§ 17.5.040 ALTERNATIVE DISCRETIONARY DEVELOPMENT STANDARDS.

   Applicants may choose to use the alternative discretionary development standards provided in this section rather than the development standards provided in § 17.5.035. There are four discretionary review processes provided in this section: subsection A. provides discretionary review for an applicant seeking only to partition a property; subsection B. provides discretionary review for an applicant who will comply with the development standards in § 17.5.035, except that the applicant seeks to meet the mitigation requirements of that section on a different property from the property on which a NRA will be disturbed; subsection C. provides discretionary review for an applicant who will comply with the development standards in § 17.5.035, except that the applicant seeks to meet the mitigation requirements of that section by proportionally varying the number and size of plants required to be planted; and subsection D. provides general discretionary review standards applicable to an applicant seeking some other type of discretionary approval of development that will disturb an NRA.

   A.   Discretionary review for partitions . An applicant seeking to partition land in ways that do not accord with the standards established in § 17.5.035E.1. may seek review under this § 17.5.040A.

      1.   The applicant shall verify the boundaries of the NRAs on the property according to § 17.5.050.

      2.   The applicant shall submit the following application materials:

         a.   A scale map of the entire property that includes:

            i.   Location of all NRA on the property;

            ii.   Location of any wetlands or water bodies on the property, including a delineation of the Water Quality Resource Area;

            iii.   Location of 100-year floodplain and floodway boundary as defined by the Federal Emergency Management Agency (FEMA) and the area of the 1996 flood inundation; and

            iv.   A delineation of the proposed partition .

         b.   A written and documented explanation of how and why the proposed partition satisfies the approval criteria in § 17.5.040A.3. Such written documentation shall include an alternatives analysis of different possible partition plans, based on the characteristics and zoning of the property.

      3.   Approval criteria. A partition shall be approved under this § 17.5.040A. provided that the applicant demonstrates that it is not practicable to comply with the partition standards in § 17.5.035E.1., and that the applicant ’s partition plan will result in the smallest practicable percentage point difference in the percentage of NRA on the parcels created by the partition (this will minimize the amount of allowable disturbance areas within NRAs on the parcels, assuming that the development standards in § 17.5.035 were applied to future development on such parcels).

      4.   Subsequent development on any parcels created by the partition and containing NRAs shall comply with all provisions of this Chapter, except that the map verification completed and approved as part of the partition may be used to satisfy the requirements of § 17.5.050 for any such development .

   B.   Discretionary review to approve off-site  mitigation . An applicant seeking discretionary approval only for off-site  mitigation within the same subwatershed (6th Field Hydrologic Unit Code), but who will comply with all other provisions of § 17.5.035, may seek review under this § 17.5.040B. (An applicant who seeks to conduct the mitigation in a different subwatershed may apply for such approval under § 17.5.040D.).

      1.   The applicant shall submit:

         a.   A calculation of the number of trees and shrubs the applicant is required to plant under § 17.5.035D.; and

         b.   A map and accompanying narrative that details the following:

            i.   The number of trees and shrubs that can be planted on-site ;

            ii.   The on-site location where those trees and shrubs can be planted;

            iii.   An explanation of why it is not practicable for the remainder of the mitigation to occur on-site ; and

            iv.   The proposed location for off-site  mitigation and documentation that the applicant can carry out and ensure the success of the mitigation , including documentation that the applicant possesses legal authority to conduct and maintain the mitigation , such as having a sufficient ownership interest in the mitigation  site , and, if the mitigation is not within a NRA, documentation that the mitigation  site will be protected after the monitoring period expires, such as through the use of a restrictive covenant.

      2.   Approval criteria. Off-site  mitigation shall be approved under § 17.5.040B. provided that the applicant has demonstrated that it is not practicable to complete the mitigation on-site and that the applicant has documented that it can carry out and ensure the success of the off-site  mitigation on a property within the same subwatershed (6th Field Hydrologic Unit Code) as the related disturbed NRA.

      3.   Mitigation approved under § 17.5.040B. shall be subject to all of the requirements of § 17.5.035D., except for the requirements of § 17.5.035D.5.

   C.   Discretionary review to approve mitigation that varies the number and size of trees and shrubs. An applicant seeking discretionary approval only to proportionally vary the number and size of trees and shrubs required to be planted under § 17.5.035D, for example to plant fewer larger trees and shrubs or to plant more smaller trees and shrubs, but who will comply with all other provisions of § 17.5.035, may seek review under § 17.5.040C.

