Planning and Zoning

1002.01 Hillsides

1. Development on slopes greater than or equal to 20 percent and less than or equal to 35 percent–except that for residential development in the RR, MRR, and HR Districts, the upper limit is 25 percent—shall require review of a Type I application pursuant to Section 1307, Procedures, and shall be subject to the following standards:
   1. No partition or subdivision shall create any new lot or parcel which cannot be developed under the provisions of Subsection 1002.01.  
   2. Grading, stripping of vegetation, and lot coverage by structures and impervious surfaces shall be limited to no more than 30 percent of slopes 20 percent or greater.  Variances to this standard may be granted pursuant to Section 1205, Variances.  A variance shall not be granted unless the proposed development satisfies the following conditions:
      1. The proposed lot coverage shall not exceed the maximum lot coverage standard of the zoning district;
      2. The additional lot coverage, grading, or stripping shall not:
         1. Decrease the stability of the slope;
         2. Appreciably increase erosion, sedimentation, or drainage flow from the property; or  
         3. Adversely impact high-priority open space as defined in Section 1011, Open Space and Parks.  
      3. Measures shall be employed to minimize grading or filling to accomplish the development.  
      4. Disturbed areas shall be compacted if necessary and re-vegetated as soon as practical and before the annual wet season.  
   3. Buildings shall be clustered to reduce alteration of terrain and provide for preservation of natural features.
   4. Creation of building sites through mass pad grading and successive padding or terracing of building sites shall be avoided.
   5. Roads shall be of minimum width, with grades consistent with County specifications.  One-way streets may be allowed.  
   6. Re-vegetation of all graded areas shall be the responsibility of the developer and shall occur as soon as feasible following the final grading.  Maintenance of the slopes shall be the responsibility of the developer until the property ownership is transferred.  
2. Development on slopes greater than 35 percent—and residential development on slopes greater than 25 percent in the RR, MRR, and HR Districts—shall require review of a Type II application pursuant to Section 1307 and shall be subject to the following standards: 
   1. Compliance with Subsections 1002.01(A)(1) through 6) shall be required.
   2. An engineering geologic study approved by the County shall establish that the site is stable for the proposed development, and any conditions and recommendations based on the study shall be incorporated into the plans and construction of the development.  The study shall include the items listed in Subsection 1003.02(B)(2).  
   3. Access to the site shall be approved by the County and the affected fire district, pursuant to the engineering geologic study and associated conditions.  Review shall be required, if construction of such access requires cut and fill, blasting, tree cutting, retaining walls, or other terrain alterations which detract from the natural scenic quality of the site.  
   4. The design of structures and re-vegetation plans shall ensure preservation or rapid reestablishment of the scenic quality of the site.
   5. A plan for surface water management and erosion control shall be approved pursuant to Subsection 1006.06.
   6. When a building is proposed, at least one of the following conditions shall apply:
      1. It is not feasible to either transfer the density (in the case of residential development) or to develop on a portion of the subject property that is less sloped; or 
      2. Unique characteristics of the subject property, such as, but not limited to, vistas or solar exposure, could be better utilized by the proposed siting of structures with less or equal overall disturbance of the subject property than would occur otherwise under the provisions of this Ordinance.
3. Approval of a permit under Subsection 1002.01(A) or (B) is valid for four years from the date of the final written decision.  If the County's final written decision is appealed, the approval period shall commence on the date of the final appellate decision.  During this four-year period, the approval shall be implemented, or the approval will become void.
   1. "Implemented" means all major development permits shall be obtained and maintained for the approved development, or if no major development permits are required to complete the development contemplated by the approved permit, "implemented" means all other necessary County development permits (e.g. grading permit, building permit for an accessory structure) shall be obtained and maintained.  A "major development permit" is:
      1. A building or manufactured dwelling placement permit for a new primary structure that was part of the approved development; or
      2. A permit issued by the County Engineering Division for parking lot or road improvements required by the approved development.
4. If the approval of a permit under Subsection 1002.01(B) is not implemented within the initial approval period established by Subsection 1002.01(C), a two-year time extension may be approved pursuant to Section 1310, Time Extension.

1002.02 Development Restriction Following Excessive Tree Removal  

Subsection 1002.02 applies to land inside the Portland Metropolitan Urban Growth Boundary, except land specially assessed as forestland on September 28, 2010.  

1. Definitions:  Unless specifically defined in Subsection 1002.02(A), words or phrases used in Subsection 1002.02 shall be interpreted to have the same meaning as they have in common usage and to give Subsection 1002.02 its most reasonable application.   
   1. Christmas Tree:  A tree of a marketable species and evidencing periodic maintenance practices of shearing for Douglas fir, fir, and pine species, weed and brush control, and one or more of the following practices:  basal pruning, fertilizing, insect and disease control, and soil cultivation.   
   2. Diameter Breast Height (d.b.h.):  A tree's diameter measured by diameter tape at four and one-half feet above grade on the uphill side.  On multi-stem trees, the stem with the largest diameter shall be measured.   
   3. Hazardous Tree:  A tree that, by reason of disease, infestation, age, or other condition, presents a known or immediate hazard to people or property.   
   4. Nuisance Tree:  Any tree of the following species:  tree of heaven (Alianthus altissima), single seed hawthorn (Crataegus monogyna), English holly (Ilex aquifolium), plums (Prunus hybrids, which are not commercial nursery species), sweet cherry (Prunus avium), English laurel (Prunus laurocerasus), Portuguese laurel (Prunus lusitanica), black locust (Robinia pseudoacacia), European mountain ash (Sorbus aucuparia), and any listed in the Oregon Department of Agriculture's Noxious Weed Policy and Classification System.   
   5. Orchard Tree:  A tree maintained for the production of fruit or nuts for human consumption.   
   6. Tree:  Any woody plant with at least one well-defined stem.   
   7. Tree Removal:  The act of removing a tree by digging up or cutting down, or the effective removal through damage to a tree or its root system.  Effective removal shall include any procedure the natural result of which is to cause the death or substantial destruction of a tree, including, but not limited to:  topping and severe cutting back of limbs to such a degree as to destroy or adversely affect the normal growth pattern of the tree, girdling, and placing fill in excess of six inches deep over the root zone. Tree removal does not include routine pruning or trimming.   
2. Excessive Tree Removal:  Excessive tree removal is the removal of more than three trees—excluding those identified as exempt in Subsection 1002.02(E)—on a lot of record in a calendar year.   
3. Development Restriction:  If excessive tree removal occurred in the five years immediately preceding the date that a complete application is filed for design review or a conditional use or for a subdivision or partition that is not a middle housing land division, the application will be denied.
4. Exception to Development Restriction:  Notwithstanding Subsection 1002.02(C), a modification of a previous design review, subdivision, partition, or conditional use approval may be approved pursuant to Section 1309, Modification.   
5. Exempt Trees:  Removal of the following exempt trees is not excessive tree removal, regardless of the number of such trees removed.  However, removal of the listed trees may be regulated under other provisions of this Ordinance, such as Section 705, Willamette River Greenway, Section 706, Habitat Conservation Area District, and Section 709, Water Quality Resource Area District, or by conditions of approval on a previous land use decision.
   1. Trees with a d.b.h. of less than six inches;   
   2. Trees required to be removed by local, state or federal law or regulation, or by a fire official;   
   3. Trees removed by a public utility—or required by a public utility to be removed—in order to maintain, repair, or replace an existing utility line;    
   4. Trees removed by a public utility—or required by a public utility to be removed—in order to construct a new utility line, unless the purpose of the new line is to serve future development of the subject property;   
   5. Orchard trees;   
   6. Christmas trees;   
   7. Trees planted on the site of a commercial nursery and grown for commercial purposes;   
   8. Nuisance trees;   
   9. Dead trees, where death resulted from an accident or non-human cause;  
   10. Diseased or hazardous trees, where the condition resulted from an accident or non-human cause;   
   11. Trees, the removal of which is authorized by approval of an administrative action under this Ordinance; and   
   12. Trees removed prior to September 28, 2010.  

1002.03 Trees and Wooded Areas

1. Existing wooded areas, significant clumps or groves of trees and vegetation, consisting of conifers, oaks and large deciduous trees, shall be incorporated in the development plan wherever feasible.  The preservation of these natural features shall be balanced with the needs of the development, but shall not preclude development of the subject property, or require a reduction in the number of lots or dwelling units that would otherwise be permitted.  Site planning and design techniques which address incorporation of trees and wooded areas in the development plan  include, but are not limited to, the following:  
   1. Siting of roadways and utility easements to avoid substantial disturbance of significant clumps or groves of trees;  
   2. Preservation of existing trees within rights-of-way and easements when such trees are suitably located, healthy, and when approved grading allows;  
   3. Use of flexible road standards as provided in Subsection 1007.02(B)(3), including one-way roads or split-level roads, to preserve significant trees and avoid unnecessary disturbance of terrain;  
   4. Retention of specimen trees or clumps of trees in parking area islands or future landscape areas of the site as provided for in Section 1009, Landscaping.
   5. Use of wooded areas of the site for recreation, or other low-intensity uses, or structures, not requiring extensive clearing of large trees, grading, or filling activity which substantially alters the stability or character of the wooded area;  
   6. Retention of trees which are necessary to ensure the stability of clumps or groves of trees considering the type of trees, soil and terrain conditions, exposure to prevailing winds, and other site-specific considerations;  
   7. Use of trees and wooded areas to buffer, screen, or provide transitions between different or conflicting uses on and off the site;  
   8. Use of flexible-lot-size and planned unit development designs to minimize disturbance of wooded areas;  
   9. Siting of uses and structures to utilize the natural microclimates created by wooded areas and trees to reduce extremes in temperature, provide wind protection, filter pollutants, and replenish oxygen and moisture to the air; and  
   10. Use of other development techniques described in Subsection 1011.02(C).  
2. Trees and wooded areas to be retained shall be protected during site preparation and construction according to County design and specifications by:
   1. Avoiding disturbance of the roots by grading and filling activity;   
   2. Providing for water and air filtration to the roots of trees which will be covered with impermeable surfaces;  
   3. Pruning or topping of trees which will be in parking areas or near buildings, as necessary, to maintain proper balance between top growth and roots, reduce windfall potential, and provide adequate vision clearances for safe vehicular circulation; and  
   4. Requiring, if necessary, the advisory expertise of a qualified consulting arborist or horticulturist both during and after site preparation, and a special maintenance/management program to provide protection of specified wooded areas or specimen trees, as recommended by the arborist or horticulturist.

1002.04 River and Stream Corridors  

The following standards shall apply to land that is outside both the Metropolitan Service District Boundary and the Portland Metropolitan Urban Growth Boundary.  

1. Developments shall be planned, designed, constructed, and maintained so that:  
   1. River and stream corridors are preserved to the maximum extent feasible and water quality is protected through adequate drainage and erosion control practices; and  
   2. Buffers or filter strips of natural vegetation are retained along all river and stream banks.
2. Except in the case of a river or stream subject to Section 704, River and Stream Conservation Area, or 705, Willamette River Greenway, the minimum structure setback from a river or perennial streambed shall be equal to the distance necessary to maintain or improve upon existing water quality.  This distance shall be determined by a site investigation, but will not exceed 150 feet.  Investigation shall consider:    
   1. Soil types;  
   2. Types and amount of vegetative cover;  
   3. Bank stability;  
   4. Slope of the land abutting the river or stream;  
   5. Hazards of flooding;  
   6. River or stream character; and  
   7. Any special Comprehensive Plan designation or management program.  
3. For water impoundments, diversions, and hydropower facilities, reasonable mitigation of adverse impacts to fisheries, wildlife, water quality, and flow shall be required commensurate with the intensity of the proposed use and resulting generating capacity.  

1002.05 Deer and Elk Winter Range

Development in deer and elk winter range below 3,000 feet in elevation, as identified on Comprehensive Plan Map III-2, Scenic and Distinctive Resource Areas, shall be designed to minimize adverse wildlife impacts.

1002.06 Mount Hood Resource Protection Open Space

Development in areas shown as Resource Protection Open Space on Comprehensive Plan Maps X-MH-1 through X-MH-3, Resource Protection Open Space, proposed in or within 100 feet of natural wetlands shall be designed to:    

1. Preserve functions of groundwater recharge, water storage, turbidity reduction, nutrient filtration, biologic or botanical production, and protective habitat cover;   
    
2. Provide compatibility with the continued performance of wetland functions, such as:
    
   1. Conservation of soil, vegetation, water, fish, and wildlife;   
       
   2. Low-intensity, dispersed outdoor recreation, such as hiking and nature study; and   
       
   3. Utility easements, but only on peripheral areas and where alternative alignments are impractical;   
       
3. Eliminate the need for filling, dumping, and/or excavating in the wetland proper, unless approved pursuant to Subsection 1011.03; and   
    
4. Maintain the runoff coefficient and erosion equilibrium for lands bordering the wetland substantially the same as if such lands were undeveloped.  Pier construction, elevated pedestrian boardwalks, semi-impervious surfacing, bridging of natural drainageways, and retention of vegetation in areas not intended for buildings or roads are recommended design methods. 

1002.07 Significant Natural Areas

Five significant natural areas are identified as unique/natural features on Comprehensive Plan Map III-2, Scenic & Distinctive Resource Areas.  These areas are more specifically referred to as Williams Lake Bog, the land at Marmot, Multorpor Bog, Delphridge, and Wilhoit Springs.  In these significant natural areas, the following shall be restricted, to the extent necessary to protect the unique or fragile character or features that are the basis for the unique/natural feature designation:  building and road construction, filling and excavation, paving, and tree removal.  Restrictions may be modified pursuant to Subsection 1011.03.

1002.08 Significant Landforms and Vegetation

Institutional, commercial, and industrial development; multifamily dwellings; and developments of more than one duplex, triplex, or quadplex shall cluster and modulate building masses to minimize disturbance of existing significant landforms and vegetation.  Pursuant to the review procedure required by Section 1102, Design Review, minimum front setbacks may be reduced or waived to minimize disturbance of natural landforms or vegetation.  If a setback reduction is granted, a program for protection of those Landforms And Vegetation During Construction, And For Long-Term Maintenance, Shall Be Provided.

1002.09 Resource Protection Areas in the VR 4/5 and VR 5/7 Districts

Development of primary dwellings and accessory structures within a Resource Protection Area shown on Comprehensive Plan Map X-SV-1, Sunnyside Village Plan, Land Use Plan Map, shall require review of a Type I application pursuant to Section 1307, Procedures, and shall be subject to the following standards: 

1. The maximum disturbed area shall be 5,000 square feet. All buildings and yard areas shall be contained within this area. Driveways, utility construction, and required trails shall be excluded from calculation of the disturbed area. 
2. Driveways shall be designed at the narrowest width allowed by the Clackamas County Roadway Standards or the applicable fire district, whichever is wider. 

[Amended by Ord. ZDO-224, 5/31/11; Amended by Ord. ZDO-230, 9/26/11; Amended by Ord. ZDO-245, 7/1/13; Amended by Ord. ZDO-248, 10/13/14; Amended by Ord. ZDO-266, 5/23/18; Amended by Ord. ZDO-282, 7/1/22]

706.01 Purpose

Section 706 is adopted to implement the policies of the Comprehensive Plan for Habitat Conservation Areas.

706.02 Area Of Application

1. Section 706 applies in the Habitat Conservation Area District (HCAD). The HCAD applies to all parcels containing a Habitat Conservation Area (HCA). The HCAD also applies to any area that is less than 100 feet outside the boundary of an HCA even if the area is not located on the same parcel as the HCA. HCAs are identified on maps adopted by reference in Chapter 3 of the Comprehensive Plan (hereinafter referred to as the HCA Map) and are categorized as High, Moderate, or Low HCA. Notwithstanding the HCA Map, however, Section 706 does not apply to areas that are outside both the Metropolitan Service District Boundary and the Portland Metropolitan Urban Growth Boundary.  
2. An applicant may dispute the location of an HCA by submitting an application for HCA Map Verification pursuant to Subsection 706.06(B) or by applying for a Comprehensive Plan amendment to modify the HCA Map. HCA Map Verification does not amend the Comprehensive Plan.
3. Development within an HCA in accordance with the provisions of Section 706 shall not result in removal of such developed areas from the HCA and shall not change the applicable HCA category.

706.03 Definitions

Unless specifically defined in Subsection 706.03, words or phrases used in Section 706 shall be interpreted to give them the same meaning as they have in common usage and to give Section 706 its most reasonable application.

A. Bankfull Stage: The stage or elevation at which water overflows the natural banks of streams or other waters of the state and begins to inundate the upland. The bankfull stage may be approximated using either the two-year recurrence interval flood elevation or one foot measured vertically above the ordinary mean high water line.

B. Building Footprint: The area that is covered by buildings or other roofed structures. A roofed structure includes any structure more than six feet above grade at any point, and that provides an impervious cover over what is below. Building footprint also includes uncovered horizontal structures such as decks, stairways, and entry bridges that are more than six feet above grade. Eaves are not included in the building footprint. Underground facilities and structures are defined based on the foundation line.

C. Developed Areas Not Providing Vegetative Cover: Areas that do not meet the definition of Forest Canopy, Low Structure Vegetation or Open Soils, or Woody Vegetation.

D. Developed Flood Area: A flood area (a) upon which a building or other structure has been located, or (b) that is an uncovered, hard-surfaced area or an area covered with a perforated hard surface (such as "Grasscrete") that is able to withstand vehicular traffic or other heavy-impact uses; provided, however, that graveled areas shall not be considered developed flood areas.

E. Development: Any manmade change defined as structures, roads, utilities, mining, dredging, paving, filling, or grading in amounts greater than 10 cubic yards. In addition, "development" is any other activity that results in the removal of more than 10 percent or 20,000 square feet of the Habitat Conservation Area vegetation on a lot of record, whichever is less. The calculation of the amount of vegetative cover removed shall be done separately for each lot of record and shall include all vegetative cover removed after January 5, 2009, regardless of whether the removal is done as one project or a series of projects. When individual trees are removed, the area contained within the tree's drip line shall be the basis for calculating the square footage of vegetation removed.

F. Disturb: Manmade changes to the existing physical status of the land, which are made in connection with development.

G. Disturbance Area: An area that contains all temporary and permanent development, exterior improvements, and staging and storage areas on the site. For new development the disturbance area must be contiguous. The disturbance area does not include agricultural and pasture lands or naturalized areas.

H. Drip Line: The outermost edge of a tree's canopy; when delineating the drip line on the ground, it will appear as an irregularly shaped circle defining the canopy's perimeter.

I. Ecological Functions: The primary biological and hydrologic characteristics of healthy fish and wildlife habitat. Riparian ecological functions include microclimate and shade, streamflow moderation and water storage, bank stabilization and sediment/pollution control, sources of large woody debris and natural channel dynamics, and organic material sources. Upland wildlife ecological functions include size of habitat area, amount of habitat with interior conditions, connectivity of habitat to water resources, connectivity to other habitat areas, and presence of unique habitat types.

J. Emergency: Any manmade or natural event or circumstance causing or threatening loss of life, injury to person or property, and includes, but is not limited to, fire, explosion, flood, severe weather, drought, earthquake, volcanic activity, spills or releases of oil or hazardous material, contamination, utility or transportation disruptions, and disease.

K. Enhancement: The process of improving upon the natural functions and/or values of an area or water resource that has been degraded by human activity. Enhancement activities may or may not return the site to a pre-disturbance condition, but create/recreate beneficial processes and resources that occur naturally.

L. Erosion: The movement of soil particles resulting from actions of water or wind.

M. Fill: Any material such as, but not limited to, sand, soil, rock, or gravel that is placed in a wetland or flood area for the purposes of development.

N. Flood Areas: Lands contained within the Floodplain Management District regulated by Section 703 and lands that were inundated in the February 1996 flood. (Note: Areas that were mapped as flood areas but were filled to a level above the base flood level prior to September 30, 2005, consistent with all applicable local, state, and federal laws shall no longer be considered habitat based on their status as flood areas.)

O. Flood Management Areas: Flood areas and, in addition, lands that have documented evidence of flooding.

P. Forest Canopy: Areas that are part of a contiguous grove of trees of one acre or larger in area with approximately 60 percent or greater crown closure, irrespective of whether the entire grove is within 200 feet of the relevant water resource.

Q. Habitat-Friendly Development: A method of developing property that has less detrimental impact on fish and wildlife habitat than do traditional development methods. Examples include clustering development to avoid habitat, using alternative materials and designs such as pier, post, or piling foundations designed to minimize tree root disturbance, managing storm water on-site to help filter rainwater and recharge groundwater sources, collecting rooftop water in rain barrels for reuse in site landscaping and gardening, and reducing the amount of effective impervious surface created by development.

R. Invasive Non-Native or Noxious Vegetation: Plant species that are listed in the Oregon Department of Agriculture's Noxious Weed Policy and Classification System.

S. Low Structure Vegetation or Open Soils: Areas that are part of a contiguous area one acre or larger of grass, meadow, crop-lands, or areas of open soils located within 300 feet of a surface stream (low structure vegetation areas may include areas of shrub vegetation less than one acre in size if they are contiguous with areas of grass, meadow, crop-lands, orchards, Christmas tree farms, holly farms, or areas of open soils located within 300 feet of a surface stream and together form an area of one acre in size or larger).

T. Mitigation: The reduction of adverse effects of proposed development by considering, in the following order

1. Avoiding the impact by not taking a certain action or parts of an action;
2. Minimizing impacts by limiting the degree or magnitude of the action and its implementation;
3. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
4. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action by monitoring and taking appropriate measures; and
5. Compensating for the impact by replacing or providing comparable substitute Habitat Conservation Areas.

U. Native Vegetation: Vegetation native to the Portland metropolitan area provided that it is not invasive non-native or noxious vegetation.

V. Open Space: Land that is undeveloped and that is planned to remain so indefinitely. The term encompasses parks, forests, and farmland. It may also refer only to land zoned as being available to the public, including playgrounds, watershed preserves, and parks.

W. Ordinary Mean High Water Line: The line on the bank or shore to which water ordinarily rises in season.

X. Practicable: Available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purpose and probable impact on ecological functions. The practicability of a development option shall include consideration of the type of HCA that will be affected by the proposed development. For example, High HCAs have been so designated because they are areas that have been identified as having lower urban development value and higher-valued habitat, so it should be more difficult to show that alternative development options that avoid the habitat are not practicable. On the other hand, Low HCAs have been so designated because they are areas that have been identified as having higher urban development value and lower-valued habitat, so it should be less difficult to show that alternative development options that avoid the habitat are not practicable.

Y. Restoration: The process of returning a disturbed or altered area or water resource to a previously existing natural condition. Restoration activities reestablish the structure, function, or diversity to that which existed prior to impacts caused by human activity.

Z. Riparian: Those areas associated with streams, lakes, and wetlands where vegetation communities are predominately influenced by their association with water.

AA. Significant Detrimental Impact: An impact that affects the natural environment, considered individually or cumulatively with other impacts on the HCA, to the point where existing fish and wildlife habitat functional values are degraded.

BB. Stormwater: The surface water runoff that results from all natural forms of precipitation.

CC. Stormwater Pretreatment Facility: Any structure or drainage way that is designed, constructed, and maintained to collect and filter, retain, or detain surface water run-off during and after a storm event for the purpose of water quality improvement.

DD. Stream: A body of running water moving over the earth's surface in a channel or bed, such as a creek, rivulet, or river. A stream flows at least part of the year, including perennial and intermittent streams. Streams are dynamic in nature and their structure is maintained through build-up and loss of sediment.

EE. Structure: A building or other major improvement that is built, constructed, or installed, not including minor improvements—such as fences, utility poles, flagpoles, or irrigation system components—that are not customarily regulated through zoning codes.

FF. Urban Development Value: The economic value of a property lot or parcel as determined by analyzing three separate variables: assessed land value, value as a property that could generate jobs ("employment value"), and the Metro 2040 design type designation of property. The urban development value of all properties containing regionally significant fish and wildlife habitat is depicted on the Metro Habitat Urban Development Value Map.

GG. Utility Facilities: Buildings, structures, or any constructed portion of a system that provides for the production, transmission, conveyance, delivery, or furnishing of services including, but not limited to, heat, light, water, power, natural gas, sanitary sewer, stormwater, telephone, and cable television. Utility facilities do not include stormwater pre-treatment facilities.

HH. Water Resource: All rivers, streams (regardless of whether they carry year-round flow, i.e., including intermittent streams), springs which feed streams and wetlands and have year-round flow, flood management areas, wetlands, and all other bodies of open water.

II. Watershed: A watershed is a geographic unit defined by the flows of rainwater or snowmelt. All land in a watershed drains to a common outlet, such as a stream, lake, or wetland.

