Brownsville City Zoning Code
Division I
LAND USE
§ 15.05.010 Authorization, findings of fact, purpose, and objectives.
A.
Authorization. The State of Oregon has in the Oregon Constitution delegated the responsibility to local governmental units to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the City of Brownsville does ordain as follows in this chapter.
B.
Findings of Fact.
1.
The flood hazard areas of the City of Brownsville are subject to periodic inundation which 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 tax base, all of which adversely affect the public health, safety, and general welfare.
2.
These flood losses are caused by the cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities, and when inadequately anchored, damage uses in other areas. Uses that are inadequately floodproofed, elevated, or otherwise protected from flood damage also contribute to the flood loss.
C.
Statement of Purpose. It is the purpose of this chapter to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed:
1.
To protect human life and health;
2.
To minimize expenditure of public money and costly flood control projects;
3.
To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;
4.
To minimize prolonged business interruptions;
5.
To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets, and bridges located in areas of special flood hazard;
6.
To help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future flood blight areas;
7.
To ensure that potential buyers are notified that property is in an area of special flood hazard; and
8.
To ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.
D.
Methods of Reducing Flood Losses. In order to accomplish its purposes, this chapter includes methods and provisions for:
1.
Restricting or prohibiting uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;
2.
Requiring that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;
3.
Controlling the alteration of natural flood plains, stream channels, and natural protective barriers, which help accommodate or channel flood waters;
4.
Controlling filling, grading, dredging, and other development which may increase flood damage;
5.
Preventing or regulating the construction of flood barriers which will unnaturally divert flood waters or may increase flood hazards in other areas;
6.
Coordinating and supplementing the provisions of the State Building Code with local land use and development ordinances.
(Ord. 727 § 1, 2010)
§ 15.05.020 Definitions.
Unless specifically defined in this section, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application.
"Appeal"
means a request for a review of the interpretation of any provision of this chapter or a request for a variance.
"Area of shallow flooding"
means a designated AO or AH Zone on the flood insurance rate map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. AO is characterized as sheet flow and AH indicates ponding.
"Area of special flood hazard"
means the land in the flood plain within a community subject to a one percent or greater chance of flooding in any given year. Designation on maps always includes the letters A or V.
"Base flood"
means the flood having a one percent chance of being equaled or exceeded in any given year. Also referred to as the "100-year flood." Designation on maps always includes the letters A or V.
"Basement"
means any area of the building having its floor subgrade (below ground level) on all sides.
"Below-grade crawlspace"
means an enclosed area below the base flood elevation in which the interior grade is not more than two feet below the lowest adjacent exterior grade and the height, measured from the interior grade of the crawlspace to the top of the crawlspace foundation, does not exceed four feet at any point.
"Critical facility"
means a facility for which even a slight chance of flooding might be too great. Critical facilities include but are not limited to schools, nursing homes, hospitals, police, fire and emergency response installations, installations which produce, use or store hazardous materials or hazardous waste.
"Development"
means 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 located within the area of special flood hazard.
"Elevated building"
means, for insurance purposes, a nonbasement building which has its lowest elevated floor raised above ground level by foundation walls, shear walls, posts, piers, pilings, or columns.
"Existing manufactured home park or subdivision"
means a manufactured home park subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the adopted floodplain management regulations.
"Expansion to an existing manufactured home park or subdivision"
means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).
"Flood" or "flooding"
means a general and temporary condition of partial or complete inundation of normally dry land areas from:
1.
The overflow of inland or tidal waters; and/or
2.
The unusual and rapid accumulation of runoff of surface waters from any source.
"Flood insurance rate map (FIRM)"
means the official map on which the Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.
"Flood insurance study"
means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood boundary-floodway map, and the water surface elevation of the base flood.
"Floodway"
means 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.
"Lowest floor"
means 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 nonelevation design requirements of BMC § 15.05.050(B)(1).
"Manufactured home"
means 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."
"Manufactured home park or subdivision"
means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.
"New construction"
means structures for which the start of construction commenced on or after the effective date of the ordinance codified in this chapter.
"New manufactured home park or subdivision"
means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of adopted floodplain management regulations.
"Recreational vehicle"
means a vehicle which is:
1.
Built on a single chassis;
2.
Four hundred square feet or less when measured at the largest horizontal projection;
3.
Designed to be self-propelled or permanently towable by a light-duty truck; and
4.
Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.
"Start of construction"
includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, 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 foundations 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 a building, whether or not that alteration affects the external dimensions of the building.
"State Building Code"
means the combined specialty codes.
"Structure"
means a walled and roofed building, including a gas or liquid storage tank, that is principally above ground.
"Substantial damage"
means 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.
"Substantial improvement"
means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either:
1.
Before the improvement or repair is started; or
2.
If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition, "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.
