Milwaukie City Zoning Code
CHAPTER 19
400 OVERLAY ZONES AND SPECIAL AREAS
§ 19.401 Willamette Greenway Zone WG
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2106 § 2 (Exh. F), 2015; Ord. 2112 § 2 (Exh. B), 2015; Ord. 2140 § 2, 2017; Ord. 2166 § 1, 2018; Ord. 2218 § 2 (Exh. B), 2022Ord. 2235 § 2, 2023)
§ 19.401.1 Purpose.
The purpose of the Willamette Greenway Zone is to protect, conserve, enhance, and maintain the natural, scenic, historic, economic, and recreational qualities of lands along the Willamette River and major courses flowing into the Willamette River.
§ 19.401.2 Area Defined.
The Willamette Greenway Zone is that area within the Willamette Greenway plan boundary identified on the Zoning Map. The WG Zone is in combination with the underlying zone.
§ 19.401.3 Limitations on Use.
All land use actions and any change or intensification of use, or development permitted in the underlying zone, are conditional uses, subject to the provisions of Section 19.905.
Prohibited uses:
A.
Commercial, industrial and residential structures and residential accessory structures exceeding 35 ft in height west of McLoughlin Blvd;
B.
Residential floating structures;
C.
New private noncommercial boathouses or storage structures, including temporary structures;
D.
New private noncommercial docks exceeding 400 sq ft;
E.
Grading and tree cutting is prohibited in the buffer, except as allowed in Subsections 19.401.8.B.1 through 6.
§ 19.401.4 Definitions.
means making a different use of the land or water which requires construction; alterations of the land, river bed, bank, water, or other areas outside of existing buildings or structures; and which substantially alters or affects the land or water. It does not include a change of use of a building or other structure that does not substantially alter or affect the land or water upon which it is situated. Landscaping, construction of driveways, modifications of existing structures, the construction or placement of such subsidiary structures or facilities as are usual and necessary to the use and enjoyment of existing improvements (such as swing sets and patios), the improvement of existing paved recreation trails, or the construction of new, low-impact pathways within parks shall not be considered a change of use.
means activities which result in removal of substantial amounts of vegetation or in the substantial alteration of natural site characteristics; e.g., to construct or alter a structure, to conduct a mining operation, to make a physical change in the use or appearance of land, to divide land into parcels, to create or terminate rights of access.
means the act, process, or result of developing.
means the measurement of mature trees as measured at a height 4.5 ft above the mean ground level at the base of the tree. Trees existing on slopes are measured at the lowest point of ground at the base of the tree. If a tree splits into multiple trunks below 4.5 ft above ground level, the measurement is taken at its most narrow point below the split.
means the channel of the river and the adjacent land areas that must be reserved to discharge the base flood without cumulatively increasing the water surface elevation more than 1 ft (FEMA definition).
means any change of use; or action which increases or expands the area or amount of an existing use or the level of activity, including remodeling the exterior of a structure if the remodeling substantially alters the appearance of the structure. Maintenance and repair usual and necessary for the continuance of an existing use is not an intensification of use. Reasonable emergency procedures necessary for the safety or the protection of property are not an intensification of use. Residential use of lands within the WG Zone includes the practices and activities customarily related to the use and enjoyment of one's home. Landscaping, construction of driveways, modifications of existing structures, the construction or placement of such subsidiary structures or facilities as are usual and necessary to the use and enjoyment of existing improvements (such as swing sets and patios), the improvement of existing paved recreation trails, or the construction of new, low-impact pathways within parks shall not be considered an intensification of use.
means trees with at least a 6-in diameter at breast height (DBH).
means public recreational trails or public walkways located a minimum of 150 ft from the top of Willamette riverbank and constructed of permeable material if at-grade, up to 12 ft in width.
means plant species indigenous to the Portland metropolitan area, consisting of trees, shrubs, and ground cover, as identified in the Portland plant list.
means water-dependent or water-related structures, usually made of wood or concrete and containing a flotation system of polystyrene or similar materials, that ride on the river surface anchored by a cable either to the river bed, to piling, or to the riverbank, for uses including, but not limited to: public walks or river access not associated with marina or moorage; waterski jumps; swimmer's resting platform; storage of marine-related equipment or boat storage; or boat fueling facility. Sometimes fully enclosed buildings are situated atop the floating structure. Restaurants, snack bars, and the like are included in this definition.
means the line on the bank or shore to which the water ordinarily rises annually. Ordinary high water shall be established by the Division of State Lands (DSL) with reference to historical data, vegetation, field observations, survey, or other generally accepted methods.
means facilities that enable the public to safely make physical contact with the river and its environs.
(houseboat or floating home) means single- or multifamily dwellings supported on the river by a flotation system, which may include a system of piles, berths, walkways, and ramps. This is not a water-dependent or water-related use.
means related to, living, or located on the bank of a waterway.
means a land feature or constructed structure that serves to contain the Waters of the river. It can be distinguished from upland areas by the presence of riparian vegetation in close proximity to flowing water. Usually the riverbank represents the limits of seasonal high water and periodic flood waters.
means any form of surety approved by the City Attorney, including, but not limited to: performance bond, letter of credit, or cash escrow account.
means an area of unobstructed view. The width of a view window shall be measured at the point where vegetation is removed.
means a use or activity which can be carried out only on, in, or adjacent to water areas because the use requires access to the water body for waterborne transportation, recreation, energy production, or source of water.
means uses which are not directly dependent upon access to a water body, but which provide goods or services that are directly associated with water dependent land or waterway use, and which, if not located adjacent to water, would result in a public loss of quality in the goods or services offered. Except as necessary for Water-dependent or water-related uses or facilities, residences, parking lots, spoil and dump sites, roads and highways, restaurants, businesses, factories, and trailer parks are not generally considered dependent on or related to water location needs.
§ 19.401.5 Procedures.
The following procedures shall govern the application of WG zones:
A.
In the WG Zone, all uses and their accessory uses are permitted subject to the provisions of Section 19.905, except as noted in Subsection 19.401.5.B and Subsection 19.401.5.D.
B.
Willamette Greenway review is not required for any of the activities listed below:
1.
Changes to the interior of a building or alterations of buildings or accessory structures that do not increase the size or alter the configuration of the building or accessory structure footprint;
2.
Normal maintenance and repair as necessary for an existing development;
3.
Removal of plants listed as nuisance species on the Oregon Noxious Weed List or Milwaukie Invasive Tree List;
4.
Addition or modification of existing utility lines, wires, fixtures, equipment, circuits, appliances, and conductors by public or municipal utilities;
5.
Flood emergency procedures, and maintenance and repair of existing flood control facilities;
6.
Placement of signs, markers, aids, etc., by a public agency to serve the public;
7.
Establishment of residential accessory structures or uses, such as lawns, gardens, and play areas, subject to the vegetation buffer requirements of Subsection 19.401.8;
8.
Ordinary maintenance and repair of existing buildings, structures, parking lots, or other site improvements;
9.
Minor repairs or alterations to existing structures for which no building permit is required;
10.
A change of use of a building or other structure that does not substantially alter or affect the land or water upon which it is situated;
11.
Construction of driveways;
12.
Reasonable emergency procedures as necessary for the safety or protection of property; and
C.
The Oregon Department of Parks and Recreation shall be notified of a hearing on a conditional use in the WG Zone. The notice shall be sent via "certified mail, return receipt requested."
D.
A greenway conditional use is required for all intensification or change of use, or alteration of the vegetation buffer area, or development, as defined in this section. Landscaping, Construction of driveways, modifications of existing structures, or the construction or placement of such subsidiary structures or facilities as are usual and necessary to the use and enjoyment of existing improvements shall not be considered a change in use or intensification. Approval shall be granted only if the criteria in Subsection 19.401.6 are met.
E.
Submittal Requirements
A vegetation/buffer plan must be submitted for each application for a greenway conditional use permit. A buffer plan is required only if the proposed development impacts the vegetation buffer defined in Subsection 19.401.8.
F.
Written notice, including a copy of the application, will be sent upon receipt to the Oregon Parks and Recreation Department by certified mail—return receipt requested. The Oregon Division of State Lands, Oregon Department of Fish and Wildlife, and State Marine Board shall also be notified of each application.
G.
Written notice shall be provided to the Oregon Division of State Lands after the land use action is final for activities affecting wetlands or submerged or submersible lands within the Willamette River greenway. The notice shall include local government conditions of approval.
§ 19.401.6 Criteria.
The following will be taken into account in the consideration of a conditional use:
A.
Whether the land to be developed has been committed to an urban use, as defined under the State Willamette River Greenway Plan;
B.
Compatibility with the scenic, natural, historic, economic, and recreational character of the river;
C.
Protection of views both toward and away from the river;
D.
Landscaping, aesthetic enhancement, open space, and vegetation between the activity and the river, to the maximum extent practicable;
E.