JJ. Wetlands: Areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support and under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands are those areas identified and delineated by a qualified wetland specialist as set forth in the 1987 Corps of Engineers Wetland Delineation Manual.

KK. Woody Vegetation: Areas that are part of a contiguous area one acre or larger of shrub or open or scattered forest canopy (less than 60 percent crown closure) located within 300 feet of a surface stream.

706.04 Exempt Uses

The following uses and activities are exempt from the requirements of Section 706, except that if the use or activity requires a building or grading permit, a Construction Management Plan shall be required pursuant to Subsection 706.06(A). Notwithstanding the requirement for HCA Map Verification under Subsection 706.06(B), the HCA Map shall be deemed reliable for the purpose of administering Subsection 706.04 unless an approved HCA Map Verification exists for the subject property, in which case the approved HCA Map Verification shall be used to administer Subsection 706.04.

1. Uses and activities that do not constitute development, except if the use or activity is prohibited by Subsection 706.05;
2. Development that:
   1. Had it been proposed prior to January 5, 2007, would not have required a land use, building, erosion prevention and sediment control, or grading permit; and
   2. Is located on a parcel that is developed with a dwelling for which a building or manufactured home placement permit was issued prior to January 5, 2007, or a dwelling that was lawfully established prior to the requirement to obtain such a permit;
3. Development, authorized by a valid design review or conditional use permit for which a complete application was submitted prior to January 5, 2009, provided that the development will not result in an increase in the HCA disturbance area approved under the design review or conditional use permit;
4. Development on a partition parcel or a subdivision lot, provided that the parcel or lot is part of a partition or subdivision approved pursuant to Subsection 706.10(A)(4) or (B);
5. Maintenance, alteration, expansion, repair, and replacement of existing structures, provided that the building footprint is not increased;
6. Expansion or replacement of an existing structure, provided that:
   1. The expansion or replacement shall not intrude more than 500 square feet into the HCA in addition to the building footprint that lawfully existed on January 5, 2007. If more than one expansion or replacement of the same structure is undertaken—regardless of whether the work is done as one project or a series of projects—the total increase in the intrusion in the HCA shall not exceed this 500-square-foot limit;
   2. The new intrusion into the HCA shall be no closer to the protected water resource than the pre-existing structure; and
   3. Replacement is lawfully commenced within one year of destruction of the original structure. "Lawfully commenced" means the filing of an application for a land use, building, septic, grading, manufactured dwelling or residential trailer placement, plumbing, electrical, or other development permit required by the County or other appropriate permitting agency that is necessary to begin replacement of the structure.
7. Development that will have a disturbance area that does not exceed 120 square feet. If more than one development is undertaken pursuant to this exemption—regardless of whether the work is done as one project or a series of projects—the total disturbance area shall not exceed this 120 square-foot limit;  
8. Temporary clearing of vegetative cover in an HCA, not to exceed 200 square feet per lot of record, for the purpose of site investigations and pits for preparing soil profiles, provided that cleared areas are replanted with native vegetation when the investigation is complete. After replanting, no open soil areas greater than 25 square feet in area shall remain. If a tree is removed, the area contained within the tree's drip line shall be the basis for calculating the square footage of vegetative cover removed. If a tree is removed in an HCA and the tree is equal to or greater than 6 inches in diameter at breast height, it shall be replaced as set forth in Table 706-6;
9. Maintenance of existing gardens, pastures, lawns, and landscaping, including the installation of new irrigation systems within existing gardens, pastures, lawns, and landscaping;
10. Removal of invasive non-native or noxious vegetation and the planting or propagation of native vegetation, provided that:
    1. Handheld tools are used to remove invasive non-native or noxious vegetation; and
    2. After such removal, all open soil areas greater than 25 square feet are replanted with native vegetation;
11. Farming practices, as defined in Oregon Revised Statutes (ORS) 30.930, and farm uses, as defined in ORS 215.203, in zoning districts where agricultural uses are a primary use, except that this exemption does not apply to buildings associated with farm practices or farm uses;
12. Forest practices, as defined in ORS 30.930, on forestlands, as defined in ORS 30.930, outside the Portland Metropolitan Urban Growth Boundary;
13. Maintenance, alteration, repair, and replacement of existing roads, railroads, and utilities, provided that there is no additional intrusion into the HCA;
14. Maintenance and repair of existing manmade water control facilities, such as irrigation and drainage ditches, constructed ponds and lakes, wastewater facilities, and stormwater pre-treatment facilities;
15. Projects with the sole purpose of restoring or enhancing wetlands, streams, or fish and wildlife habitat areas, provided that the project is part of an approved local, regional, state, or federal restoration or enhancement plan;
16. Removal of dead or diseased trees or trees that pose an imminent hazard to persons or property, provided that a consulting arborist's report, or other credible evidence, is provided by the owner of the subject property and verifies the dead, diseased, or hazardous condition of the trees proposed for removal;
17. Low-impact outdoor recreation facilities for public use, such as multi-use paths, trails, picnic areas, interpretive and educational displays, and overlooks, provided that:
    1. The facility is located outside of a Water Quality Resource Area regulated pursuant to Section 709;
    2. The facility includes less than 500 square feet of new impervious surface; and
    3. Any proposed trails are constructed using non-hazardous, pervious materials, with a maximum width of four feet;
18. Emergency procedures or activities undertaken which are necessary to remove or abate hazards and nuisances, or for the protection of public health, safety, and welfare, provided that:
    1. Such remedial or preventative action must take place within a timeframe too short to allow for compliance with the requirements of Section 706; and
    2. After the emergency, the owner shall mitigate adverse impacts to the HCA resulting from the emergency action; and
19. Facilities that infiltrate stormwater onsite, including the associated piping, provided that forest canopy and areas within the drip lines of trees are not disturbed and that only native vegetation is planted in these facilities. Such facilities may include, but are not limited to, vegetated swales, rain gardens, vegetated filter strips, and vegetated infiltration basins.

706.05 Prohibited Uses

The following uses and activities are prohibited within a Habitat Conservation Area:

1. The planting of invasive non-native or noxious vegetation; and
2. Outside storage of materials and equipment, unless such storage began before January 5, 2009, or is approved pursuant to review under Subsection 706.06(C).

706.06 Development Review Requirements

The following review requirements are applicable to development in the Habitat Conservation Area District (HCAD) unless such development is exempt pursuant to Subsection 706.04.

1. A Construction Management Plan, consistent with Subsection 706.08, shall be required prior to development in the HCAD, regardless of whether development will occur within an HCA. However, if an area is in the HCAD solely because it is less than 100 feet outside the boundary of an HCA located on a different parcel, a Construction Management Plan shall not be required unless HCA Map Verification determines that an HCA exists on the same parcel as the area for which development is proposed. A Construction Management Plan shall be reviewed:
   1. As part of an HCA Development Permit; or
   2. In conjunction with review of a building or grading permit, if no HCA Development Permit is required.
2. Unless the applicant concurs with the accuracy of the HCA Map, HCA Map Verification, pursuant to Subsection 706.09, shall be required or allowed as follows:
   1. HCA Map Verification shall be required for:
      1. Development that is proposed to be either in an HCA or less than 100 feet outside of the boundary of an HCA, as shown on the HCA Map; or
      2. A parcel that:
         1. Either contains an HCA, or any part of which is less than 100 feet outside the boundary of an HCA, as shown on the HCA Map; and
         2. Is the subject of a land use application for a partition, subdivision, or any other land use application the approval of which would authorize new development on the subject parcel.
   2. An application for HCA Map Verification may be submitted even if one is not required pursuant to Subsection 706.06(B)(1).
   3. If a parcel is subject to Subsection 706.06(B)(1)(b), an application for HCA Map Verification shall be filed concurrently with the other land use application referenced in Subsection 706.06(B)(1)(b)(ii) unless a previously approved HCA Map Verification for the subject property remains valid.
   4. HCA Map Verification shall be reviewed as a Type II application pursuant to Section 1307, Procedures, unless the application is filed concurrently with another land use application that requires review as a Type III application, in which case the applications will be consolidated and reviewed as a Type III application pursuant to Section 1307.
3. An HCA Development Permit, consistent with Subsection 706.10, shall be required for:
   1. Development in an HCA or for a parcel that:
      1. Contains an HCA; and
      2. Is the subject of a land use application for a partition or subdivision.
   2. If a parcel is subject to Subsections 706.06(C)(1)(a) and (b), an application for an HCA Development Permit shall be filed concurrently with the application for a partition or subdivision.
   3. An application for an HCA Development Permit shall be reviewed as a Type II application pursuant to Section 1307 unless the application is filed concurrently with another land use application that requires review as a Type III application, in which case the applications will be consolidated and reviewed as a Type III application pursuant to Section 1307.
4. Approval of HCA Map Verification or an HCA Development Permit shall be valid for four years from the date of the final written decision. If the County's final written decision is appealed, the approval period shall commence on the date of the final appellate decision. During this four-year period, the approval shall be implemented, or the approval will become void.
   1. For an HCA Development Permit directly related to an application for a partition or subdivision, "implemented" means that the final plat of the partition or subdivision shall be recorded with the County Clerk.
   2. For any other HCA Development Permit, "implemented" means all major development permits shall be obtained and maintained, or if no major development permits are required to complete the development contemplated by the approved HCA Development Permit, "implemented" means all other necessary County development permits (e.g. grading permit, building permit for an accessory structure) shall be obtained and maintained. A "major development permit" is:
      1. A building or manufactured dwelling placement permit for a new primary structure that was part of the HCA Development Permit approval; or
      2. A permit issued by the County Engineering Division for parking lot or road improvements that were part of the HCA Development Permit approval.
   3. For HCA Map Verification, "implemented" has the meaning set forth in Subsection 706.06(D)(1) and (2), except that under Subsection 706.06(D)(2), if the approval did not contemplate a specific development proposal, "implemented" means at least one County development permit shall be obtained and maintained.
5. If the approval of HCA Map Verification or an HCA Development Permit is not implemented within the initial approval period established by Subsection 706.06(D), a two-year time extension may be approved pursuant to Section 1310.
6. HCA Map Verification that was valid on the date when the final plat for a subdivision or partition was recorded with the

706.07 Submittal Requirements

Construction Management Plans and applications filed pursuant to Section 706 shall comply with the following submittal requirements:

1. A Construction Management Plan shall include:
   1. A site plan of the subject property, drawn to scale and identifying the following:
      1. Location and type of existing and proposed development, including but not limited to, building footprints, roads, driveways, parking areas, utilities, onsite sewage disposal systems, wells, landscaping, and filling or grading in an amount greater than 10 cubic yards, with labels of each element as existing or proposed; 
      2. Location and width of existing adjacent roads and road rights-of-way;
      3. Location of the Habitat Conservation Area (HCA) as shown on the HCA Map or as identified pursuant to an approved HCA Map Verification;
      4. Drip lines outside the HCA of trees that are inside the HCA;
      5. Distance between the HCA boundary and proposed development outside the HCA;
      6. The site ingress and egress proposed to be used by construction vehicles;
      7. Proposed equipment and material staging and stockpile areas; and
      8. Proposed orange construction fencing required pursuant to Subsection 706.08(B);
   2. An Erosion Prevention and Sediment Control (EPSC) plan, which may be included on the site plan if acceptable to the EPSC regulatory authority; and
   3. If a modification or waiver of the construction fencing requirement of Subsection 706.08(B) is proposed, a narrative demonstrating compliance with Subsection 706.08(B)(1) or (2).
2. An application for HCA Map Verification shall include:
   1. The submittal requirements identified in Subsection 1307.07(C);
   2. A summer 2002 aerial photograph of the subject property, with lot lines shown, at a scale of at least one map inch equal to 50 feet for lots of 20,000 or fewer square feet, and a scale of at least one map inch equal to 100 feet for larger lots (available from the Metro Data Resource Center, 600 N.E. Grand Ave., Portland, OR 97232; 503-797-1742);
   3. For an application filed pursuant to Subsection 706.09(A)(1), either:
      1. A documented demonstration of the misalignment between the HCA Map (generated from the summer 2002 aerial photographs) and the tax lot lines of the subject property. For example, the applicant could compare the road rights-of-way boundaries shown on the tax lot layer for roads within 500 feet of the subject property with the location of such roads as viewed on the summer 2002 aerial photograph of the same area to provide evidence of the scale and amount of incongruity between the HCA Map and the tax lot lines, and the amount of adjustment that would be appropriate to accurately depict habitat on the subject property; or
      2. A documented demonstration of another type of computer mapping error that was made in the creation of the HCA map;
   4. For an application filed pursuant to Subsection 706.09(A)(2):
      1. A site plan of the subject property, drawn to scale and identifying the following:
         1. Location and type of existing development, including but not limited to, building footprints, roads, driveways, parking areas, utilities, onsite sewage disposal systems, wells, landscaping, and filling or grading in an amount greater than 10 cubic yards, with labels of the elements that were developed after August 1, 2002;  
         2. Location and width of existing adjacent roads and road rights-of-way;
         3. Location of the HCA as shown on the HCA Map, including off-site HCA where review is required due to proposed development within 100 feet outside the HCA boundary and including the location of High, Moderate, and Low HCA; and
         4. Location of the HCA as proposed by the applicant, including the location of High, Moderate, and Low HCA;
      2. A summer 2005 aerial photograph of the subject property (or, if available, an aerial photograph taken closer to, but not after, January 5, 2009), with lot lines shown, at a scale of at least one map inch equal to 50 feet for lots of 20,000 or fewer square feet, and a scale of at least one map inch equal to 100 feet for larger lots (available from the Metro Data Resource Center, 600 N.E. Grand Ave., Portland, OR 97232; 503-797-1742);
      3. Any approved development permits (e.g. building, grading, land use) and site plans related to the development of the property that took place between August 1, 2002, and January 5, 2009; and
      4. A narrative that correlates with the submitted site plan and development permits and identifies the type and scope of the new development that has occurred and the previously identified habitat that no longer exists because it is now part of a developed area; and
   5. For an application filed pursuant to Subsection 706.09(A)(3):
      1. A site plan of the subject property, drawn to scale and identifying the following:
         1. Location and type of existing development, including but not limited to, building footprints, roads, driveways, parking areas, utilities, onsite sewage disposal systems, wells, landscaping, and filling or grading in an amount greater than 10 cubic yards;    
         2. Location and width of existing adjacent roads and road rights-of-way;
         3. Location of the HCA as shown on the HCA Map, including off-site HCA where review is required due to proposed development within 100 feet outside the HCA boundary and including the location of High, Moderate, and Low HCA; 
         4. Location of the HCA as proposed by the applicant, including the location of High, Moderate, and Low HCA;
         5. Location of any rivers, streams, wetlands, and flood areas;
         6. Location of agricultural areas (e.g. pastures, orchards);
         7. Location of naturalized areas (e.g. meadows, woods); and
      2. A report prepared and signed by either a qualified natural resource professional ‑ such as a wildlife biologist, botanist, or hydrologist ‑ or an environmental engineer registered in Oregon. The report shall include:
         1. A description of the qualifications and experience of all persons that contributed to the report, and, for each person that contributed, a description of the elements of the analysis to which the person contributed;
         2. Additional aerial photographs if the applicant believes they provide better information regarding the subject property, including documentation of the date and process used to take the photographs and an expert's interpretation of the additional information they provide;
         3. A topographic map of the subject property, drawn to scale and shown by contour lines of two-foot intervals for slopes less than 15 percent and 10-foot intervals for slopes 15 percent or greater. On properties that are two acres or larger, such a contour map is required only for the portion of the property to be developed; and
         4. A narrative analysis and any additional documentation necessary to address each step of the verification process set forth in Subsection 706.09(E).
3. An application for an HCA Development Permit under Subsection 706.10(A) shall include:
   1. The submittal requirements identified in Subsection 1307.07(C);
   2. A site plan of the subject property, drawn to scale and identifying the following:
      1. Location and type of existing and proposed development, including but not limited to, building footprints, roads, driveways, parking areas, utilities, onsite sewage disposal systems, wells, landscaping, and filling or grading in an amount greater than 10 cubic yards, with labels of each element as existing or proposed;    
      2. Location and width of existing adjacent roads and road rights-of-way;
      3. Location of the HCA as identified pursuant to a valid HCA Map Verification, and including the location of High, Moderate, and Low HCA; 
      4. Location of any rivers, streams, wetlands, and flood areas;
      5. Location of agricultural areas (e.g. pastures, orchards);
      6. Location of naturalized areas (e.g. meadows, woods);
      7. Drip lines outside the HCA of trees that are inside the HCA;
      8. For a property containing less than one acre of HCA, the location of all trees within the HCA that are greater than six inches diameter at breast height (DBH), identified by DBH and species. For properties containing one acre or more of HCA, the applicant may approximate the number of trees within the HCA that are greater than six inches DBH and the DBH range, and provide a listing of the dominant species;
      9. The location of all trees with a DBH of six inches or greater that are proposed to be removed, identified by DBH and species;
      10. The site ingress and egress proposed to be used by construction vehicles;
      11. Proposed equipment and material staging and stockpile areas; and
      12. Location of any Water Quality Resource Area regulated by Section 709;
   3. A mitigation plan that demonstrates compliance with Subsections 706.10(A)(6), (7), and, if applicable, (8);
   4. If offsite mitigation is proposed pursuant to Subsection 706.10(A)(7)(b), the mitigation plan required by Subsection 706.07(C)(2) shall address both the subject property and the alternate mitigation site and shall document the following:
      1. The number of trees and shrubs that can be planted onsite;
      2. The onsite location where those trees and shrubs can be planted;
      3. An explanation of why it is not practicable for the remainder of the mitigation to occur onsite; and
      4. Identification of the proposed location for off-site mitigation and 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 an HCA, documentation that the mitigation site will be protected from development after the monitoring period expires by a restrictive covenant, conservation easement, or public dedication; 
   5. If the applicant proposes to vary the number and size of required trees and shrubs pursuant to Subsection 706.10(A)(8), a report, prepared and signed by a qualified professional, such as a botanist or a certified landscape architect, that:
      1. Explains 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 Subsection 706.10(A)(6)(a) through (c); and
      2. Discusses site preparation, including soil additives, removal of invasive and noxious vegetation, plant diversity, plant spacing, planting season, and immediate post-planting care including mulching, irrigation, wildlife protection, and weed control;
4. An application for an HCA Development Permit under Subsection 706.10(B) shall include:
   1. The items listed in Subsections 706.07(C)(1) and (2);
   2. A topographic map of the subject property, drawn to scale and shown by contour lines of two-foot intervals for slopes less than 15 percent and 10-foot intervals for slopes 15 percent or greater. On properties that are two acres or larger, such a contour map is required only for the portion of the property to be developed;
   3. If grading will occur within the HCA, a grading plan showing the proposed alteration of the ground at one-foot vertical contours in areas of slopes less than five percent, two-foot vertical contours in areas of slopes from five percent to 15 percent, and five-foot vertical contours in areas of slopes greater than 15 percent;
   4. An Impact Evaluation and Alternatives Analysis, prepared and signed by either a qualified natural resource professional—such as a wildlife biologist, botanist, or hydrologist—or an environmental engineer registered in Oregon. The report shall include:
      1. A description of the qualifications and experience of all persons that contributed to the analysis, and, for each person that contributed, a description of the elements of the analysis to which the person contributed;
      2. Identification of the ecological functions of the HCA on the subject property. The ecological functions to be evaluated are those identified in Subsections 706.10(B)(2)(b)(i) through (iii);
      3. Evaluation of alternative locations, design modifications, or alternative methods of development to determine which options reduce significant detrimental impacts on the HCA and the ecological functions provided by the HCA. At a minimum, the approaches identified in Subsections 706.10(B)(1)(a) through (g) shall be considered; and
      4. Determination of the alternative that best meets the applicable approval criteria, and identification of unavoidable significant detrimental impacts; and
   5. A mitigation plan that demonstrates compliance with Subsections 706.10(A)(6), (7), and, if applicable, (8) or an alternative mitigation plan. An alternative mitigation plan shall be prepared and signed by a qualified professional, such as a botanist or a certified landscape architect. The report shall include:
      1. A description of the qualifications and experience of all persons that contributed to the plan, and, for each person that contributed, a description of the elements of the plan to which the person contributed;
      2. An explanation of how the proposed mitigation will adequately compensate for the impacts to ecological functions described in the Impact Evaluation and Alternatives Analysis. The mitigation that would be required under Subsections 706.10(A)(6) and (7)(a) may be used as the baseline mitigation required to compensate for disturbance to an HCA that provides an average level of ecological functions. The explanation shall include:
         1. If the mitigation that would be required under Subsections 706.10(A)(6) and (7)(a) is used as the baseline mitigation required to compensate for disturbance to an HCA, a calculation of the number of trees and shrubs that would be required under Subsection 706.10(A)(6)(a);
         2. A site plan showing where the specific mitigation activities will occur and the numbers and sizes of trees and shrubs that are proposed to be planted; and
         3. A discussion of site preparation, including soil additives, removal of invasive and noxious vegetation, plant diversity, plant spacing, planting season, and immediate post-planting care, including mulching, irrigation, wildlife protection, and weed control;
      3. Documentation of coordination with appropriate local, regional, special district, state, and federal regulatory agencies;
      4. A list of all parties responsible for implementing and monitoring the mitigation plan and, if mitigation will occur offsite, the names of the owners of property where mitigation plantings will occur;
      5. A mitigation site monitoring and reporting plan;
      6. If the proposed mitigation will not be conducted onsite, a map and accompanying narrative that details the following:
         1. The number of trees and shrubs that can be planted onsite;
         2. The onsite location where those trees and shrubs can be planted;
         3. An explanation of why it is not practicable for the remainder of the mitigation to occur onsite; and
         4. 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 an HCA, documentation that the mitigation site will be protected from development after the monitoring period expires by a restrictive covenant, conservation easement, or public dedication;
      7. If the mitigation area is offsite and not within the same subwatershed (6th Field Hydrologic Unit Code) as the disturbed HCA, 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; and
      8. An implementation schedule, including a timeline for construction, mitigation, mitigation maintenance, monitoring, and reporting and a contingency plan. If in-stream work in fish-bearing streams is proposed as part of the mitigation plan, documentation that such work will be done in accordance with the Oregon Department of Fish and Wildlife in-stream work timing schedule shall be submitted.
5. Except for utility facilities reviewed pursuant to Subsection 706.10(A)(1) and notwithstanding any other provisions of Subsection 706.07, for utility facilities developed by public utilities on 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 proposed disturbance area.

706.08 Construction Management Plans

A Construction Management Plan (CMP) shall comply with the following criteria.

1. Erosion prevention and sediment control (EPSC) measures shall be required and shall comply with the standards of the EPSC regulatory authority. 
2. Orange construction fencing (i.e. safety fencing, snow fencing, or a comparable product) shall be installed on or outside the boundary of the HCA, except where the drip line of a protected tree extends outside the HCA, in which case the drip line shall be included inside the fencing. This requirement may be modified or waived if:
   1. Disturbance of the HCA is authorized pursuant to Subsection 706.04 or 706.10, in which case the fencing shall be installed in such a manner as to protect the area of the HCA not authorized for disturbance; or
   2. The HCA is already lawfully developed, in which case the fencing shall be installed in such a manner as to protect any water resource that is the basis for the HCA designation and any area of the HCA where naturalized vegetative cover exists.
3. Trees in the HCA shall not be used as anchors for stabilizing construction equipment.
4. Native soils disturbed during development shall be conserved on the subject property.
5. Development shall not commence until the EPSC measures and fencing required pursuant to Subsections 706.08(A) and (B) are in place. 
6. Compliance with the CMP shall be maintained until the development is complete.

706.09 HCA Map Verification

HCA Map Verification shall be subject to the following criteria.

