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Agenda & Minutes

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Planning Commission (View All)

Planning Commission Study Session Agenda and Minutes

Monday, November 26, 2018

The study session of the Medford Planning Commission was called to order at 12:00 p.m. in the Lausmann Annex Room 151-157 on the above date with the following members and staff in attendance:
Commissioners Present
David McFadden, Vice Chair
David Culbertson
Joe Foley
Bill Mansfield
Mark McKechnie
E. J. McManus
Jared Pulver
Commissioners Absent
Patrick Miranda, Chair, Excused Absence             
Alex Poythress, Unexcused Absence
Staff Present
Matt Brinkley, Planning Director
Kelly Evans, Assistant Planning Director
Carla Paladino, Principal Planner
Eric Mitton, Deputy City Attorney
Mike Montero
Raul Woerner
20.1        CP-17-117 and DCA-17-118  2016 Local Wetland Inventory (LWI) and Wetland Regulations
Carla Paladino, Principal Planner reported that the proposal will be for changes to both the Comprehensive Plan and Chapter 10 of the Land Development Code.  Specifically in the Comprehensive Plan, changes are proposed to the Environmental Element related to wetlands.  The new information outlines the locally significant wetlands in the 2016 Local Wetlands Inventory and summarizes the results to the Economic, Social, Environmental, and Energy (ESEE) analysis.  Amend Chapter 10 of the Land Development Code to include wetlands regulations that will apply citywide.
The City has been working on supplemental tasks related to the recently expanded Urban Growth Boundary.  This work is being conducted so these new lands are ready for annexation and development.  Annexation policies were amended as part of the Urban Growth Boundary process.  The City Council must find that a Local Wetland Inventory has been adopted for these new lands.  Wetlands are regulated through Statewide Planning Goal 5 which establishes the procedures and criteria for inventorying and evaluation resources and for developing land use programs to conserve and protect significant resources identified.  The City’s Comprehensive Plan supports protecting wetlands and establishing wetland regulations through Policy 6-B and Implementation Strategy 6-B (1).
Goal 5 provides guidance on how to determine and regulate wetlands.  The statute outlines that a Local Wetland Inventory must be completed and adopted into the Comprehensive Plan and determine and identify the wetlands that are noted as locally significant.  Jurisdictions determines which path to follow in order to protect the wetland resource.  Safe Harbor limits grading, filling and impacts around the identified wetlands.  Economic, Social, Environmental and Social (ESEE) analysis can be conducted that weighs development impacts that may occur to the wetlands.  The City has followed the ESSE path for the 2016 Local Wetland Inventory knowing impacts with roads and utilities will apply in these expansion areas.
Oregon Administrative Rules
For areas inside Urban Growth Boundaries:
•             Conduct a LWI and adopt into Comprehensive Plan or as a land use regulation, and
•             Determine the significant wetlands and adopt the list
For significant wetlands inside Urban Growth Boundaries:
•             Adopt a Safe Harbor ordinance to protect, or
•             Complete Goal 5 process and adopt a program following Oregon Administrative Rules (ESEE analysis)
Wetland Regulations
•             Modify and add new definitions
•             Update land use procedure types
•             Added new uses under riparian corridor section
•             Added Wetland Regulations
The purpose section describes the intent of the section and why we are regulating wetlands.  Some of the statements include tying back to the Environmental Element of the Comprehensive Plan protecting the benefits wetlands provide such as water quality, erosion control, preserving native vegetation, and reduce flooding and enhancing these resources as a community amenity.
Definitions refer back to the general section at the beginning of the Chapter and also refer back to the definitions in the riparian corridor sections.
Wetland regulations will apply citywide.  State and Federal regulations apply no matter what our inventories say or do not say.  The City will continue to notify the Department of State Lands when land use action is proposed on property.  Property owners are ultimately responsible to comply with the code.  Wetlands are to be protected unless exempt or permitted use is identified.
The inventory of wetlands discusses 2002 and 2016 Local Wetland Inventories as they apply to city limits, Urban Growth Boundary and Urban Reserve.
Wetland Protection Areas applies to wetlands identified in the 2002 and 2016 Local Wetland Inventory.  It requires a 50 foot buffer around locally significant wetlands and 25 foot buffer around all other wetlands.