      1.   The applicant shall submit:

         a.   A calculation of the number of trees and shrubs the applicant would be required to plant under § 17.5.035D.;

         b.   The numbers and sizes of trees and shrubs that the applicant proposes to plant;

         c.   An explanation of why the numbers and sizes of trees and shrubs that the applicant proposes to plant will achieve, at the end of the fifth year after initial planting, comparable or better mitigation results as the results that would be achieved if the applicant complied with all of the requirements of § 17.5.035D. Such explanation shall be prepared and signed by a knowledgeable and qualified natural resources professional or a certified landscape architect and shall include discussion of plant diversity, plant spacing, site preparation including removal of invasive and noxious vegetation and soil additives, planting season and immediate postplanting care including mulching, irrigation, wildlife protection and weed control; and

         d.   The applicant ’s mitigation  site monitoring and reporting plan.

      2.   Approval criteria. A request to vary the numbers and sizes of trees and shrubs to be planted shall be approved if the applicant demonstrates that its planting will achieve, at the end of the fifth year after initial planting, comparable or better mitigation results as the results that would be achieved if the applicant complied with all of the requirements of § 17.5.035D. Such determination shall take into consideration all of the information required to be submitted under § 17.5.040C.1.

        3.   Mitigation approved under this § 17.5.040C. shall be subject to the requirements of §§ 17.5.035D.4. through 17.5.035D.9., and it is recommended that such mitigation also follow the practices recommended in § 17.5.035D.10.

   D.   Discretionary review. An applicant seeking discretionary approval to undertake any development activity within a NRA that does not comply with § 17.5.035 and is not described in §§ 17.5.040A., B. or C. may file an application under § 17.5.040D.

      1.   Application requirements. The applicant shall provide all items described in § 17.5.015 and the following, except that for utility projects undertaken by public utilities across property that is not owned by the utility, the utility shall not be required to map or provide any information about the property except for the area within 300 feet of the location of the proposed disturbance area of the utility’s project:

         a.   Impact evaluation and alternatives analysis. An impact evaluation and alternatives analysis is required to determine compliance with the approval criteria and to evaluate development alternatives for a particular property. The alternatives must be evaluated on the basis of their impact on the NRA, the ecological functions provided by the NRA on the property, and off-site impacts within the subwatershed (6th Field Hydrologic Unit Code) where the property is located. The impact evaluation shall include all of the following items:

            i.   Identification of the ecological functions of riparian habitat found on the property as described in Table 5-5 of this section and the habitat connectivity ecological functions described in § 17.5.040D.1.a.ii.3. and 4.

            ii.   For upland habitat in areas to be added to the Metro urban growth boundary areas after October 1, 2005, identification of the impact the proposed development would have on the following ecological functions provided by upland wildlife habitat:

               (1)   Habitat patch size;

               (2)   Interior habitat;

               (3)   Connectivity of the habitat to water; and

               (4)   Connectivity of the habitat to other habitat areas.

            iii.   Evaluation of alternative locations, design modifications, or alternative methods of development to determine which options reduce the significant detrimental impacts on the NRAs and the ecological functions provided on the property. At a minimum, the following approaches must be considered:

               (1)   The techniques described in § 17.5.035A.;

               (2)   Multi-story construction;

               (3)   Minimizing building and development footprint;

               (4)   Maximizing the use of native landscaping materials; and

               (5)   Minimal excavation foundation systems (e.g., pier, post or piling foundation).

            iv.   Determination of the alternative that best meets the applicable approval criteria and identification of significant detrimental impacts that is unavoidable.

Table 5-5: Ecological Functional Values of Riparian Corridors
Ecological Function	Landscape features providing functional values
Microclimate and shade	Forest canopy or woody vegetation within 100 feet of a stream; a wetland1; or a flood area2
Streamflow moderation and water storage	A wetland or other water body3 with a hydrologic connection to a stream; or a flood area2
Bank stabilization, sediment and pollution control	All sites within 50 feet of a surface stream; Forest canopy , woody vegetation or low structure  vegetation /open soils within 100 feet of a stream or a wetland; or forest canopy , woody vegetation or low structure  vegetation /open soils within a flood area; and Forest canopy , woody vegetation or low structure  vegetation /open soils within 100-200 feet of a stream if the slope is greater than 25%
Large wood and channel dynamics	Forest canopy within 150 feet of a stream or wetland; or within a flood area; and the channel migration zone is defined by the floodplain , but where there is no mapped floodplain a default of 50 feet is established to allow for the channel migration zone
Organic material sources	Forest canopy or woody vegetation within 100 feet of a stream or wetland; or within a flood area
1. Refers to “hydrologically-connected wetlands ,” which are located partially or wholly within one-fourth mile of a surface stream or flood area. 2. Developed floodplains are not identified as NRAs because they do not provide primary ecological functional value. 3. “Other water body” could include lakes, ponds, reservoirs or manmade water feature that is not a water quality facility or farm pond.

