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Planning Commission (View All)

Planning Commission Study Session Minutes

Monday, November 09, 2015

The study session of the Medford Planning Commission was called to order at noon in the Lausmann Annex Room 151-157 on the above date with the following members and staff in attendance:
Commissioners Present
David McFadden, Chair
Patrick Miranda, Vice Chair
David Culbertson
Norman Fincher
Joe Foley
Bill Mansfield
Mark McKechnie
Jared Pulver      
Staff Present
Jim Huber, Planning Director
Bianca Petrou, Assistant Planning Director
Kelly Akin, Principal Planner
John Adam, Principal Planner
Kevin McConnell, Deputy City Attorney
Carla Paladino, Planner IV
Commissioner Absent  
Tim D’Alessandro, Excused Absence
1.            Wetland Regulations
Carla Paladino, Planner IV, reported that the overview of discussion today is:
•             Local Wetland Inventory Area, Purpose, and Findings
•             Oregon Administrative Rule requirements
•             State Wetland Regulation Models
•             Next Steps
The City hired SWCA Environmental Consultants in March 2015 to conduct a Local Wetlands Inventory (LWI) for the entire Urban Reserve.
As staff evaluates the expansion of the City’s Urban Growth Boundary into the Urban Reserves, staff is required to update the Comprehensive Plan.  Just like other sections or elements of the Comprehensive Plan have been updated as part of the Urban Growth Boundary evaluation such as Population, Housing, and Economics Elements, staff is also responsible for updating the Environmental Element of the Comprehensive Plan.  The Environmental Element corresponds to Statewide Goal 5 (Natural Resources, Scenic and Historic Areas and Open Spaces).  The Local Wetland Inventory helps staff to identify the local resources that are found in the Urban Reserves.
A Local Wetland Inventory is a comprehensive survey of a geographic are to identify, characterize, and locate the approximate boundaries of wetlands and other waterways.  This is a resource tool that provides the property owner and local jurisdictions with data to help inform future decisions on property.  It is also a preliminary assessment to help describe the function and relevance of the wetlands identified.  SWCA compiled a series of maps with relevant data like soils, floodplain, aerial photography and streams were examined.  Field work was conducted in April and July of this year.  Fifty-three parcels were accessed for review of conditions.
Data and field work found:
•             82 Wetland Polygons that total 185 acres
•             68 Probable Wetlands – two have the potential to be locally significant if future investigation were to delineate wetland(s) larger than 0.5 acres in size
•             14 Locally Significant Wetland Units totaling 160 acres and comprising 58 wetland polygons
•             4 areas have been identified as special interest of protection in the Midway Drainage and Bear Creek South Basins
The Oregon Administrative Rule requirements for areas inside Urban Growth Boundaries:
•             Conduct a Local Wetlands Inventory and adopt into the Comprehensive Plan or as a land use regulation, and
•             Determine the significant wetlands and adopt the list
For significant wetlands inside the Urban Growth Boundary:
•             Adopt a Safe Harbor ordinance and adopt a program to protect, or
•             Complete Goal 5 process and adopt a program following OAR (660-023-0040 and 660-023-0050)
The Safe Harbor Provisions of the OAR requirements:
Ordinance shall place restrictions on:
•             Grading
•             Excavation
•             Placement of fill
•             Vegetation removal other than perimeter mowing and other cutting necessary for hazard prevention, and
Include a variance procedure to consider:
•             Hardship variances
•             Claims of map error verified by (Department of State Lands) DSL, and
•             Reduction or removal of the restrictions noted above for lands demonstrated to be rendered not buildable by application of the ordinance.
Goal 5 Program Provisions of the OAR requirements:
Program based on analysis of ESEE (economic, social, environmental, and energy) consequences:
•             Identify conflicting uses
•             Determine the impact area
•             Analyze the ESEE consequences
•             Develop a program to achieve Goal 5
Staff is in the research stage of the wetland protection regulations and reviewing the State’s Wetland Planning Guidebook that includes two model regulations: Model #1 – Safe Harbor and Model #2 – Goal 5 Program.
Both the Safe Harbor and Goal 5 Program Model include:
•             Purpose statements
•             Definitions
•             Determination of Locally Significant Wetlands
•             Wetland Protection Areas, Applicability, and Application Submittal Requirements
•             Approval Criteria
•             Allowed Activities within Protection Areas
•             Prohibited Activities within Protection Areas
•             Conservation and Maintenance of Wetland Protection Areas
•             Notification and Coordination with State Agencies
•             Variances
The Goal 5 Program model includes all the above plus:
•             Wetland Buffer Areas
•             Allowed Activities within Wetland Buffer Areas
•             Transportation Facilities and Structures Development Standards
•             Utility Development Standards
•             Vegetation Management Standards
Wetland buffer area sometimes called a setback is an area surrounding or adjacent to a locally significant wetland that serves to reduce the adverse effects of adjacent land uses on water quality and habitat functions of the wetland.
Safe Harbor approval criteria for development or permitting is very general; Goal 5 program provides options for a two track system (clear and objective versus discretionary).
In the Goal 5 Program additional uses are permitted in Wetland Buffer areas such as trails, utilities, or public improvements.
The Goal 5 Program outlines additional standards to address construction of transportation facilities and utilities.  It also addresses in more detail removal and planting of vegetation in a wetland.
Next Steps:
•             Local Wetlands Inventory will be sent to the DSL at the end of November
•             Continue conversations on adoption process with County and State agencies
•             Continue researching model regulations