The term does not, however, include either: | |
1. | 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 |
2. | Any alteration of a structure listed on the National Register of Historic Places or a state inventory of historic places. |
"Variance"
means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.
"Water-dependent"
means a structure for commerce or industry which cannot exist in any other location and is dependent on the water by reason of the intrinsic nature of its operations.
(Ord. 727 § 1, 2010)
§ 15.05.030 General provisions.
A.
Lands to Which This Chapter Applies. This chapter shall apply to all areas of special flood hazards within the jurisdiction of the City of Brownsville.
B.
Basis for Establishing the Areas of Special Flood Hazard. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled "The Flood Insurance Study for Linn County, Oregon and Incorporated Areas," dated September 29, 2010, with accompanying flood insurance map (FIRM), are hereby adopted by reference and declared to be a part of this chapter. The flood insurance study is on file at City Hall. The best available information for flood hazard area identification as outlined in BMC § 15.05.040(C)(2) shall be the basis for regulation until a new FIRM is issued which incorporates the data utilized under BMC § 15.05.040(C)(2).
C.
Penalties for Noncompliance. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this chapter and other applicable regulations. Violations of the provisions of this chapter by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a violation. Any person who violates this chapter or fails to comply with any of its requirements shall upon conviction thereof be fined not more than $5,000 for each violation, and in addition shall pay all costs and expenses involved in the case. Nothing herein contained shall prevent the City of Brownsville from taking such other lawful action as is necessary to prevent or remedy any violation.
D.
Abrogation and Greater Restrictions. This chapter is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this chapter and another ordinance, State Building Code, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
E.
Interpretation. In the interpretation and application of this chapter, all provisions shall be:
1.
Considered as minimum requirements;
2.
Liberally construed in favor of the governing body; and
3.
Deemed neither to limit or repeal any other powers granted under state statutes and rules including the State Building Code.
F.
Warning and Disclaimer of Liability. The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of the City of Brownsville, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder.
(Ord. 727 § 1, 2010)
§ 15.05.040 Administration.
A.
Establishment of Development Permit.
1.
Development Permit Required. A development permit shall be obtained before construction or development begins within any area of special flood hazard established in BMC § 15.05.030(B). The permit shall be for all structures including manufactured homes, as defined in BMC § 15.05.020, and for all development including fill and other activities, also as defined in BMC § 15.05.020.
2.
Application for Development Permit. Application for a development permit shall be made on forms furnished by the City of Brownsville and may include but not be limited to plans in duplicate drawn to scale showing the nature, location, dimensions, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities, and the location of the foregoing. Specifically, the following information is required:
a.
Elevation in relation to mean sea level of the lowest floor (including basement) of all structures;
b.
Elevation in relation to mean sea level of floodproofing in any structure;
c.
Certification by a registered professional engineer or architect that the floodproofing methods for any nonresidential structure meet the floodproofing criteria in BMC § 15.05.050(B)(2); and
d.
Description of the extent to which a watercourse will be altered or relocated as a result of proposed development.
B.
Designation of the Local Administrator. The City Administrator is hereby appointed to administer and implement this chapter by granting or denying development permit applications in accordance with its provisions.
C.
Duties and Responsibilities of the Local Administrator. Duties of the local administrator shall include but not be limited to:
1.
Permit Review.
a.
Review all development permits to determine that the permit requirements and conditions of this chapter have been satisfied.
b.
Review all development permits to determine that all necessary permits have been obtained from those federal, state, or local governmental agencies from which prior approval is required.
c.
Review all development permits to determine if the proposed development is located in the floodway. If located in the floodway, assure that the encroachment provisions of BMC § 15.05.050(C) are met.
2.
Use of Other Base Flood Data. When base flood elevation data has not been provided in accordance with BMC § 15.05.030(B), Basis for Establishing the Areas of Special Flood Hazard, the local administrator 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 BMC § 15.05.050(B), Specific Standards, and (C), Floodways.
3.
Information to Be Obtained and Maintained.
a.
Where base flood elevation data is provided through the flood insurance study, FIRM, or required as in subsection (C)(2) of this section, 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.
b.
For all new or substantially improved floodproofed structures where base flood elevation data is provided through the flood insurance study, FIRM, or as required in subsection (C)(2) of this section:
i.
Verify and record the actual elevation (in relation to mean sea level); and
ii.
Maintain the floodproofing certifications required in subsection (C)(3) of this section.
c.
Maintain for public inspection all records pertaining to the provisions of this chapter.
d.
It shall be the responsibility of the developer to provide a completed elevation certificate containing the information required in subsections (C)(3)(a) and (b) to the City Administrator prior to final inspection being performed. The City may withhold a final inspection until an elevation certificate has been provided.
4.
Alteration of Watercourses.
a.
Notify adjacent communities, the 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.
b.
Require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished.
5.