Exempt activities from local permit:
•             Vegetation Maintenance, planting and removal of non-native, noxious vegetation
•             Site Investigation and Maintenance of Storm Water Facilities
•             Fire Hazard protection
•             Maintenance of existing public and private streets, paths, driveways
•             Open wire fencing
Permitted Uses:
•             New Public Access and Utilities
•             Wetland Restoration and Enhancement
•             Public and Private Utility Maintenance
•             Airport
Permit and Criteria seek to minimize impacts, Mitigation Plan required and Management Plan.
Allowances in the Code:
•             Wetland protection buffer may be reduced by up to 50% through approval of the Director
•             Site layout is designed to avoid intrusions by varying a setback standard or other applicable dimensional standard to avoid impact to the wetland
•             No separate exception application required
•             Alternation is minimum necessary to provide the use/building
•             Restoration, mitigation or enhancement proposed
•             Management plan provided
Hardship Exception:
•             Type III procedure with approval through PC/SPAC/LHPC
•             Wetland regulations unduly restrict development or use of the lot, making it unbuildable
•             Other alternatives to find relief have been explored
•             Mitigation and management plans provided
Application Submittal:
•             Lists the submittal requirements for Permitted Uses, Wetland Reductions, or Hardship Exceptions
Management Plan:
•             Applicant is responsible for identifying how the wetlands will be maintained and managed over time
•             Management practices
•             Removal and oversight of noxious and invasive vegetation
•             Recording of CC&Rs or conservation easement or transfer of ownership to willing public agency, non-profit, or private conservation organization
Performance Guarantee:
•             Mitigation measures should be completed prior to final plat or Certificate of Occupancy, cases may warrant additional time
•             Installation may be deferred up to six months with 125% surety bond or cash
Map Errors and Adjustments:
•             When delineations are conducted and approved by Department of State Lands, they shall supersede the maps on the LWIs without a need to modify the Comprehensive Plan to do so
Raul Woerner, CSA Planning Ltd., stated that once wetlands show up on a property the state will want a delineation. 
Matt Brinkley, Planning Director reported that he does not think the State can provide the City with the authority to say that a locally recognized boundary is the same thing as a delineation.  Staff thought by providing a prescriptive way of doing things would be beneficial without doing a delineation.
Mr. Woerner asked, if someone got a fill permit approved by the State or Federal permitting agency is there a local way to recognize that in this ordinance?  Ms. Paladino reported if there are other Federal or State information, please make staff aware.
Vice Chair McFadden stated that the City is pushing for more bio swales along property frontages in our development areas. He hopes they are temporary water collection points.  Given enough time, is that policy going to be classified as a wetland?  Ms. Paladino reported that they do not want to prohibit bio swales.  They are not intentionally trying to create wetlands but that their classification is not determined by the City.
Mr. Woerner noted that DSL and Administrative Rules specifically has exemptions for manmade water treatment storage facilities.       
Commissioner McKechnie suggested that Corvallis has a feature called Minimum Assure Development Area.  It allows a mechanism for dealing with properties with wetlands.  It is so many square feet of developable area on a site whether it is covered 100% by wetlands or covered with less.  After the calculations if there is more wetland than development area you are allowed to encroach into the wetlands.
Changes to be made.  It was pointed out that a diagram during the presentation showed 20 feet instead of 25 feet.  The provision language regarding the Local Wetland Inventory states there is a wetland on site a buffer can be put around it without any delineation needed to be done.  Is the Planning Commission comfortable with how staff has laid out the procedure types in terms of the hardship reduction?  Look at Corvallis feature.  Make sure there is a clear path that if the property owner has done there due diligence to the State that staff accepts that and moves on.
Commissioner McKechnie asked, what qualifies for the 50 feet versus 25 feet?  Ms. Paladino reported that 50 feet would be those determined to be locally significant as outlined in the wetland inventory 25 feet for everything else. 