 

         b.   Mitigation Plan. The purpose of a mitigation plan is to compensate for unavoidable significant detrimental impacts to ecological functions that result from the chosen development alternative as identified in the impact evaluation. However, when development occurs within delineated wetlands , then the mitigation required under § 17.5.040D.2.d. shall not require any additional mitigation than the mitigation required by state and federal law for the fill or removal of such wetlands .

            i.   An applicant may choose to develop a mitigation plan consistent with the requirements of § 17.5.035D. If an applicant so chooses, then the applicant shall submit a mitigation plan demonstrating such compliance.

            ii.   If an applicant chooses to develop an alternative mitigation plan that would not comply with the requirements of § 17.5.035D., including, for example, a proposal to create an alternative plant community type such as an oak savannah or a low-structure plant community, or where an applicant demonstrates that a portion of identified NRA on its property provides only impaired ecological functions, then the applicant shall submit a mitigation plan that includes all of the following:

               (1)   An explanation of how the proposed mitigation will adequately compensate for the impacts to ecological functions described in the impact evaluation required by § 17.5.040D.1.a. The applicant may use the mitigation that would be required under § 17.5.035D. as the baseline mitigation required to compensate for disturbance to a NRA that provides an average level of ecological functions. Such explanation shall include:

                  (a)   If the applicant uses the mitigation that would be required under § 17.5.035D. as the base-line mitigation required to compensate for disturbance to a NRA, then the applicant shall submit a calculation of the number of trees and shrubs the applicant would be required to plant under § 17.5.035D.;

                  (b)   A site plan showing where the specific mitigation activities will occur and the numbers and sizes of trees and shrubs that the applicant proposes to plant; and

                  (c)   A discussion of plant diversity, plant spacing, site preparation including removal of invasive and noxious vegetation and soil additives, planting season and immediate post-planting care including mulching, irrigation, wildlife protection and weed control.

               (2)   Documentation of coordination with appropriate local, regional, special district, state and federal regulatory agencies.

               (3)   A list of all responsible parties .

               (4)   The applicant ’s mitigation  site monitoring and reporting plan.

               (5)   If the proposed mitigation will not be conducted on-site , the applicant shall submit a map and accompanying narrative that details the following:

                  (a)   The number of trees and shrubs that can be planted on-site ;

                  (b)   The on-site location where those trees and shrubs can be planted;

                  (c)   An explanation of why it is not practicable for the remainder of the mitigation to occur on-site ; and

                  (d)   The proposed location for off-site  mitigation and documentation that the applicant can carry out and ensure the success of the mitigation , including documentation that the applicant possesses legal authority to conduct and maintain the mitigation , such as having a sufficient ownership interest in the mitigation  site , and, if the mitigation is not within a NRA, documentation that the mitigation  site will be protected after the monitoring period expires, such as through the use of a restrictive covenant.

               (6)   If the mitigation area is off-site and not within the same subwatershed (6th Field Hydrologic Unit Code) as the related disturbed NRA, the applicant shall submit an explanation of why it is not practicable to conduct the mitigation within the same subwatershed and of why and how, considering the purpose of the mitigation , the mitigation will provide more ecological functional value if implemented outside of the subwatershed.

               (7)   An implementation schedule, including timeline for construction, mitigation , mitigation maintenance, monitoring, reporting and a contingency plan. If the applicant is proposing any in-stream work in fish-bearing streams as part of the mitigation project, then the applicant shall submit documentation that such work will be done in accordance with the Oregon Department of Fish and Wildlife in-stream work timing schedule.

         c.   The Impact Evaluation and Alternatives Analysis required by § 17.5.040D.1.a. and the Mitigation Plan required by § 17.5.040D.1.b. shall be prepared and signed by either: (A) a knowledgeable and qualified natural resource professional, such as a wildlife biologist, botanist or hydrologist; or (B) a civil or environmental engineer registered in Oregon to design public sanitary or storm systems, stormwater facilities or other similar facilities. The application shall include a description of the qualifications and experience of all persons that contributed to the Impact Evaluation and Alternatives Analysis and to the Mitigation Plan, and, for each person that contributed, a description of the elements of such reports to which the person contributed.

      2.   Approval criteria.

         a.   Requirements. All application requirements in § 17.5.040D.1. shall be met.

         b.   Avoid. An applicant shall first avoid the intrusion of development into the NRA to the extent practicable. The development that is proposed must have less detrimental impact to NRAs than other practicable alternatives, including significantly different practicable alternatives that propose less development within NRAs. If there is more than one type of NRA on a property then the applicant shall first avoid the intrusion of development into the higher-valued NRA, to the extent practicable, and the development that is proposed must have less detrimental impact to the higher-valued NRAs than other practicable alternatives. To avoid development in NRAs, and to the extent practicable, applicants shall use the approaches described in § 17.5.040D.1.a.iii.