Interpretation of FIRM Boundaries. Make interpretations, where needed, as to exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation. Such appeals shall be granted consistent with the standards of Section 60.6 of the Rules and Regulations of the National Flood Insurance Program (44 CFR 59-76).
(Ord. 727 § 1, 2010)
§ 15.05.050 Provisions for flood hazard reduction.
A.
General Standards. In all areas of special flood hazards, the following standards are required:
1.
Anchoring.
a.
All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure.
b.
All manufactured homes must likewise be anchored to prevent flotation, collapse, or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors (reference FEMA's "Manufactured Home Installation in Flood Hazard Areas" guidebook for additional techniques).
2.
Construction Materials and Methods.
a.
All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.
b.
All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.
c.
Electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.
3.
Utilities.
a.
All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system;
b.
New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters; and
c.
On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding consistent with the Oregon Department of Environmental Quality.
4.
Subdivision Proposals.
a.
All subdivision proposals shall be consistent with the need to minimize flood damage;
b.
All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize or eliminate flood damage;
c.
All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage; and
d.
Where base flood elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or five acres (whichever is less).
5.
Review of Building Permits. Where elevation data is not available either through the flood insurance study, FIRM, or from another authoritative source (BMC § 15.05.040(C)(2)), applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The test of reasonableness is a local judgment and includes use of historical data, high-water marks, photographs of past flooding, etc., where available. Failure to elevate the lowest floor at least two feet above grade in these zones may result in higher insurance rates.
B.
Specific Standards. In all areas of special flood hazard where base flood elevation data has been provided (Zones A1 through A30, AH, and AE) as set forth in BMC § 15.05.030(B), Basis for Establishing the Areas of Special Flood Hazard, or BMC § 15.05.040(C)(2), Use of Other Base Flood Data, the following provisions are required:
1.
Residential Construction.
a.
New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated to a minimum of one foot above the base flood elevation.
b.
Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:
i.
A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.
ii.
The bottoms of all openings shall be no higher than one foot above grade.
iii.
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 any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated at or above the base flood elevation; or, together with attendant utility and sanitary facilities, shall:
a.
Be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water;
b.
Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy;
c.
Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the official as set forth in BMC § 15.05.040(C)(3)(b).
d.
Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in subsection (B)(1) of this section.
e.
Applicants floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g., a building floodproofed to the base flood level will be rated as one foot below).
3.
Manufactured Homes.
a.
All manufactured homes to be placed or substantially improved shall meet the following standards:
i.
The ground area reserved for the placement of a manufactured dwelling shall be a minimum of 12 inches above BFE unless the foundation walls are designed to automatically equalize hydrostatic forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must be either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:
(A)
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;
(B)
The bottom of all openings shall be no higher than one foot above grade; and
(C)
Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters. (Manufactured Dwelling Specialty Code 4-3.1(5) and NFIP 60.3(c)(5))
ii.
The bottom of the longitudinal chassis frame beam in A zones, and the bottom of the lowest horizontal structural member supporting the dwelling in V zones, shall be a minimum of 12 inches above BFE (see definition of "lowest floor" in Manufactured Dwelling Specialty Code).
iii.
The manufactured dwelling shall be anchored to prevent flotation collapse and lateral movement during the base flood. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors (reference FEMA's "Manufactured Home Installation in Flood Hazard Areas" guidebook for additional techniques) (44 CFR 60.3(c)(6)); and
iv.
Electrical crossover connections shall be a minimum of 12 inches above BFE. (Manufactured Dwelling Specialty Code 6-4.2(1))
b.
Recreational vehicles placed on sites are required to either:
i.
Be on the site for fewer than 180 consecutive days;
ii.
Be fully licensed and ready for highway use, on its wheels or jacking system, is attached to the site only by quick-disconnect type utilities and security devices, and has no permanently attached additions; or
iii.
Meet the requirements of this subsection (B)(3) and the elevation and anchoring requirements for manufactured homes.
4.
Below-Grade Crawlspaces. Below-grade crawlspaces are allowed subject to the following standards as found in FEMA Technical Bulletin 11-01, Crawlspace Construction for Buildings Located in Special Flood Hazard Areas:
a.
The building must be designed and adequately anchored to resist flotation, collapse, and lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Hydrostatic loads and the effects of buoyancy can usually be addressed through the required openings stated in subsection (B)(4)(b) of this section. Because of hydrodynamic loads, crawlspace construction is not allowed in areas with flood velocities greater than five feet per second unless the design is reviewed by a qualified design professional, such as a registered architect or professional engineer. Other types of foundations are recommended for these areas.
b.
The crawlspace is an enclosed area below the base flood elevation (BFE) and, as such, must have openings that equalize hydrostatic pressures by allowing the automatic entry and exit of floodwaters. The bottom of each flood vent opening can be no more than one foot above the lowest adjacent exterior grade.
c.