1. An applicant for HCA Map Verification shall use one or more of the following methods to verify the Habitat Conservation Area (HCA) boundary and, if applicable, the boundary between High, Moderate, and Low HCA.
   1. The applicant may demonstrate that a computer mapping error was made in the creation of the HCA map (e.g., the mapped vegetative cover layer­—which was derived from aerial photographs taken in the summer of 2002 and was used to establish the Vegetative Cover Map and the HCA Map—in Metro's geographic information system database does not align precisely with the tax lot layer, thereby resulting in an HCA Map of the subject property that is also misaligned with tax lot lines);
   2. The applicant may demonstrate that the subject property was developed lawfully between August 1, 2002 (when the taking of the aerial photographs used to determine the regional habitat inventory commenced) and January 5, 2009 and, therefore, that the HCA boundary or category (High, Moderate, or Low) is inaccurate; or
   3. If the identified HCA is riparian habitat rather than publicly-owned upland habitat, the applicant may demonstrate that the HCA Map is inaccurate for a reason other than those described in Subsections 706.09(A)(1) and (2).
2. The location of any HCA on the subject property shall be determined by considering information submitted by the applicant, information collected during any site visit that may be made to the subject property, information generated by prior HCA Map Verification that has occurred on adjacent properties, and any other relevant information that has been provided.
3. For applications filed pursuant to Subsection 706.09(A)(1), the HCA Map shall be deemed to be accurate unless, as described in Subsection 706.09(A)(1), there was a computer mapping error (e.g., an alignment error) made in the creation of the HCA Map.
4. For applications filed pursuant to Subsection 706.09(A)(2), developed areas not providing vegetative cover shall be removed from the HCA, provided that they were developed lawfully between August 1, 2002, and January 5, 2009, and are more than 50 feet from the water resource. Developed areas not providing vegetative cover that were developed lawfully between August 1, 2002, and January 5, 2009, and are 50 feet or less from the water resource, shall remain classified as HCA, but the HCA category shall be changed if necessary to remain consistent with Tables 706-1 and 706-2.
5. For applications filed pursuant to Subsection 706.09(A)(3), the HCA boundary shall be established as follows:
   1. Locate the water resource that was inventoried by Metro and is the basis for the HCA designation, including: Bankfull stage of streams, rivers, and bodies of open water on or within 200 feet of the subject property; flood areas on or within 100 feet of the subject property; and wetlands on or within 150 feet of the subject property based on the 1994 Clackamas County Wetland Inventory maps adopted by reference in Chapter 3 of the Comprehensive Plan and the Metro 2002 Wetland Inventory Map (available from the Metro Data Resource Center, 600 N.E. Grand Ave., Portland, OR 97232; 503-797-1742). Identified wetlands shall be further delineated consistent with methods currently accepted by the Oregon Division of State Lands and the U.S. Army Corps of Engineers.
   2. Identify the vegetative cover status of all areas on the subject property that are within 200 feet of the bankfull stage of streams, rivers, and bodies of open water; are wetlands or are within 150 feet of wetlands; and are flood areas or are within 100 feet of flood areas. 
      1. Vegetative cover status shall be as identified on the Metro Vegetative Cover Map (available from the Metro Data Resource Center, 600 N.E. Grand Ave., Portland, OR 97232; 503-797-1742); or
      2. Vegetative cover status may be adjusted if the property was developed lawfully between August 1, 2002, and January 5, 2009, or an error was made at the time the vegetative cover status was determined by Metro. To assert the latter type of error, applicants shall submit an analysis of the vegetative cover on their property using summer 2002 aerial photographs and the definitions of the different vegetative cover types provided in Subsection 706.03.
   3. Determine whether the degree that the land slopes upward from all streams, rivers, and bodies of open water on or within 200 feet of the subject property is greater than or less than 25 percent. A minimum of three slope measurements along the water resource shall be made on the subject property. The measurements shall be made at no more than 100-foot increments, which means that more than three measurements may be required, depending on the length of the water resource on the subject property. Slope shall be measured in 25-foot increments away from the water resource until a point 200 feet from the starting point of measurement is reached. Where the protected water resource is confined by a ravine or gully, the top of ravine is the break in the greater-than-25-percent slope; and
   4. Using Table 706-1 and the data identified pursuant to Subsections 706.09(E)(1) through (3), identify all Class I and II riparian areas on the subject property. The riparian class may vary within a single property.

Table 706-1: Method for Locating Boundaries of Class I and II Riparian Areas

Vegetative Cover Status: Streams ¹

Vegetative Cover Status: Wetlands¹ (Wetland itself is a Class I Riparian Area)

Vegetative Cover Status: Flood Areas ¹

¹ The vegetative cover type assigned to any particular area is based on two factors: the type of vegetation and the size of the overall contiguous area of vegetative cover to which a particular piece of vegetation belongs. For example, in order to qualify as "forest canopy," the forested area has to be part of a larger patch of forest of at least one acre in size.

² These areas shall be Class II riparian areas if the stream is a high gradient stream. High gradient streams are identified on the Metro Vegetative Cover Map. If the applicant believes the gradient of a stream was incorrectly identified, then the applicant may demonstrate the correct classification by identifying the channel type using the methodology described in the Oregon Watershed Assessment Manual, published by the Oregon Watershed Enhancement Board, and appended to the Metro's Riparian Corridor and Wildlife Habitat Inventories Report, Attachment 1 to Exhibit F to Metro Ordinance No. 05-1077C.

³ Areas that have been identified as habitats of concern, as designated on the Metro Habitats of Concern Map (available from the Metro Data Resource Center, 600 N.E. Grand Ave., Portland, OR 97232; 503-797-1742), shall be Class I riparian areas, unless additional information is provided that establishes that they do not meet the criteria used to identify habitats of concern as described in Metro's Technical Report for Fish and Wildlife. Examples of habitats of concern include: Oregon white oak woodlands, bottomland hardwood forests, wetlands, native grasslands, riverine islands or deltas, and important wildlife migration corridors.

⁴ If development prior to January 5, 2009, within a contiguous, undeveloped flood area (to include contiguous flood areas on adjacent properties) that was not mapped as having any vegetative cover has reduced the size of that contiguous flood area to less than one half of an acre in size, then the remaining flood area shall also be considered a developed flood area and shall not be identified as habitat.

⁵ Only if within 300 feet of a river or surface stream.

5. Use the Metro Habitat Urban Development Value Map (available from the Metro Data Resource Center, 600 N.E. Grand Ave., Portland, OR 97232; 503-797-1742) to identify the urban development value of the subject property.
   1. An upward adjustment of the subject property's urban development value designation shall be made if the Metro 2040 Design Type designation for the subject property has changed from a category designated as a lower urban development value category to one designated as a higher urban development value category. 2040 Design Type designations are identified on the Metro 2040 Applied Concept Map (available from the Metro Data Resource Center, 600 N.E. Grand Ave., Portland, OR 97232; 503-797-1742). The urban development value categories of the 2040 Design Types are identified in the footnotes to Table 706-2.
   2. If the subject property is owned by a regionally significant educational or medical facility, as designated by Title 13 of the Metro Urban Growth Management Functional Plan, it is designated as of high urban development value.
   3. If the subject property is located outside the Portland Metropolitan Urban Growth Boundary and therefore does not have a Metro 2040 Design Type designation, it is designated as of high urban development value.
6. Use Table 706-2 to cross-reference habitat class with urban development value in order to categorize identified HCA as High, Moderate, or Low HCA.

Table 706-2: Method for Identifying Habitat Conservation Areas (HCA)

NOTE: The default urban development value of property is as depicted on the Metro Habitat Urban Development Value Map. The Metro 2040 Design Type designations provided in the following footnotes are only for use when making an adjustment pursuant to Subsection 706.09(E)(5)(a). 

¹ Primary 2040 design type: Central City, Regional Centers, Town Centers, and Regionally Significant Industrial Areas 

² Secondary 2040 design type: Main Streets, Station Communities, Other Industrial Areas, and Employment Centers 

³ Tertiary 2040 design type: Inner and Outer Neighborhoods and Corridors 

⁴ HCAs in publicly owned parks and open spaces designated as natural areas shall be considered High HCA+. HCAs in other publicly owned parks and open spaces shall be designated as shown in Table 706-2.

706.10 Habitat Conservation Area Development Permits

A Habitat Conservation Area (HCA) Development Permit shall be approved if the applicant provides evidence substantiating compliance with either Subsection 706.10(A) or (B). However, if the proposed development is in a Water Quality Resource Area (WQRA) regulated pursuant to Section 709, it shall comply with either Subsection 706.10 or 709.10, except that if the subject parcel contains an HCA and a WQRA and is the subject of a land use application for a partition or subdivision, the partition or subdivision shall comply with the requirements of Subsections 706.10 and 709.11, and if the provisions conflict, the most restrictive standard shall apply.   

1. Development in an HCA shall be permitted subject to the following criteria:
   1. Except as provided in Subsections 706.10(A)(2) through (5), a maximum disturbance area (MDA) shall apply to the subject property. 
      1. For property inside the Portland Metropolitan Urban Growth Boundary (UGB), the MDA shall be calculated pursuant to Table 706-3 for property with a Comprehensive Plan designation of Urban Low Density Residential and Table 706-4 for property with any other Comprehensive Plan designation.

Table 706-3: Maximum Disturbance Area for Urban Low Density Residential Property

¹ If more than one HCA Type is present on the subject property, the MDA shall be based on the predominant type. For the purpose of this provision, High HCA shall be the predominant type if at least 50 percent of the area of the HCA on the subject property is High HCA.

² For the purpose of Table 706-3, Moderate and Low HCA shall be combined as one HCA Type.

Table 706-4: Maximum Disturbance Area for Other Property Inside the UGB

¹ The MDA refers only to the maximum percentage of each type of HCA that may be disturbed. Table 706-4 imposes no limit on disturbance area outside an HCA.

2. For property outside the Portland Metropolitan Urban Growth Boundary, the MDA shall be calculated pursuant to Table 706-5, except that the MDA shall be calculated pursuant to Table 706-4 for:

   1. Commercial development;
   2. Industrial development;
   3. Buildings associated with farming practices, as defined in Oregon Revised Statutes (ORS) 30.930, and farm uses, as defined in ORS 215.203, in zoning districts where agricultural uses are a primary use; and
   4. Buildings associated with forest practices, as defined in ORS 30.930, on forestlands, as defined in ORS 30.930.

   Table 706-5: Maximum Disturbance Area Outside the UGB

   HCA Type1	Maximum Disturbance Area
   High	5 percent of the area of the subject property or 5,000 square feet, whichever is greater
   Moderate/Low2	5 percent of the area of the subject property or 6,000 square feet, whichever is greater

   ¹ If more than one HCA Type is present on the subject property, the MDA shall be based on the predominant type. For the purpose of this provision, High HCA shall be the predominant type if at least 50 percent of the area of the HCA on the subject property is High HCA.

   ²For the purpose of Table 3, Moderate and Low HCA shall be combined as one HCA Type.

   3. For property subject to Table 706-3 or 706-5, the MDA shall be located outside the HCA except:
      1. If the MDA exceeds the non-HCA area, the excess MDA may be located in Low HCA; and
      2. If the MDA exceeds the area of non- and Low HCA combined, the excess MDA may be located in Moderate HCA; and
      3. If the MDA exceeds the area of non-, Low, and Moderate HCA combined, the excess MDA may be located in High HCA.
   4. In determining compliance with the MDA standard, both existing and proposed disturbance area shall be included in the calculation.
   5. The following disturbance area limitations shall apply to certain utility facilities. Utility facilities other than those addressed in Subsections 706.10(A)(2)(a) through (c) shall be subject to Subsection 706.10(A)(1).
      1. The disturbance area for private connections of utility lines, pipes, or cables to other utility facilities shall be no greater than 10 feet wide.
      2. The disturbance area for the upgrade of existing utility lines, pipes, or cables shall be no greater than 15 feet wide.
      3. The disturbance area for new underground utility lines, pipes, or cables shall be no greater than 25 feet wide and shall disturb no more than 200 linear feet of Water Quality Resource Area regulated pursuant to Section 709, within any 1,000 linear foot stretch of Water Quality Resource Area regulated pursuant to Section 709, provided that this disturbance area, with the exception of necessary access points to the utility facility, shall be restored by the planting of native vegetation.
   6. A partition of a parcel that contains an HCA shall comply with one of the following options:
      1. There shall be no more than a 30 percentage point difference in the percentage of each parcel's area that is in an HCA. For example, a partition that produces two parcels, one that is 55 percent HCA and the other that is 35 percent HCA, is permissible; whereas a partition that produces two parcels, one that is 75 percent HCA and the other that is 30 percent HCA, is not permissible. In this case, development in the HCA shall be subject to further review under Section 706;
      2. The partition shall comply with Subsection 706.10(A)(4); or
      3. The applicant shall demonstrate, through an analysis of different possible partition plans based on the characteristics and zoning of the subject property, that it is not practicable to comply with Subsection 706.10(A)(3)(a) or (b) and that the applicant's alternate plan will result in the smallest practicable percentage point difference in the percentage of each parcel's area that is in an HCA. In this case, development in the HCA shall be subject to further review under Section 706.
   7. A subdivision of property that contains an HCA shall require that a minimum of 90 percent of the subject property's High HCA and a minimum of 80 percent of its Moderate HCA shall be platted as a tract or restricted development area (RDA). Any HCA that remains outside an HCA tract or RDA may be developed, subject to compliance with the mitigation standards of Subsection 706.10(A) or (B). It shall be assumed that any HCA that remains outside an HCA tract or RDA eventually will be developed, and mitigation shall be required. Mitigation shall be completed, or a performance bond in an amount sufficient to cover the cost of mitigation shall be posted with the County, prior to approval of the final plat.
      1. If over 50 percent of the HCA on the subject property is High HCA, the entire calculation is for High (i.e., 90 percent of the HCA shall be placed within a separate tract or RDA).
      2. If over 50 percent of the HCA on a property is Moderate HCA, the entire calculation is for Moderate (i.e., 80 percent of the HCA shall be placed within a separate tract or RDA).
      3. An HCA tract shall be designated on the final plat as one of the following where development is prohibited:
         1. A private natural area owned by a homeowners association or a private non-profit with the mission of land conservation; or
         2. A public natural area where the tract has been dedicated to a public entity.
      4. An HCA RDA shall be designated on the final plat as a private natural area where development is prohibited.
      5. Notwithstanding Subsections 706.10(4)(c) and (d), the tract or RDA may be subject to an easement conveying storm and surface water management rights to the surface water management authority.
   8. The MDA for publicly owned parks and open spaces designated as natural areas shall be five percent of the HCA on the subject property. Subsection 706.10(A)(5) imposes no limit on disturbance area outside an HCA for such natural areas.
   9. If development in an HCA is approved pursuant to Subsection 706.10(A), compliance with the following mitigation standards shall be required, except that the mitigation standards for development in a wetland (as distinct from an HCA that is adjacent to a wetland) shall be only those required by federal and state law.
      1. Required Plants and Plant Densities. All trees, shrubs and ground cover shall be native vegetation. An applicant shall comply with Subsection 706.10(A)(6)(a)(i) or (ii), whichever results in more tree plantings, except that where the disturbance area is one acre or more, the applicant shall comply with Subsection 706.10(A)(6)(a)(ii).
         1. The mitigation requirement shall be calculated based on the number and size of trees that are removed from the site. Trees that are removed from the site shall be replaced as shown in Table 706-6. Conifers shall be replaced with conifers. Bare ground shall be planted or seeded with native grasses or herbs. Non-native sterile wheat grass may also be planted or seeded, in equal or lesser proportion to the native grasses or herbs; or

   Table 706-6: Tree Replacement

   Size of Tree to be Removed (inches in diameter at breast height)	Number of Trees and Shrubs to be Planted
   6 to 12	2 trees and 3 shrubs
   over 12 to 18	3 trees and 6 shrubs
   over 18 to 24	5 trees and 12 shrubs
   over 24 to 30	7 trees and 18 shrubs
   over 30	10 trees and 30 shrubs

   2. The mitigation requirement shall be calculated based on the size of the disturbance area within the HCA. Native trees and shrubs shall be planted at a rate of five trees and 25 shrubs per every 500 square feet of disturbance area (calculated by dividing the number of square feet of disturbance area by 500, and then multiplying that result times five trees and 25 shrubs, and rounding all fractions to the nearest whole number of trees and shrubs; for example, if there will be 330 square feet of disturbance area, then 330 divided by 500 equals 0.66, and 0.66 times five equals 3.3, so three trees shall be planted, and 0.66 times 25 equals 16.5, so 17 shrubs shall be planted). Bare ground shall be planted or seeded with native grasses or herbs. Non-native sterile wheat grass may also be planted or seeded, in equal or lesser proportion to the native grasses or herbs.
   3. Plant Size. Replacement trees shall be at least one-half inch in caliper, measured at six inches above the ground level for field grown trees or above the soil line for container grown trees (the one-half inch minimum size may be an average caliper measure, recognizing that trees are not uniformly round), unless they are oak or madrone which may be one-gallon size. Shrubs shall be in at least a one-gallon container or the equivalent in ball and burlap and shall be at least 12 inches in height.
   4. Plant Spacing. Trees shall be planted between eight and 12 feet on center, and shrubs shall be planted between four and five feet on center, or clustered in single species groups of no more than four plants, with each cluster planted between eight and 10 feet on center. When planting near existing trees, the drip line of the existing tree shall be the starting point for plant spacing measurements.
   5. Plant Diversity. Shrubs shall consist of at least two different species. If 10 trees or more are planted, then no more than 50 percent of the trees may be of the same genus.
   6. Invasive Vegetation. Invasive non-native or noxious vegetation shall be removed within the mitigation area prior to planting, and shall be removed or controlled for five years following the date that the mitigation planting is completed.
   7. Mulching. Mulch shall be applied around new plantings at a minimum of three inches in depth and 18 inches in diameter.
   8. Tree and Shrub Survival. Trees and shrubs that die shall be replaced in kind to the extent necessary to ensure that a minimum of 80 percent of the trees initially required and 80 percent of the shrubs initially required shall remain alive on the fifth anniversary of the date that the mitigation planting is completed.
   9. Monitoring and Reporting. Monitoring of the mitigation site shall be the ongoing responsibility of the property owner. For a period of five years following the date that the mitigation planting is completed, the property owner shall submit an annual report to the Planning Director documenting the survival of the trees and shrubs on the mitigation site. In lieu of complying with the monitoring and reporting requirement, the property owner may post with the County a performance bond, or other surety acceptable to the County, in an amount sufficient to cover costs of plant material and labor associated with site preparation, planting, and maintenance. An applicant who elects to post a surety shall be subject to Subsection 1311.02.
   10. The mitigation area required by Subsection 706.10(A)(6) shall be located as follows:
       1. All vegetation shall be planted on the subject property, either within the HCA or in an area contiguous to the HCA, provided, however, that if the vegetation is planted in an area contiguous to the HCA, such area shall be protected from development by a restrictive covenant, conservation easement, or public dedication.
       2. Off-site mitigation within the same subwatershed (6th Field Hydrologic Unit Code) as the HCA within which development is proposed, may be approved for part or all of the required mitigation, if the applicant provides evidence substantiating that:
       3. It is not practicable to complete the mitigation on-site; and
       4. 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 an HCA, that the mitigation site will be protected from development after the monitoring period expires by a restrictive covenant, conservation easement, or public dedication.
   11. An applicant may request to proportionally vary the number and size of trees and shrubs required pursuant to Subsections 706.10(A)(6)(a) and (b)—for example, to plant fewer larger trees and shrubs or to plant more smaller trees and shrubs—and a corresponding modification of the plant spacing requirements of Subsection 706.10(A)(6)(c). The request shall be approved if the applicant provides evidence substantiating that the proposed 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 Subsections 705.10(A)(6)(a) through (c).
   12. Development in an HCA that does not comply with Subsection 706.10(A) shall be permitted subject to the following criteria:
       1. Development in the HCA shall be avoided to the extent practicable. If there is more than one category (High, Moderate, or Low) of HCA on the subject property, then the applicant shall first avoid the intrusion of development into the higher-valued HCA, to the extent practicable. To comply with these requirements, the following approaches shall be used, to the extent practicable:
          1. Multi-story construction;
          2. Minimizing building and development footprint;
          3. Maximizing the use of native landscaping materials and meeting applicable landscaping requirements by preservation of the HCA as permitted by Section 1009;
          4. Minimal excavation foundation systems (e.g., pier, post, or piling foundation);
          5. Transfer of density from the HCA to another part of the subject property as permitted by Section 1012;
          6. Placing facilities that are required to infiltrate stormwater onsite, including associated piping, within the HCA, provided that such facilities comply with Subsection 706.04(R); and
          7. Complying with the setback standards of Subsection 706.11 rather than those of the underlying zoning district.
       2. If there is no practicable alternative that will avoid disturbance of the HCA, then significant detrimental impacts to the HCA shall be minimized as follows: 
          1. The proposed development shall minimize loss of habitat as compared to other practicable alternatives, including significantly different practicable alternatives that would result in less development within the HCA.
          2. The proposed development shall minimize significant detrimental impacts to ecological functions of the HCA on the subject property as compared to other practicable alternatives, including significantly different practicable alternatives that would result in less development within the HCA. The ecological functions that shall be considered are:
             1. Connectivity of the habitat to water;
             2. Connectivity of the habitat to other habitat areas; and
             3. The functions identified in Table 706-7.

   Table 706-7: 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 percent
   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 flood area, but where there is no mapped flood area, 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 ¼ mile of a surface stream or flood area.

   ² Developed flood areas are not identified as HCAs because they do not provide primary ecological functional value.

   ³ "Other water body" could include lakes, ponds, reservoirs, or manmade water resource that is not a water quality facility or farm pond.

   • If there is more than one category of HCA on the subject property, then development within a higher-valued HCA shall be considered more detrimental than development within a lower-valued HCA.  
   • To the extent practicable, development in the HCA shall be designed, located, and constructed to:
     1. Minimize grading, removal of native vegetation, and disturbance and removal of native soils by using the approaches required by Subsection 706.08, reducing building footprints, and using minimal excavation foundation systems (e.g., pier, post, or piling foundation);
     2. Minimize adverse hydrological impacts on water resources, such as by using the techniques described in Part (a) of Table 706-8, 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;
     3. Minimize impacts on wildlife corridors and fish passage, such as by using the techniques described in Part (b) of Table 706-8; and
     4. Consider using the techniques described in Part (c) of Table 706-8.

Table 706-8: Habitat-Friendly Development Practices¹

¹ These development practices represent the state of scientific knowledge at the time of the adoption of Section 706. If more effective habitat-friendly practices become available, they may be used.

3. If development in an HCA is approved pursuant to Subsection 706.10(B), compliance with the following mitigation standards shall be required, except that the mitigation standards for development in a wetland (as distinct from an HCA that is adjacent to a wetland) shall be only those required by federal and state law.
   1. Compliance with Subsections 706.10(A)(6), (7), and, if applicable, (8) shall be required; or
   2. An alternative mitigation plan (e.g., 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 HCA on the subject property provides only impaired ecological functions) may be approved, subject to the following criteria:
      1. The mitigation plan shall demonstrate that it compensates for significant detrimental impacts to the ecological functions provided by the HCA on the subject property, after taking into consideration efforts to minimize such significant detrimental impacts through the use of the techniques described in Table 706-8 and through any additional or innovative techniques.
      2. Mitigation shall occur on the subject property, except that offsite mitigation may be approved pursuant to Subsection 706.10(A)(7)(b). In addition, off-site mitigation outside the subwatershed (6th Field Hydrologic Unit Code) in which the disturbed HCA is located—but inside the Metropolitan Service District boundary or the Portland Metropolitan Urban Growth Boundary—may be approved if it is not practicable to complete the mitigation within the same subwatershed and if, considering the purpose of the mitigation, the mitigation will provide more ecological functional value if implemented outside of the subwatershed.
      3. All mitigation plantings shall be native vegetation.
      4. All in-stream work in fish-bearing streams shall be done in accordance with the Oregon Department of Fish and Wildlife in-stream work-timing schedule.
      5. A mitigation maintenance plan shall be included and shall be sufficient to ensure the success of the planting.
4. Municipal potable water, stormwater (drainage), and wastewater utility facilities, which 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, shall not have to comply with Subsection 706.10(B)(1), provided that:
   1. Where practicable, the development shall not encroach closer to a water resource than existing operations and development, or for new projects where there are no existing operations or development, the development shall not encroach closer to a water resource than practicable; and
   2. Best management practices shall 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 HCA;
      3. Utilize and maintain erosion prevention and sediment control measures 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 HCA;
      7. Complete in-water construction during appropriate seasons, or as approved within requisite state or federal 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.

706.11 Setbacks

For parcels that contain a Habitat Conservation Area and are inside the Portland Metropolitan Urban Growth Boundary, the minimum front, rear, and side yard setbacks shall be zero, except:

1. Garages and carports shall comply with the minimum front yard setback of the underlying zoning district; and
2. A greater setback may be required to comply with applicable fire or life safety requirements.

[Amended by Ord. ZDO-230, 9/26/11; Amended by Ord. ZDO-248, 10/13/14; Amended by Ord. ZDO-253, 6/1/15; Amended by Ord. ZDO-283, 9/5/23]

703.01 Findings Of Fact

A Floodplain Management District (FMD) is needed for the following reasons:

1. Flood Losses Resulting from Periodic Inundation: The special flood hazard areas of the County are subject to periodic inundation that results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the County's tax base, all of which adversely affect the public health, safety, and general welfare.
2. General Causes of These Flood Losses: Flood losses are caused by:
   1. The cumulative effect of obstructions in special flood hazard areas that increase flood heights and velocities and, when inadequately anchored, damage land uses in other areas; and
   2. The occupancy of special flood hazard areas by uses vulnerable to floods or hazardous to others that are inadequately floodproofed, inadequately elevated, or otherwise unprotected from flood damages.