Commissioner McKechnie asked, the City is not going to get into monetary argument with a land owner that finds three quarters of his land is unusable and sues for the taking?  Ms. Paladino stated that regardless of what the regulations state if they have a wetland on site they have to deal with it. Taking the City out of the equation the State is still involved.  If they want to impact something that is a wetland they will have to identify it and do something about it. 
Eric Mitton, Deputy City Attorney stated that regulatory takings cases are fact specific.  He does not know if this can be crafted where no one would be upset and want to sue the City whether or not they would have a valid claim.  It would depend on the circumstances.
Ms. Paladino reported that staff has tried to build in some safety nets for the property owners that they can apply for something and get the relief if they feel like they need it.  There is criteria built in.
Mr. Brinkley commented that they can still develop if they get a fill permit.      
Mr. Woerner reported that when getting a wetland permit and have a mitigation plan there is a complicated and rigorous management plan that the State and Federal governments monitor.  They require the wetlands consultant to sign off on a bond and inspect every five years.  He would like to see if there is one of those then the City could tie into that and will be a Safe Harbor.
Mr.  Brinkley stated that it only happens when one disturbs the wetland. 
Mike Montero reported that one other unintended consequence can occur with this is if there is a structure and want to rebuild does in become an unlawful nonconforming use language would be important.  Ms. Paladino reported that under the exempt section it talks about nonconforming uses and development. 
Mr. Brinkley commented that the wetlands regulations and how the City deals with riparian buffer are similar. 
Commissioner Foley stated that this came up at a meeting where there was a house on a property that was in the riparian zone.  The discussion was if the house goes away can they rebuild?  The issue came up because there was no foundation for the house, it was on blocks.  It was an open question that did not get resolved because it was not germane to what was being discussed that evening. 
Mr. Mitton reported that he was there and could speculate having done zero research since then but he would be guessing.  He has concerns even if the two dimensional footprint stays the same when building down more than previously he has questions as to whether that is really just replacing what was there.
Commissioner Foley asked, is that something that needs to be incorporated into this as staff is rewriting the entire regulations?  Put the correct language in to answer that question.  Mr. Mitton will look into it. 
Ms. Paladino stated that this will be presented to the Planning Commission Thursday, November 29, 2018.  Changes will be made on what she heard today.  There will be a City Council study session right after she presents this to the Planning Commission Thursday evening.  It is anticipated to go to the City Council public hearing December 20, 2018. 
Mr. Woerner reported that in 2002 a LWI was adopted.  Why is there being an LWI outside the Urban Growth Boundary when the rule specifies Urban Growth Boundary only?  Anything beyond that is the County’s responsibility and they are not required to adopt one under the rule.  Is there consideration for adjustment changes that goes into another property? 
The only buffer specified, in the land use rules is, it is 50 foot if it is adjacent to a riparian area.  DSL rule reads to adopt something that address “buffers”.  It does not specify what the number has to be.  Why 25 feet, 50 feet everywhere else but riparian?  Mr. Brinkley reported that is the recommended practice.  50 feet is on the low end.
Mr. Montero thinks it would be helpful in the buffer discussion adding links of any potential mitigation efforts that advises buyers that if they choose to seek mitigation for wetlands they will need to contact the Planning Department or somebody to find out how any potential buffer would affect neighboring property owners. 
Commissioner Pulver stated that ones that were created seems simpler than an existing one that was moved on a property line.  He does not know how common that is. 
Vice Chair McFadden suggested to simplify Section 10.950.  Do they really need an aerial photograph of something having to be mapped with 2 foot contours?  There seems to be overlapping requirements that will make this erroneous for people to deal with.
Ms. Paladino stated that she would send the revisions out to the Planning Commission before Thursday night’s meeting.
30.          Adjournment
The meeting was adjourned at 12:54 p.m.
Submitted by:
Terri L. Richards
Recording Secretary

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