Portions of the building below the BFE must be constructed with materials resistant to flood damage. This includes not only the foundation walls of the crawlspace used to elevate the building, but also any joists, insulation, or other materials that extend below the BFE. The recommended construction practice is to elevate the bottom of joists and all insulation above BFE.
d.
Any building utility systems within the crawlspace must be elevated above BFE or designed so that floodwaters cannot enter or accumulate within the system components during flood conditions. Ductwork, in particular, must either be placed above the BFE or sealed from floodwaters.
e.
The interior grade of a crawlspace below the BFE must not be more than two feet below the lowest adjacent exterior grade.
f.
The height of the below-grade crawlspace, measured from the interior grade of the crawlspace to the top of the crawlspace foundation wall, must not exceed four feet at any point. The height limitation is the maximum allowable unsupported wall height according to the engineering analyses and building code requirements for flood hazard areas.
g.
There must be an adequate drainage system that removes floodwaters from the interior area of the crawlspace. The enclosed area should be drained within a reasonable time after a flood event. The type of drainage system will vary because of the site gradient and other drainage characteristics, such as soil types. Possible options include natural drainage through porous, well-drained soils and drainage systems such as perforated pipes, drainage tiles or gravel or crushed stone drainage by gravity or mechanical means.
h.
The velocity of floodwaters at the site should not exceed five feet per second for any crawlspace. For velocities in excess of five feet per second, other foundation types should be used.
C.
Floodways. Located within areas of special flood hazard established in BMC § 15.05.030(B) are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply:
1.
Prohibit encroachments, including fill, new construction, substantial improvements, and other development unless certification by a registered professional civil engineer is provided, demonstrating through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.
2.
If subsection (C)(1) of this section is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of this section.
3.
New installation of manufactured dwellings is prohibited (2002 Oregon Manufactured Dwelling and Park Specialty Code). Manufactured dwellings may only be located in floodways according to one of the following conditions:
a.
If the manufactured dwelling already exists in the floodway, the placement was permitted at the time of the original installation, and the continued use is not a threat to life, health, property, or the general welfare of the public; or
b.
A new manufactured dwelling is replacing an existing manufactured dwelling whose original placement was permitted at the time of installation and the replacement home will not be a threat to life, health, property, or the general welfare of the public and it meets the following criteria:
i.
As required by 44 CFR Chapter 1, Subpart 60.3(d)(3), it must be demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practices that the manufactured dwelling and any accessory buildings, accessory structures, or any property improvements (encroachments) will not result in any increase in flood levels during the occurrence of the base flood discharge;
ii.
The replacement manufactured dwelling and any accessory buildings or accessory structures (encroachments) shall have the finished floor elevated a minimum of 18 inches (46 centimeters) above the BFE as identified on the flood insurance rate map;
iii.
The replacement manufactured dwelling is placed and secured to a foundation support system designed by an Oregon professional engineer or architect and approved by the authority having jurisdiction;
iv.
Projects for stream habitat restoration may be permitted in the floodway, provided:
(A)
The project qualifies for a Department of the Army, Portland District regional general permit for stream habitat restoration (NWP-2007-1023); and
(B)
A qualified professional (a registered professional engineer; or staff of NRCS; the county; or fisheries, natural resources, or water resources agencies) has provided a feasibility analysis and certification that the project was designed to keep any rise in 100-year flood levels as close to zero as practically possible given the goals of the project; and
(C)
No structures would be impacted by a potential rise in flood elevation; and
(D)
An agreement to monitor the project, correct problems, and ensure that flood-carrying capacity remains unchanged is included as part of the local approval.
D.
Critical Facility. Construction of new critical facilities shall be, to the extent possible, located outside the limits of the special flood hazard area (SFHA) (100-year floodplain). Construction of new critical facilities shall be permissible within the SFHA if no feasible alternative site is available. Critical facilities constructed within the SFHA shall have the lowest floor elevated three feet or to the height of the 500-year flood, whichever is higher. Access to and from the critical facility should also be protected to the height utilized above. Floodproofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into floodwaters. Access routes elevated to or above the level of the base flood elevation shall be provided to all critical facilities to the extent possible.
(Ord. 727 § 1, 2010)
§ 15.10.010 Definitions.
"Inorganic material"
means rocks, soil, incompressible metals not including the following: hollow containers, plastics, rubber tires, soil containing more than 10 percent by weight of sawdust, chips, bark, etc., wood pieces more than four inches in diameter by one foot in length. Wood of the above size may not exceed 12 pieces per cubic yard.
"Land fill"
means any transfer of inorganic material, soil and rocks from one area to another for the purpose of changing the elevation of both or either areas.
"Natural drainage channels"
means swales, hollows, and depressions occurring naturally that provide drainage from one area to another or to creeks or rivers.
(1981 Compilation § 8-2.1; Ord. 441 § 1, 1974)
§ 15.10.020 Regulations.