703.02 Purpose

Section 703 is adopted to:

1. Promote the public health, safety, and general welfare;
2. Protect human life and health;
3. Minimize public and private flood losses due to flooding in flood hazard areas;
4. Minimize expenditure of public money for costly flood control projects;
5. Minimize prolonged business interruptions;
6. Help maintain a stable tax base by providing for the sound use and development of special flood hazard areas so as to minimize future flood blight areas;
7. Restrict or prohibit uses that are dangerous to health, safety, or property in times of flooding or that cause increases in erosion, flood heights, or velocities;
8. Minimize damage to public facilities and utilities—such as water and gas mains; electric, telephone, and sewer lines; streets; and bridges—located in special flood hazard areas;
9. Require that uses vulnerable to floods, including public facilities that serve such uses, be provided with flood protection at the time of initial construction;
10. Notify those who occupy special flood hazard areas that they assume responsibility for their actions;
11. Protect individuals, as much as possible, from buying lands that are not suitable for intended purposes because of flood hazard, by ensuring to the degree possible that potential buyers are notified that property is in a special flood hazard area; and
12. Minimize the need for rescue and relief efforts associated with flooding undertaken at the expense of the general public.

703.03 Warning And Disclaimer Of Liability

The degree of flood protection required by the FMD is considered reasonable for regulatory purposes and is based on engineering and scientific study. Larger floods may occur on rare occasions. Flood heights may be increased by manmade or natural causes, such as ice jams and bridge openings restricted by debris. Section 703 does not imply that areas outside the FMD or land uses permitted within the FMD will be free from flooding or flood damages. Section 703 shall not create liability on the part of the County, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on the FMD or any administrative decision lawfully made hereunder.

703.04 Applicability

Section 703 applies to the FMD, which is applied to the special flood hazard areas (SFHAs) identified by the Federal Insurance Administration in a scientific and engineering report entitled, "The Flood Insurance Study for Clackamas County, Oregon & Incorporated Areas," (FIS) dated January 18, 2019, with accompanying Flood Insurance Rate Maps (FIRMs).

1. The FIS and FIRMs are hereby adopted by reference and declared to be a part of Section 703 and are on file at the County Department of Transportation and Development.
2. The Planning Director shall make interpretations where needed, as to the exact location of the boundaries of the SFHA (for example, where there appears to be a conflict between a mapped boundary and actual field conditions, topography, and/or elevations). In areas where base flood elevation data have been provided, the Planning Director may require the applicant to submit an elevation certificate. To most precisely determine the base flood elevation of the subject area, the elevations provided by the FIS flood profiles in combination with the cross section lines on the FIRM shall supersede the base flood elevation lines and values identified on the FIRM.

703.05 Definitions

The following definitions apply to Section 703:

A. Area of Shallow Flooding: A designated AO, AH, AR/AO, AR/AH, or VO zone on a community's Flood Insurance Rate Map with a one percent or greater annual chance of flooding to an average depth of one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable, and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.

B. Base Flood: The flood having a one percent chance of being equaled or exceeded in any given year.

C. Base Flood Elevation: The computed elevation to which floodwater is anticipated to rise during the base flood. Base flood elevations are shown on Flood Insurance Rate Maps and on the flood profiles included in the Flood Insurance Study.

D. Basement: Any area of the building having its floor subgrade (below ground level) on all sides.

E. Below-Grade Crawl Space: An enclosed area below the base flood elevation — which is in nearly all cases considered by the National Flood Insurance Program to also be a basement — that generally serves as the foundation for a structure and exhibits the following characteristics:

All sides of the crawl space are below the adjacent exterior grades outside the crawl space;

The interior grade inside the crawl space is not more than two feet below the lowest adjacent exterior grade; and

The height, measured from the interior grade of the crawl space to the top of the crawl space foundation, does not exceed four feet at any point.

F. Community Rating System: A program of the National Flood Insurance Program (NFIP) that recognizes jurisdictions for implementing floodplain management practices and standards that exceed NFIP minimum requirements. Membership in the program results in increased public safety and property protection, along with reductions in flood insurance premiums.

G. Conditional Letter of Map Revision (CLOMR): The Federal Emergency Management Agency's (FEMA's) comment on a proposed project that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective base flood elevations, or the special flood hazard area.

H. Critical Facility: A facility for which even a slight chance of flooding might be too great. Critical facilities include schools, hospitals, nursing homes, orphanages, penal institutions, fire stations, police stations, communications centers, water and sewage pumping stations, other public or quasi-public buildings, emergency response installations, and installations that produce, use, or store hazardous materials or hazardous waste.

I. Cross Section: A source of data that is developed during the hydraulic analyses of a stream in the course of producing the Flood Insurance Rate Maps (FIRMs) and the Flood Insurance Study (FIS). Cross sections provide an elevation view of the floodplain taken perpendicular to the flow at specific points and are typically determined using field survey information and topographic maps. Some of the locations of cross sections are shown on the FIRMs and are, in turn, cross-referenced in the FIS, where they provide precise information about a variety of data that relates to flood conditions.

J. Development: Any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

K. Elevation Certificate: A form produced by the Federal Emergency Management Agency (FEMA) that is completed by a professional engineer, licensed architect, or licensed surveyor, usually through field survey work, that reports elevation information about grades, structures, and other facilities. An elevation certificate is used to determine the relationship of grades, structures, and other facilities to the base flood elevation. It is also used to certify building elevations to ensure compliance with community floodplain regulations; determine proper insurance rates; and support a Letter of Map Amendment or Letter of Map Revision Based on Fill. Communities that participate in the Community Rating System are required to use an elevation certificate for all official reporting and recordkeeping of elevations.

L. Encroachments: Activities or construction within the floodway, including fill, new construction, substantial improvements, and other development.

M. Federal Emergency Management Agency (FEMA): A federal agency, whose primary mission is to reduce the loss of life and property and protect the nation from all hazards, including natural disasters, acts of terrorism, and other manmade disasters, by leading and supporting the nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation. Among other things, FEMA manages and oversees the National Flood Insurance Program.

N. Flood:

A general and temporary condition of partial or complete inundation of normally dry land area from:

The overflow of inland or tidal waters.

The unusual and rapid accumulation of runoff of surface waters from any source.

Mudslides (i.e., mudflows) which are proximately caused by flooding as defined in Subsection 703.05(N)(1)(b) and are akin to a river of liquid and flowing mud on the surfaces of normally dry land areas, as when earth is carried by a current of water and deposited along the path of the current.

The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in Subsection 703.05(N)(1)(a).

O. Flood Insurance Rate Map: An official map of a community, on which the Federal Insurance Administrator has delineated both the special flood hazard areas and the risk premium zones applicable to the community.

P. Flood Insurance Study: An examination, evaluation, and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation, and determination of mudslide (i.e., mudflow) and/or flood-related erosion hazards.

Q. Flood Profile: A graph, found in the Flood Insurance Study, of computed flood elevations at floodplain cross sections that is typically available for a stream that has base flood elevations shown on the Flood Insurance Rate Map (FIRM). Elevations provided by the flood profiles, used in combination with the cross section lines on the FIRM, are the most accurate means of determining the base flood elevation at a particular site.

R. Floodplain: Land area susceptible to being inundated by water from any source.

S. Floodproofing: Any combination of structural and non-structural additions, changes, or adjustments to properties and structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.

T. Floodway: The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. Often referred to as the "regulatory floodway."

U. Letter of Map Amendment (LOMA): An official amendment, by letter, to an effective National Flood Insurance Program map. A LOMA establishes a property's location in relation to the special flood hazard area.

V. Letter of Map Revision (LOMR): The Federal Emergency Management Agency's modification to an effective Flood Insurance Rate Map (FIRM). LOMRs are generally based on the implementation of physical measures that affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective base flood elevations, or the special flood hazard area. The LOMR officially revises the FIRM, and sometimes the Flood Insurance Study (FIS) report, and, when appropriate, includes a description of the modifications. The LOMR is generally accompanied by an annotated copy of the affected portions of the FIRM or FIS report.

W. Letter of Map Revision Based on Fill (LOMR-F): The Federal Emergency Management Agency's modification of the special flood hazard area shown on the Flood Insurance Rate Map based on the placement of fill outside the existing regulatory floodway.

X. Lowest Floor: The lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of Subsection 703.11(A)(1).

Y. Manufactured Home: A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term manufactured home does not include a recreational vehicle. A manufactured home may also be referred to as a manufactured dwelling.

Z. National Flood Insurance Program (NFIP): A federal program that is administered by the Federal Emergency Management Agency that is designed to reduce the loss of life, damage to property, and rising disaster relief costs, both within and beyond the special flood hazard area. The NFIP makes federally backed flood insurance available to communities that agree to adopt and enforce floodplain management ordinances that meet or exceed NFIP requirements.

AA. New Construction: Structures for which the start of construction commenced on or after the effective date of a floodplain management regulation adopted by the County (Section 703) and includes any subsequent improvements to such structures.

BB. "No-Rise" Certification: A certification that is provided by a professional engineer or licensed architect that demonstrates through accompanying hydrologic and hydraulic analyses, performed in accordance with standard engineering practice and National Flood Insurance Program rules and regulations, that an encroachment within the floodway will not result in any increase in the flood levels during the regulatory flood discharge. The supporting technical data should be based on the standard step-backwater computer model used to develop the 100-year floodway shown on the Flood Insurance Rate Map.

CC. Obstruction: Any dam, wall, wharf, embankment, levee, dike, pile, abutment, projection, excavation, channel, rectification, bridge, conduit, culvert, building, wire, fence, rock, gravel, refuse, fill, structure, or matter in, along, across, or projected into any channel, watercourse, or regulatory flood hazard area that may impede, retard, or change the direction of the flow of water, either in itself or by catching or collecting debris carried by such water, or that is placed where it might be carried downstream by the flow of water resulting in damage to life or property.

DD. Pre-FIRM Structure: A structure that was built before March 1, 1978, the effective date of the first Flood Insurance Rate Map (FIRM) for the County, and hence, prior to the date when detailed flood hazard data and flood elevations were provided to the County.

EE. Recreational Vehicle: A vehicle which is:

Built on a single chassis;

400 square feet or less when measured at the largest horizontal projection;

Designed to be self-propelled or permanently towable by a light duty truck; and

Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

FF. Regulatory Flood Protection Elevation: The elevation to which uses regulated by the FMD are required to be elevated or floodproofed.

GG. Special Flood Hazard Area: (SFHA): An area having special flood, mudslide (i.e., mudflow), or flood-related erosion hazards, and shown on a FIRM as Zone A, AO, A1-30, AE, AR, AR/A1-30, AR/AR, AR/AO, AR/AH, AR/A, A99, AH, VO, V1-30, VE, V, M, or E.

HH. Start of Construction: Includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundation or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of the building, whether or not that alteration affects the external dimensions of the structure.

II. Structure: For floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home.

JJ. Substantial Damage: Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. The market value of the structure before the damage occurred shall be the structure's real market value that is provided by the County Department of Assessment and Taxation. The cost of restoring a structure shall be determined by the County Building Codes Division.

KK. Substantial Improvement: Any reconstruction, repair, rehabilitation, addition, or other improvement — or series of reconstructions, repairs, rehabilitations, additions or other improvements — of a structure, the cost of which — or cumulative costs of which at the time of the most recent reconstruction, repair, rehabilitation, addition, or other improvement — equals or exceeds 50 percent of the market value of the structure before the "start of construction" of the improvement. The market value of the structure shall be determined at the time of the most recent reconstruction, repair, rehabilitation, addition, or other improvement, either before the improvement is started, or if the structure has been damaged and is being restored, before the damage occurred. The market value of the structure shall be the structure's real market value that is provided by the County Department of Assessment and Taxation. The cost of reconstruction, repair, rehabilitation, addition, or other improvement of a structure, or series thereof, shall be determined by the County Building Codes Division. This term includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either:

Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions or

Any alteration of a "historic structure" listed on the National Register of Historic Places or a State or Local Inventory of Historic Places, provided that the alteration will not preclude the structure's continued designation as a "historic structure".

LL. Variance: A grant of relief by the County from the terms of a floodplain management regulation.

MM. Water-Dependent Use: A use that is dependent on close proximity to the water to perform its intended purpose and by reason of the intrinsic nature of its operations. The term "water dependent use" shall be recognized as having a broader meaning than the term "functionally dependent use" as defined in Volume 44 Code of Federal Regulations (CFR) Section 59.1. A "water dependent use" shall not meet the requirements to qualify for a variance under Volume 44 CFR Section 60.6(a)(7) unless the use also qualifies as a "functionally dependent use" as defined in Volume 44 CFR 59.1.

NN. Wet Floodproofing: Permanent or contingent measures that are applied to a structure or its contents that prevent or provide resistance to damage from flooding, while allowing floodwaters to enter the structure or area. Generally, this includes properly anchoring the structure, using flood resistant materials below the base flood elevation and protecting mechanical and utility equipment. Application of wet floodproofing as a flood protection technique under the National Flood Insurance Program is limited to enclosures below elevated residential and non-residential structures and to nonresidential structures that have been issued variances by the County.

703.06 Type I Uses

The following uses require review as a Type I application pursuant to Section 1307, Procedures, and are exempt from the requirement to obtain a floodplain development permit and from compliance with Subsections 703.10 and 703.11.

1. Reconstruction, repair, rehabilitation, addition, or other improvement of a pre-FIRM structure that is not a substantial improvement and where the structure has not sustained substantial damage. If the structure is located in the floodway, no increase in ground coverage shall result unless a "no-rise" certification is provided.

703.07 Development in The Floodway

Development in the floodway is prohibited, except as provided in Subsection 703.06, or for the following uses. The following uses are allowed only if permitted in the underlying zoning district and require approval of a floodplain development permit:

1. Water-dependent uses. A "no-rise" certification shall be provided.
2. Riprap or other structural stream bank protection measures, subject to either Subsection 703.07(B)(1) or 703.07(B)(2).
   1. If riprap or other structural stream bank protection measures are proposed to repair bank damage, bank removal, or bank erosion, the following criteria shall be met. For the purpose Subsection 703.07(B)(2), pre-existing conditions are the conditions of the repair area upon which the FIRM(s), flood boundary and floodway map(s), and FIS(s) were based that were in effect during the period that the bank was damaged, removed, and/or eroded, leading up to the proposed repair.
      1. The measures shall not encroach any further into the stream channel than the pre-existing conditions.
      2. The measures shall not add any more cubic yards of bank material than was in place in the pre-existing conditions.
      3. The measures shall not exceed the height of the bank nor protrude above the topography that was in place in the pre-existing conditions.
      4. The pre-existing conditions shall be demonstrated through some combination of historical and aerial photography, survey and cross-section information, maps or plans, hydrologic and hydraulic modeling, or any other pertinent information.
      5. The applicant shall provide evidence from a professional engineer, with expertise in hydrology, hydraulics, fluvial geomorphology, or hydrogeology, that the proposal complies with Subsections 703.07(B)(2)(a) through (d) and that the proposed stream bank protection measures will cause no adverse impacts to upstream or downstream properties, when compared to impacts of the pre-existing conditions.
   2. If riprap or other structural stream bank protection measures are proposed for reasons other than to repair bank damage, bank removal, or bank erosion, or if the repair exceeds the standards of Subsection 703.07(B)(1), the applicant shall provide a "no-rise" certification and evidence from a professional engineer, with expertise in hydrology, hydraulics, fluvial geomorphology, or hydrogeology, that the proposed stream bank protection measures will cause no adverse impacts to upstream or downstream properties.
3. Hydroelectric facilities. A "no-rise" certification shall be provided;
4. Stream crossings. A "no-rise" certification shall be provided;
5. Replacement, substantial improvement, or repair of substantial damage of a structure that was constructed prior to the establishment of, or revisions to, the floodway, subject to the following:
   1. The development shall comply with Subsection 1206.06.
   2. Foundations shall be designed by a professional engineer or licensed architect, to the satisfaction of the County Building Codes Division, to withstand the mean velocity of floodwaters in the floodway, as they are listed in the Floodway Data tables of the Flood Insurance Study, and to withstand the scouring forces associated with those floodwater velocities.
   3. If an increase in ground coverage is proposed, a "no-rise" certification shall be provided.

703.08 Duties of the Planning Director

The Planning Director is hereby appointed to administer and implement Section 703 by granting or denying development permit applications in accordance with its provisions. The Planning Director may delegate authority to implement these provisions. Duties of the Planning Director under Section 703include:

1. The Planning Director shall review floodplain development permits to determine if the proposed development adversely affects the flood carrying capacity of the special flood hazard area. For purposes of this subsection, "adversely affects" means that the cumulative effect of the proposed development and all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point.
2. Within the special flood hazard area, when more detailed base flood elevation or floodway data is available outside of the adopted Flood Insurance Study (FIS) from a federal, state or other authoritative source — such as preliminary or draft information from a new study that will revise the FIS —the Planning Director may obtain, review, and reasonably utilize such data as long as it is more restrictive than the currently effective data. When the data pertains to a preliminary or draft FIS in Zone A, the Planning Director is required to reasonably utilize the data, and is allowed discretion in using this data only to the extent that the technical or scientific validity of the data in the draft or preliminary FIS is questioned by a qualified professional.
3. When base flood elevation data has not been provided (A zones), 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 the standards in Subsections 703.08, 703.10, and 703.11.
4. The Planning Director shall, where base flood elevation data is provided through the FIS, Flood Insurance Rate Map, or utilized pursuant to Subsections 703.08(B) or (C), obtain and record the actual elevation (in relation to mean sea level) of the lowest floor (including basements and below-grade crawlspaces) of all new or substantially improved structures, and whether or not the structure contains a basement.
5. For all new or substantially improved structures, the Planning Director shall review an elevation certificate or a Federal Emergency Management Agency National Flood Insurance Program Floodproofing Certificate (for Non-Residential Structures) provided by the applicant and shall verify and record the actual elevation (in relation to mean sea level) and maintain the elevation and floodproofing certificates required.
   1. In either case, the currently effective form shall be used, and it shall be completed in accordance with the accompanying instructions.
   2. The determination regarding which certificate is required shall be made based on the nature of the development consistent with National Flood Insurance Program regulations.
6. The Planning Director shall maintain for public inspection all records pertaining to the provisions of Section 703.
7. The Planning Director shall review all floodplain development permits to determine if the proposed development activity qualifies as a substantial improvement.
8. The Planning Director shall provide to building officials the regulatory flood protection elevation applicable to any building requiring a building permit.
9. The Planning Director shall notify adjacent communities, the State of Oregon Department of Land Conservation and Development, and other appropriate state and federal agencies prior to any alteration or relocation of a watercourse and submit evidence of such notification to the Federal Insurance Administration.
10. J. The Planning Director shall notify the Federal Emergency Management Agency (FEMA) within six months of project completion when an applicant had obtained a Conditional Letter of Map Revision (CLOMR) from FEMA, or when development altered a watercourse, modified floodplain boundaries, or modified base flood elevations. This notification shall be provided as a Letter of Map Revision (LOMR).
    1. The project applicant shall be responsible for preparing technical data to support the LOMR application and for payment of all processing and application fees charged by FEMA.

703.09 Floodplain Development Permits

Except as provided under Subsection 703.06, a floodplain development permit (FDP) shall be obtained for development laterally within the FMD before construction or development begins. The permit shall be for all structures, including manufactured dwellings, and for all development, including fill and other activities. Work that is necessary to protect existing structures, utility facilities, roadways, driveways, and stream banks in response to emergencies may be undertaken prior to obtaining an FDP, provided that an application is made within 90 days of water receding. The measures used for protection may not be able to be permitted. An FDP requires review as a Type II application pursuant to Section 1307, Procedures.

1. Submittal Requirements: In addition to the submittal requirements identified in Subsection 1307.07(C), an application for an FDP shall include:
   1. A site plan drawn to scale, showing elevations of the site; pertinent structure, fill, or storage elevations; size, location, and spatial arrangement of all proposed and existing structures on the site; and location and elevations of streets, water supply, sanitary facilities, and soil types; and other applicable information;
   2. Specifications for building construction and materials, loads and forces, and effect on soil bearing pressures, erosion control, floodproofing, filling, dredging, grading, channel improvement, storage of materials, water supply, and sanitary facilities;
   3. A description of the extent to which any watercourse will be altered or relocated as a result of proposed development; and
   4. Either an elevation certificate or a Federal Emergency Management Agency National Flood Insurance Program Floodproofing Certificate (for Non-Residential Structures).
   5. In either case, the currently effective form shall be used, and it shall be completed in accordance with the accompanying instructions, and based on construction drawings and proposed site locations of development.
   6. The determination regarding which certificate is required shall be made based on the nature of the proposed development consistent with National Flood Insurance Program regulations.
2. Factors of Consideration: In reviewing an application for an FDP, the following factors shall be considered:
   1. The danger to life and property due to increased flood heights or velocities caused by encroachments;
   2. The danger that materials may be swept on to other lands or downstream to the injury of others;
   3. The proposed water supply and sanitation systems and the ability of those systems to prevent disease, contamination, and unsanitary conditions;
   4. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
   5. The importance to the community of the service provided by the proposed facility;
   6. The requirements of the facility for a waterfront location;
   7. The availability of alternative locations not subject to flooding for the proposed use;
   8. The compatibility of the proposed use with existing development and development anticipated in the foreseeable future;
   9. The relationship of the proposed use to the Comprehensive Plan and floodplain management program for the area;
   10. 10. The safety of access to property in times of flood for ordinary and emergency vehicles;
   11. Whether the proposed development activity represents a substantial improvement to an existing structure;
   12. Whether the proposed structure qualifies as a critical facility;
   13. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site; and
   14. Other factors that are relevant to the purpose of Section 703.
3. Approval Criteria: An FDP shall be subject to the following standards and criteria:
   1. All necessary permits have been obtained from those federal, state, or local governmental agencies from which prior approval is required.
   2. If the proposed development is in the floodway, the standards of Subsection 703.07 have been met.
   3. If the proposed development includes alteration of a watercourse, maintenance will be provided within the altered or relocated portion of said watercourse so that the flood carrying capacity is not diminished.
   4. The proposed development will comply with the applicable provisions of Subsections 703.10 and 703.11.
4. Conditions of Approval: The County may attach conditions of approval to an FDP if such conditions are deemed necessary to further the purpose of Section 703. Such conditions may include, but are not limited to:
   1. Limitations on periods of use and operation;
   2. Imposition of operation controls, sureties, and deed restrictions; and
   3. Floodproofing and other protective measures, such as:
      1. Installation of watertight doors, bulkheads, and shutters;
      2. Reinforcement of walls to resist water pressure;
      3. Use of paints, membranes, or mortars to reduce seepage of water through walls;
      4. Addition of mass or weight to structures to resist flotation;
      5. Installation of pumps to lower water levels in structures;
      6. Construction of water supply and waste treatment systems to prevent the entrance of floodwaters;
      7. Pumping facilities for subsurface external foundation wall and basement floor pressures;
      8. Construction to resist rupture or collapse caused by water pressure or floating debris;
      9. Cutoff valves on sewer lines or the elimination of gravity flow basement drains; and
      10. Requirements for construction of channel modifications, dikes, levees, and other protective measures.
5. Finalization of an FDP: If a preliminary elevation certificate or floodproofing certificate was required for a structure, a second elevation certificate is required prior to approval of the foundation inspection. In addition, a building permit for that structure shall not receive a final approval or certificate of occupancy until the County approves a final elevation certificate or floodproofing certificate that is based on the as-built/finished construction.
6. Approval Period: Approval of an FDP is valid for four years from the date of the final written decision. If the County's final written decision is appealed, the approval period shall commence on the date of the final appellate decision. During this four-year period, the approval shall be implemented, or the approval will become void.
   1. "Implemented" means all major development permits shall be obtained and maintained, or if no major development permits are required to complete the development contemplated by the approved FDP, "implemented" means all other necessary County development permits (e.g. grading permit, building permit for an accessory structure) shall be obtained and maintained.
      1. A "major development permit" is:
         1. A building or manufactured dwelling placement permit for a new primary structure that was part of the FDP approval; or
         2. A permit issued by the County Engineering Division for parking lot or road improvements that were part of the FDP approval.
7. Time Extension: If the approval of an FDP is not implemented within the initial approval period established by Subsection 703.09(F), a two-year time extension may be approved pursuant to Section 1310, Time Extension.