•             Identify the right model for Medford and draft language
•             Bring forward Comprehensive Plan and Development Code amendments to adopt Local Wetlands Inventory and protection regulation (Spring/Summer 2016)
Commissioner McKechnie asked if the study that was done was a broad overview of the areas that were contemplated to be brought into the City for the urban growth?  Ms. Paladino replied that is correct.  Commissioner McKechnie asked if someone were to develop on one of these parcels are they required to do their own study?  Ms. Paladino replied that if wetlands have been identified the State and federal permitting requirements would apply to them.  If they wanted to fill it in or do something with it they would still have to get a permit from the State or the Corp of Engineers.
Commissioner Culbertson asked if wetlands would be forever if the ponds that are now being filled go dry?  Ms. Paladino replied that if the water sources are going to be shut off at some point the wetlands will probably go away.  Commissioner Culbertson asked if the home owner or property owner would be liable for damaging the wetlands?  Kelly Akin, Principal Planner, reported that they could do a new delineation.
Commissioner McKechnie stated that he thinks the answer to Commissioner Culbertson’s question is yes.  They are permanent forever.  Ms. Akin reported until they are delineated.  Commissioner McKechnie commented until they are un-delineated.  Maybe we should not be designating in case it is an irrigation by-product.
Chair McFadden asked if the City ordinance or the State ordinance designates if a parcel is a wetlands?  He believes it should be a State issue rather than a local issue.
Ms. Paladino reported that it is her understanding in talking with state representatives that they need local jurisdictions to protect the ones that have been identified as locally significant.  Their job is to give permits to people that are going to fill, delineate move or mitigate something.
Ms. Paladino stated that she could send the Planning Commissioners information specifically the locations of which ones are considered in the 14 wetland units.  It was the consensus of the Planning Commission that would be helpful. 
Ms. Paladino reported that staff has had several questions come in about whether a parcel was in or out of the wetlands inventory.  A property owner hired their own consultant to update the data.  From the States perspective if a property owner is going that far they need to submit a delineation that specifically identifies the property.  The delineation would be submitted to the State and then could be incorporated into the LWI. Something general from another consultant likely will not change the document.
Jim Huber, Planning Director asked Ms. Paladino to explain how the public comment works and for how long.
Ms. Paladino stated that notices were sent out last week to all property owners that have already been notified several times of this project taking place.  The notices informed them where the report is online.  Comments can be sent directly to Ms. Paladino that she will forward to the consultants.  Staff has received several emails and phone calls from people.  The comment period ends next Monday, November 16th. 
Commissioner Fincher asked how can an irrigation ditch be a significant wetland?  Ms. Paladino reported that the consultants have to go through the State requirements.  The State requirements do an Oregon Freshwater Wetland Assessment Methodology.  This is a series of questions that have to be answered yes or no.  Some of the questions are whether it was created by irrigation, habitat, etc...  The ones that are identified as significant wetlands have more than just irrigation on them.
Mr. Huber commented that one has to go back to the definition of wetlands.  They contain three characteristics such as presence of water at a certain time of year within 12 inches of the surface; hydrophilic vegetation; and certain soil characteristics.  An irrigation ditch may or may not have bearing on whether it is considered wetlands.  A lot of times there are subsurface sources of water that are not seen that may be close to the irrigation ditch but it is a different source of water.
Commissioner Pulver asked how do they handle wetlands inside City limits?  Ms. Paladino reported that the City adopted a local wetland inventory that went through the hearing process.  City Council did not adopt the regulations.
Bianca Petrou, Assistant Planning Director, stated that they tried to adopt wetland regulations that included the Safe Harbor which was a 25 or 50 foot setback from whatever was delineated.  A lot of people testified against it.  There were two choices: 1) They could adopt the Safe Harbor; or 2) Adopt an ESEE (economic, social, environmental, and energy) analysis.  This had to be done for every wetland which would have been very costly.
Commissioner Pulver asked if and when adopted there will be a wetlands ordinance that only applies to the urban reserve areas?  If one is in the urban growth boundary it is flagged per the Local Wetlands Inventory then they have to go to the Department of State Lands for delineation or not then go through the entire study.  We are a filter that does not have specific regulations.  The State can issue a fill permit.

Vice Chair Miranda stated that it seems the Safe Harbor analysis is the more restrictive provision than Goal 5.  Ms. Paladino reported that the Safe Harbor analysis is general.  Goal 5 has more mitigating factors.  Goal 5 is a more thorough analysis.
Commissioner Foley asked if staff was leaning towards Goal 5 versus the Safe Harbor approach?  Ms. Paladino reported that staff has not discussed that yet.
Commissioner Foley asked if a separate assessment needs to be done on each of the 18 again?  Mr. Adam reported that the City is not on the hook for doing the delineations.  It would be the developer. 

Commissioner Pulver asked when will the Planning Commission be asked to forward a recommendation to the City Council of either the Safe Harbor provision or the Goal 5 provision?  Staff replied, spring of 2016.  There will be more discussions before then.

Commissioner McKechnie suggested that it would be helpful in the ordinance to have some way to deal with public infrastructure.  The buffer of 25 feet would be helpful in the ordinance as well.
The meeting was adjourned at 12:47 p.m.
Submitted by:
Terri L. Rozzana, Recording Secretary

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