All land fills exceeding 100 cubic yards or any land fill materially changing, filling, or altering any natural or existing ditch or natural drainage channels shall be subject to the following regulations:
A.
Prior approval of the Planning Commission and City Council shall be required before any land fill operation may commence.
B.
Such Council approval shall be subject to an impact study provided by the land filler and such study to be made by a registered engineer or other qualified person acceptable to the Council.
C.
Results of such study shall be reported to the Council showing at least the following standards:
1.
The fill material is of such nature that it will be self-compacting within a period of three years.
2.
The fill material does not contain materials prohibited by this chapter or applicable standards of the state of Oregon.
3.
The fill will not pose a threat to any other property within a one-mile radius because of changed drainage patterns.
4.
Where the land fill is being built as the ultimate development of an area, such fill will be subject to any conditions that the Planning Commission may apply, especially regarding final appearance and the aesthetics of the fill.
5.
In all land fills requirements of the state of Oregon, where more stringent than the requirements of this chapter, shall be fulfilled.
(1981 Compilation § 8-2.2; Ord. 441 § 2, 1974)
§ 15.10.030 Penalties.
Violations of any part of this chapter shall be subject to the following procedure:
A.
Violator shall be notified of his violations, be granted a period of 10 days to remedy violations and comply with this chapter.
B.
Failure to comply after 10 days grace period will result in a fine of $25.00 per day as long as the violation exists and/or 10 days in the County Jail.
(1981 Compilation § 8-2.3; Ord. 441 § 3, 1974)
§ 15.12.010 Purpose.
The purpose of this chapter is to implement ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, and to establish a procedure to process demands for compensation (claims) quickly, openly, thoroughly, and consistent with the law; to enable present real property owners (claimants) making claims to have an adequate and fair opportunity to present their claims to the Brownsville City Council (Council) to provide the Council with the factual and analytical information necessary to adequately and fairly consider claims; to ascertain City liability for compensation apart from state of Oregon (state) and Linn County liability; to take appropriate action under the alternatives provided by law; to preserve and protect limited public funds; to preserve and protect the interests of the community by providing for public input into the process of reviewing claims; and, to establish a record of decisions capable of withstanding legal review.
(Ord. 690 § 1, 2004)
§ 15.12.020 Definitions.
For purposes of this chapter the following definitions shall apply:
"Appraisal"
means a written appraisal concluding to fair market value of real property prepared by an appraiser licensed by the Appraiser Certification and Licensure Board of the State of Oregon pursuant to ORS chapter 674 and meeting the appraisal requirements set forth in Uniform Standards of Professional Appraisal Practice (USPAP). In the case of commercial or industrial property, the term "appraisal" additionally means a written appraisal concluding to fair market value prepared by an appraiser holding an MAI qualification (Member Appraisal Institute), as demonstrated by written certificate.
"Ballot Measure 37"
means Ballot Measure 37, adopted by the voters of the state of Oregon on November 2, 2004, effective December 2, 2004, as an addition to ORS chapter 197.
"City Administrator"
means the City Administrator of the City of Brownsville or his or her designee.
"Claim"
means the "written demand for compensation" required to be made by an "owner" of "real property" under Ballot Measure 37. Demands shall not be considered made under Ballot Measure 37 until the City accepts the demand as complete, i.e., meeting the requirements for making a demand under this chapter.
"Claimant"
means present owner(s) of real property. See definition for "owner."
"Demand"
means "claim" and "written demand for compensation" as defined herein.
"Exempt land use regulation"
means those land use regulations which are specifically listed as exempt from compensation or waiver requirements as set forth in Ballot Measure 37 and this chapter.
"Family member"
means the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the real property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the real property.
"Land use"
means a physical improvement on real property related to use of the land or an activity which is conducted on real property (examples: residential use, commercial use, industrial use, community service use, farm use or forest use). A further division of real property is not a land use.
"Land use regulation"
includes:
1.
Any statute regulating the use of land or any interest therein;
2.
Administrative rules and goals of the Land Conservation and Development Commission;
3.
The City of Brownsville's Comprehensive Plan, zoning code and land division code.
"Owner"
means the present owner(s) of real property, or any interest therein, which is the subject of a claim. The owner is a person who is the sole fee simple owner of the real property or all joint owners whose interests add up to a fee simple interest in property, including all persons who represent all recorded interests in property, such as co-owners, holders of less than fee simple interests, leasehold owners, and security interest holders.
"Property"
means private real property, or interest therein, as described in a deed or other legal instrument, which existed on the date of the claim.
"Reduction in value"
means the difference in the fair market value, if any, of the property with certain land use regulations enforced or applied; and the fair market value of the subject property without those land use regulations enforced or applied to the property.
"Restricts the use"
means a land use regulation that prohibits a land use or limits the manner in which it can be established on the property.
"Valid claim"
means a claim submitted by the owner of real property that is subject to a land use regulation enacted and/or enforced by the City of Brownsville that restricts the use of the private real property in a manner that reduces the fair market value of the real property and meets all the requirements of this chapter.