703.10 General FMD Standards

Development in the FMD shall comply with the following standards:

1. Anchoring:
   All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy.
2. Construction Materials and Methods, and Utilities:
   1. The following standards shall apply to below-grade crawl spaces. For more detailed information, refer to FEMA Technical Bulletin 11-01, Crawlspace Construction for Buildings Located in Special Flood Hazard Areas. For flood insurance purposes, there is an additional charge that is added to the basic flood insurance policy premium for structures that are built on below-grade crawl spaces.
      1. The building shall 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 openings required by Subsection 703.10(B)(1)(b). Because of hydrodynamic loads, crawl-space construction is prohibited in areas with flood velocities greater than five feet per second unless the design is reviewed by a qualified design professional, such as a professional engineer or licensed architect. Other types of foundations are recommended for these areas.
      2. The crawl space shall have openings that equalize hydrostatic pressures by allowing the automatic entry and exit of floodwaters. The bottom of each flood vent opening shall be no more than one foot above the lowest adjacent exterior grade.
      3. Portions of the building below the base flood elevation (BFE) shall be constructed with materials resistant to flood damage. This includes not only the foundation walls of the crawl space 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.
      4. Any building utility systems within the crawl space shall be elevated above the BFE or designed so that floodwaters cannot enter or accumulate within the system components during flood conditions. Ductwork, in particular, shall either be placed above the BFE or sealed from floodwaters.
      5. The interior grade of a crawl space below the BFE shall not be more than two feet below the lowest adjacent exterior grade.
      6. The height of the below-grade crawl space, measured from the interior grade of the crawl space to the top of the crawl space foundation wall shall 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.
      7. There shall be an adequate drainage system that removes floodwaters from the interior area of the crawl space. The enclosed area shall 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.
      8. The velocity of floodwaters at the site should not exceed five feet per second for any crawl space. For velocities in excess of five feet per second, other foundation types should be used.
   2. All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage, and using methods and practices that minimize flood damage. For more detailed information, refer to November 1999 FEMA Publication 348, Protecting Building Utilities from Flood Damage; and FEMA Technical Bulletin 2-93, Flood-Resistant Materials Requirements.
   3. New and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system.
   4. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into floodwaters.
   5. All equipment, machinery, appliances, and electrical boxes that pertain to electrical, ventilation, plumbing, and heating and air-conditioning systems and services, as well as outside fuel storage tanks, outside air-conditioning units, and other interior or exterior service facilities, systems, equipment, machinery, appliances, and other utilities shall be elevated or floodproofed so as to prevent water from entering or accumulating within the components during conditions of flooding.
      1. Floodproofed facilities, systems, equipment, machinery, and appliances — except for waterproofed wires and cables, as well as waterproofed and sealed plumbing pipes and other plumbing services — shall be certified as such by a preliminary and final floodproofing certificate.
      2. Except for manufactured dwelling electrical crossover connections, regulated pursuant to Subsection 703.11(A)(1), non-floodproofed facilities, systems, equipment, machinery, and appliances shall be elevated at least two feet above the BFE, except that duct systems may be elevated at least one foot above the BFE.
   6. Onsite wastewater disposal systems shall be located to avoid impairment to them or contamination from them during flooding consistent with Oregon Department of Environmental Quality regulations.
   7. A professional engineer or licensed architect shall certify 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 County.
3. Substantial Improvement and Substantial Damage: A structure for which a substantial improvement or repair of substantial damage is proposed shall be elevated, retrofitted, upgraded, etc., such that the structure and all of its interior and exterior service facilities, systems, equipment, machinery and appliances shall be brought into compliance with the applicable standards of this section.
4. Manufactured Dwellings:
   1. Manufactured dwellings to be placed or substantially improved shall be placed on a permanent foundation and elevated pursuant to Subsection 703.11.
   2. Manufactured dwellings shall 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.
   3. Manufactured dwellings shall be placed utilizing the applicable designs and guidelines, as approved by the Building Codes Division, of the September 1985 FEMA Publication, Manufactured Home Installation in Flood Hazard Areas, and State of Oregon Manufactured Dwelling Installation Specialty Code, whichever is the most restrictive.
5. Recreational Vehicles: Recreational vehicles shall comply with the requirements of Subsection 703.10(D) for manufactured dwellings or shall be:
   1. Located on the site for fewer than 180 consecutive days;
   2. Fully licensed and ready for highway use;
   3. Supported on wheels or a jacking system;
   4. Attached to services on the site only by quick-disconnect type utilities and security devices; and
   5. Void of any permanently attached additions.
6. Fill:
   1. Any fill or other materials — except those proposed within the interior of, and inside the walls of, a crawl space, foundation, basement or enclosure floor — shall be shown to have a beneficial purpose and the amount thereof not greater than is necessary to achieve that purpose, as demonstrated by a plan submitted by the applicant, showing the uses to which the filled land will be put and the final dimensions of the proposed fill or other materials.
   2. Fill or other materials shall be protected against erosion by riprap, vegetative cover, or bulkheading.
   3. Structures may be allowed to be constructed on fill and thereby elevated above the BFE, subject to the following standards:
      1. The fill shall be placed such that the lowest adjacent finished grade of the fill to the foundation of the structure is at least two feet above the BFE.
      2. The lowest portion of the lowest structural support system of the building (i.e., the bottom of slab, bottom of footings, or bottom of any other lowest on-grade or sub-grade supporting member) shall be located at least one foot above the BFE.
      3. Placement of the fill shall require approval of a grading permit.
      4. The structure shall be constructed pursuant to the applicable standards of FEMA Technical Bulletin 10-01, Ensuring That Structures Built on Fill in or near Special Flood Hazard Areas Are Reasonably Safe from Flooding.
   4. All fill placed at or below the BFE shall be balanced with at least an equal amount of material removal either on-site, or from a nearby area at or below the BFE and in the same drainage basin. In addition, the following standards shall apply:
      1. Excavation below the level of the seasonal groundwater table shall not be used in balancing fill volumes against excavation volumes;
      2. The mean annual groundwater level shall be determined by soil morphology, or other available data on groundwater conditions;
      3. Balancing of a fill shall occur at the same time as the fill is placed on the development site;
      4. The site plan required in Subsection 703.09(A)(1) shall identify the area where material is removed from the floodplain to balance fill volumes, including pertinent elevations and volume of fill removed;
      5. A professional engineer or licensed architect shall certify that the amount of material removed balances the amount of fill material;
      6. f. A suitable recorded easement or similar legally binding mechanism, in a form acceptable to County Counsel shall be provided to the Planning Director, indicating that future development of the delineated area where material is removed to balance fill volumes is prohibited, and the delineated area cannot be used in the future as balancing for a fill; and
      7. When the balancing occurs off-site, the application shall also include:
      8. Authorization from the owner of the property where the balancing will occur; and
      9. ii. A legal description of the parcel where the balancing will occur.
   5. The following uses or activities are not subject to the provisions of Subsection 703.10(F)(4):
      1. Removal and/or fill necessary to plant new trees or vegetation;
      2. Removal and/or fill required for the construction of storm-water runoff detention facilities and/or structures; and
      3. Removal and/or fill required for the construction of other facilities such as levees designed specifically to reduce or mitigate flood impacts.
7. Stream Crossings, Including Bridges and Culverts, and Transportation Projects:
   1. Stream crossings and transportation projects shall be designed as balanced removal and fill projects, or designed to not raise the BFE.
   2. Stream crossings and transportation projects that encroach into the floodway shall obtain a "no-rise" certification, or, if the "no-rise" condition cannot be achieved, shall obtain a Conditional Letter of Map Revision, prior to permitting the work, followed by a Letter of Map Revision after the work has been completed.
   3. Stream crossings and transportation projects shall be designed to minimize the area of fill in the special flood hazard area (SFHA) and to minimize erosive water velocities.
   4. Stream crossings shall be as close to perpendicular to the stream as practicable.
   5. Stream crossings shall be designed to allow fish passage.
   6. Stream crossings and transportation projects are subject to review and approval pursuant to applicable federal and state statutes and administrative rules.
8. Subdivisions:
   1. Subdivisions shall be consistent with the need to minimize flood damage.
   2. Subdivisions shall have public utilities and facilities, such as sewer, gas, electrical, and water systems, located and constructed to minimize flood damage.
   3. Subdivisions shall have adequate drainage provided to reduce exposure to flood damage.
9. Toxic or Hazardous Materials:
   1. The storage or use of toxic or hazardous materials in conjunction with nonresidential uses is prohibited, except as permitted in Subsection 703.10(I)(2).
   2. Storage or use of toxic or hazardous materials may be permitted if the applicant demonstrates the following:
      1. The proposed development requires toxic or hazardous materials for operation.
      2. An area outside the SFHA is not available to be used for storage or use of toxic or hazardous materials.
      3. The containers, structures, facilities and machinery that contain, use or process the toxic or hazardous materials shall be elevated:
         1. A minimum of two feet above the BFE in AE zones, as indicated on the FIRM or determined pursuant to Subsection 703.08(B);
         2. A level to be determined pursuant to Subsection 703.11(C)(1) in unnumbered A zones, as indicated on the FIRM or determined pursuant to Subsection 703.08(B); or
         3. The depth number specified on the Flood Insurance Rate Map — or a minimum of two feet above the highest adjacent grade if no depth number is specified — in shallow flooding areas.
         4. The structures that support the containers, structures, facilities, and machinery that contain, use or process the toxic or hazardous materials shall comply with Subsections 703.10(A) and 703.10(B)(2) and (7).
10. J. Critical Facilities: Construction of new critical facilities shall be, to the extent possible, located outside the limits of the Special Flood Hazard Area (SFHA). 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 above base flood elevation or to the height of the 500-year flood, whichever is higher. Access to and from the critical facility shall also be protected to the height utilized above. Floodproofing and sealing measures shall 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.

703.11 Specific Standards

1. AE Zones with Designated Floodways: In AE zones with designated floodways, as indicated on the Flood Insurance Rate Map (FIRM) or determined pursuant to Subsection 703.08(B), development shall comply with the following criteria:
   1. Residential Construction: New construction and substantial improvement of a dwelling shall have the lowest floor, including basement, elevated at least two feet above the base flood elevation (BFE), except that new or substantially improved manufactured dwellings shall have the bottom of the longitudinal frame beam and electrical crossover connections elevated at least one foot above the BFE. 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 shall either be certified by a professional engineer or licensed architect or shall meet or exceed the following minimum criteria. For more detailed information, refer to FEMA Technical Bulletin 1-93, Openings in Foundation Walls.
      1. 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, unless the applicant provides documentation from a professional engineer or licensed architect that a flood vent manufacturer's product can provide less than one square inch of opening for every square foot of enclosed area and still meet National Flood Insurance Program standards.
      2. The bottom of all openings shall be no higher than one foot above grade.
      3. Openings may be equipped with screens, louvers, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.
   2. Nonresidential Construction: New construction and substantial improvement of a nonresidential structure shall either comply with Subsection 703.11(A)(1), or, together with attendant utility and sanitary facilities, shall comply with the following criteria. For more detailed information, refer to FEMA Technical Bulletin 3-93, Non-Residential Floodproofing — Requirements & Certification.
      1. The structure shall be floodproofed, so that below the point one foot above the BFE, the structure is watertight, with walls substantially impermeable to the passage of water. Applicants floodproofing nonresidential structures shall be notified in writing that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g. a building floodproofed to one foot above the BFE will be rated as being floodproofed to the BFE).
      2. The structure shall have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.
      3. A professional engineer or licensed architect shall certify 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 County.
2. AE Zones without Designated Floodways: In AE zones without designated floodways, as indicated on the FIRM or determined pursuant to Subsection 703.08(B), development shall comply with Subsection 703.11(A) and the following criteria:
   1. The cumulative effect of the proposed development and all other existing and anticipated development, shall not increase the water surface elevation of the base flood more than one foot at any point.
   2. Whenever possible, structures shall be constructed with the longitudinal axis parallel to the direction of flood flow.
   3. So far as practical, structures shall be placed approximately on the same flood flow lines as those of adjoining structures.
3. Unnumbered A Zones: In unnumbered A zones, as indicated on the FIRM or determined pursuant to Subsection 703.08(B), development shall comply with the following criteria:
   1. Proposed construction shall 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, post-flood improvements to the waterway, etc., where available. Failure to elevate the lowest floor to at least two feet above the highest grade may result in higher insurance rates.
   2. Proposed residential construction shall comply with Subsections 703.11(A)(1). Proposed nonresidential construction, together with attendant utility and sanitary facilities, shall comply with Subsections 703.11(A)(2). However, the level to which the structure must be elevated or floodproofed shall be determined pursuant to Subsection 703.11(C)(1).
   3. Proposed construction shall comply with Subsections 703.11(B)(2) and (3).
   4. The applicant shall provide base flood elevations for the area of development. Where base flood elevation data have not been provided or are not available from another authorized source, the data shall be generated for subdivisions or other proposed development that contain at least 50 lots or five acres, whichever is less.
4. Areas of Shallow Flooding: In areas of shallow flooding, development shall comply with the following criteria:
   1. New construction and substantial improvement of a dwelling shall comply with Subsections 703.11(A)(1) and shall have the lowest floor, including basement, elevated above the highest adjacent grade of the building site to a minimum of two feet above the depth number specified on the FIRM. If no depth number is specified, the lowest floor shall be elevated at least two feet above the highest adjacent grade of the building site.
   2. New construction and substantial improvement of a nonresidential structure shall either comply with Subsection 703.11(D)(1), or, together with attendant utility and sanitary facilities, shall comply with Subsection 703.11(A)(2), except that the structure shall be floodproofed to the elevation identified in Subsection 703.11(D)(1).
   3. Adequate drainage paths shall be provided around structures on slopes to guide floodwaters around and away from proposed structures.

703.12 Exception

1. Approval Criteria: Certain non-residential structures — such as detached garages and storage sheds solely used for parking and limited storage that are no greater than 400 square feet in area and do not exceed one story, pole barns used for storage of farm machinery and equipment, small garden sheds, and structures used in conjunction with agricultural activities — may be granted an exception from the elevation and floodproofing standards of Subsection 703.11, subject to the following criteria. (For more detailed information, refer to FEMA Technical Bulletin 7-93, Wet Floodproofing Requirements.) Additionally, the following structures may qualify for the exception: residential accessory structures up to 200 square feet, which may not require a building permit pursuant to Oregon Residential Specialty Code R105.2; residential accessory structures greater than 200 and up to 400 square feet if the lot size and setbacks qualify pursuant to Oregon Residential Specialty Code R105.2; and commercial accessory structures that are up to 120 square feet, which may not require a building permit pursuant to Oregon Structural Specialty Code 105.2.
   1. The exception is reviewed pursuant to Subsection 703.13, and compliance with the approval criteria of Subsection 703.13(A) is demonstrated.
   2. The structure will be wet floodproofed.
   3. The structure will not be temperature controlled.
   4. The structure will not cause significant flood risk.
   5. The structure will not be used for human habitation, and will be utilized for storage or parking.
   6. The structure will be located, designed, and constructed to have low flood damage potential.
   7. The structure will be constructed and placed on the building site so as to offer the minimum resistance to the flow of flood waters.
   8. The structure will not be used to store toxic material, oil or gasoline, or any priority persistent pollutant identified by the Oregon Department of Environmental Quality, unless confined in a tank installed in compliance with Section 703 or stored at least one foot above the base flood elevation.
   9. The structure will be anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, during conditions of the base flood.
   10. 10. The structure will be constructed with electrical and other service facilities located and installed so as to prevent water from entering or accumulating within the components during conditions of the base flood.
   11. The structure will be constructed to equalize hydrostatic flood forces on exterior walls by allowing for the automatic entry and exit of floodwater. Designs for complying with this requirement must be certified by a licensed professional engineer or architect or comply with Subsections 703.11(A)(1)(a) through (c).
   12. The structure will be constructed with flood-resistant materials that meet the requirements of the County Building Codes Division, up to:
       1. A minimum of one foot above the BFE in AE zones, as indicated on the FIRM or determined pursuant to Subsection 703.08(B);
       2. A level to be determined pursuant to Subsection 703.11(C)(1) in unnumbered A zones, as indicated on the FIRM or determined pursuant to Subsection 703.08(B); or
       3. The depth number specified on the Flood Insurance Rate Map — or a minimum of two feet above the highest adjacent grade if no depth number is specified — in areas of shallow flooding.
   13. If the structure will be located in the floodway, the structure will comply with Subsection 703.07.
2. Insurance Consequences: If an exception is granted for a structure that is accessory to a dwelling and the structure will exceed a value greater than 10 percent of the value of the dwelling, the applicant shall be given written notice that substantial increases in insurance rates may result.

703.13 Variances

1. Approval Criteria: In conjunction with review of a floodplain development permit, a variance from the requirements of Section 703 may be approved, subject to the following standards and criteria:
   1. The request is consistent with Subsection 703.09(B).
   2. There is good and sufficient cause for the variance.
   3. Compliance with the requirements for which the variance is requested would cause an exceptional hardship to the applicant.
   4. Approval of the variance would not result in increased flood levels during base flood discharge, additional threats to public safety, extraordinary public expense, or a nuisance condition, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
   5. The variance requested is the minimum necessary, considering the flood hazard, to provide relief.
   6. If the proposal is to repair or rehabilitate a historic structure that is listed on the National Register of Historic Places or a State or Local Inventory of Historic Places, the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure, and the variance is the minimum necessary to preserve the historic character and design of the structure.
2. Consequences: If a variance is granted that allows the lowest floor of a structure to be built below the regulatory flood protection elevation, the applicant shall be given written notice that:
   1. The cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation; and
   2. Such construction below the base flood level increases risks to life and property and the County is not liable for any damages that result from the variance approval.
3. The written notice required by Subsection 703.13(B) shall be maintained with a record of all variance actions.

[Amended by Ord. ZDO-230, 9/26/11; Amended by Ord. ZDO-248, 10/13/14; Amended by Ord. ZDO-275, 1/18/19]

This Ordinance shall be known and may be cited and referred to as the "Clackamas County, Oregon, Zoning and Development Ordinance" (hereinafter referred to as this Ordinance). 

[Amended by Ord. ZDO-235, 5/14/12]

1307.01 Purpose

Section 1307 is adopted to:

1. Implement the goals and policies of the Comprehensive Plan for community involvement and the planning process;
2. Establish uniform procedures for the review of land use applications and legislative land use proposals;
3. Facilitate timely review of land use applications by the County;
4. Clarify the land use application review process for applicants; and
5. Enable the public to effectively participate in the County's land use permit decision-making process.

1307.02 Applicability

Section 1307 applies to all land use permit applications and all legislative land use proposals under this Ordinance.

1. No person shall engage in or cause development to occur without first obtaining the necessary land use permit approvals required by, and according to the procedures in, Section 1307.
2. Where the provisions of Section 1307 conflict with other provisions of this Ordinance, the more specific provisions shall control.

1307.03 Review Authorities

1. Review Authorities, Generally: Review authorities are those who are designated to make recommendations or decisions regarding land use permit applications and legislative land use proposals. Table 1307-1, Land Use Permits by Procedure Type, lists the land use permits and legislative land use proposals that are provided for by this Ordinance and establishes:
   1. The review authority charged with making the initial decision;
   2. The review authority charged with making the decision on the initial County- level appeal, if any;
   3. The review authority charged with making the decision on the second County- level appeal, if any; and
   4. Those circumstances where an additional review authority is charged with making a recommendation on the application or proposal to the decision- maker.
2. Planning Director: Pursuant to Oregon Revised Statutes (ORS) 215.042, the Planning Director is the County official designated to administer land use planning in the County. In this role, the Planning Director administers the Comprehensive Plan and this Ordinance, issues decisions on certain land use permit applications, and provides administrative support to other review authorities. As used in this Ordinance, the term Planning Director includes any County staff member authorized by the Planning Director to fulfill the responsibilities assigned to the Planning Director by this Ordinance.
3. Hearings Officer: Pursuant to ORS 215.406, the Hearings Officer is appointed by the Board of County Commissioners to conduct public hearings and issue decisions on certain land use permit applications.
4. Historic Review Board: The Historic Review Board is designated as an advisory body on matters pertaining to the Historic Landmark, Historic District, and Historic Corridor overlay zoning district and has the powers and duties described in Sections 707 and 1307.
   1. The Historic Review Board shall be composed of seven members, appointed by and serving at the pleasure of the Board of County Commissioners.
   2. Historic Review Board members shall have demonstrated an interest in historic preservation and have experience or special expertise or knowledge in the field of historic preservation. Three positions on the Historic Review Board shall be filled as follows:
      1. One architect, with knowledge in historic restoration;
      2. One contractor, with expertise in construction techniques applied to historic structures; and
      3. One representative from a historic group in the County.
   3. Unless otherwise provided for, members of the Historic Review Board shall serve four-year terms, beginning on May 1st of the year in which they are appointed. Terms may be renewed by the Board of County Commissioners.
   4. If a member of the Historic Review Board does not complete his or her term, the Board of County Commissioners shall appoint a replacement to serve the remainder of that term.
   5. A member whose term has ended may continue to serve on the Historic Review Board until the Board of County Commissioners renews that term or appoints a new member. The new term shall be considered to have begun on the date it would have under Subsection 1307.03(D)(3).
   6. The Historic Review Board shall adopt bylaws governing its proceedings and appoint a chair and vice chair to manage those proceedings according to those bylaws, and County, state, and federal law.
   7. In the event of a conflict between the bylaws and any provision of this Ordinance, this Ordinance shall govern. In the event of a conflict between the bylaws and a non-mandatory provision of state law, the bylaws shall govern.
5. Design Review Committee: The Design Review Committee is designated as an advisory body on matters pertaining to the design review process and has the powers and duties described in Sections 1102 and 1307.
   1. The Design Review Committee shall be composed of seven members, appointed by and serving at the pleasure of the Board of County Commissioners.
   2. Five positions on the Design Review Committee shall be filled as follows:
      1. One landscape architect;
      2. One architect;
      3. One registered engineer;
      4. One graphic design representative; and
      5. One representative from the field of finance or the construction and development industry.
   3. Unless otherwise provided for, members of the Design Review Committee shall serve four-year terms, beginning on May 1st of the year in which they are appointed. Terms may be renewed by the Board of County Commissioners.
   4. If a member of the Design Review Committee does not complete his or her term, the Board of County Commissioners shall appoint a replacement to serve the remainder of that term.
   5. A member whose term has ended may continue to serve on the Design Review Committee until the Board of County Commissioners renews that term or appoints a new member. The new term shall be considered to have begun on the date it would have under Subsection 1307.03(E)(3).
   6. The Design Review Committee shall adopt bylaws governing its proceedings and appoint a chair and vice chair to manage those proceedings according to those bylaws, and County, state, and federal law.
   7. In the event of a conflict between the bylaws and any provision of this Ordinance, this Ordinance shall govern. In the event of a conflict between the bylaws and a non-mandatory provision of state law, the bylaws shall govern.
6. Planning Commission: The Planning Commission is designated as the land use planning advisory body to the Board of County Commissioners and acts as the decision-maker on an initial appeal of the Planning Director's interpretation of the Comprehensive Plan. The Planning Commission shall have the powers and duties described in Section 1307 and such other powers and duties as may be imposed on it by County, state, or federal law.
   1. The Planning Commission shall be composed of nine members, designated in positions labeled 1 through 9, appointed by and serving at the pleasure of the Board of County Commissioners.
   2. Members of the Planning Commission shall be residents of the various geographic areas of the County. No more than two voting members shall be engaged principally in the buying, selling, or developing of real estate for profit, as individuals, or be members of any partnership or officers or employees of any corporation that is engaged principally in the buying, selling, or developing of real estate for profit. No more than two voting members shall be engaged in the same kind of occupation, business, trade, or profession.
   3. Unless otherwise provided for, members of the Planning Commission shall serve four-year terms, beginning on May 1st of the year in which they are appointed. Terms may be renewed by the Board of County Commissioners.
   4. If a member of the Planning Commission does not complete his or her term, the Board of County Commissioners shall appoint a replacement to serve the remainder of that term.
   5. A member whose term has ended may continue to serve on the Planning Commission until the Board of County Commissioners renews that term or appoints a new member. The new term shall be considered to have begun on the date it would have under Subsection 1307.03(F)(3).
   6. The Planning Commission shall adopt bylaws governing its proceedings and appoint a chair and vice chair to manage those proceedings according to those bylaws, and County, state, and federal law.
   7. In the event of a conflict between the bylaws and any provision of this Ordinance, this Ordinance shall govern. In the event of a conflict between the bylaws and a non-mandatory provision of state law, the bylaws shall govern.
7. Board of County Commissioners: The Board of County Commissioners is the governing body of the County and is the final County decision-maker on legislative land use proposals and certain land use permit applications.