Public access to and along the river, to the greatest possible degree, by appropriate legal means;
F.
Emphasis on water-oriented and recreational uses;
G.
Maintenance of or increase in views between the Willamette River and downtown;
I.
Conformance to applicable Comprehensive Plan policies;
J.
The request is consistent with applicable plans and programs of the Division of State Lands;
K.
A vegetation buffer plan meeting the conditions of Subsections 19.401.8.A through C.
§ 19.401.7 Setbacks.
On a case-by-case basis, uses that are not water-dependent or water-related shall be evaluated according to criteria of Subsection 19.401.6 above so that they are directed away from the river. Existing and proposed uses that are water-dependent and water-oriented may be permitted near or at the water's edge subject to review of criteria in Subsection 19.401.6 above.
§ 19.401.8 Vegetation Buffer Requirements.
A.
A buffer strip of native vegetation shall be identified along the river, which shall include the land area between the river and a location 25 ft upland from the ordinary high water line. This area shall be preserved, enhanced, or reestablished, except for development otherwise allowed in this title, and subject to the requirements of Subsection 19.401.8.B below.
B.
Prior to development (e.g., removal of substantial amounts of vegetation or alteration of natural site characteristics) within the buffer, a vegetation buffer plan for the buffer area shall be submitted for review and approval. The plan shall address the following areas and is subject to the following requirements:
1.
Riverbank Stabilization
The plan shall identify areas of riverbank erosion, and provide for stabilization. Bioengineering methods for erosion control shall be used when possible. When other forms of bank stabilization are used, pocket plantings or other means shall be used to provide vegetative cover.
2.
Scenic View Protection (Screening)
The plan shall identify the impact of the removal or disturbance of vegetation on scenic views from the river, public parks, public trails, and designed public overlooks.
3.
Retain Existing Native Vegetation and Large Trees
The plan shall provide for the retention of existing large trees and existing native vegetation, including small trees, ground covers, and shrubs, within the vegetation buffer area. The regulations in Chapter 16.32 Tree Code apply in addition to the regulations in this chapter. Removal of native vegetation and large trees is allowed pursuant to the following standards:
a.
Large trees that are diseased, dead, or in danger of falling down may be removed if there is a clear public safety hazard or potential for property damage.
b.
Grading or tree removal is allowed in conjunction with establishing a permitted use. Only the area necessary to accommodate the permitted use shall be altered.
c.
Tree and vegetation removal may be allowed to create 1 view window from the primary residential structure to the river when suitable views cannot be achieved through pruning or other methods. The width of a view window may not exceed 100 ft or 50% of lineal waterfront footage, whichever is lesser. The applicant must clearly demonstrate the need for removal of trees and vegetation for this purpose.
4.
Restore Native Vegetation
The plan shall provide for restoring lands within the buffer area which have been cleared of vegetation during construction with native vegetation.
5.
Enhance Vegetation Buffer Area
The plan may provide for enhancing lands within the buffer area. Regular pruning and maintenance of native vegetation shall be allowed. Vegetation that is not native, except large trees, may be removed in accordance with the regulations in Chapter 16.32. New plant materials in the buffer strip shall be native vegetation.
6.
Security that the Plan will be Carried Out
The approved vegetation buffer shall be established, or secured, prior to the issuance of any permit for development.
C.
The vegetation buffer requirements shall not preclude ordinary pruning and maintenance of vegetation in the buffer strip.
§ 19.401.9 Private Noncommercial Docks.
Private noncommercial docks are subject to the following requirements:
A.
Only 1 dock is allowed per riverfront lot of record.
B.
In areas designated as open water areas or special management areas by the Division of State Lands, docks may be restricted or additional requirements may be applied to docks. Restrictions or additional requirements will be identified by DSL in their review of the Development application.
C.
Private, noncommercial docks shall not exceed 400 sq ft (square footage is measured as the width times the length of the outer edge of the structure), with the following exceptions:
D.
Docks, pilings, and walkways shall either be dark natural wood colors, or painted dark earthtones (dark brown or green).
E.
Private noncommercial docks shall not:
1.
Restrict boat access to adjacent properties;
2.
Interfere with the commercial navigational use of the river, including transiting, turning, passing, and berthing movements;
3.
Interfere with critical fish and wildlife habitat or fishing use of the river as determined by Oregon Department of Fish and Wildlife; nor
4.
Significantly add to recreational boating congestion.
§ 19.401.10 Greenway Design Plan.
The WG Zone is intended to be temporary and will be replaced by the Willamette Greenway Design Plan when it is completed. The Willamette Greenway Design Plan is identified in the Comprehensive Plan of the City.
§ 19.402 Natural Resources NR
(Ord. 2036 § 3, 2011; Ord. 2110 § 2 (Exh. G), 2015; Ord. 2140 § 2, 2017; Ord. 2161 § 2, 2018; Ord. 2166 § 1, 2018; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2254, 7/8/2025)
§ 19.402.1 Intent.
Section 19.402 is to be interpreted consistently with the following:
A.
Section 19.402 provides protection for water quality resources under Statewide Land Use Planning Goal 6 and Sections 1 through 4 of Title 3 of the Metro Urban Growth Management Functional Plan (UGMFP). Section 19.402 also provides protection for designated natural resources that have been identified for the purposes of implementing Statewide Planning Goal 5 relating to significant natural riparian, wildlife, and wetland resources and Title 13 of the UG-MFP.
B.
Many of Milwaukie's riparian, wildlife, and wetland resources have been adversely affected by development over time. These regulations seek to minimize additional adverse impacts and to restore and improve resources, where possible, while balancing property rights and development needs of the city.
C.
It is also the intent of Section 19.402 to:
1.
Designate water quality resources (WQRs) to protect the functions and values of riparian and wetland resources at the time of development.
2.
Protect and improve the functions and values that contribute to water quality and to fish and wildlife habitat in urban streamside areas. These functions and values include, but are not limited to:
a.
Vegetated corridors to separate protected water features from development.
b.
Microclimate and shade.
c.
Streamflow moderation and water storage.
d.
Water filtration, infiltration, and natural purification.
e.
Bank stabilization and sediment and pollution control.
f.
Large wood recruitment and retention and natural channel dynamics.
g.
Organic material resources.
3.
Designate habitat conservation areas (HCAs) to implement the performance standards of Title 13 of the UGMFP for riparian areas and fish and wildlife habitat, and to protect significant local Goal 5 resources such as wetlands.
4.
Provide nondiscretionary (clear and objective) standards, as well as a discretionary review process, applicable to development in HCAs, in accordance with Goal 5.
5.
Allow and encourage habitat-friendly development while minimizing the impact on water quality and fish and wildlife habitat functions.
6.
Permit residential cluster development to encourage creative and flexible site design that is sensitive to the land's natural features and adapts to the natural topography.
7.
Provide mitigation standards for the replacement of ecological functions and values lost through development in WQRs and HCAs. This includes restoration of designated natural resources that are temporarily disturbed during development, as well as mitigation for permanent disturbance of those areas as a result of development.
8.
Preserve existing native vegetation against removal and replacement with lawns, gardens, or other nonnative plantings.
D.
Section 19.402 allows development in situations where adverse impacts from the Development can be avoided or mitigated and where the strict application of these rules would deny reasonable economic use of property.
E.
It is not the intent of Section 19.402 to:
1.
Impose any obligation on property owners to restore existing developed sites to preDevelopment or natural conditions when no new activity is proposed.
2.
Impose any unreasonable hardship against the continued maintenance of existing legal site conditions.
3.
Apply to activities that do not affect WQRs or HCAs.
4.
Prohibit normal lawn and yard landscape planting and maintenance that does not involve removal and replacement of existing native vegetation. Normal lawn and yard planting and maintenance does not include the planting of invasive nonnative or noxious vegetation, including, but not limited to, plants listed as nuisance species on the Milwaukie Plant List established in Subsection 19.402.2.G.
§ 19.402.2 Coordination with Other Regulations.
D.
Nonconforming development that was legally existing for WQRs as of January 16, 2003, the effective date of Ordinance #1912, or that was legally existing for HCAs as of September 15, 2011, the effective date of Ordinance #2036, and that is nonconforming solely because of Section 19.402, is not subject to the provisions of Chapter 19.800 Nonconforming Uses and Development. However, development that is nonconforming for other reasons will be subject to the provisions of Chapter 19.800.
E.
The requirements of Section 19.402 apply in addition to all applicable local, regional, state, and federal regulations, including those for wetlands, trees, and flood management areas. Where Section 19.402 imposes restrictions that are more stringent than regional, state, and federal regulations, the requirements of Section 19.402 will govern.
F.
Development in or near wetlands and streams may require permits from the Oregon Department of State Lands (DSL) and the U.S. Army Corps of Engineers (Corps). If a federal permit is required, a water quality certification from the Oregon Department of Environmental Quality (DEQ) may also be required. The Planning Manager will notify DSL and the Corps when an application for development within streams and wetlands is submitted. Because these agencies may have more restrictive regulations than the City, applicants are encouraged to contact them before preparing development plans.