"Written demand for compensation"
means "claim" or "demand" as defined herein.
(Ord. 690 § 2, 2004)
§ 15.12.030 Applicability and exceptions.
A.
An owner of private real property located within the City of Brownsville may file a claim under this chapter if the City of Brownsville enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of Ballot Measure 37, which amended ORS chapter 197, and it restricts the use of private real property, or any interest therein, and has the effect of reducing the fair market value of the property, or any interest therein.
B.
This chapter, in compliance with ORS chapter 197, as amended by Ballot Measure 37, does not allow claims for certain categories of regulations which may reduce the fair market value of the property, or any interest therein. The categories of regulations that are exempt from claims for compensation include the following:
1.
A regulation restricting or prohibiting activities commonly and historically recognized as public nuisances under common law and the criminal laws of Oregon, Linn County or the City of Brownsville;
2.
A regulation restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;
3.
A regulation required to comply with federal law;
4.
A regulation restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing; or
5.
A regulation enacted prior to the date of acquisition of the real property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.
(Ord. 690 § 3, 2004)
§ 15.12.040 Scope of claims.
A.
An owner of private real property located in the City of Brownsville who asserts a right to compensation under Ballot Measure 37 shall make a claim for compensation as provided in this chapter;
B.
If an owner wishes to assert that more than one regulation restricts use of the property, and has the effect of reducing the fair market value of the property, all claims regarding that property must be filed simultaneously and considered by the City simultaneously;
C.
Separate claims must be submitted for each parcel of real property;
D.
Separate claims must be submitted for each noncontiguous parcel of real property for which it is claimed that one or more land use regulation(s) restrict the use of the property and which have the effect of reducing the fair market value of the property. Claims for contiguous parcels that were acquired at the same time must be submitted at the same time as part of a single claim.
(Ord. 690 § 4, 2004)
§ 15.12.050 Content of written claim.
A.
A claim pursuant to this chapter shall only be submitted to and accepted for review by the City Administrator, or the City Administrator's designee, and shall include the following information:
1.
A description of the private real property for which the owner is claiming compensation, including the street address and either a legal description or a County Tax Assessor's description of the property, specifically identifying whether the claim relates to real property other than land or to a portion of the ownership less than fee simple absolute;
2.
The name, address, and telephone number of all owners and anyone with an interest in the property, including lien holders, trustees, renters, and lessees, together with a description of the ownership interest of each;
3.
The date the claimant acquired ownership of or an interest in the private real property and a copy of the document which provides proof of first ownership;
4.
A title report, including title history, current within 30 days prior to the claim date, verifying the ownership or interests in the private real property;
5.
If the claim is based upon the date a family member acquired the property, then documentation sufficient to establish the familial relationship along with a chain of title showing continual ownership;
6.
Copies of any covenants, conditions and restrictions (CCRs), leases, or other encumbrances applicable to the real property;
7.
Identification of the specific land use regulation which restricts the owner's use of the real property, and for which the owner is claiming compensation;
8.
A statement describing the manner in which, and the extent to which, the regulation restricts the use of the private real property and has the effect of reducing the fair market value of the property for which the owner is claiming compensation;
9.
The amount of the claim, based upon the alleged reduction in value, supported by an appraisal of the private real property for which the owner is asserting a claim. If the value of the claim exceeds $10,000, then copies of two appraisals, prepared by different appraisers, must be included;
10.
A statement of the relief sought by the owner, such as a monetary payment in a specific amount; waiver of the applicable regulation; or modification of the applicable regulation. If a modification of the regulation is sought, then a description of the desired modification must be included;
11.
Payment of any required claim processing fee; and
12.
The signature of the claimant.
B.
The City Administrator shall conduct a completeness review within 30 days after submittal of the claim and shall advise the owner, in writing, of any material remaining to be submitted. Once all of the required materials for a complete claim are received, the City Administrator shall declare the claim complete and send the notice required by BMC § 15.12.070(A) and (B).
C.
Commencement of the 180-day period allowed for local government claim procedures prior to any cause of action being authorized for the owner in circuit court as specified in Ballot Measure 37 starts on the date the City Administrator deems the claim complete and accepts it for filing.
D.
Notwithstanding a claimant's failure to provide all of the information required by subsection (A) of this section, the City may review and act on a claim.
(Ord. 690 § 5, 2004)
§ 15.12.060 Claim processing fees.
A.
The claim processing fees shall cover the actual administrative costs to the City of Brownsville for processing a claim. An owner shall pay a deposit of $1,000 at the time they submit a claim to the City Administrator. Following final action by the City on the claim, the City Administrator shall provide an accounting of the actual administrative costs, including staff and legal costs, that the City incurred in reviewing and acting on the claim. The City of Brownsville shall refund any excess funds from the retainer to the owner within 30 days after the final decision, or shall bill for additional costs not covered by the retainer.