1307.04 Review Procedure Types

1. Land use permits and legislative land use proposals provided for under this Ordinance are classified as one of four types, each of which is subject to a corresponding review procedure. The four types are described as follows:
   1. Type I permits are ministerial in nature and involve land use actions governed by non-discretionary standards and clear and objective approval criteria. Approval of a Type I permit may require imposition of conditions of approval to ensure compliance with this Ordinance. The Type I procedure is an administrative review process, where the review authority reviews the application for conformance with the applicable standards and approval criteria and issues a decision.
   2. Type II and Type II-E permits are administrative in nature and involve land use actions governed by standards and approval criteria that generally require the exercise of limited discretion. Impacts associated with the land use action may require imposition of conditions of approval to minimize those impacts and to ensure compliance with this Ordinance. The Type II and Type II-E procedure is an administrative review process, where the review authority reviews the application for conformance with the applicable standards and approval criteria and issues a decision.
   3. Type III permits are quasi-judicial in nature, and involve land use actions governed by standards and approval criteria that require the use of discretion and judgment. The issues associated with the land use action may be complex and the impacts significant, and conditions of approval may be imposed to mitigate the impacts and ensure compliance with this Ordinance and the Comprehensive Plan. The Type III procedure is a quasi-judicial review process where the review authority receives testimony, reviews the application for conformance with the applicable standards and approval criteria, and issues a decision.
   4. Type IV proposals are legislative in nature, and involve the creation, broad- scale implementation, or revision of public policy. These include amendments to the text of the Comprehensive Plan or this Ordinance. Large-scale changes in the Comprehensive Plan Land Use Plan maps and zoning maps also may be characterized as legislative where a larger number of property owners are directly affected.
2. Table 1307-1, Land Use Permits by Procedure Type, lists the land use permits and legislative land use proposals that are provided for by this Ordinance and assigns a procedure type to each. In the event that the procedure type for a land use permit application is not identified in Table 1307-1, specified elsewhere in this Ordinance, or otherwise required by law, the Planning Director shall determine the applicable procedure based on the guidelines in Subsection 1307.04(A). Questions as to the appropriate procedure shall be resolved in favor of the procedure type providing the greatest notice and opportunity to participate by the public.
   1. As used in Table 1307-1:
      1. "PD" means Planning Director.
      2. HO" means Hearings Officer.
      3. "PC" means Planning Commission.
      4. "BCC" means Board of County Commissioners.
      5. Numbers in superscript correspond to the notes that follow Table 1307-1.

Table 1307-1: Land Use Permits by Procedure Type

¹The Type III procedure shall be modified to include Planning Commission public hearing and recommendation to the Board of County Commissioners prior to the initial Board of County Commissioners public hearing. In the case of a Comprehensive Plan amendment related to the designation of a Historic Landmark, Historic District, or Historic Corridor, both the Type III and Type IV procedures shall be modified to replace the Planning Commission public hearing and recommendation to the Board of County Commissioners with Historic Review Board review and recommendation to the Board of County Commissioners.

²The Type II procedure may be modified, pursuant to Subsection 1102.04(A) or (B), to include Design Review Committee review and recommendation to the Planning Director prior to issuance of the Planning Director's decision.

³The Type II procedure shall be modified to include Historic Review Board review and recommendation to the Planning Director prior to issuance of the Planning Director's decision.

⁴The Type II procedure shall be modified to allow the Planning Commission's decision on initial appeal to be further appealed to the Board of County Commissioners, pursuant to Subsection 1307.14(E)(1).

⁵The Type II procedure shall be modified to allow the Hearings Officer's decision on initial appeal to be further appealed to the Board of County Commissioners, pursuant to Subsection 1307.14(E)(2).

⁶In the case of a zone change related to the Historic Landmark, Historic District, and Historic Corridor overlay zoning district, the Type III procedure shall be modified to designate the Board of County Commissioners as the initial decision review authority and to include Historic Review Board review and recommendation to the Board of County Commissioners prior to the initial Board of County Commissioners public hearing, and the Type IV procedure shall be modified to replace the Planning Commission public hearing and recommendation to the Board of County Commissioners with Historic Review Board review and recommendation to the Board of County Commissioners.

3. Notwithstanding any other provision in Section 1307, except for an application for an interpretation of the Comprehensive Plan, an applicant may choose to process a Type II land use permit application using the Type III procedure, and the Hearings Officer shall be the review authority for the initial decision. The decision of the Hearings Officer shall be the final decision of the County, except for an application for an interpretation of this Ordinance, in which case appeal to the Board of County Commissioners is allowed pursuant to Subsection

1307.05 Pre-Application Conference

1. Purpose: Pre-application conferences are intended to familiarize applicants with the requirements of this Ordinance; to provide applicants with an opportunity to meet with County staff to discuss proposed projects in detail; and to identify standards, approval criteria, and procedures prior to filing a land use permit application. The pre-application conference is intended to be a tool to orient applicants and assist them in navigating the land use review process, but is not intended to be an exhaustive review that identifies or resolves all potential issues, and does not bind or preclude the County from enforcing all applicable regulations or from applying regulations in a manner differently than may have been indicated at the time of the pre-application conference.
2. Applicability: Table 1307-1, Land Use Permits by Procedure Type, identifies the land use permit applications for which pre-application conferences are mandatory. Pre-application conferences are voluntary for all other land use permit applications.
3. Submittal Requirements: Pre-application conference requests shall include:
   1. A completed application form, such form to be prescribed by the Planning Director, and containing, at a minimum, the following information:
      1. The names, mailing addresses, and telephone numbers of the applicant(s);
      2. The address of the subject property, if any, and its assessor's map and tax lot number;
      3. The size of the subject property;
      4. The Comprehensive Plan designation and zoning district of the subject property;
      5. The type of application for which the pre-application conference is requested;
      6. A brief description of the proposal for which the pre-application conference is requested; and
      7. Signature(s) of the applicant(s), authorizing the filing of the pre- application request.
   2. Additional information necessary to demonstrate the nature and scope of the proposal in sufficient detail to allow County staff to review and comment; and
   3. Payment of the applicable fee, pursuant to Subsection 1307.16.
4. Scheduling: Upon receipt of a complete application, the Planning Director will schedule the pre-application conference. The Planning Director will coordinate the involvement of other County departments, as appropriate, in the pre- application conference. Pre-application conferences are not open to the general public.
5. Summary: Subsequent to the pre-application conference, the Planning Director will provide the applicant with a written summary of the conference. The purpose of the written summary is to provide a preliminary assessment of the proposal, but shall not be deemed to be a recommendation by the County or any other outside agency or service provider on the merits of the proposal.
6. Validity Period for Mandatory Pre-Application Conferences; Follow-Up Conferences: A follow-up pre-application conference is required for those mandatory pre-application conferences that have already been held when:
   1. A complete application relating to the proposed development has not been submitted within two years of the pre-application conference; or
   2. The proposed use, layout, or design of the proposed development has changed significantly.

1307.06 Review of Multiple Applications

When multiple land use permits for the same property are required or proposed by an applicant, all of the applications may be filed concurrently. Each application shall be processed separately using the procedure identified in Table 1307-1, Land Use Permits by Procedure Type, for that application, except that applications filed concurrently shall be processed through a consolidated procedure if:

1. One of the applications is a Type III application for a Comprehensive Plan map amendment, in which case the Type III Comprehensive Plan map amendment procedure shall be used;
2. Multiple land use permit applications are subject to the same procedure type with the same initial decision and appeal review authorities. Applications for an interpretation of this Ordinance are excluded from this consolidation provision; or
3. The applicant elects to process multiple applications through a consolidated procedure, if such consolidation is consistent with Subsection

1307.07 Application Submittal and Completeness Review

1. Initiation of Applications: Type I, II, II-E, and III land use permit applications may be initiated by:
   1. The owner of the subject property;
   2. The contract purchaser of the subject property, if the application is accompanied by proof of the purchaser's status as such;
   3. The agent of the owner or contract purchaser of the subject property, if the application is duly authorized in writing by the owner or the contract purchaser, and accompanied by proof of the agent's authority; or
   4. If the application is for Comprehensive Plan designation or zoning of a Historic District or Historic Corridor, the owners or contract purchasers of at least 60 percent of the property within the area to be so designated or zoned.
2. Initiation of Legislative Proposals: Type IV legislative land use proposals may be initiated by the Board of County Commissioners, the Planning Commission, or the Planning Director. However, initiation of a legislative proposal does not obligate the County to further processing of the proposal pursuant to Subsection 1307.12, or prevent the County from discontinuing the processing of the proposal at any point prior to decision.
3. Application Submittal: Type I, II, II-E, and III land use permit applications are subject to the following submittal requirements:
   1. The following shall be submitted for an application to be complete:
      1. A completed application form, such form to be prescribed by the Planning Director, and containing, at a minimum, the following information:
         1. The names, mailing addresses, and telephone numbers of the applicant(s), the owner(s) of the subject property, and any authorized representative(s) thereof;
         2. The address of the subject property, if any, and its assessor's map and tax lot number;
         3. The size of the subject property;
         4. The Comprehensive Plan designation and zoning district of the subject property;
         5. The type of application being submitted;
         6. A brief description of the proposal; and
         7. Signature(s) of the applicant(s) and all owners or all contract purchasers of the subject property, or the duly authorized representative(s) thereof, authorizing the filing of the application.
      2. A completed supplemental application form, such form to be prescribed by the Planning Director, or a written statement addressing each applicable approval criterion and standard and each item on the supplemental application form;
      3. Any additional information required under this Ordinance for the specific land use permit sought; and
      4. Payment of the applicable fee, pursuant to Subsection 1307.16.
   2. The Planning Director, at their sole discretion, may waive a submittal requirement of Subsection 1307.07(C)(1)(b) or (c), if the Planning Director determines that the requirement is not material to the review of the application.
   3. Each application, when received by the Planning Director, shall be date- stamped with the date the application was received.
4. Completeness of a Type I Application: If a Type I application is not complete when submitted, and the applicant does not make it complete within 60 days of submittal, the application is void.
5. Completeness Review for Type II, II-E, and III Applications: After it is submitted, a Type II, II-E, or III land use permit application shall be reviewed for completeness, as follows:
   1. Except as otherwise provided under Oregon Revised Statutes 215.427, the Planning Director shall review a Type II or Type III application for completeness within 30 days of its receipt.
   2. The Planning Director shall review a Type II-E application for completeness within 21 days of its receipt.
   3. Determination of completeness shall be based upon the submittal requirements of Subsection 1307.07(C)(1) and shall not be based on opinions as to quality or accuracy. A determination that an application is complete indicates only that the application is ready for review on its merits, not that the County will make a favorable decision on the application.
   4. If an application is determined to be complete, review of the application shall commence.
   5. If an application is determined to be incomplete, written notice shall be provided to the applicant identifying the specific information that is missing and allowing the applicant the opportunity to submit the missing information. This written notice shall be provided within 30 days of receipt of a Type II or Type III application and within 21 days of receipt of a Type II-E application. The application shall be deemed complete upon receipt by the Planning Director of: 
      1. All of the missing information;
      2. Some of the missing information and written notice from the applicant that no other information will be provided; or
      3. Written notice from the applicant that none of the missing information will be provided.
   6. If the application was complete when first submitted, or the applicant submits additional information, as described in Subsection 1307.07(E)(5), within 180 days of the date the application was first submitted, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted.
   7. On the 181st day after first being submitted, a Type II or III application is void, if the applicant has been notified of the missing information as required under Subsection 1307.07(E)(5) and has not submitted the missing information or otherwise responded, as provided in Subsection 1307.07(E)(5).

1307.08 Type I Ministerial Procedures

Type I land use permit applications are subject to the following procedures:

1. Notice of Application: Notice of application is not provided.
2. Decision: The review authority shall approve, approve with conditions, or deny the application based on the applicable standards and criteria. The review authority shall issue a written decision.
3. Notice of Decision: A copy of the decision shall be mailed to the applicant(s), the owner(s) of the subject property, and any authorized representative(s) thereof.
4. Appeal: The review authority's decision is the final decision of the County.

1307.09 Type II Administrative Procedures

Type II land use permit applications are subject to the following procedures:

1. Notice of Application: Notice of application shall be provided as follows:
   1. A minimum of 20 days prior to the issuance of a decision, written notice of application shall be mailed to:
      1. The applicant(s), the owner(s) of the subject property, and any authorized representative(s) thereof;
      2. All property owners of record, pursuant to Subsection 1307.17(C), within the noticing distance listed in Table 1307-2, Noticing Distances for Type II Land Use Permit Applications, as measured from the subject property and contiguous properties under the same ownership:

Table 1307-2: Noticing Distances for Type II Land Use Permit Applications

Note to Table 1307-2:

¹If the application is for a nonconforming use verification, nonconforming use alteration, or vested right determination, the noticing distance shall be 2,640 feet (½ mile).

3. Any active community planning organization, hamlet, or village that is recognized by the County, if the subject property lies wholly or partially inside the boundaries of such organization, hamlet, or village;
4. Cities, as prescribed in applicable urban growth management agreements;
5. Those special districts and government agencies deemed by the Planning Director to have an interest in the application;
6. The Oregon Department of Agriculture, if the subject property is in the EFU or AG/F District and the application is for the propagation, cultivation, maintenance, and harvesting of aquatic species that are not under the jurisdiction of the Oregon Fish and Wildlife Commission;
7. Metro and any watershed council recognized by the Oregon Watershed Enhancement Board and whose boundaries include the subject property, if the application is for Habitat Conservation Area map verification; and
8. The airport owner and the Oregon Department of Aviation, if required by Oregon Revised Statutes (ORS) 197.183, 215.223, or 215.416.
9. At a minimum, notice of application shall include:
   1. An explanation of the nature of the application and the proposed use or uses that could be authorized;
   2. A list of the applicable criteria from this Ordinance and the Comprehensive Plan that apply to the application;
   3. The street address or other easily understood geographical reference to the subject property;
   4. The name and telephone number of the County staff member to contact where additional information may be obtained;
   5. A statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at a cost established by the Board of County Commissioners;
   6. A general explanation of when, where, how, and to whom written comments on the application may be submitted; and
   7. A statement that subsequent to the closing of the public comment period, a notice of decision will be issued and mailed to everyone entitled to the initial notice of the application.
10. A minimum of 20 days prior to the issuance of a decision, a copy of the submitted application shall be mailed to those identified in Subsections
11. Decision: The review authority shall consider the record of the application and approve, approve with conditions, or deny the application based on the applicable standards and criteria. The review authority shall issue a written decision that explains the standards and criteria considered relevant to the decision; states the facts relied upon in rendering the decision; explains the justification for the decision based on the standards, criteria, and facts set forth; and lists the conditions of approval, if any. The decision also shall include:
    1. A description of the nature of the decision and an explanation of the nature of the application and the use or uses that were proposed and, if applicable, are authorized by the decision;
    2. The street address or other easily understood geographical reference to the subject property;
    3. The name and telephone number of the County staff member to contact where additional information may be obtained;
    4. A statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant, and applicable criteria are available for inspection at no cost and will be provided at a cost established by the Board of County Commissioners;
    5. The date the review authority's decision becomes effective, unless appealed;
    6. A statement that the decision will not become final until the period for filing an appeal with the County has expired without the filing of an appeal;
    7. A statement that any person who is adversely affected or aggrieved or who is entitled to written notice under Subsection 1307.09(C) may appeal the decision by filing a written appeal, and including the date and time by which an appeal must be filed, the location for filing, a brief statement explaining how to file an appeal, the appeal fee, and where further information may be obtained concerning the appeal process; and
    8. A statement that a person who is mailed written notice of the decision cannot appeal the decision directly to the Land Use Board of Appeals under ORS 197.830.
12. Notice of Decision:
    1. A copy of the decision shall be mailed to those identified in Subsections 1307.09(A)(1)(a) and (c) through (h).
    2. A notice of decision shall be mailed to those identified in Subsections 1307.09(A)(1)(b). The notice shall include the information in Subsections 1307.09(B)(1) through (8) and directions on how to obtain a copy of the decision.
13. Appeal: The review authority's decision is the final decision of the County, unless an appeal is filed pursuant to Subsection 1307.14.

1307.10 Type II–E Administrative Procedures

Type II-E land use permit applications are subject to the following procedures:

1. Notice of Application: Notice of application shall be provided as follows:
   1. A minimum of 14 days prior to the issuance of a decision, written notice of application shall be mailed to:
      1. The applicant(s), the owner(s) of the subject property, and any authorized representative(s) thereof;
      2. All property owners of record, pursuant to Subsection 1307.17(C), within 100 feet, as measured from the subject property and contiguous properties under the same ownership;
      3. Any active community planning organization that is recognized by the County, if the subject property lies wholly or partially inside the boundaries of such organization;
      4. Cities, as prescribed in applicable urban growth management agreements;
      5. Those special districts and government agencies deemed by the Planning Director to have an interest in the application;
      6. The airport owner and the Oregon Department of Aviation, if required by Oregon Revised Statutes (ORS) 197.183, 215.223, or 215.416.
   2. At a minimum, notice of application shall include:
      1. An explanation of the nature of the application and the proposed use or uses that could be authorized;
      2. A list of the applicable criteria from this Ordinance and the Comprehensive Plan that apply to the application;
      3. The street address or other easily understood geographical reference to the subject property;
      4. The name and telephone number of the County staff member to contact where additional information may be obtained;
      5. A statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at a cost established by the Board of County Commissioners;
      6. A general explanation of when, where, how, and to whom written comments on the application may be submitted;
      7. A statement that issues that may provide the basis for an appeal must be raised in writing prior to the expiration of the comment period and that issues must be raised with sufficient specificity to enable the local government to respond to the issue; and
      8. A statement that subsequent to the closing of the public comment period, a decision will be issued and mailed to everyone entitled to the initial notice of the application.
   3. A minimum of 14 days prior to the issuance of a decision, a copy of the submitted application shall be mailed to those identified in Subsections 1307.10(A)(1)(c) through (f).
2. Decision: Within 63 days of receiving a completed application, the review authority shall consider the record of the application and approve, approve with conditions, or deny the application based on the applicable standards and criteria. The review authority shall issue a written decision that explains the standards and criteria considered relevant to the decision, states the facts relied upon in rendering the decision, and explains the justification for the decision based on the standards, criteria, and facts set forth. The decision also shall include:
   1. An explanation of the nature of the application and the use or uses that were proposed and, if applicable, are authorized by the decision;
   2. The conditions of approval, if any;
   3. The street address or other easily understood geographical reference to the subject property;
   4. The name and telephone number of the County staff member to contact where additional information may be obtained;
   5. A statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant, and applicable criteria are available for inspection at no cost and will be provided at a cost established by the Board of County Commissioners;
   6. The date the review authority's decision becomes effective, unless appealed;
   7. A statement that the decision will not become final until the period for filing an appeal with the County has expired without the filing of an appeal;
   8. An explanation of appeal rights under ORS 197.375.
3. After seven days' notice to the applicant, the Board of County Commissioners, at a regularly scheduled public meeting, may take action to extend the 63-day time period identified in Subsection 1307.10(B) to a date certain for one or more applications for an expedited land division or a middle housing land division prior to the expiration of the 63-day period, based on a determination that an unexpected or extraordinary increase in applications makes action within 63 days impracticable. In no case shall an extension be to a date more than 120 days after the application was deemed complete.
4. Notice of Decision: A copy of the decision shall be mailed to those identified in Subsection 1307.10(A)(1).
5. Appeal: The review authority's decision is the final decision of the County, unless an appeal is filed pursuant to Subsection 1307.14.

1307.11 Type III Quasi-Judicial Procedures

Type III land use permit applications are subject to the following procedures:

1. Notice of Application and Public Hearing: Notice of application and public hearing shall be provided as follows:
   1. Notice shall be provided to the Oregon Department of Land Conservation and Development (DLCD), if required pursuant to Oregon Revised Statutes (ORS) 197.610. Procedures for the giving of the required notice shall be those established by ORS 197.610 and Oregon Administrative Rules Chapter 660, Division 18.
   2. A minimum of 35 days prior to the first evidentiary hearing on the application, a copy of the submitted application shall be mailed to:
      1. Any active community planning organization, hamlet, or village that is recognized by the County, if the subject property lies wholly or partially inside the boundaries of such organization, hamlet, or village;
      2. Cities, as prescribed in applicable urban growth management agreements;
      3. Those special districts and government agencies deemed by the Planning Director to have an interest in the application;
      4. The Oregon Department of Agriculture, if the subject property is in the AG/F or EFU District and the application is for the propagation, cultivation, maintenance, and harvesting of aquatic species that are not under the jurisdiction of the Oregon Fish and Wildlife Commission;
      5. Metro and any watershed council recognized by the Oregon Watershed Enhancement Board and whose boundaries include the subject property, if the application is for Habitat Conservation Area map verification;
      6. The airport owner and the Oregon Department of Aviation, if required by ORS 197.183, 215.223, or 215.416; and
      7. The State Department of Fish and Wildlife, the State Department of Energy, the State Historic Preservation Officer, the Oregon Department of Aviation, the United States Department of Defense, and federally recognized Indian tribes that may be affected by the application, if the application is for a renewable energy facility pursuant to ORS 215.446.
   3. A minimum of 20 days prior to the first evidentiary hearing of each review authority on the application, written notice of the application and hearing shall be mailed to:
      1. The applicant(s), the owner(s) of the subject property, and any authorized representative(s) thereof;
      2. All property owners of record, pursuant to Subsection 1307.17(C), within the noticing distance listed in Table 1307-3, Noticing Distances for Type III Land Use Permit Applications, as measured from the subject property and contiguous properties under the same ownership:

Table 1307-3: Noticing Distances for Type III Land Use Permit Applications

3. If the application is for a zone change to apply the MAO District, all property owners of record, pursuant to Subsection 1307.17(C), within 1,000 feet from the outer boundary of the proposed impact area under Section 708, Mineral and Aggregate Overlay District;
4. Any active community planning organization, hamlet, or village that is recognized by the County, if the subject property lies wholly or partially inside the boundaries of such organization, hamlet, or village;
5. Cities, as prescribed in applicable urban growth management agreements;
6. Those special districts and government agencies deemed by the Planning Director to have an interest in the application;
7. The Oregon Department of Agriculture, if the subject property is in the AG/F or EFU District and the application is for the propagation, cultivation, maintenance, and harvesting of aquatic species that are not under the jurisdiction of the Oregon Fish and Wildlife Commission;
8. Metro and any watershed council recognized by the Oregon Watershed Enhancement Board and whose boundaries include the subject property, if the application is for Habitat Conservation Area map verification;
9. The airport owner and the Oregon Department of Aviation, if required by ORS 197.183, 215.223, or 215.416;
10. The State Department of Fish and Wildlife, the State Department of Energy, the State Historic Preservation Officer, the Oregon Department of Aviation, the United States Department of Defense, and federally recognized Indian tribes that may be affected by the application, if the application is for a renewable energy facility pursuant to ORS 215.446; and
11. Tenants of a mobile home or manufactured dwelling park, as defined in ORS 446.003, when property that includes all or part of such mobile home or manufactured dwelling park is the subject of an application for a Comprehensive Plan map amendment, zone change, or both. Notice to such tenants shall be mailed no more than 40 days before the first evidentiary hearing.
12. At a minimum, notice of application and hearing shall include:
    1. An explanation of the nature of the application and the proposed use or uses that could be authorized;
    2. A list of the applicable criteria from this Ordinance and the Comprehensive Plan that apply to the application;
    3. The street address or other easily understood geographical reference to the subject property;
    4. Date, time, and location of the hearing;
    5. A statement that failure of an issue to be raised in a hearing, in person or by letter, or failure to provide statements or evidence sufficient to afford the review authority an opportunity to respond to the issue precludes appeal to the Oregon Land Use Board of Appeals on that issue;
    6. The name and telephone number of the County staff member to contact where additional information may be obtained;
    7. A statement that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at a cost established by the Board of County Commissioners;
    8. A statement that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and will be provided at a cost established by the Board of County Commissioners;
    9. A general explanation of the requirements for submission of testimony and the procedure for conduct of hearings;
    10. A statement that subsequent to the close of the public hearing, a decision will be issued and mailed as required by Subsection 1307.11(E); and
    11. If the application is for a renewable energy facility pursuant to ORS 215.446, a description of the proposed renewable energy facility and the contact information for the Board of County Commissioners and the applicant.
13. If the application is for a Comprehensive Plan amendment, notice of the date, time, location, and purpose of the Planning Commission's hearing and the Board of County Commissioner's hearing shall be given a minimum of 10 days prior to the date of each review authority's first evidentiary hearing, by publication in a newspaper of general circulation in the County. However, if the application applies to only a part of the County, the notice may instead be published in a newspaper of general circulation in that part of the County.
14. Application Review and Staff Report: The Planning Director shall review the application, written comments, and evidence submitted prior to the public hearing; prepare a staff report summarizing the application, comments received to-date, and relevant issues associated with the application; and make a recommendation to the review authority. The staff report shall be made available to the public for review a minimum of seven days prior to the first evidentiary hearing.
15. Public Hearing: A public hearing shall be held before the review authority, for the purpose of receiving testimony regarding the application.
16. Decision: The review authority shall consider the record and approve, approve with conditions, or deny the application based on the applicable standards and criteria. The review authority shall issue a written decision that explains the standards and criteria considered relevant to the decision, states the facts relied upon in rendering the decision, explains the justification for the decision based on the standards, criteria, and facts set forth, and lists the conditions of approval, if any. The decision also shall include:
    1. An explanation of the nature of the application and the use or uses that were proposed and, if applicable, are authorized by the decision;
    2. The street address or other easily understood geographical reference to the subject property;
    3. The date the review authority's decision becomes effective, unless appealed; And
    4. A statement that any person who presented evidence, argument, or testimony as part of the record may appeal the decision by filing a written appeal; the date by which an appeal must be filed, the location for filing, a brief statement explaining how to file an appeal, and where further information may be obtained concerning the appeal process.
17. Notice of Decision:
    1. A copy of the decision shall be mailed to those identified in Subsections 1307.11(A)(3)(a) and (d) through (j).
    2. A notice of decision, which shall include the information in Subsections 1307.11(D)(1) through (4) and directions on how to obtain a copy of the decision, shall be mailed to:
       1. Anyone who provided evidence, argument, or testimony as part of the record; and
       2. Anyone who made a written request for notice of decision.
    3. A copy of the decision shall be submitted to DLCD, as required by ORS 197.615. Procedures for submitting the decision to DLCD shall be those established by ORS 197.615 and Oregon Administrative Rules chapter 660, division 18.
18. Appeal: The review authority's decision is the final decision of the County, except as may be provided for interpretation applications pursuant to Subsection 1307.14(E). Appeal of the County's final decision is to the Oregon Land Use Board of Appeals.

