacent to the parcel for which a variance is sought.

Q.    Historic Variance. A variance for historic preservation may be granted for the reconstruction, rehabilitation or restoration of a structure listed on the National Register of Historic Places or the State Inventory of Historic Places.

R.    Other Variances. All other variance applications shall be considered according to the terms of BDC Chapter 5.1.

1.    Applicants for a variance shall include with their application the following information:

a.    The location of the property with reference to channel station and flood profile elevation.

b.    The existing topography and proposed grading plan for the property. Contour intervals shall not be more than one foot for ground slopes up to five percent and for areas immediately adjacent to a stream, two feet for ground slopes between five and 10 percent, and five feet for greater slopes.

c.    The location of existing and proposed diking or revetments if any. [Ord. NS-2072, 2007; Ord. NS-2016, 2006; Ord. NS-1846, 2002; Ord. NS-1631, 1995; Ord. NS-1617, 1994; Ord. NS-1475, 1988; Ord. NS-1462, 1987]

2.7.650 Deschutes River Corridor Design Review Combining Zone.

A.    Purpose. It is the purpose of the Deschutes River Corridor Design Review Zone to ensure compliance with the objectives of this code and the goals and policies relating to the Deschutes River in the Bend Comprehensive Plan. The purpose shall also be to:

•    Recognize and respect the unusual natural beauty and character of the Deschutes River.

•    Conserve and enhance the existing riparian zone along the Deschutes River.

•    Allow the community flexibility in reviewing development proposals within the Areas of Special Interest that are designated on the Bend Comprehensive Plan.

•    Maintain the scenic quality of the canyon and rimrock areas of the Deschutes River.

•    Conserve and enhance property values.

•    Preserve, protect and enhance water quality.

•    Encourage development, preservation and enhancement of reasonable public access to the river for recreational use and visual enjoyment.

B.    The following areas and uses are exempt from the Deschutes River Design Review process:

1.    Public streets and utility facilities existing as of the date of adoption of this code. Notwithstanding anything to the contrary in this code, a variance may be granted to the mandatory 40-foot setback for future public streets and utility facilities.

2.    Irrigation facilities, canals and flumes existing as of the date of adoption of this code.

3.    The existing Korpine Mill operation on the east side of the Deschutes River.

C.    Design Review Procedure. All new development, structures, additions and exterior alterations to structures, including outside storage and off-street parking lots within the Deschutes River Corridor, are subject to a design review process.

1.    Prior to filing a design review application, the applicant shall confer with the Planning Department concerning the requirements of formal application.

2.    The design review application shall be filed on a form provided by the City Planning Department and shall be accompanied by drawings and information as specified by the Planning Department. Copies of the plan shall be submitted and such additional information as is deemed necessary for the Site Plan Committee or Bend Urban Area Planning Commission to adequately review the applications.

3.    The Bend Urban Area Planning Commission shall approve, approve with conditions, or disapprove the design plan. The decision of the Bend Urban Area Planning Commission shall be final unless appealed in accordance with the City of Bend’s land use procedures.

4.    To approve a design plan the Bend Urban Area Planning Commission must find compliance with the provisions of this code.

D.    Site Plan Committee. The Site Plan Committee, as designated in subsection (C) of this section, Design Review Procedure, shall review a site plan application subject to design review on its technical merits and submit recommendations for approval, conditional approval, or rejection to the Bend Urban Area Planning Commission. The Commission decision shall be based on the site plan criteria, City policies, and standards.

E.    Minimum Standards. Within the Deschutes River Corridor the following minimum standards shall apply:

1.    Building and Parking Setbacks.

a.    One-Hundred-Foot Setback Area. For the areas described below, the setback for all new buildings, parking lots and loading areas shall be a minimum of 100 feet from the ordinary high water mark unless the Bend Urban Area Planning Commission approves a lesser setback. In no case shall the setback be less than 40 feet from the ordinary high water mark of the Deschutes River.

i.    The east and west bank from the Arizona/Commerce Street line to the southern boundary of the Bend Comprehensive Plan Map;

ii.    The east bank from the southern property line of Magill’s Landing Subdivision to the northern property line of the Bend Riverside Motel;

iii.    The east bank from the southern property line of Sawyer Park to the southern boundary of the Rimrock West Subdivision;

iv.    The east and west banks from the northern boundary of the Rimrock West subdivision to the northern boundary of the Bend Comprehensive Plan Map; and

v.    The west bank north of the Park District property known as “Flume Park” to the southern boundary of the Rimrock West Subdivision.