G.
A document or other list used to identify native, nuisance, and prohibited plants will be maintained by the Planning Manager and will be referred to as the Milwaukie Plant List.
H.
A document or other list used to identify chemicals that have been demonstrated to be detrimental to water quality and habitat health will be maintained by the Planning Manager and will be referred to as the Milwaukie Prohibited Chemicals List.
§ 19.402.3 Applicability.
A.
The regulations in Section 19.402 apply to all properties that contain or are within 100 ft of a WQR and/or HCA (including any locally significant Goal 5 wetlands or habitat areas identified by the City of Milwaukie) as shown on the Milwaukie Natural Resources Administrative Map (hereafter "NR Map").
B.
For properties that do not contain, but are within 100 ft of, a WQR and/or HCA, as shown on the NR Map, and where an activity not listed as exempt in Subsection 19.402.4.A will disturb more than 150 sq ft, a construction management plan is required in accordance with Subsection 19.402.9 (see also Table 19.402.3).
D.
Designated natural resources are shown on the NR Map as follows:
1.
Water quality resources (WQRs) include protected water features and their associated vegetated corridors, as specified in Table 19.402.15. The vegetated corridor is a buffer around each protected water feature, established to prevent damage to the water feature. The width of the vegetated corridor varies depending on the type of protected water feature, upstream drainage area served, and slope adjacent to the protected water feature. The NR Map is a general indicator of the location of vegetated Corridors; the specific location of vegetated corridors must be determined in the field in accordance with Table 19.402.15.
2.
Habitat conservation areas (HCAs) include significant Goal 5 wetlands, riparian areas, and fish and wildlife habitat. HCAs are designated based on a combination of inventory of vegetative cover and analysis of habitat value and urban development value. HCA locations on the NR Map are assumed to be correct unless demonstrated otherwise; verifications and corrections will be processed in accordance with the procedures established in Subsection 19.402.15.
E.
To determine whether a proposed activity on a given property will trigger any requirements of Section 19.402, the City will use the latest available aerial photographs; a copy of the applicable section of the NR Map; and, in the case of WQRs, the parameters established in Table 19.402.15. If a property owner or applicant believes that the NR Map is inaccurate, they may propose corrections according to the standards established in Subsection 19.402.15.
F.
In the context of designated natural resources, "disturbance" is a condition or result of an act that "disturbs" as defined in Section 19.201. Disturbance can be either temporary or permanent as noted below.
1.
Temporary disturbances are those that occur during an allowed or approved development or activity but will not persist beyond completion of the project. Temporary disturbances include, but are not limited to, accessways for construction equipment; material staging and stockpile areas; and excavation areas for building foundations, utilities, stormwater facilities, etc.
2.
Permanent disturbances are those that remain in place after an allowed or approved development or activity is completed. Permanent disturbances include, but are not limited to, buildings, driveways, walkways, and other permanent structures.
G.
If more than 150 sq ft of area will be disturbed in conjunction with a proposed activity listed as exempt in Subsection 19.402.4.B, a construction management plan must be submitted according to the provisions of Subsection 19.402.9. This requirement applies even when the proposed activity will not occur within a designated natural resource but is within at least 100 ft of the resource, in accordance with Table 19.402.3.
H.
Proposed activities that are listed as exempt or occur more than 100 ft from a WQR or HCA, as shown on the NR Map or determined in accordance with Table 19.402.15, do not require review under the provisions of Section 19.402.
I.
Those portions of streams, creeks, and other protected water features that appear on the NR Map but are enclosed in pipes, culverts, or similar structures are not subject to the provisions of Section 19.402, except where a proposed activity will expose or directly disturb the protected water feature, such as with excavation. For WQRs, the underground portion of the protected water feature is not considered a protected water feature for purposes of determining the WQR location as outlined in MMC Table 19.402.15. For HCAs, the boundary verification options provided in MMC 19.402.15 may be used as necessary to determine whether the aboveground characteristics of the underground portion of the protected water feature affects the representation of HCA on the NR Map.
J.
The requirements of Section 19.402 apply, as shown in Table 19.402.3, both to properties that include a WQR and/or HCA, and to properties that do not include a WQR or HCA but where an activity is proposed within 100 ft of a WQR or HCA.
Table 19.402.3 Applicability of Requirements of Section 19.402 | ||
|---|---|---|
Situations/Activities that may Trigger Section 19.402 | Prepare Construction Management Plan per Subsection 19.402.9 | Comply with Remainder of Section 19.402 |
Activities listed as exempt per: • Subsection 19.402.4.A (outright exemptions for both WQRs and HCAs) | No | No |
• Subsection 19.402.4.B (limited exemptions for HCAs only) | No (unless > 150 sq ft of disturbance is proposed) | No |
Nonexempt activities: • Outside of WQR and HCA | No (unless activity is within 100' of WQR or HCA and > 150 sq ft of disturbance is proposed) | No |
• Within WQR or HCA | Yes | Yes |
K.
Activities that are not exempt per Subsection 19.402.4, or prohibited per Subsection 19.402.5, are subject to the Type I, II, or III review process as outlined in Table 19.402.3.K.
Table 19.402.3.K Types of Process Review for Various Activities | |||
|---|---|---|---|
Activity (and applicable code sections) | Type of Review Process | ||
Type I (19.1004) | Type II (19.1005) | Type III (19.1006) | |
Agency-approved natural resource Management plans (Subsections 19.402.10.A and C) | ✓ | ||
Independent natural resource management plans (Subsections 19.402.10.B and C) | ✓ | ||
Limited tree removal (Subsection 19.402.6.B) | ✓ | ||
Tree removal that is not exempt or allowable with Type I review (Subsection 19.402.8.A.8) | ✓ | ||
Activities within HCA that meet nondiscretionary standards (Subsection 19.402.11.D) | ✓ | ||
Maintenance of existing utility facilities (Subsection 19.402.6.E) | ✓ | ||
Utility connections (Subsection 19.402.6.F) | ✓ | ||
Nonemergency abatement of nuisances or violations (Subsection 19.402.6.G) | ✓ | ||
Limited WQR disturbance for new dwelling units Subsection 19.402.6.B | ✓ | ||
Special use activities (Subsections 19.402.7.A and 19.402.11.E) | ✓ | ||
Other limited disturbance to WQRs (Subsection 19.402.7.D) | ✓ | ||
Development activities that are not exempt or allowable with Type I or II review | ✓ | ||
Property line adjustments that balance the HCA distribution (Subsection 19.402.13.E.1 or 2) | ✓ | ||
Property line adjustments that otherwise limit HCA disparity (Subsection 19.402.13.E.3) | ✓ | ||
Low-impact partitions (put designated natural resources in separate tract) (Subsection 19.402.13.F) | ✓ | ||
Other partitions or subdivisions (Subsection 19.402.13.G or H) | ✓ | ||
Boundary verifications with minor corrections (Subsection 19.402.15.A.1) | ✓ | ||
Boundary verifications with substantial corrections (Subsection 19.402.15.A.2) | ✓ | ||
L.
Where WQRs and HCAs overlap, the WQR overlap area is not included in any calculations of the HCA area for purposes of determining whether HCA-only exemptions are allowed or for calculating allowable HCA disturbances.
§ 19.402.4 Exempt Activities.
A.
Outright Exemptions
The following activities in WQRs or HCAs are exempt from the provisions of Section 19.402:
1.
Action taken on a building permit for any portion of a phased development project for which the applicant has previously met the applicable requirements of Section 19.402, including the provision of a construction management plan per Subsection 19.402.9. This exemption applies so long as the building site for new construction was identified on the original application, no new portion of the WQR and/or HCA will be disturbed, and no related land use approvals have expired per Subsection 19.1001.7. This exemption also extends to projects initiated prior to September 15, 2011, the effective date of Ordinance #2036, which have already been approved through Water Quality Resource Review.
2.
Stream, wetland, riparian, and upland enhancement or restoration projects and development in compliance with a natural resource management plan or mitigation plan approved by the City or by a state or federal agency.
3.
Emergency procedures or activities undertaken (excluding non-exempt tree removal as allowed in Subsection 19.402.4.A.6) that are necessary to remove or abate hazards to person or property, provided that the time frame for such remedial or preventative action is too short to allow for compliance with the requirements of Section 19.402. After the emergency, the person or agency undertaking the action must repair any impacts to the designated natural resource resulting from the emergency action; e.g., remove any temporary flood protection such as sandbags, restore hydrologic connections, or replant disturbed areas with native vegetation.
4.
The planting or propagation of plants categorized as native species on the Milwaukie Plant List.
5.
Removal of plants categorized as nuisance species on the Milwaukie Plant List. After removal, all open soil areas must be replanted and/or protected from erosion.
6.