1307.12 Type IV Legislative Procedures

Type IV legislative land use proposals are subject to the following procedures:

1. Notice of Proposal and Public Hearing: Notice of proposal and hearing shall be provided as follows:
   1. Notice shall be provided to the Oregon Department of Land Conservation and Development, if required pursuant to Oregon Revised Statutes (ORS) 197.610. Procedures for the giving of the required notice shall be those established by ORS 197.610 and Oregon Administrative Rules chapter 660, division 18.
   2. Notice shall be provided to the Metropolitan Service District, if required pursuant to Section 3.07.820 of the Code of the Metropolitan Service District. Procedures for the giving of the required notice shall be those established by Section 3.07.820 of the Code of the Metropolitan Service District.  
   3. For proposed amendments to the text of the Comprehensive Plan or this Ordinance, a minimum of 35 days prior to the first public hearing, a copy of the text, showing proposed additions and deletions, shall be made available to the public for review. All active community planning organizations, hamlets, and villages that are recognized by the County shall be notified when it becomes available.
   4. A minimum of 20 days prior to the first public hearing of each review authority on the proposal, written notice of the proposal and hearing shall be mailed to:
      1. For proposed amendments to the text of the Comprehensive Plan or this Ordinance, all active community planning organizations, hamlets, and villages that are recognized by the County;
      2. For proposed Comprehensive Plan Land Use Plan map amendments and zone changes, any active community planning organization, hamlet, or village that is recognized by the County, if the subject property lies wholly or partially inside the boundaries of such organization, hamlet, or village;
      3. Cities, as prescribed in applicable urban growth management agreements; and
      4. Those special districts and government agencies deemed by the Planning Director to have an interest in the proposal.
   5. At a minimum, notice of proposal and hearing shall include:
      1. An explanation of the nature of the proposal;
      2. Date, time, and location of the hearing;
      3. The name and telephone number of the County staff member to contact where additional information may be obtained; and
      4. For Comprehensive Plan Land Use Plan map amendments and zone changes, a copy of the proposed map change(s).
   6. Notice of the date, time, location, and purpose of the Planning Commission's hearing and the Board of County Commissioner's hearing shall be given a minimum of 10 days prior to the date of each review authority's first public hearing, by publication in a newspaper of general circulation in the County. However, if the legislative land use proposal applies to only a part of the County, the notice may instead be published in a newspaper of general circulation in that part of the County.  
2. Proposal Review and Staff Report: The Planning Director shall consider the proposal, written comments, and evidence submitted prior to each public hearing and prepare staff reports summarizing the proposal, comments received to-date, and the relevant issues associated with the proposal. Each staff report shall make a recommendation to the review authority.
3. Planning Commission Public Hearing: A public hearing shall be held before the Planning Commission, for the purpose of receiving testimony regarding the proposal.
4. Planning Commission Recommendation: The Planning Commission shall consider the record and may make a recommendation to the Board of County Commissioners to adopt, adopt with modifications, or decline to adopt the proposal. If no recommendation is made by the Planning Commission and no extension is granted by the Board of County Commissioners, the Board of County Commissioners may act upon the proposal notwithstanding the lack of a recommendation.
5. Board of County Commissioners Public Hearing: A public hearing shall be held before the Board of County Commissioners, for the purpose of receiving testimony regarding the proposal.
6. Decision: The Board of County Commissioners shall consider the record and may adopt, adopt with modifications, or decline to adopt the proposal; remand the matter back to the Planning Commission for further consideration; or table the matter. The decision of the Board of County Commissioners to adopt or adopt with modifications shall be by ordinance.
7. Notice of Decision: Notice of decision shall be provided as follows:
   1. A maximum of 20 days after the decision is made it shall be submitted to the Oregon Department of Land Conservation and Development (DLCD). Procedures for the giving of the required notice shall be those established by ORS 197.615 and Oregon Administrative Rules Chapter 660, Division 18.
   2. On the same day the decision is submitted to DLCD, the County shall mail, or otherwise deliver, notice to persons who both participated in the County proceedings that led to the decision to adopt the change to the Comprehensive Plan or this Ordinance and requested in writing that the County give notice of the change. The notice shall:
      1. State how and where the materials described in ORS 197.615(2) may be obtained;
      2. Include a statement by the individual delivering the notice that identifies the date on which the notice was delivered and the individual delivering the notice;
      3. List the locations and times at which the public may review the decision and findings; and
      4. Explain the requirements for appealing the land use decision under ORS 197.830 to 197.845.
8. Appeal: The Board of County Commissioners' decision is the final decision of the County. Appeal of the County's final decision is to the Oregon Land Use Board of Appeals or the Oregon Land Conservation and Development Commission, as determined by state law.

1307.13 PUBLIC HEARINGS

Subsection 1307.13 applies to public hearings held pursuant to Section 1307, except that only Subsections 1307.13(A), (B), (E) through (H), and (J) apply to public hearings in a Type IV proceeding.

1. Procedure, Generally: Public hearings shall be conducted in accordance with Oregon Revised Statutes (ORS) 197.797, Subsection 1307.12, and any bylaws or rules of procedure adopted by the review authority. Subsection 1307.13 authorizes the Hearings Officer, Planning Commission, and Board of County Commissioners to adopt rules of procedure for the conduct of hearings.
2. Parties: Any interested party shall be entitled to participate in a public hearing.
3. Order of Proceeding: The order of proceeding for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by the adopted bylaws or rules of procedure of the review authority, as appropriate.
   1. Jurisdictional Objections: Before receiving the staff report or testimony on the application, any objections on jurisdictional grounds shall be noted in the record and if there is objection, the review authority has the discretion to proceed or terminate the hearing.
   2. Disclosure Statement: The review authority (or individual member thereof), or its designee, shall read the land use disclosure statement, which shall include:
      1. A list of the applicable substantive criteria, or a reference to the staff report, where a list of the criteria can be found;
      2. A statement that testimony, argument, and evidence must be directed toward the criteria described in Subsection 1307.13(C)(2)(a) or other criteria in the Comprehensive Plan or land use regulation which the person believes to apply to the decision;
      3. A statement that failure to raise an issue accompanied by statements or evidence sufficient to afford the decision-maker and the parties an opportunity to respond to the issue precludes appeal to the Oregon Land Use Board of Appeals (LUBA) based on that issue; and
      4. If applicable, a statement that a failure to raise constitutional issues relating to proposed conditions of approval precludes an action for damages in circuit court.
   3. Call for Ex Parte Contacts: If the review authority is the Planning Commission or the Board of County Commissioners, the presiding officer, or designee, shall inquire whether any member has had ex parte contacts. Any member announcing an ex parte contact shall state for the record the nature and content of the contact. If the review authority is the Hearings Officer, they shall declare any ex parte contacts and state for the record the nature and content of the contact.
   4. Call for Abstentions: If the review authority is the Planning Commission or the Board of County Commissioners, the presiding officer, or designee, shall inquire whether any member must abstain from participation in the hearing due to conflicts of interest. Any member announcing a conflict of interest shall state the nature of the conflict, and shall not participate in the proceeding, unless the vote is necessary to meet a requirement of a minimum number of votes necessary to take official action; provided, however, that the member shall not participate in any discussion or debate on the issue out of which the conflict arises. If the review authority is the Hearings Officer, they shall declare any potential conflicts of interest. The Hearings Officer shall state the nature of the conflict, and if the nature of the conflict is such that the Hearings Officer cannot fulfill his or her duty to be a fair and impartial decision-maker, the Hearings Officer shall recuse himself or herself from hearing the matter.
   5. Staff Report: The Planning Director shall present a report and recommendation concerning the proposal.
   6. Presentation of the Application:
      1. Applicant's case;
      2. Community planning organizations, hamlets, and villages. Appearance by a representative from any active community planning organization, hamlet, or village that is recognized by the County, if the subject property lies wholly or partially inside the boundaries of such organization, hamlet, or village, to present the organization's position on the proposal;
      3. Public testimony; and
      4. Rebuttal. Rebuttal may be presented by the applicant. The scope of rebuttal is limited to matters that were introduced during the hearing.
   7. Close of Hearing: No additional testimony, evidence, or argument shall be accepted after the close of the hearing unless the record is held open by the review authority.
   8. Reopened Hearing: The hearing may be reopened by the review authority, prior to decision, to receive additional testimony, evidence, or argument. Notice shall be provided to the same persons who received notice of the original hearing and to anyone who provided evidence, argument, or testimony as part of the record.
   9. Deliberations: If the review authority is the Planning Commission or Board of County Commissioners, deliberations shall immediately follow the hearing, except that deliberations may be delayed to a subsequent date and time certain. If the review authority is the Hearings Officer, deliberations will not occur, and the Hearings Officer will instead take the matter under advisement.
   10. Remand: The Board of County Commissioners may remand any matter previously considered by the Planning Commission back to the Planning Commission for further review.
   11. Recommendation or Decision: When the review authority is the Planning Commission or Board of County Commissioners, the recommendation or decision, as applicable, will be voted on and announced during a public meeting.
4. Ex Parte Contact:
   1. The review authority shall not do any of the following:
      1. Communicate, directly or indirectly, with any party or their representatives in connection with any issue involved, except upon notice and opportunity for all parties to participate;
      2. Take notice of any communications, reports, staff memoranda, or other materials prepared in connection with a particular application, unless the parties are afforded an opportunity to contest the material so noted; or
      3. Inspect the site with any party or his representatives unless all parties are given an opportunity to be present. Individuals representing the review authority may inspect the site alone but must put the circumstances of the inspection on record.
   2. A party may challenge the review authority, or individual member thereof, on the grounds of Subsection 1307.13(D)(1), or that such individual has a legal conflict of interest as defined by ORS 244.020(1) or ORS 244.120. A challenge and the decision thereon by the review authority shall be entered in the record of the application.
   3. While every effort must be made to avoid ex parte contact, no decision of the review authority shall be invalid due to ex parte contact or bias resulting from ex parte contact, as described under Subsection 1307.13(D)(1), if the review authority (or individual member thereof) receiving the contact:
      1. Places on the record the substance of any written or oral ex parte communication concerning the decision or action; and
      2. Has a public announcement made of the content of the communication, and of the parties' right to rebut the substance of the communication, at the first hearing following the communication where action will be considered or taken on the subject to which the communication related.
   4. A communication between County staff and the Historic Review Board, Design Review Committee, Planning Commission, or Board of County Commissioners shall not be considered an ex parte contact for purposes of Subsection 1307.13(D)(1).
5. Evidence and Exhibits:
   1. All evidence may be received unless excluded by the review authority on its own motion. Evidence received at any hearing shall be of the quality that reasonable persons rely upon in the conduct of their everyday affairs. Relevant evidence is any evidence having a tendency to make the existence or non-existence of a fact that is of consequence to the approval of the land use permit or legislative land use proposal more or less probable than it would without the evidence. Evidence may be received subject to a later ruling regarding its admissibility.
   2. The review authority may exclude cumulative, repetitious, or immaterial evidence, but erroneous admission of evidence by the review authority shall not preclude action by the review authority or cause reversal on appeal unless shown to have substantially prejudiced the rights of a party.
   3. All evidence shall be offered and made a part of the record in the application or legislative proceeding; and, except for matters stipulated to and except as provided in Subsection 1307.13(E)(4), no other factual information or evidence shall be considered in the recommendation or decision.
   4. The review authority may take notice of judicially cognizable facts, and may take notice of general, technical, or scientific facts within specialized knowledge. Except in a Type IV proceeding, interested parties shall be notified at any time during the proceeding, but in any event prior to the final decision, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. The review authority may utilize experience, technical competence, and specialized knowledge in evaluation of the evidence presented.
   5. All exhibits received shall be marked so as to provide identification upon review. Such exhibits may be returned when the period for review has expired, but shall otherwise be preserved by the Planning Director.
6. Time Limits: The review authority may set consistent, reasonable time limits for oral presentations to the end that parties are encouraged to submit as much evidence as possible in writing prior to the hearing. No person may speak more than once without obtaining permission from the review authority.
7. Questioning: The review authority (or individual member thereof) or County staff may question any person who testifies. The applicant and other parties to the proceeding shall not have the right to question or cross-examine any person who testifies.
8. Scope of Testimony: Except in a Type IV proceeding, testimony shall be directed towards the applicable standards and criteria that apply to the proposal. The review authority may exclude or limit cumulative, repetitious, or immaterial testimony. To expedite hearings, the review authority may call for those in favor and those in opposition to rise, and the review authority shall note the numbers of such persons for the record.
9. Continuances and Open Record Periods:
   1. All documents or evidence relied upon by the applicant shall be submitted to the County and be made available to the public. Any staff report used at the hearing shall be available at least seven days prior to the hearing. If additional documents or evidence are provided by any party, the review authority may allow a continuance or leave the record open to allow the parties a reasonable opportunity to respond. Any continuance or extension of the record requested by the applicant shall result in a corresponding extension of the time limitations of ORS 215.427 and ORS 215.429.
   2. Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence, argument, or testimony regarding the application. The review authority shall either continue the public hearing, pursuant to Subsection 1307.13(I)(2)(a), or leave the record open for additional written evidence, argument, or testimony, pursuant to Subsection 1307.13(I)(2)(b).
      1. If the review authority grants a continuance, the hearing shall be continued to a date, time, and place certain at least seven days from the date of the initial evidentiary hearing. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence, argument, or testimony. If new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven days to submit additional written evidence, argument, or testimony for the purpose of responding to the new written evidence. Only one continuance is available of right under Subsection 1307.13(I)(2)(a); provided, however, nothing in Subsection 1307.13(I)(2)(a) shall restrict the review authority, in its discretion, from granting additional continuances.
      2. If the review authority leaves the record open for additional written evidence, argument, or testimony, the record shall be left open for at least seven days. The review authority may leave the record open for an additional period of at least seven days for any participant to respond to new evidence submitted during the prior open-record period. However, if the review authority has not provided for this additional open-record period, any participant may file a written request with the Planning Director for an opportunity to respond to new evidence submitted during the period the record was left open. Any such request shall be filed no later than the end of the last business day the record is left open. If such a request is filed, the review authority may reopen the record pursuant to Subsection 1307.13(I)(4).
      3. A continuance or extension granted pursuant to Subsection 1307.13(I)(2) shall be subject to the limitations of ORS 215.427 and ORS 215.429, unless the continuance or extension is requested or agreed to by the applicant.
   3. Additional notice of a continued hearing is not required, unless the hearing is continued without announcing a date, time, and place certain, in which case notice of the continued hearing shall be given as though it were the initial hearing.
   4. If the record is reopened to admit new evidence, argument, or testimony, any person may raise new issues which relate to the new evidence, argument, testimony, or criteria for decision-making which apply to the matter at issue. Notice of the reopened record shall be provided to any person who presented evidence, argument, or testimony as part of the record prior to the date the record was reopened.
   5. Unless waived by the applicant, the review authority shall allow the applicant at least seven days after the record is closed to all other parties to submit final written argument in support of the application. The applicant's final submittal shall be considered part of the record, but shall not include any new evidence. This seven-day period shall not be subject to the limitations of ORS 215.427 and ORS 215.429.
10. Record of Hearing:
    1. A verbatim record of the proceeding shall be made by written, mechanical, or electronic means, which record need not be transcribed except upon review on the record.
    2. The record of proceedings is comprised of:
       1. The Comprehensive Plan and this Ordinance, all of which shall be automatically incorporated into the record;
       2. The application or legislative proposal that initiated the proceeding;
       3. All testimony, argument, evidence, and exhibits submitted prior to the close of the record of the proceeding;
       4. Any staff reports submitted prior to the close of the record of the proceeding;
       5. Any electronic presentation used by either staff, applicant, or other participant in the proceeding;
       6. The verbatim record, as provided in Subsection 1307.13(J)(1);
       7. Minutes, if any, of the hearing;
       8. A verbatim record, as provided in Subsection 1307.13(J)(1), of any public meeting after the close of the hearing at which the proceeding is discussed by or acted upon by the review authority;
       9. Minutes, if any, of any public meeting after the close of the hearing at which the proceeding is discussed by or acted upon by the review authority; and
       10. The written decision.

1307.14 Appeals

Subsection 1307.14 applies to all appeals processed by the County of decisions issued under Section 1307, except for appeals of Type II-E decisions, which shall be processed pursuant to ORS 197.375. Table 1307-1, Land Use Permits by Procedure Type, identifies those land use permit decisions that may be appealed at the County level and the applicable review authority for those appeals.

1. Filing an Appeal: An appeal shall be in writing and must be received by the Planning Director within 12 days of the date of mailing of the notice of decision, or if the 12th day falls on a day on which the County is not open for business, by the next day on which the County is open for business.
2. Notice of Appeal: Notice of appeal shall be made on a form prescribed by the Planning Director and shall be accompanied by the appeal fee. The notice of appeal shall contain:
   1. Identification of the decision sought to be appealed, including its assigned file number, the name of the applicant, and the decision date;
   2. The name, mailing address, and telephone number of the appellant;
   3. The nature of the decision being appealed and the grounds for appeal; and
   4. Signature(s) of the appellant(s), or the duly authorized representative(s) thereof, authorizing the filing of the appeal.
3. Proper Filing of Notice of Appeal: The failure to file a timely and complete notice of appeal is a jurisdictional defect, and the Planning Director shall not accept a notice of appeal that does not comply with Subsections 1307.14(A) and (B). The Planning Director's determination that an appellant has failed to comply with Subsections 1307.14(A) and (B) shall be final.
4. Appeal Procedures; Scope: Appeals are subject to the following procedures:
   1. De Novo Review: Appeals shall be de novo. In a de novo review, all issues of law and fact are heard anew, and no issue of law or fact decided by the lower- level review authority is binding on the parties in the hearing. New parties may participate, and any party may present new evidence and legal argument by written or oral testimony. The record of the initial proceeding shall be made a part of the record of the appeal. For purposes of Subsection 1307.14(D)(1), the record of the initial proceeding consists of
      1. Those items listed in Subsections 1307.13(J)(2)(a) through (d) and (j); and
      2. Those items listed in Subsections 1307.13(J)(2)(e) through (i), to the extent that any prior hearing(s) or public meeting(s) were conducted in reaching the decision that is being appealed.
   2. Notice of Public Hearing: Notice of public hearing shall be provided as follows:
      1. A minimum of 20 days prior to the first evidentiary hearing on the appeal, written notice of the appeal and hearing shall be mailed to:
         1. Those who were entitled to notice pursuant to Subsection 1307.09(A)(1); however, notwithstanding Table 1307-2, Noticing Distances for Type II Land Use Permit Applications, if the subject property is in the AG/F, EFU, FF-10, FU-10, RA-1, RA-2, RC, RI, RR, RRFF-5, or TBR Districts, notice of the public hearing shall be provided to all property owners of record, pursuant to Subsection 1307.17(C), within 2,640 feet (½ mile) of the subject property and all contiguous properties under the same ownership;
         2. The appellant; and
         3. Anyone who previously provided evidence, argument, or testimony as part of the record.
      2. At a minimum, notice of hearing shall include those elements identified in Subsection 1307.11(A)(4), except that 1307.11(A)(4)(i) will reference the appealed decision, rather than the staff report.
   3. Public Hearing: A public hearing shall be held before the appeal review authority, for the purpose of receiving testimony regarding the application.
   4. Decision: The appeal review authority shall consider the record and affirm the decision, affirm the decision with additional conditions or modifications, or reverse the decision. The appeal review authority shall issue a written decision in the form of an order, which shall be signed and dated, that explains the standards and criteria considered relevant to the decision, states the facts relied upon in rendering the decision, and explains the justification for the decision based on the standards, criteria, and facts set forth. The decision also shall include the elements identified in Subsection 1307.11(D)(1) through (5).
   5. Notice of Decision: A copy of the written order shall be mailed to:
      1. Those identified in Subsection 1307.11(E); and
      2. The appellant.
   6. Appeal: Except where an additional County-level appeal is provided pursuant to Subsection 1307.14(E), the appeal review authority's decision is the final decision of the County. Appeal of the County's final decision is to the Oregon Land Use Board of Appeals.
5. Review of an Interpretation by the Board of County Commissioners:
   1. A second County-level appeal is provided for applications for an interpretation of the Comprehensive Plan, where the Board of County Commissioners shall review the decision of the Planning Commission on appeal. Processing of the appeal shall comply with Subsections 1307.14(A) through (D), except that notice of the public hearing shall be given to:
      1. Those identified in Subsections 1307.09(A)(1)(a), (c) through (e), and (h);
      2. The appellant;
      3. Anyone who provided evidence, argument, or testimony as part of the record; and
      4. Anyone who made a written request for notice of decision.
   2. A second County-level appeal is provided for applications for an interpretation of this Ordinance, where the Board of County Commissioners may choose to review the decision of the Hearings Officer on appeal but is not required to do so.
      1. If the Board of County Commissioners accepts the appeal, processing of the appeal shall comply with Subsections 1307.14(A) through (D), except that notice of the public hearing shall be given pursuant to Subsection 1307.14(E)(1).
      2. If the Board of County Commissioners denies a request for review, it shall do so in writing. Notice of the denial shall be given pursuant to Subsection 1307.14(E)(1). If the Board of County Commissioners denies a request for review, the decision of the Hearings Officer stands as the final decision of the County. The period for appeal to the Oregon Land Use Board of Appeals commences on the date of mailing of the Board of County Commissioners' denial of review.
6. Effect of Judicial or Administrative Review: Except as provided by law or order of a court or administrative tribunal having jurisdiction, a decision of the County shall remain valid and effective notwithstanding the initiation of judicial or administrative review of such decision; provided, however, that any development permit dependent upon such decision shall be issued only with the applicant's written acknowledgement in a form approved by County Counsel, that such review has been initiated and may result in the reversal of the decision, in which event the permit shall be revoked, as well as any temporary occupancy permit, and the premises shall thereafter be brought into conformity with the applicable standards and criteria by appropriate means. No permanent occupancy certificate shall be issued by the building official until such review has concluded through the adoption of a decision making such occupancy in all respects lawful.  
7. Remand from the Land Use Board of Appeals: Except as set forth in Oregon Revised Statutes (ORS) 215.435(4), the County shall take final action on decisions remanded by the Oregon Land Use Board of Appeals within the time frame established by ORS 215.435(1) and (2).