B.
A billing for the amount of the unpaid administrative costs for processing the claim shall be forwarded by certified or registered mail, return receipt requested, to the owner. Payment shall be made to the City Administrator within 30 days from the billing date set out on the bill.
C.
If the property owner does not pay the amount due within 30 days of the billing date, the City of Brownsville may pursue collection, including filing a lien on the property. The lien is perfected by filing it with the County Recorder's Office in the deed records indicating the amount of the lien, the basis for the lien and the property to which the lien attaches.
D.
The lien provided for in subsection (C) of this section shall be given priority over all liens except those for taxes and assessments and shall include interest at one-half of one percent per month accruing from the date the billing is sent to the owner of the property.
E.
The lien provided for in subsection (C) of this section shall be foreclosed in the manner prescribed by state law for the enforcement of liens and collection of assessments.
F.
No permits will be approved on properties with a lien for unpaid processing fees required by this section.
G.
The City of Brownsville shall collect reasonable attorney's fees and costs for collection of the debt, which may be made part of the lien and the debt.
(Ord. 690 § 6, 2004)
§ 15.12.070 Claim review process.
A.
After a claim for compensation is declared complete pursuant to BMC § 15.12.050, the City Administrator shall mail notice of the claim to the claimant, other owners of record of the property, and all owners of property within 750 feet of the subject property. Additional mail notice shall be sent to any public entities with land use regulatory authority over the property and other organizations or persons as the City Administrator may designate.
B.
The City Administrator's notice under subsection (A) of this section shall:
1.
Indicate the date that the claim was filed;
2.
State the basis of the claim, the amount of the compensation sought and the land use regulation that the owner asserts gives rise to a claim;
3.
Identify the property by the street address or other easily understood geographical reference;
4.
State that persons noticed may provide written comments on the claim, and provide the date written comments are due;
5.
Indicate a timeframe within which the City Council will take action on the claim and identify how interested persons can learn of the specific date the Council will meet on the matter, once a meeting date is set;
6.
Provide the name and phone number of a City representative who can be contacted for additional information; and
7.
State that a copy of the claim and the supporting documents submitted by the owner are available for inspection at no cost, or that copies will be provided at reasonable cost.
C.
Written comments regarding a demand may be submitted to the City Administrator by any interested person. Comments must be received by the City Administrator within 14 days from the date of the notice required under subsections (A) and (B) of this section. The owner shall have an additional seven days after the deadline set out above to respond to any written comments received by the City Administrator. It is the duty of the owner to determine if comments have been received by the City Administrator.
D.
The City Administrator shall prepare a staff report for the Council within 30 days after the comment period has ended. The report shall apply the standards of ORS chapter 197 to the claim and shall include options for Council action.
E.
After the City Administrator has completed a draft staff report, the City Administrator shall send a copy of it to the City Attorney's Office for review. The City Attorney's Office will have 30 days for review.
F.
After the City Administrator receives the comments from the City Attorney's Office, the City Administrator will finalize the staff report and make it available to the public at least 10 days prior to the Council meeting.
G.
The City Council shall conduct a public hearing before taking final action on the claim. The procedures for the hearing must include, but are not limited to, staff presentation and public testimony, followed by deliberation and a decision by the City Council.
H.
The City Council's options for its decision include, but are not limited to, the following:
1.
Find the claim invalid and deny the claim based on one or more of the following findings:
a.
The land use regulation does not restrict the use of the private real property;
b.
The fair market value of the property is not reduced by the enactment, enforcement or application of the land use regulation;
c.
The demand was not timely filed;
d.
The owner failed to comply with the requirements for making a demand as set forth in this chapter;
e.
The owner is not the present property owner, or the property was not owned by a family member or the claimant was not the property owner at the time the land use regulation was enacted, enforced or applied;
f.
The land use regulation is an exempt regulation as defined in Ballot Measure 37;
g.
The land use regulation in question is not an enactment of the City;
h.
The City has not taken final action to enact or enforce the land use regulation to the property;
i.
The owner is not entitled to compensation under Ballot Measure 37, passed November 2, 2004, for a reason other than those provided herein;
2.
Find the claim valid and award compensation, either in the amount requested, or in some other amount supported by the evidence in the record, subject to the availability and appropriation of funds for that purpose;
3.
Find the claim valid and modify the regulation which restricts the use beyond those restrictions in place on the property at the time the owner acquired the property; or
4.
Find the claim valid and waive the regulation which restricts the use beyond those restrictions in place on the property at the time the owner acquired the property.
I.
If the City Council modifies or waives the challenged land use regulation in response to a claim by owner, the modification or waiver is valid only as to the owner during owner's ownership of the property for those regulations listed in the claim which were found by the Council to be valid; all other current regulations remain in effect. The City Council may, at its discretion, reinstate any or all of the land use regulations in effect at the time the owner acquired the property. A City Council waiver is not a waiver of any state law or Linn County provision.