Removal of trees under any of the following circumstances:
a.
The tree is a "downed tree" as defined in Section 19.201, the tree has been downed by natural causes, and no more than 150 sq ft of earth disturbance will occur in the process of removing the tree.
d.
Major pruning of trees within 10 ft of existing structures in accordance with the Best Management Practices of the International Society of Arboriculture (ISA).
7.
Landscaping and maintenance of existing landscaping and gardens. This exemption extends to the installation of new irrigation and drainage facilities and/or erosion control features, as well as to landscaping activities that do not involve the removal of native plants or plants required as mitigation, the planting of any vegetation identified as a nuisance species on the Milwaukie Plant List, or anything that produces an increase in impervious area or other changes that could result in increased direct stormwater discharges to the WQR.
8.
Additional disturbance for outdoor uses, such as gardens and play areas, where the new disturbance area does not exceed 150 sq ft; does not involve the removal of any trees larger than 6-in diameter at breast height (DBH) or otherwise regulated by Chapter 16.32; and is located at least 30 ft from the top of bank of a stream or drainage and at least 50 ft from the edge of a wetland. This exemption extends to the installation of benches, chairs, and similar unsheltered sitting apparatus within 30 ft or less of the top of bank or within 50 ft or less of the edge of a wetland, provided that the installation involves no more than 4 sq ft of disturbance per apparatus and that no more than one bench or sitting apparatus is installed per 100 lineal feet along the top of bank or edge of wetland. All temporary disturbances must be restored.
9.
Routine repair and maintenance, alteration, demolition, and/or change of use of existing legal structures, provided that the following criteria are met:
a.
There is no change in the location, or increase in the footprint, of any Building, impervious surface, or outdoor storage area within a WQR or HCA.
b.
No other site changes are proposed that could result in increased direct stormwater discharges to a WQR. If the project will result in increased direct stormwater discharges, the proposal is subject to the Type II review process and the standards for discretionary review established in SubSection 19.402.12.
10.
Routine repair and maintenance, alteration, and/or total replacement of existing utility facilities, accesses, streets, driveways, trails, walkways, and parking improvements (including asphalt overlays); provided that there is no new disturbance of the WQR or HCA, no increase in impervious area, no reduction in landscaped areas or tree cover, and no other change that could result in increased direct stormwater discharges to the WQR.
11.
Routine repair and maintenance of public and private stormwater facilities in accordance with a stormwater management plan approved by the City.
12.
Existing agricultural practices or uses, excluding buildings and structures, provided that such activities or uses do not result in increased direct stormwater discharges to WQRs.
14.
Change of ownership.
16.
Activities and improvements in existing public rights-of-way.
17.
Establishment and maintenance of trails in accordance with the following standards:
a.
Trails must be confined to a single ownership or within a public trail easement.
b.
Trails must be no wider than 30 in. Where trails include stairs, stair width must not exceed 50 in and trail grade must not exceed 20%, except for the portion of the trail containing stairs.
c.
Trails must be unpaved and constructed with nonhazardous, pervious materials.
d.
Trails must be located at least 15 ft from the top of bank of all water bodies except where necessary to access a bench or similar sitting apparatus exempted in Subsection 19.402.4.A.8.
e.
Plants adjacent to trails may be trimmed, but trimming clearances must not exceed a height of 8 ft and a width of 6 ft.
18.
Installation and maintenance of erosion control measures that have been reviewed and approved by the City.
B.
Limited Exemptions Within HCAs
The following activities within HCAs are exempt from the provisions of Section 19.402, except that a construction management plan is required, according to the provisions of Subsection 19.402.9, where the activity disturbs a total of more than 150 sq ft:
1.
The alteration and/or total replacement of existing structures, provided that both of the following standards are met:
a.
The alteration and/or replacement does not intrude more than 500 sq ft into the HCA, beyond the area defined as the building footprint as of September 15, 2011, the effective date of Ordinance #2036.
b.
The alteration and/or replacement shall not result in increased direct stormwater discharges to a WQR.
2.
Minor encroachments, not to exceed 500 sq ft for residential zones or 150 sq ft in nonresidential zones, for new features such as accessory buildings, patios, walkways, or retaining walls.
3.
Temporary and minor clearing, excavation, or other disturbances, not to exceed 150 sq ft, for the purpose of: site investigations or preparation of soil profiles; installation of underground utility facilities or other infrastructure; routine repair and maintenance and/or alteration of existing utility facilities, access, streets, driveways, and parking improvements; or similar activities, provided that such disturbed areas are restored to their original condition when the activity is complete.
4.
Low-impact outdoor recreation facilities for public use—including, but not limited to, multiuse paths, accessways, trails, picnic areas, or interpretive and educational displays and overlooks that include benches and outdoor furniture—provided that such facilities contain no more than 500 sq ft of new impervious surface. Any trails must have a maximum width of 5 ft and must be constructed using nonhazardous, pervious materials.
5.
Facilities that infiltrate stormwater on the site, including the associated piping, so long as the forest canopy and the areas within the driplines of the trees are not disturbed. Such facilities may include, but are not limited to, vegetated swales, rain gardens, vegetated filter strips, and vegetated infiltration basins. Native or nonnative vegetation may be planted in these facilities, provided that none of the plantings are identified as a nuisance species on the Milwaukie Plant List.
§ 19.402.5 Prohibited Activities.
Title 19 Zoning is comprised of regulations that deal with the use of land; it does not extend into the broader realm of laws that regulate personal activities unrelated to land use and development. Given such limitations, the following activities are prohibited within WQRs and HCAs:
B.
Uncontained areas of hazardous materials, as defined by DEQ.
C.
Planting any vegetation listed as a nuisance species on the Milwaukie Plant List.
D.
Outside storage of materials; unless such storage began before September 15, 2011, the effective date of Ordinance #2036; or unless such storage is approved according to the applicable provisions of Section 19.402.
E.
Application of pesticides or herbicides with any of the active ingredients listed on the Milwaukie Prohibited Chemicals List.
§ 19.402.6 Activities Requiring Type I Review.
Within either WQRs or HCAs, the following activities and items are subject to Type I review per Section 19.1004:
A.
Limited Tree Removal
1.
For trees not exempted by Subsections 19.402.4.A.6 (general exemptions) or 19.402.6.A.2 (development scenarios), the Planning Manager may approve an application for limited tree removal or major pruning within WQRs and HCAs under any of the following circumstances:
a.
The tree poses an immediate emergency, as determined by the Urban Forester, Planning Manager, or designee; or a hazardous but nonemergency situation, with an unreasonable risk to the occupants of the property, the adjacent property, or the general public, as determined by an ISA Certified Arborist that is Tree Risk Assessment Qualified (TRAQ) in accordance with current ISA Tree Risk Assessment Best Management Practices.
Immediate emergencies may include, but are not limited to, situations in which a tree or portion of a tree has been compromised and has damaged or is damaging structures or utilities on private or public property, or where a tree or portion of a tree is prohibiting safe passage in the public right-of-way. Examples include but are not limited to trees that have fallen into or against a house or other occupied building, or trees downed across power lines or roadways. Emergency situations do not offer time for the normal review process and will be evaluated retroactively once the emergency has been resolved.
A situation may be deemed hazardous if a tree, or portion of a tree, has undergone a recent change in health or condition in a manner that may pose a danger to people, to structures on private property, to public or private utilities, or to travel on private property or in the public right-of-way. Examples of imminent hazards may include, but are not limited to, trees that are broken, split, cracked, uprooted, or otherwise in danger of collapse.
Approval will be limited to removal of the tree, or portion of the tree, as necessary to eliminate the emergency or hazard. Any damage or impacts to the designated natural resource must be repaired after the emergency or hazard has been resolved. Any applicable requirements of Chapter 16.32 must also be met.
b.
The tree is dead, diseased, or dying and cannot be saved, as determined and documented in a report by an ISA Certified Arborist in accordance with ISA standards. This includes situations where a tree has sustained physical damage that will cause it to die or enter an advanced state of decline.
c.
The tree is categorized as nuisance species on the Milwaukie Plant List.
d.
The tree is a downed tree, but more than 150 sq ft of earth disturbance is necessary to remove it.
e.
The tree is part of a stormwater management system and has grown too large to remain an effective part of the system.
f.
The tree location conflicts with areas of public street widening, construction, or extension as shown in the Transportation System Plan and there is no practicable alternative to removing the tree.
g.
Tree removal is required for the purposes of utility or infrastructure repair and there is no practicable alternative to removing the tree.
h.
The tree is recommended for removal by a designated fire marshal for Clackamas County because it presents a significant fire risk to habitable structures or limits emergency access for rescue workers, and the risk or access issue cannot be abated through pruning or other means that would result in tree retention.
i.