The Bend Urban Area Planning Commission may approve a lesser setback after the applicant has demonstrated through design review that the project provides at least the following:

i.    Protection of water quality, and fish and wildlife habitat;

ii.    The improvement or restoration of riverfront riparian areas by the creation of new riparian vegetation areas or by improvements to existing riverfront riparian areas through appropriate plantings; and

iii.    The provision of open space along the riverfront.

b.    Commercial Property. For all existing commercially zoned property within the Deschutes River Corridor in existence upon the adoption of this code, the setback for all buildings, parking lots, and loading areas shall be 30 feet from the ordinary high water mark of the Deschutes River.

c.    Other Areas. For the areas not described in subsection (E)(1)(a) or (b) of this section, all buildings, parking lots, and loading areas shall be 40 feet from the ordinary high water mark of the Deschutes River. In no case shall the setback be less than 40 feet from the ordinary high water mark of the Deschutes River.

2.    Features in Building Setback Area. Within the 30-, 40- and 100-foot building setback area, required in subsections (E)(1)(a), (b) and (c) of this section, the Bend Urban Area Planning Commission may approve features to enhance or support public use. Such features may include sidewalks, trails, utility facilities, streets and bridges crossing the river, boardwalks, decks, plazas, outdoor cafe seating areas, utilities, lights, bike racks, trash and recycling receptacles, furniture, bank stabilization structures, fences, art work, stairs, bike and pedestrian bridges, boat launch facilities, and vendor carts as defined by the Bend Code. The placement and uses shall be subject to the criteria in subsection (F) of this section.

3.    Rebuilding of Existing Structures. This setback restriction shall not prohibit rebuilding an existing structure; provided, that the rebuilt structure is comparable in size, profile, use and location to the structure that previously existed. The term new development shall not include rebuilding an existing structure; provided, that the rebuilt structure is comparable in size, profile, use and location to the structure that previously existed.

4.    Building Heights. Maximum structure height shall be limited to 30 feet at the minimum setback line. The Bend Urban Area Planning Commission may allow increases in building heights up to the allowed height in the underlying zone the farther the building sets back from the river. The Bend Urban Area Planning Commission may limit building height the closer to the river a building is allowed. The building height shall be measured from the lowest natural grade facing the river to the highest measurable point on or projecting from the roof of the structure.

F.    Site and Design Review Criteria. In addition to the minimum standards above, the Bend Urban Area Planning Commission shall review the development using the following design criteria:

1.    Conservation of Natural Features. Major rock outcrops, stands of trees, riparian areas, or other prominent natural features are an important part of the visual character and quality of the community. The Bend Urban Area Planning Commission shall review the applicant’s proposal for impacts on these resources and may limit the amount of removal, require additional screening, or moving or reducing in size the development, addition or structure in order to preserve, to the greatest extent possible, existing natural features.

2.    Compatibility with Existing Area. The Bend Urban Area Planning Commission shall consider the relationship of the proposed development with the existing surroundings, in terms of building bulk, height, location, separation, shape, parking areas, lighting, fences, landscaping, open space, visual and physical corridors to the river and adjacent land use.

3.    Colors and Materials. The Bend Urban Area Planning Commission shall consider colors and materials. The Bend Urban Area Planning Commission may require new structures and additions to existing structures to be finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site or colors that are compatible with adjacent buildings.

4.    No large areas, including roofs, shall be finished with bright or reflective materials. Metal roofing material is permitted if it is nonreflective and of a color which blends with the surrounding vegetation and landscape.

5.    The Bend Urban Area Planning Commission may establish increased setbacks, limitations of building heights, and limitations on the bulk and length of buildings, limitations on lighting, landscaping, fences, size and shape of windows facing the river, size and location of parking, and outdoor storage areas and any other improvement or use listed in subsection (E) of this section in order to carry out the purpose of this code.

6.    For projects proposing development within the setback area, the Bend Urban Area Planning Commission may consider the degree to which the project provides public access along the riverfront, and may require the dedication of public access on an individualized determination that the required access is reasonably related to the project, and that the required dedication is also roughly proportional to the impact of the proposed project.

7.    For projects incorporating a setback less than 100 feet the Bend Urban Area Planning Commission may require enhanced site landscaping, minimum corridors between buildings, variations in building setbacks, size or bulk of facades and may impose any other conditions of approval reasonably required to meet the purposes of this code. [Ord. NS-2271, 2016; Ord. NS-2016, 2006; Ord. NS-1846, 2002; Ord. NS-1625, 1994; Ord. NS-1593, 1993; Ord. NS-1584, 1993; Ord. NS-1414, 1985]