J.
The final decision on a claim shall be made by the City Council. After review the City Council shall, under the standards of Ballot Measure 37, determine whether compensation is granted, the amount of compensation, if any, whether any exceptions to the requirement for compensation apply or whether the regulation should be modified, removed or deemed not to apply to the property. A copy of the City Council's decision shall be sent by mail to the owner and to each individual or entity that participated in the City Administrator or City Council process, provided a mailing address was provided to the City Administrator as part of the claim process.
K.
Waiver of a City land use regulation does not constitute a waiver of any corresponding Linn County or state statutes.
L.
A decision by the City Council to waive or modify a land use regulation shall be personal to the owner and shall automatically become invalid and void upon transfer of any ownership interest in the subject property. Upon transfer of any ownership interest in the subject property, any use of the property that is not consistent with regulations in effect at the time of transfer shall be deemed to be a nonconforming use and all state laws and City and Linn County code provisions relating to nonconforming uses shall be applicable.
M.
If the Board issues an order finding that an owner has a valid claim, the owner shall record a copy of the decision in the Recorder's Office of Linn County. The decision must include a legal description of the subject property.
N.
This chapter shall be interpreted in a manner consistent with Ballot Measure 37, passed November 2, 2004, and other implementing statutes or regulations and as interpreted by Oregon appellate courts.
(Ord. 690 § 7, 2004)
§ 15.12.080 Conditions of approval – Revocation of decision.
A.
The City Council may establish any relevant conditions of approval for compensation, should compensation be granted, or for any other action taken under this chapter.
B.
Failure to comply with any condition of approval is grounds for revocation of the approval of the claim, grounds for recovering any compensation paid and grounds for revocation of any other action taken under this section.
C.
In the event the owner, or the owner's successor in interest, fails to fully comply with all conditions of approval or otherwise does not comply fully with the conditions of approval, the City Administrator may institute a revocation or modification proceeding before the City Council under the same process for City Council review of a claim under this chapter.
(Ord. 690 § 8, 2004)
§ 15.12.090 Ex parte contacts – Conflict of interest and bias.
The following rules govern any challenges to City Council participation in the review or hearings regarding compensation claims:
A.
Any factual information obtained by a member of the Council outside the information provided by the City Administrator or City staff, or outside of the formal written comments process or hearing will be deemed an ex parte contact. A member of the City Council that has obtained any material, factual information through an ex parte contact must declare the content of that contact, and allow any interested party to rebut the substance of that contact. This rule does not apply to contacts between City staff and a member of the Council.
B.
Whenever a member of the Council, or any member of their immediate family or household, has a financial interest in the outcome of a particular demand, that member of the City Council shall not participate in the deliberation or decision on that application.
C.
All decisions on demands must be fair, impartial and based on the applicable review standards and the evidence in the record. Any member of the City Council who is unable to render a decision on this basis must refrain from participating in the deliberation or decision on that matter.
(Ord. 690 § 9, 2004)
§ 15.12.100 Attorney's fees.
If a demand under Ballot Measure 37 and this chapter is denied or not fully paid within 180 days of the date of filing a completed demand, the owner's reasonable attorney's fees and expenses necessary to collect compensation will be added as additional compensation, provided compensation is awarded to the owner. If such demand is denied, not fully paid, or other action taken under Ballot Measure 37, within 180 days of the date of filing a completed demand, and the owner commences suit or action to collect compensation, if the City of Brownsville is the prevailing party in such action, then the City of Brownsville shall be entitled to any sum which a court, including any appellate court, may adjudge reasonable as attorney's fees.
(Ord. 690 § 10, 2004)
§ 15.12.110 Availability of funds to pay claims.
Compensation can only be paid based on the availability and appropriation of funds for this purpose.
(Ord. 690 § 11, 2004)
§ 15.12.120 Private right of action.
If the City Council's approval of a claim by removing or modifying a land use regulation causes a reduction in value of other property located in the City of Brownsville, the affected party shall have a cause of action in state circuit court to recover from the claimant the amount of the reduction, and shall also be entitled to attorney's fees.
(Ord. 690 § 13, 2004)
§ 15.12.130 Applicable state law.
For all demands filed, the applicable state laws are those portions of ORS chapter 197 added or made a part of said chapter by Ballot Measure 37, passed on November 2, 2004, and/or as amended, modified or clarified by subsequent amendments or regulations adopted by the Oregon State Legislature, Oregon State Administrative Agencies or this chapter. Any demand that has not been processed completely under this section shall be subject to any such amendments, modifications, clarifications or other actions taken at the state level and this section shall be read in a manner so as not to conflict with such amendments, modifications, clarifications or other actions taken at the state level.
(Ord. 690 § 14, 2004)