The tree is not categorized as either a nuisance or native species on the Milwaukie Plant List, is less than 12-in DBH, and is not located in a WQR categorized as Class A ("Good"), according to Table 19.402.11.C, provided that no more than 3 such trees will be removed during any 12-month period. In residential zones, for the proposed removal of more than one such tree (i.e., non-nuisance, non-native, not in a “Good” WQR area) during any 12-month period, the Type B tree permit process outlined in Subsection 16.32.044.E is applicable in addition to the provisions of Subsection 19.402.6.A.
2.
The provisions of Subsection 19.402.6.A.1 do not apply to tree removal proposed in association with development or other activities regulated by Section 19.402, for which other approval criteria and mitigation standards may apply.
3.
The Planning Manager will require the application to comply with all of the following standards:
a.
A construction management plan must be prepared in accordance with Subsection 19.402.9. When earth disturbance is necessary for the approved removal or pruning, all open soil areas that result from the disturbance must be replanted and/or protected from erosion.
b.
All pruning and/or tree removal must be done in accordance with the standards of the International Society of Arboriculture (ISA) and must comply with the applicable requirements in Chapter 16.32.
c.
Any tree that is removed in accordance with Subsection 19.402.6.A must be replaced with a new tree, of at least 1.5-in caliper or at least 5-ft overall height after planting. An exception to this requirement may be granted if the applicant demonstrates that a replacement tree has already been planted in anticipation of tree removal or if dense canopy coverage otherwise precludes tree replacement. Any other proposed exception to this replanting requirement is subject to the mitigation fees established in conjunction with Section 16.32.044.
d.
The replacement tree(s) must be located in the general vicinity of the removed tree(s), somewhere within the designated natural resource (WQR or HCA). The replacement tree(s) does not have to be a native species; but, in accordance with Subsection 19.402.5.C, the replacement tree(s) must not be categorized as a nuisance species on the Milwaukie Plant List. The property owner must ensure that the replacement tree(s) survives at least 2 years beyond the date of its planting.
B.
Limited WQR Disturbance for New Dwelling Units
1.
Within WQRs, nonexempt residential development that is not listed in Subsection 19.402.7 or 19.402.8 and that is in compliance with the following nondiscretionary standards is allowable subject to Type I review:
a.
The disturbance (temporary or permanent) is directly related to the construction of a new dwelling unit (primary or accessory); and
b.
The area of the site that is not categorized as WQR and that is outside the minimum required yard setbacks for the underlying zone is 1,500 sq ft or less. In such cases, the disturbance area within the WQR is limited by the following formula: subtract the area of the site that is not categorized as WQR from the area of the site that is categorized as WQR; if that number is positive, that amount of WQR on the site can be disturbed, up to a maximum of 800 sq ft (see Figure 19.402.6.B.1.b); and
c.
The WQR being disturbed is not categorized as Class A ("Good") according to Table 19.402.11.C; and
d.
The disturbance area is at least 30 ft from the top of bank of a stream or drainage or 30 ft from the edge of a wetland; and
e.
The disturbance does not include the removal of any trees 6-in DBH or greater that are categorized as a native species on the Milwaukie Plant List; and
f.
The disturbance will not result in any increased direct stormwater discharges to the WQR.
2.
Where limited WQR disturbance is allowed by this subsection, mitigation must be provided in accordance with the general standards of Subsection 19.402.11.B (including for plant species, size, spacing, survival, etc.) and as follows:
a.
For temporary disturbances, the disturbance area must be replanted at a minimum with native ground-cover species sufficient to cover all bare or exposed soil.
b.
For permanent disturbances, an area equal in size to the disturbance area must be established as a mitigation area. Within the mitigation area, all vegetation categorized as a nuisance species on the Milwaukie Plant List must be removed and native-species trees and shrubs must be planted at a ratio of 5 trees and 25 shrubs per 500 sq ft of allowed disturbance. Any remaining bare soil within the mitigation area must be replanted with native ground-cover species.
These standards apply in addition to any other applicable provisions related to tree removal as established in Section 16.32.042.
C.
Activities within HCAs in Compliance with Nondiscretionary Standards
Within HCAs but outside of WQRs, nonexempt development that is not listed in Subsection 19.402.7 or 19.402.8 and that is in compliance with the following nondiscretionary standards is subject to Type I review.
1.
Single Detached and Middle Housing Residential Uses
For single detached and middle housing residential uses, including any related public facilities as required by Chapter 19.700 Public Facility Improvements, the amount of nondiscretionary disturbance allowed within an HCA is determined by subtracting the area of the lot or parcel outside of the total resource area (WQR and HCA) from the maximum potential disturbance area within the HCA (which is 50% of the total HCA, up to a maximum of 5,000 sq ft)—see Table 19.402.6.C.1 for examples. Such disturbance will be subject to Type I review and the mitigation requirements described in Subsection 19.402.11.D.2.
Table 19.402.6.C.1 Method for Calculating Allowable Nondiscretionary Disturbance within an HCA for Single Detached Dwellings and Middle Housing Residential Uses |
|---|
X = The maximum potential disturbance area within the HCA, which is 50% of the total HCA, up to a maximum of 5,000 sq ft. Y = The area of the lot or parcel outside the total resource area (WQR and HCA). Z = The net amount of disturbance area allowed within the HCA (Z = X-Y). If (Y) is greater than (X), disturbance is not permitted within the HCA; otherwise, the applicant may disturb up to the net amount of disturbance area allowed (Z) within the HCA. |
Example 1: 8,000-sq-ft lot with 3,000 sq ft of HCA and 5,000 sq ft outside of HCA/WQR X = 1,500 sq ft (50% of HCA) Y = 5,000 sq ft outside of HCA/WQR Z = -3,500 sq ft (1,500 sq ft — 5,000 sq ft) Conclusion: Y is greater than X; therefore, development is not permitted within the HCA. |
Example 2: 8,000-sq-ft lot with 6,000 sq ft of HCA and 2,000 sq ft outside of HCA/WQR X = 3,000 sq ft (50% of HCA) Y = 2,000 sq ft outside of HCA/WQR Z = 1,000 sq ft (3,000 sq ft - 2,000 sq ft) Conclusion: Y is not greater than X; therefore, the applicant may disturb up to the value of Z (1,000 sq ft) within the HCA. |
2.
All Other Uses
A maximum net disturbance area of 10% of the HCA on the site is allowed by right, subject to Type I review and the mitigation requirements described in Subsection 19.402.11.D.2.
D.
Natural Resource Management Plans
Natural resource management plans that meet the standards outlined in Subsection 19.402.10.A are subject to Type I review. These are typically plans that have already been approved by a qualified agency.
E.
Maintenance of Existing Utility Facilities
Routine repair and maintenance of existing utility facilities, accesses, streets, driveways, and/or parking improvements that disturbs a WQR and/or HCA is subject to Type I review, provided such activities can meet the general standards for special uses established in Subsection 19.402.11.E.1. These include, but are not limited to, the requirement to provide a mitigation plan and to restore the disturbed area.
F.
Utility Connections
Unless they are exempt per Subsection 19.402.4, connections to existing or new utility lines that involve disturbance to a WQR and/or HCA are subject to Type I review against the following criteria:
1.
The activities required to establish the connection shall not disturb a protected water feature. Utility connections that will disturb a protected water feature are subject to the review procedures for special uses established in Subsection 19.402.11.E.
2.
The activities required to establish the connection shall not disturb an area greater than 10 ft wide.
3.
The connection can meet the general standards for special uses established in SubSection 19.402.11.E.1.
G.
Nuisance Abatement
Measures to remove or abate nuisances; or any other violation of state statute, administrative agency rule, or City or County ordinance; shall be subject to Type I review of a construction management plan, to be approved by the Planning Manager prior to the abatement activity. The person or agency undertaking the action shall repair any impacts to the designated natural resource resulting from the nuisance or violation (e.g., restore disturbed soils, restore hydrologic connections, replant disturbed areas with native vegetation, etc.) unless subsequent development has been approved.
H.
Boundary Verification
Boundary verifications that propose minor corrections will be processed in accordance with Subsection 19.402.15.A.1 and are subject to Type I review.
I.
Low-Impact Partitions
Partitions that meet the standards established in Subsection 19.402.13.F are subject to Type I review.
§ 19.402.7 Activities Requiring Type II Review.
Within either WQRs or HCAs, the following activities and items are subject to Type II review and approval by the Planning Manager per Section 19.1005, unless they are otherwise exempt or permitted as a Type I activity.
A.
Special Uses
If not listed as exempt in Subsection 19.402.4, and not able to meet the nondiscretionary standards for HCAs as established in Subsection 19.402.11.D, any special use activity listed below is subject to Type II review if the proposal complies with the applicable standards provided in Subsection 19.402.11.E:
1.
Improvement or construction of public or private utility facilities.
2.
New stormwater facilities.
3.
Walkways and bike paths.
4.
Stormwater management plans.
If the proposed special use activity is not in compliance with the applicable standards in Subsection 19.402.11.E, it is subject to Type III review and the general discretionary review criteria provided in Subsection 19.402.12.