1307.15 Conditions of Approval

Approval of a Type I, II, II-E, or III land use permit may be granted subject to conditions. The following limitations shall be applicable to conditional approvals:

1. Conditions shall be fulfilled within the time limitations set forth in the approval thereof, or, if no time is set forth, within a reasonable time. Failure to fulfill any conditions within the time limitations provided shall be grounds for the Planning Director to initiate revocation of the approved land use permit pursuant to Subsection 1307.17(L).
2. Conditions shall be imposed to ensure compliance with the standards and approval criteria applicable to the land use permit, or shall be reasonably calculated to fulfill public needs emanating from the proposed land uses as set forth in the application, in the following respects:
   1. Protection of the public from the potentially deleterious effects of the proposed use; or
   2. Fulfillment of the need for public services created by the proposed use.
3. The review authority may find compliance with an applicable approval criterion by imposing conditions necessary to ensure compliance and finding that it is feasible for the conditions to be satisfied. Notwithstanding this provision, where conditions require state agency permits to be obtained, the review authority need only find substantial evidence to demonstrate that the applicant is not precluded from obtaining such state agency permits as a matter of law.
4. A surety may be required from the applicant, in an amount sufficient to ensure compliance with one or more conditions of approval, subject to Section 1311, Completion of Improvements, Sureties, and Maintenance.

1307.16 Fees

Fees are for the purposes of defraying administrative costs and are subject to the following:

1. Fees payable at the time of application or appeal are established by separate order of the Board of County Commissioners.
2. The failure to submit the required fee with an application or appeal, including return of checks unpaid or other failure of consideration, shall be a jurisdictional defect.  
3. An active community planning organization that is recognized by the County may file appeals without fee, provided the decision to file an appeal is made at a public meeting held in compliance with Oregon Revised Statutes 192.610 to 192.690.
4. Appeal fees shall be refunded if the appellant prevails. Any other fee refund policy shall be established by separate order of the Board of County Commissioners.
5. The County Administrator or designee may reduce or waive fees upon showing of just cause to do so.

1307.17 General Provisions

1. Calculation of Time: For the purposes of this Ordinance, unless otherwise specifically provided, days mean calendar days. In calculating a specific time period, the day on which the period begins to run shall not be included; and the day on which the period ends shall be included. In the event the last day falls on a day on which the County is not open for business, the period of time shall end on the next day on which the County is open for business.
2. Signatures:
   1. When any person signs as the owner of property, as an officer of a public or private corporation owning the property, or as an attorney in fact or agent of any owner, or when any person states that they are buying the property under contract, the Planning Director and the review authority, if other than the Planning Director, may accept these statements to be true, unless the contrary be proved, and except where otherwise in this Ordinance more definite and complete proof is required. Nothing herein shall prevent the Planning Director or the review authority, if other than the Planning Director, from demanding proof that the signer is the owner, officer, attorney in fact, or agent.
   2. As used in Section 1307, the word "signature" includes a signature affixed by electronic means.
3. Property Owner Notice: Where notice to property owners of record is required by Section 1307, the records of the County Assessor shall be used to identify the owners and their mailing addresses. Persons whose names and addresses are not on file at the time of the filing of the applicable land use permit application or appeal need not be notified of the application, decision, or hearing. If a property within the notification area is located outside the County, the records of the applicable County Assessor shall be used. The failure of a property owner to receive notice as provided in Section 1307 shall not invalidate the proceedings, if the County can demonstrate by affidavit that such notice was given.  
4. Method of Mailing: When mailing is required by Section 1307, first-class mail shall be used, except that for mailing to any of the following, either first-class mail or electronic mail may be used: community planning organizations, hamlets, villages, cities, special districts, and government agencies.
5. Burden of Proof: Except in a Type IV proceeding, the proponent has the burden of proof on all elements of the proposal. The proposal must be supported by a preponderance of evidence that it conforms to all applicable standards and criteria. The preponderance of evidence standard is often described as enough evidence to make the proponent's point more likely than not.
6. Argument and Evidence: For the purposes of Section 1307:
   1. Argument means assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by any party. Argument does not include facts.
   2. Evidence means facts, documents, data, or other information offered to demonstrate compliance or noncompliance with the standards and criteria believed by any party to be relevant to the proposal.
7. Withdrawal: Prior to the issuance of the written decision, the applicant may submit a written notice of withdrawal of the application. Upon receipt of a written notice of withdrawal, the application shall be deemed dismissed without further action by the review authority. A withdrawal shall not bar filing a new application; withdrawal shall not be deemed a final decision for any purpose. A withdrawal cannot be appealed. If an application is withdrawn after the mailing of notice of application or public hearing, the Planning Director shall mail written notice stating the application has been withdrawn to all persons who were provided mailed notice of the application or public hearing.
8. Final Action Deadline: Except as modified by Oregon Revised Statutes (ORS) 197.365 through 197.380, 197.797, or 197A.470, the County shall take final action on a land use permit application that is subject to ORS 215.427, including resolution of all County appeals, within the time period specified by ORS 215.427, unless the applicant provides written request for an extension of such period pursuant to ORS 215.427(5).
9. Effective Date of Decision: The County's final decision on a Type I, II, II-E, or III land use permit application becomes effective on:
   1. The day the final decision is issued, if no appeal at the County level is allowed;
   2. The day after the appeal period expires, if an appeal at the County level is allowed, but no notice of appeal is timely filed;  
   3. The day the decision is issued by the final County appeal body, if an appeal is allowed and notice of appeal is timely filed. However, if the appeal is withdrawn prior to decision, the effective date of the County's final decision shall revert to the day after the appeal period would have expired had an appeal not been timely filed; or
   4. The date of mailing of the Board of County Commissioners' denial of review, pursuant to Subsection 1307.14(E)(2)(b).
10. Reissuing a Decision: The review authority may reissue a Type I, II, II-E, or III decision as a result of a clerical error, a misstatement of facts, or the erroneous imposition or omission of conditions of approval. A decision may not be reissued after the expiration of the appeal period, if any, or after the filing of an appeal. Notice of the reissued decision shall be given in the same manner as notice of the original decision. A new appeal period equal to that of the original decision shall be provided from the date of mailing of the amended decision.
11. Re-filing an Application: If a Type II, II-E, or III land use permit application is denied, or a Type II, II-E, or III land use permit is revoked pursuant to Subsection 1307.17(L), an applicant may re-file for consideration of the same or substantially similar application only if:
    1. At least two years have passed after either final denial of an application by the County or revocation of a permit; or
    2. The review authority finds that one or more of the following circumstances render inapplicable all of the specific reasons for the denial:
       1. A change, which is material to the application, has occurred in this Ordinance, the Comprehensive Plan, or other applicable law; for the purposes of this provision, "change" includes amendment to the applicable provisions or a modification in accepted meaning or application caused by an interpretation filed pursuant to Section 1308;
       2. A mistake in facts, which was material to the application, was considered by the review authority;
       3. There have been changes in circumstances resulting in new facts material to the application;
       4. A change has occurred in the zoning of the subject property, or adjacent property, that substantially affects the merits of the application; or
       5. There have been substantial changes in the surrounding area, or on the subject property, such as availability of services or improvements to public facilities, that affect the merits of the application.  
12. Revocation of Approval: An approval of a Type II, II-E, or III land use permit may be revoked, as follows:
    1. The Planning Director may initiate a public hearing for revocation of a prior approval of a land use permit when there is a violation of conditions attached to the previous approval sufficient to merit such revocation.
    2. Revocation of approval shall be reviewed using the Type III procedure. The Hearings Officer shall be the review authority, and the decision of the Hearings Officer shall be the final decision of the County.
    3. Revocation is in addition to, and not in lieu of, any other remedy provided by law or equity, and is not a condition precedent to any such remedy.
13. Modifications: Except as permitted pursuant to Section 1309:
    1. A modification to an approved Type I, II, II-E, or III land use permit, or conditions thereto, shall be processed as a new application; and
    2. A modification to conditions of approval for a Type II, II-E, or III land use permit shall be considered only if one or more of the circumstances identified in Subsection 1307.17(K)(2) apply.

[Added by Ord. ZDO-248, 10/13/2014; Amended by Ord. ZDO-253, 6/1/2015; Amended by Ord. ZDO- 254, 1/4/2016; Amended by Ord. ZDO-262, 5/23/2017; Amended by Ord. ZDO-266, 5/23/2018; Amended by Ord. ZDO-269, 9/6/2018; Amended by Ord. ZDO-268, 10/2/2018; Amended by Ord. ZDO- 276, 10/1/2020; Amended by Ord. ZDO-280, 10/23/2021; Amended by Ord. ZDO-282, 7/1/2022; Amended by Ord. ZDO-283, 9/5/2023; Amended by Ord. ZDO-285, 9/3/2024]

1308.01 Applicability

The Planning Director has the authority to interpret the Comprehensive Plan and this Ordinance and their applicability to specific properties, except where such authority is specifically granted by this Ordinance to the Hearings Officer, or to the Planning Commission or Board of County Commissioners on appeal.

1308.02 Procedure

An interpretation requires review through a Type II application pursuant to Section 1307 and Subsection 1308.02. Where the provisions of Subsection 1308.02 conflict with Section 1307, Subsection 1308.02 shall control.

1. Anyone may initiate an application for an interpretation, except that an application for an interpretation of the applicability of the Comprehensive Plan or this Ordinance to a specific property may only be initiated by those parties identified in Subsection 1307.07(A).
2. An application for an interpretation shall include:
   1. The submittal requirements identified in Subsection 1307.07(C), except those that are inapplicable because the application is not for an interpretation of the applicability of the Comprehensive Plan or this Ordinance to a specific property;
   2. Identification of the provision(s) for which an interpretation is requested; and
   3. A detailed description of any proposed use, specific circumstances, or other factors necessary to allow an interpretation to be made.
3. Where Section 1307 requires mailing of notices, applications, or decisions, such mailing shall include all active community planning organizations, hamlets, and villages that are recognized by the County, if property to which an interpretation could be applicable lies wholly or partially inside the boundaries of such organization, hamlet, or village.
4. Only if an interpretation relates to the applicability of the Comprehensive Plan or this Ordinance to a specific property, shall mailing of notices, applications, and decisions required by Section 1307 include property owners of record pursuant to Subsection 1307.09(A)(1)(b) or 1307.10(A)(3)(b).
5. Filing an application for an interpretation shall be precluded if the specific question raised in the application has already been decided through another land use permit application. A question shall not be deemed to have been decided, if the fact circumstances in the previous land use permit application differ from those presented in the interpretation application.

[Added by Ord. ZDO-248, 10/13/14]

1309.01 Approval Criteria

A modification to an approved Type II or III land use permit, or conditions thereto, requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria:

1. A modification shall be consistent with the prior approval;
2. A modification shall be consistent with all Ordinance provisions in effect on the date the modification request is submitted; and
3. A modification shall not result in any of the following:
   1. A change in the type of use (e.g. commercial, industrial, institutional);
   2. An increase of greater than 25 percent of the original approved building floor area;
   3.  An increase of greater than 25 percent of the original approved lot coverage;
   4.  An increase in the density of development (residential or recreational uses), or intensity of use, as demonstrated by a change in occupancy rating requiring substantial modifications to structures;
   5.  An increase in traffic congestion or use of public facilities;
   6.  A reduction in approved open space;
   7.  A reduction of off-street parking spaces or loading berths, except as provided under Section 1015; or
   8.  A reduction in required pavement widths or a change in major access locations, except as required by the County.

1309.02 Approval Period And Time Extension

1. Approval of a modification shall be subject to the same approval period and time extension provisions as the application type modified by the approval.
2. The modification's approval period begins the day of the County's final decision on the modification application.

[Added by Ord. ZDO-248, 10/13/14; Amended by Ord. ZDO-280, 10/23/21]

1310.01 Approval Criteria

A time extension may be permitted only when specified elsewhere in this Ordinance for specific land use permit types.

1. Type II Time Extensions: Except as set forth in Subsection 1310.02, a time extension requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria:
   1. The time extension application shall be submitted prior to, but not sooner than one year prior to, the expiration of the initial approval period for the land use permit. However, if the land use permit was modified pursuant to Section 1309, Modification, the application for a time extension shall be submitted prior to, but not sooner than one year prior to, the expiration of the approval period for the modification;
   2. The proposed development as originally approved, or as modified pursuant to Section 1309, shall be consistent with the relevant provisions of this Ordinance in effect on the date the application for a time extension is submitted, provided that the application is complete when submitted or is made complete pursuant to Subsection 1307.07(E)(5); and
   3. There shall have been no changes on the subject property or in the surrounding area that would be cause for reconsideration of the original decision.
2. Type I Time Extensions: Notwithstanding Subsection 1310.01(A), a time extension authorized by Subsections 401.10(B), 406.11(B), or 407.10 for one of the following types of residential development located outside of an urban growth boundary requires review as a Type I application pursuant to Section 1307, and the time extension application shall be submitted prior to the expiration of the initial approval period for the land use permit:
   1. Lot of record dwelling on Low Value Farmland in the AG/F or EFU Districts;
   2. Lot of record dwelling on High Value Farmland consisting predominantly of Class III and IV Soil in the AG/F or EFU Districts;
   3. Lot of record dwelling on High Value Farmland consisting predominantly of Prime, Unique, Class I or II Soils in the AG/F or EFU Districts;
   4. Dwelling not in conjunction with a farm use in the AG/F or EFU Districts;
   5. Lot of record dwelling in the AG/F or TBR Districts;
   6. Forest template dwelling in the AG/F or TBR Districts;
   7. 160 acre minimum forest dwelling in the AG/F or TBR Districts;
   8. 200 acre noncontiguous dwelling in the AG/F or TBR Districts;
   9. Caretaker residence for public parks and public fish hatcheries in the AG/F or TBR Districts.

1310.02 Procedure

If more than one land use permit (e.g. a partition and a variance) was approved for the same, or substantially similar, proposed development, time extension requests for these land use permits may be consolidated as one application, at the applicant's discretion.

1310.03 Approval Period

Approval of a time extension application approved under Section 1310 is valid for two years from the date of the final written decision on the time extension, or for two years from the date of expiration of the initial approval period for the land use permit, whichever is longer.

[Added by Ord. ZDO-248, 10/13/14; Amended by Ord. ZDO-276, 10/1/20; Amended by Ord. ZDO-280, 10/23/21; Amended by Ord. ZDO-283, 9/5/23]

1311.01 Compliance With Approved Plans

Development authorized by an approved land use permit shall be completed pursuant to the approved final plans prior to recording of a final plat or issuance of a certificate of occupancy, except as provided under Section 1311.

1311.02 Completion of Required Improvements and Conditions And Sureties

To ensure the timely and satisfactory completion of improvements required pursuant to conditions of approval and other conditions of a land use permit, a performance surety may be required from an applicant by the Planning Director prior to the release of a final plat, issuance of a certificate of occupancy, or similar approval sought.

1. The principles and procedures for performance surety, warranty, and acceptance of work set forth in Section 190 of the County Roadway Standards shall apply to any improvements required pursuant to conditions of approval and other conditions of a land use permit for which a performance surety is sought.
2. The receipt and acceptance of performance sureties and warranties shall be administered by the County consistent with the principles and procedures set forth in Section 190 of the County Roadway Standards.

1311.03 Damage and Maintenance

The developer of any subdivision, partition, or other development shall construct, maintain, repair, replace, and shall be responsible for any damage to curbs, sidewalks, pavement, and driveway approaches; shall keep the pavement area free of debris, soil, or foreign matter at all times; and shall be responsible for the efficient operation of all drainage facilities in all streets included in the development until the surety is released by the County.

1311.04 Maintenance Mechanisms

All approved on-site improvements shall be the ongoing responsibility of the property owner or occupant. The County may require the recording of a maintenance agreement or other suitable mechanism, in the County Deed Records, to ensure that the following maintenance responsibilities are adequately addressed:

1. To improve, operate, and maintain common facilities, including open space, landscaping, parking and service areas, roads, surface water management, recreation areas, signing, lighting, shared wells, and similar facilities; and
2. To maintain landscaping, street furniture, storm drainage, and similar streetscape improvements developed in the public right-of-way.

1206.01 Purpose And Applicability

Section 1206 is adopted to provide standards, criteria, and procedures under which a nonconforming use may be continued, maintained, verified, restored, replaced, and altered and under which a vested right may be determined.

1206.02 Status

A nonconforming use may be continued although not in conformity with the regulations for the zoning district in which the use is located. Nonconforming use status applies to the lot(s) of record on which the nonconforming use is located and may not be expanded onto another lot of record, except as provided under Subsection 1206.07(B)(3)(a) and (b) or, in the case of nonconforming premises for marijuana production, with an alteration approved pursuant to Subsection 1206.07(C). A change in ownership or operator of a nonconforming use is permitted.

1206.03 Maintenance

Normal maintenance of a nonconforming use necessary to maintain a nonconforming use in good repair is permitted provided there are not significant use or structural alterations. Normal maintenance may include painting; roofing; siding; interior remodeling; re-paving of access roads, parking areas, or loading areas; replacement of landscaping elements; and similar actions.

1206.04 Discontinuation

1. If a nonconforming use is discontinued for a period of more than 24 consecutive months, the use shall not be resumed unless the resumed use conforms to the requirements of this Ordinance and other regulations applicable at the time of the proposed resumption.
2. Notwithstanding Subsection 1206.04(A) and pursuant to Oregon Revised Statutes (ORS) 215.130(7)(b), a nonconforming surface mining use shall not be deemed to be discontinued for any period after July 1, 1972, provided:
   1. The owner or operator was issued and continuously renewed a state or local surface mining operating permit, or received and maintained a state or local exemption from surface mining regulation; and
   2. The surface mining use was not inactive for a period of 12 consecutive years or more. Inactive means no aggregate materials were excavated, crushed, removed, stockpiled, or sold by the owner or operator of the surface mine.
3. Notwithstanding Subsection 1206.04(A), marijuana production may not be resumed on a premises for which a marijuana producer holds a production license issued under ORS 475B.070 and which is nonconforming to the regulations for the zoning district in which the production is located if the premises is not used for marijuana production for a period of at least 12 calendar months, unless the marijuana production conforms to any zoning requirements or regulations applicable at the time of the proposed resumption.

1206.05 Verification

Verification of nonconforming use status requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria:

1. A. The nonconforming use lawfully existed at the time of the adoption of zoning regulations, or a change in zoning regulations, which prohibited or restricted the use, and the nonconforming use has not been subsequently abandoned or discontinued. Once an applicant has verified that a nonconforming use was lawfully established, an applicant need not prove the existence, continuity, nature, and extent of the nonconforming use for a period exceeding 20 years immediately preceding the date of application for verification; or
2. B. The existence, continuity, nature, and extent of the nonconforming use for the 10- year period immediately preceding the date of the application is proven. Such evidence shall create a rebuttable presumption that the nonconforming use, as proven, lawfully existed at the time of, and has continued uninterrupted since, the adoption of restrictive zoning regulations, or a change in the zoning or zoning regulations, that have the effect of prohibiting the nonconforming use under the current provisions of this Ordinance.

1206.06 Restoration Or Replacement Following Damage or Destruction

If a nonconforming use is damaged or destroyed by fire, other casualty, or natural disaster, such use may be restored or replaced consistent with the nature and extent of the use or structure lawfully established at the time of loss, subject to the following conditions:

1. Alterations or changes to the nature and extent of the nonconforming use as lawfully established prior to the fire, other casualty, or natural disaster shall not be permitted under Subsection 1206.06, but may be permitted pursuant to Subsection 1206.07.  
2. Physical restoration or replacement of the nonconforming use shall be lawfully commenced within one year of the occurrence of the damage or destruction. Lawfully commenced means the lawful resumption of the nonconforming use or the issuance of a land use, building, on-site wastewater treatment system, grading, manufactured dwelling placement, residential trailer placement, plumbing, electrical, or other development permit required by the County or other appropriate permitting agency that is necessary to begin restoration or replacement of the nonconforming use or structures and resumption of the nonconforming use.
3. The nonconforming use status of the use to be restored or replaced, and the nature and extent of the nonconforming use, shall be verified pursuant to Subsection

1206.07 Alteration

1. Alterations Required by Law:
   1. The alteration of any nonconforming use shall be permitted when necessary to comply with any lawful requirement for alteration of the use or structure, subject to building, plumbing, sanitation, and other specialty code permit requirements in effect at the time the alteration is commenced. Additional conditions shall not be imposed upon the continuation of a nonconforming use when an alteration is required to comply with local or state health or safety requirements, except as provided in Oregon Revised Statutes (ORS) 215.215 pertaining to the re-establishment of nonfarm uses in the EFU District.
   2. Alterations to a premises for which a marijuana producer holds a production license issued under ORS 475B.070 shall be permitted when necessary to comply with a lawful requirement for alteration in production.
2. Alterations Not Required by Law: Except as provided in Subsection 1206.07(C), an alteration of a nonconforming structure or other physical improvements, or a change in the use, requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria:
   1. The alteration or change will, after the imposition of conditions pursuant to Subsection 1206.07(B)(4), have no greater adverse impact to the neighborhood than the existing structure, other physical improvements, or use.
   2. The nonconforming use status of the existing use, structure(s), and/or physical improvements is verified pursuant to Subsection 1206.05.
   3. The alteration or change will not expand the nonconforming use from one lot of record to another unless:  
      1. The lot of record on which expansion is proposed and the lot of record on which the nonconforming use currently is established have been part of the same tract continuously since the date the nonconforming use became nonconforming; or
      2. The expansion would allow only for facilities necessary to support the nonconforming use, such as driveways, storm water management facilities, and on-site wastewater treatment systems.
   4. Conditions of approval may be imposed on any alteration of a nonconforming structure or other physical improvements, or a change in the use, permitted under Subsection 1206.07(B), when deemed necessary to ensure the mitigation of any adverse impacts.
3. Alterations to Nonconforming Marijuana Production Premises Not Required by Law: Alterations in production or in a building, structure, or physical improvement associated with a nonconforming premises for which a marijuana producer holds a production license issued under ORS 475B.070 requires review as a Type II application pursuant to Section 1307 and shall be subject to the following standards and criteria:
   1. The alterations will have no greater adverse impact to the surrounding area than the premises' existing production or its existing associated buildings, structures, and physical improvements; and
   2. The number of calendar months in which the premises have not been used for marijuana production since the premises became nonconforming does not exceed 12.

1206.08 Alteration Approval Period And Time Extension

1. Approval Period: Approval of an alteration of a nonconforming use, pursuant to Subsection 1206.07(B) or (C), is valid for a period of two years from the date of the final decision. If the County's final decision is appealed, the approval period shall commence on the date of the final appellate decision. During this two-year period, the approval shall be implemented, or the approval will become void.
   1. Implemented means all major development permits shall be obtained and maintained for the approved alteration of a nonconforming use, or if no major development permits are required to complete the development contemplated by the approved alteration of a nonconforming use, implemented means all other necessary County development permits (e.g., grading permit, building permit for an accessory structure) shall be obtained and maintained.
      1. A major development permit is:
         1. A building or manufactured dwelling placement permit for a new primary structure that was part of the alteration of a nonconforming use approval; or
         2. A permit issued by the County for parking lot or road improvements required by the alteration of a nonconforming use approval.
   2. Notwithstanding Subsection 1206.04(A), the allowed discontinuance period for a nonconforming use approved for an alteration pursuant to Subsection 1206.07(B) is extended to 24 consecutive months from the date of implementation of the alteration pursuant to Subsection 1206.08(A)(1). In no event shall the total period of discontinuance exceed 48 consecutive months (i.e., any discontinuance period preceding the filing of an application for an alteration, plus the period during which the alteration application is under review, plus the approval period allowed by Subsection 1206.08(A), plus the 24 consecutive months from the date of implementation).
2. Time Extension: If the approval of an alteration of a nonconforming use is not implemented within the initial approval period established by Subsection 1206.08(A), a two-year time extension may be approved pursuant to Section 1310, Time Extension. However, in no event may the total period of discontinuance exceed 48 months, inclusive of those discontinuance periods identified in Subsection 1206.08(A)(2).

1206.09 Vested Right Determination

A vested right determination shall require review as a Type II application pursuant to Section 1307, Procedures, and shall be approved if the requested use was vested under common law.

[Amended by Ord. ZDO-230, 9/26/11; Amended by Ord. ZDO-243, 9/9/13; Amended by Ord. ZDO-249, 10/13/14; Amended by Ord. ZDO-250, 10/13/14; Amended by Ord. ZDO-248, 10/13/14; Amended by Ord. ZDO-253, 6/1/15; Amended by Ord. ZDO-276, 10/1/20; Amended by Ord. ZDO-283, 9/5/23]