         c.   Minimize. If the applicant demonstrates that there is no practicable alternative that will not avoid disturbance of the NRA, then the development proposed by the applicant within the NRA shall minimize detrimental impacts to the extent practicable. If there is more than one type of NRA on a property then the development within higher-valued NRAs shall be considered more detrimental than development within lower-valued NRAs.

            i.   Development must minimize detrimental impacts to ecological functions and loss of habitat consistent with uses allowed by right under the base zone, to the extent practicable;

            ii.   To the extent practicable within the NRA, the proposed development shall be designed, located and constructed to:

               A.   Minimize grading, removal of native vegetation and disturbance and removal of native soils by using the approaches described in § 17.5.035B.2., reducing building footprints, and using minimal excavation foundation systems (e.g., pier, post or piling foundation);

               B.   Minimize adverse hydrological impacts on water resources such as by using the techniques described in Part (a) of Table 8-1 in § 17.8.355, unless their use is prohibited by an applicable and required State or Federal permit issued to a unit of local government having jurisdiction in the area, such as a permit required under the federal Clean Water Act, 33 U.S.C. §§1251 et seq., or the Federal Safe Drinking Water Act, 42 U.S.C. §§300f et seq., and including conditions or plans required by such permit;

               C.   Minimize impacts on wildlife corridors and fish passage such as by using the techniques described in Part (b) of Table 8-1 of § 17.8.355; and

               D.   Consider using the techniques described in Part (c) of Table 8-1 of § 17.8.355 to further minimize the impacts of development in the NRA.

         d.   Mitigate. If the applicant demonstrates that there is no practicable alternative that will not avoid disturbance of the NRA, then development must mitigate for adverse impacts to the NRA. All proposed mitigation plans must meet the following standards.

            i.   The mitigation plan shall demonstrate that it compensates for detrimental impacts to ecological functions provided by NRAs, after taking into consideration the applicant efforts to minimize such detrimental impacts through the use of the techniques described in Table 8-1 in § 17.8.355 and through any additional or innovative techniques. A mitigation plan that requires the amount of planting that would be required under § 17.5.035D. based on the amount of proposed disturbance area within the NRA, and that otherwise complies with all of the mitigation requirements in §§ 17.5.035D., shall be considered to have satisfied the requirements of § 17.5.040D.2.d.

            ii.   Mitigation shall occur on the site of the disturbance, to the extent practicable. Off-site  mitigation shall be approved if the applicant has demonstrated that it is not practicable to complete the mitigation on-site and that the applicant has documented that it can carry out and ensure the success of the off-site  mitigation , as described in § 17.5.040B.1.b.iii. In addition, if the off-site  mitigation area is not within the same subwatershed (6th Field Hydrologic Unit Code) as the related disturbed NRA, the applicant shall demonstrate that it is not practicable to complete the mitigation within the same subwatershed and that, considering the purpose of the mitigation , the mitigation will provide more ecological functional value if implemented outside of the subwatershed. Mitigation shall not be allowed outside of the Metro jurisdictional boundary.

            iii.   All re-vegetation plantings shall be with native plants listed on the Metro Native Plan List.

            iv.   All in-stream work in fish-bearing streams shall be done in accordance with the Oregon Department of Fish and Wildlife instream work-timing schedule.

            v.   A mitigation maintenance plan shall be included and shall be sufficient to ensure the success of the planting, and compliance with the plan shall be a condition of development approval.

         e.   Municipal water utility facilities standards. Except as provided within this subsection, in addition to all other requirements of § 17.5.040D.2., municipal potable water, stormwater (drainage) and wastewater utility facilities may be built, expanded, repaired, maintained, reconfigured, rehabilitated, replaced or upsized if not exempted in § 17.5.015. These facilities may include but are not limited to water treatment plants, wastewater treatment plants, raw water intakes, pump stations, transmission mains, conduits or service lines, terminal storage reservoirs, and outfall devices provided that:

            i.   Such projects shall not have to comply with the requirements of § 17.5.040D.2.b., provided that, where practicable, the project does not encroach closer to a water feature than existing operations and development , or for new projects where there are no existing operations or development , that the project does not encroach closer to a water feature than practicable;

            ii.   Best management practices will be employed that accomplish the following:

               (1)   Account for watershed assessment information in project design;

               (2)   Minimize the trench area and tree removal within the NRA;

               (3)   Utilize and maintain erosion controls until other site stabilization measures are established, post-construction;

               (4)   Replant immediately after backfilling or as soon as effective;

               (5)   Preserve wetland soils and retain soil profiles;

               (6)   Minimize compactions and the duration of the work within the NRA;

               (7)   Complete in-water construction during appropriate seasons, or as approved within requisite federal or state permits;

               (8)   Monitor water quality during the construction phases, if applicable; and

               (9)   Implement a full inspection and monitoring program during and after project completion, if applicable.

(Ord. 2009-01, passed 3-9-2009)