B.
Natural Resource Management Plans
Natural resource management plans that do not meet the Type I review standards provided in Subsection 19.402.10.A, but that meet the standards provided in Subsection 19.402.10.B, are subject to Type II review. These are typically plans that have been prepared independently of a qualified agency but that are in accordance with standards and guidelines related to enhancing natural resources.
C.
Partitions and Subdivisions
Partitions and subdivisions that meet the standards provided in Subsection 19.402.13.G and H, respectively, are subject to Type II review.
D.
Other Uses and Activities with Minimal Impacts to WQRs
The activities listed below are subject to Type II review and the general discretionary review criteria provided in Subsection 19.402.12:
1.
New agricultural practices or uses, excluding buildings and structures, that result in increased direct stormwater discharges to WQRs.
2.
Landscaping and maintenance of existing landscaping that would increase impervious area within a WQR by no more than 150 sq ft and/or would result in increased direct stormwater discharges to the WQR.
3.
Routine repair and maintenance, alteration, and/or total replacement of existing legal buildings or structures that increases the existing disturbance area by no more than 150 sq ft within the WQR.
4.
Routine repair and maintenance, alteration, and/or total replacement of existing utility facilities, accesses, streets, driveways, and parking improvements that increases the existing disturbance area by no more than 150 sq ft within the WQR. Activities approved under this subsection shall be subject to the following requirements:
E.
Boundary Verification
Boundary verifications that propose substantial corrections will be processed in accordance with Subsection 19.402.15.A.2 and are subject to Type II review.
§ 19.402.8 Activities Requiring Type III Review.
Within either WQRs or HCAs, the following activities are subject to Type III review and approval by the Planning Commission under Section 19.1006, unless they are otherwise exempt or permitted as a Type I or II activity.
A.
The activities listed below are subject to the general discretionary review criteria provided in Subsection 19.402.12:
1.
Any activity allowed in the base zone that is not otherwise exempt or permitted as a Type I or II activity.
2.
Within HCAs, development that is not in compliance with the nondiscretionary standards provided in Subsection 19.402.11.D.
3.
New roads to provide access to protected water features, necessary ingress and egress across WQRs, or the widening of an existing road.
4.
Improvement of existing public utility facilities that cannot meet the applicable standards of Subsection 19.402.11.E.
5.
New stormwater facilities that cannot meet the applicable standards of Subsection 19.402.11.E.
6.
New public or private utility facility construction that cannot meet the applicable standards of Subsection 19.402.11.E.
7.
Walkways and bike paths that are not exempt per Subsection 19.402.4 or cannot meet the applicable standards of Subsection 19.402.11.E.
9.
Landscaping and maintenance of existing landscaping that would increase impervious area by more than 150 sq ft.
10.
Routine repair and maintenance, alteration, and/or total replacement of existing legal buildings or structures that increases the existing disturbance area by more than 150 sq ft within the WQR.
11.
Routine repair and maintenance, alteration, and/or total replacement of existing utility facilities, accesses, streets, driveways, and parking improvements that would disturb more than 150 sq ft within the WQR.
§ 19.402.9 Construction Management Plans.
B.
Construction management plans shall provide the following information:
1.
Description of work to be done.
2.
Scaled site plan showing a demarcation of WQRs and HCAs and the location of excavation areas for building foundations, utilities, stormwater facilities, etc.
3.
Location of site access and egress that construction equipment will use.
4.
Equipment and material staging and stockpile areas.
5.
Erosion and sediment control measures.
6.
Measures to protect trees and other vegetation located within the potentially affected WQR and/or HCA. Tree protection must be consistent with the requirements in Section 16.32.042.G.
When required for a property that does not include a designated natural resource, the construction management plan must show the protective measures that will be established on the applicant's property.
§ 19.402.10 Natural Resource Management Plans.
Natural resource management plans or restoration plans that authorize limited disturbance within the WQR or HCA may be approved with Type I or II review, subject to the following standards:
A.
Plans Eligible for Type I Review
The plan has already been approved by the U.S. Fish and Wildlife Service, Oregon Department of Fish and Wildlife (ODFW), DSL, Oregon Watershed Enhancement Board (OWEB), Metro, Clackamas County Soil and Water Conservation District, or other agency approved by the Planning Manager.
B.
Plans Eligible for Type II Review
The plan has been prepared in accordance with particular standards and guidelines promulgated by a natural resource agency, such as OWEB's Oregon Aquatic Habitat Restoration and Enhancement Guide, ODFW's Western Oregon Stream Restoration Program, DSL's Hydrogeomorphic (HGM) approach of assessment for wetland and riparian functions, or other standards approved by the Planning Manager.
C.
Approval Criteria
Every plan prepared for approval under Section 19.402 must demonstrate that it encourages restoration activities that have any of the following effects:
1.
Changes the trend of habitat function from one of a diminishing ability to support salmonids and other organisms to one that supports a complex, self-sustaining system.
2.
Corrects or improves conditions caused by past management and/or disturbance events.
3.
Maximizes beneficial habitat in the short term where watershed degradation has been extensive and natural processes will need substantial time to restore habitat.
4.
Creates beneficial habitat and restores stream function and hydrology to the fullest extent practicable within developed areas where there is no reasonable expectation of returning to natural conditions.
D.
Construction Management Plans
A construction management plan prepared in accordance with Subsection 19.402.9 is required with each natural resource management plan.
E.
Ongoing Maintenance
Natural resource management plans must demonstrate how ongoing maintenance is part of the associated restoration or enhancement activities.
F.
Expiration of Plans
The approval of a natural resource management plan is valid for 5 years. Approved plans may be renewed through the Type I review process by demonstrating that the original approved plan still meets the criteria provided in Subsection 19.402.10.C. Plans that demonstrate an adaptive management component and/or that involve partnership with one of the agencies noted in Subsection 19.402.10.A may be approved as valid for up to 20 years upon request.
§ 19.402.11 Development Standards.
A.
Protection of Natural Resources During Site Development
During development of any site containing a designated natural resource, the following standards apply:
1.
Work areas must be marked to reduce potential damage to the WQR and/or HCA.
2.
Trees in WQRs or HCAs must not be used as anchors for stabilizing construction equipment.
3.
Native soils disturbed during development must be conserved on the property.
4.
An erosion and sediment control plan is required and must be prepared in compliance with requirements set forth in the City's Public Works Standards.
5.
Site preparation and construction practices must be followed that prevent drainage of hazardous materials or erosion, pollution, or sedimentation to any WQR adjacent to the project area.
6.
Stormwater flows that result from proposed development within and to natural drainage courses must not exceed predevelopment flows.
7.
Prior to construction, the WQR and/or HCA that is to remain undeveloped must be flagged, fenced, or otherwise marked and must remain undisturbed. Such markings must be maintained until construction is complete.
8.
The construction phase of the development must be done in such a manner as to safeguard the resource portions of the site that have not been approved for development.
9.
Where practicable, lights must be placed so that they do not shine directly into any WQR and/or HCA location. The type, size, and intensity of lighting must be selected so that impacts to habitat functions are minimized.
B.
General Standards for Required Mitigation
Where mitigation is required by Section 19.402 for disturbance to WQRs and/or HCAs, the following general standards apply:
1.
Disturbance
a.
Designated natural resources that are affected by temporary disturbances must be restored, and those affected by permanent disturbances must be mitigated, in accordance with the standards provided in Subsection 19.402.11.C for WQRs and Subsection 19.402.11.D.2 for HCAs, as applicable.
b.
Landscape plantings are not considered to be disturbances, except for those plantings that are part of a non-exempt stormwater facility; e.g., raingarden or bioswale.
2.
Required Plants
Unless specified elsewhere in Section 19.402, all trees, shrubs, and ground cover planted as mitigation must be native plants, as identified on the Milwaukie Plant List. Applicants are encouraged to choose particular native species that are appropriately suited for the specific conditions of the planting site; e.g., shade, soil type, moisture, topography, etc.
3.
Plant Size
Required mitigation trees must average at least a 1.5-in caliper—measured at 6 in above the ground level for field-grown trees or above the soil line for container-grown trees— unless they are oak or madrone, which may be 1-gallon size. Required mitigation shrubs must be at least 1-gallon size and 12 in high.
4.
Plant Spacing
Trees must be planted between 8 and 12 ft on center. Shrubs must be planted between 4 and 5 ft on center or clustered in single-species groups of no more than 4 plants, with each cluster planted between 8 and 10 ft on center. When planting near existing trees, the dripline of the existing tree is the starting point for plant spacing measurements. Note that in meeting the Tree Planting Standards in Subsection 16.32.042.C, the Urban Forester may only credit those trees that meet the requirements in Table 16.32.042.D. The additional trees required by this subsection may be excluded from contributing to the Tree Planting Standards in Subsection 16.32.042.C.
5.
Plant Diversity
Shrubs must consist of at least 2 different species. If 10 trees or more are planted, then no more than 50% of the trees can be of the same genus.
6.
Location of Mitigation Area
a.
On-Site Mitigation
All mitigation vegetation must be planted on the applicant's site within the designated natural resource that is disturbed, or in an area contiguous to the resource area; however, if the vegetation is planted outside of the resource area, the applicant must preserve the contiguous planting area by executing a deed restriction such as a restrictive covenant.
b.
Off-Site Mitigation
(1)
For disturbances allowed within WQRs, off-site mitigation cannot be used to meet the mitigation requirements of Section 19.402.
(2)
For disturbances allowed within HCAs, off-site mitigation vegetation may be planted within an area contiguous to the subject-property HCA, provided there is documentation that the applicant possesses legal authority to conduct and maintain the mitigation, such as having a sufficient ownership interest in the mitigation site. If the off-site mitigation is not within an HCA, the applicant must document that the mitigation site will be protected after the monitoring period expires, such as through the use of a restrictive covenant.
7.
Invasive Vegetation
Invasive nonnative or noxious vegetation must be removed within the mitigation area prior to planting, including, but not limited to, species identified as nuisance plants on the Milwaukie Plant List.
8.
Ground Cover
Bare or open soil areas remaining after the required tree and shrub plantings must be planted or seeded to 100% surface coverage with grasses or other ground-cover species identified as native on the Milwaukie Plant List. Revegetation must occur during the next planting season following the site disturbance.
9.
Tree and Shrub Survival
A minimum of 80% of the trees and shrubs planted must remain alive on the second anniversary of the date that the mitigation planting is completed.
a.
Required Practices
To enhance the survival of the mitigation plantings, the following practices are required:
b.
Recommended Practices
To enhance the survival of tree replacement and vegetation plantings, the following practices are recommended:
(1)
Plant bare root trees between December 1 and April 15; plant potted plants between October 15 and April 30.
(2)
Use plant sleeves or fencing to protect trees and shrubs against wildlife browsing and the resulting damage to plants.
(3)
Water new plantings at a rate of 1 in per week between June 15 and October 15 for the first 2 years following planting.
c.
Monitoring and Reporting
Monitoring of the mitigation site is the ongoing responsibility of the property owner. Plants that die must be replaced in kind as needed to ensure the minimum 80% survival rate. The Planning Manager may require a maintenance bond to cover the continued health and survival of all plantings. A maintenance bond is not required for land use applications related to owner-occupied single-family residential projects. An annual report on the survival rate of all plantings must be submitted for 2 years.
10.
Light Impacts
Where practicable, lights must be placed so that they do not shine directly into any WQR and/or HCA location. The type, size, and intensity of lighting must be selected so that impacts to habitat functions are minimized.
C.
Mitigation Requirements for Disturbance within WQRs
1.
The requirements for mitigation vary depending on the existing condition of the WQR on the project site at the time of application. The existing condition of the WQR must be assessed in accordance with the categories established in Table 19.402.11.C.
2.
When disturbance within a WQR is approved according to the standards of Section 19.402, the disturbance must be mitigated according to the requirements outlined in Table 19.402.11.C and the standards established in Subsection 19.402.11.B.
Table 19.402.11.C WQR Mitigation | |
|---|---|
Existing Condition of WQR (What conditions for water quality and wildlife habitat are provided by the extent and character of existing vegetation?) | Mitigation Requirements |
Class A ("Good") | |
Combination of trees, shrubs, and ground cover are 80% present, with more than 50% tree canopy coverage in vegetated corridor. | • Submit a plan for mitigating water quality impacts related to the development, including: sediments, temperature, nutrients, or any other condition that may have caused the protected water feature to be listed on DEQ's 303(d) list. • Restore and replant disturbed areas with native species from the Milwaukie Plant List, using a City-approved plan developed to represent the vegetative composition that would naturally occur on the site. • Inventory and remove debris, noxious materials, and nuisance species vegetation. • Plant and/or seed all bare areas to provide 100% surface coverage. |
Class B ("Marginal") | |
Combination of trees, shrubs, and ground cover are 80% present, with at least 25-50% canopy coverage in vegetated corridor. | • Restore and replant disturbed areas with native species from the Milwaukie Plant List, using a City-approved plan developed to represent the vegetative composition that would naturally occur on the site. • Inventory and remove debris, noxious materials, and nuisance species vegetation. • Plant and/or seed all bare areas to provide 100% surface coverage. |
Class C ("Poor") | |
Combination of trees, shrubs, and ground cover are less than 80% present; and/or less than 25% canopy coverage in vegetated corridor. | • Restore and mitigate disturbed areas with native species from the Milwaukie Plant List, using a City-approved plan developed to represent the vegetative composition that would naturally occur on the site. • Inventory and remove debris, noxious materials, and nuisance species vegetation. • Plant and/or seed all bare areas to provide 100% surface coverage. |
D.
HCA Disturbance
1.
General Provisions for Disturbance in HCAs
a.
Temporary and Permanent Disturbances
All disturbances within an HCA that occur during construction or other development activities, whether temporary or permanent disturbances, count equally for the purposes of calculating and tracking the maximum disturbance area allowed for a particular site. Disturbance resulting from any activity deemed exempt per Subsection 19.402.4 will not be counted against the amount of disturbance allowed by Subsection 19.402.
b.
Disturbance in Excess of that Allowed by Section 19.402
In accordance with Subsection 19.402.8, proposed development that would disturb more HCA than allowed by Subsections 19.402.11.D.1.a and b is subject to the Type III review process and general discretionary review criteria, as outlined in Subsection 19.402.12.C.1.
c.
Disturbance Changes HCA Status
When disturbances within HCAs are allowed, in accordance with the applicable provisions of Section 19.402, the City will remove the HCA designation from such disturbance areas on the NR Map, as provided in Subsection 19.402.15.B.
In the case of a request to develop within an HCA on a property where a prior development request was subject to the disturbance area limitations of Subsection 19.402.11.D.1, the calculation of the new amount of disturbance area allowed within the HCA on the property will be based on the mapped location of the HCA at the time of the request, notwithstanding any previous calculation of allowed disturbance area.
2.
Mitigation Requirements for Disturbance in HCAs
To achieve the goal of reestablishing forested canopy that meets the ecological values and functions described in Subsection 19.402.1, when development intrudes into an HCA, tree replacement and vegetation planting are required according to the following standards, unless the planting is also subject to wetlands mitigation requirements imposed by state and federal law.
These mitigation options apply to tree removal and/or site disturbance in conjunction with development activities that are otherwise permitted by Section 19.402. They do not apply to situations in which tree removal is exempt per Subsection 19.402.4.A or approvable through Type I review (Subsection 19.402.6.A).
An applicant must meet the requirement of Mitigation Option 1 or 2, whichever results in more tree plantings; except that where the disturbance area is one acre or more, the applicant must comply with Mitigation Option 2. The Urban Forester may allow the mitigation requirements in this subsection to satisfy the mitigation requirements in Chapter 16.32 except that the mitigation requirements in Section 16.32.042 must be met when applicable.
a.
Mitigation Option 1
This mitigation requirement is calculated based on the number and size of trees that are removed from the site. Trees that are removed from the site must be replaced as shown in Table 19.402.11.D.2.a. Conifers must be replaced with conifers. Bare ground must 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.
Table 19.402.11.D.2.a Tree Replacement | |
|---|---|
Size of Tree to be Removed (inches in diameter) | Number of Trees and Shrubs to be Planted |
6 to 12 | 2 trees and 3 shrubs |
13 to 18 | 3 trees and 6 shrubs |
19 to 24 | 5 trees and 12 shrubs |
25 to 30 | 7 trees and 18 shrubs |
over 30 | 10 trees and 30 shrubs |
b.
Mitigation Option 2
This mitigation requirement is calculated based on the size of the disturbance area within an HCA. Native trees and shrubs are required to be planted at a rate of 5 trees and 25 shrubs per 500 sq ft of disturbance area. This is calculated by dividing the number of square feet of disturbance area by 500, multiplying that result times 5 trees and 25 shrubs, and rounding all fractions to the nearest whole number of trees and shrubs. For example, if there will be 330 sq ft of disturbance area, then 330 divided by 500 equals 0.66, and 0.66 times 5 equals 3.3, so 3 trees must be planted, and 0.66 times 25 equals 16.5, so 17 shrubs must be planted. Bare ground must 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.
c.
Adjustments to HCA Mitigation Requirements
Proposals to vary the number or size of trees and shrubs required as mitigation in Subsection 19.402.11.D.2 are subject to the Type II review process and the requirements of Subsection 19.402.12.C.2.
E.
Standards for Special Uses
Unless they are exempt per Subsection 19.402.4, or do not meet the nondiscretionary standards for HCAs provided in 19.402.11.D, the special uses listed in SubSection 19.402.7.A are subject to Type II review if they comply with the applicable standards in Subsection 19.402.11.E. Otherwise, the special uses listed in SubSection 19.402.7.A are subject to Type III review and the general discretionary review criteria provided in Subsection 19.402.12.
1.
General Standards for Special Uses
Except for stormwater management plans, all nonexempt special uses listed in Subsections 19.402.11.E.2 through 5 that do not meet the nondiscretionary standards for HCAs provided in Subsection 19.402.11.D must comply with the specific applicable standards in Subsection 19.402.11.E, as well as with the following general standards:
a.
In addition to a construction management plan prepared according to the standards of Subsection 19.402.9, a mitigation plan must be submitted per Subsection 19.402.11.D.2 or 19.402.12.C.2 for HCAs, as applicable, or per Subsection 19.402.11.C for WQRs. WQRs and HCAs must be restored and maintained in accordance with the approved mitigation plan.
b.
Existing vegetation outside of approved work areas shall be protected and left in place. Work areas must be carefully located and marked to reduce potential damage to WQRs and HCAs. Trees in WQRs or HCAs must not be used as anchors for stabilizing construction equipment.
c.
Where existing vegetation has been removed, or the original land contours disturbed, the site must be revegetated and the vegetation must be established as soon as practicable. Interim erosion control measures, such as mulching, must be used to avoid erosion on bare areas.
2.
Public or Private Utility Facilities
In addition to the requirements of Subsection 19.402.11.E.1, the following disturbance area limitations apply to all new public and private utility facilities, as well as to facility upgrades that are not exempted by Subsection 19.402.4 or that do not meet the nondiscretionary standards for HCAs provided in Subsection 19.402.11.D.
a.
The disturbance area for the upgrade of existing utility facilities can be no greater than 15 ft wide.
b.
The disturbance area for new underground utility facilities can be no greater than 25 ft wide and disturb no more than 200 linear feet of WQR within any 1,000-linear-foot stretch of WQR. Such a disturbance area must be restored with the exception of necessary access points to the utility facility.
c.
Disturbance areas shall be revegetated.
d.
No fill or excavation is allowed within the ordinary high water mark of a stream, unless a permit is obtained from the Corps through the Standard Local Operating Procedures for Endangered Species (SLOPES) process.
3.
New Stormwater Facilities
In addition to the requirements of Subsection 19.402.11.E.1, new stormwater facilities that are not exempted by Subsection 19.402.4, or that do not meet the nondiscretionary standards for HCAs provided in Subsection 19.402.11.D, must not encroach more than 25 ft into the outer boundary of the WQR adjacent to a primary protected water feature.
4.
Walkways and Bike Paths
In addition to the requirements of Subsection 19.402.11.E.1, walkways and bike paths that are not exempted by Subsection 19.402.4, or that do not meet the nondiscretionary standards for HCAs provided in Subsection 19.402.11.D, and that are proposed to be constructed or improved with gravel, permeable pavement, pavers, wood, or other materials, must comply with the following standards:
a.
Walkways and bike paths within WQRs or HCAs cannot exceed a 12-ft width.
b.
If the proposed walkway or bike path will be located within a WQR and will be paved, then, for the purposes of evaluating the proposed project, the vegetated corridor must be widened by the width of the walkway or bike path.
c.
The walkway or bike path must be designed to avoid WQRs and HCAs, to the greatest extent practicable, and must be constructed so as to minimize disturbance to existing vegetation and slope stability.
d.
The walkway or bike path must be a minimum of 10 ft from the boundary of the protected water feature.
e.
Where practicable, any lights associated with the walkway or bike path must be placed so that they do not shine directly into any WQR and/or HCA location. The type, size, and intensity of lighting must be selected so that impacts to habitat functions are minimized.
5.
Stormwater Management Plans
Stormwater management plans that authorize disturbance within the WQR or HCA may be approved if in compliance with all of the following standards:
a.
Stormwater facilities will be designed to provide an environmentally beneficial hydrological impact on protected water features.
b.
Protected water features will be protected from erosion by implementing a stream protection strategy and quantity control strategies.
c.
Watershed health will be improved through the use of vegetated facilities to meet pollution reduction, flow control, and infiltration goals. These facilities will be maintained in a manner that ensures a continued benefit to watershed health.
d.
Proposed stormwater management facilities will correct or improve conditions caused by past management and/or disturbance events, if any are present.
e.
Where there is no reasonable expectation of returning to natural conditions, beneficial habitat, vegetation, and stream function and hydrology will be restored to the fullest extent practicable within developed areas.
§ 19.402.12 General Discretionary Review.
This subsection establishes a discretionary process by which the City will analyze the impacts of development on WQRs and HCAs, including measures to prevent negative impacts and requirements for mitigation and enhancement. The Planning Manager may consult with a professional with appropriate expertise to evaluate an application, or they may rely on appropriate staff expertise to properly evaluate the report's conclusions.
A.
Impact Evaluation and Alternatives Analysis
An impact evaluation and alternatives analysis is required to determine compliance with the approval criteria for general discretionary review and to evaluate development alternatives for a particular property. A report presenting this evaluation and analysis must be prepared and signed by a knowledgeable and qualified natural resource professional, such as a wildlife biologist, botanist, or hydrologist. At the Planning Manager's discretion, the requirement to provide such a report may be waived for small projects that trigger discretionary review but can be evaluated without professional assistance.
The alternatives will be evaluated on the basis of their impact on WQRs and HCAs, the ecological functions provided by the resource on the property, and offsite impacts within the subwatershed (6th Field Hydrologic Unit Code) where the property is located. The evaluation and analysis must include the following:
1.
Identification of the ecological functions of riparian habitat found on the property, as described in Subsection 19.402.1.C.2.
2.
An inventory of vegetation, sufficient to categorize the existing condition of the WQR per Table 19.402.11.C, including the percentage of ground and canopy coverage materials within the WQR.
3.
An assessment of the water quality impacts related to the development, including sediments, temperature and nutrients, sediment control, and temperature control, or any other condition with the potential to cause the protected water feature to be listed on DEQ's 303(d) list.
4.
An alternatives analysis, providing an explanation of the rationale behind choosing the alternative selected, listing measures that will be taken to avoid and/or minimize adverse impacts to designated natural resources, and demonstrating that:
a.
No practicable alternatives to the requested development exist that will not disturb the WQR or HCA.
b.
Development in the WQR and/or HCA has been limited to the area necessary to allow for the proposed use.
c.
If disturbed, the WQR can be restored to an equal or better condition in accordance with Table 19.402.11.C; and the HCA can be restored consistent with the mitigation requirements of Subsection 19.402.11.D.2.
d.
Road crossings will be minimized as much as possible.
5.
Evidence that the applicant has done the following, for applications proposing routine repair and maintenance, alteration, and/or total replacement of existing structures located within the WQR:
a.
Demonstrated that no practicable alternative design or method of development exists that would have a lesser impact on the WQR than the one proposed. If no such practicable alternative design or method of development exists, the project will be conditioned to limit its disturbance and impact on the WQR to the minimum extent necessary to achieve the proposed repair/maintenance, alteration, and/or replacement.
b.
Provided mitigation to ensure that impacts to the functions and values of the WQR will be mitigated or restored to the extent practicable.
6.
A mitigation plan for the designated natural resource that contains the following information:
a.
A description of adverse impacts that will be caused as a result of development.
b.
An explanation of measures that will be taken to avoid, minimize, and/or mitigate adverse impacts to the designated natural resource in accordance with, but not limited to, Table 19.402.11.C for WQRs and Subsection 19.402.11.D.2 for HCAs.
c.
Sufficient description to demonstrate how the following standards will be achieved:
(1)
Where existing vegetation has been removed, the site must be revegetated as soon as practicable.
(2)
Where practicable, lights must be placed so that they do not shine directly into any WQR and/or HCA location. The type, size, and intensity of lighting must be selected so that impacts to habitat functions are minimized.
(3)
Areas of standing trees, shrubs, and natural vegetation will remain connected or contiguous; particularly along natural drainage courses, except where mitigation is approved; so as to provide a transition between the proposed development and the designated natural resource and to provide opportunity for food, water, and cover for animals located within the WQR.
d.
A map showing where the specific mitigation activities will occur. Off-site mitigation related to WQRs cannot be used to meet the mitigation requirements of Section 19.402.
e.
An implementation schedule; including a timeline for construction, mitigation, mitigation maintenance, monitoring, and reporting; as well as a contingency plan. All in-stream work in fish-bearing streams be done in accordance with the allowable windows for in-water work as designated by ODFW.
B.
Approval Criteria
1.
Unless specified elsewhere in Section 19.402, applications subject to the discretionary review process must demonstrate how the proposed activity complies with the following criteria:
a.
Avoid
The proposed activity avoids the intrusion of development into the WQR and/or HCA to the extent practicable. The proposed activity must have less detrimental impact to the designated natural resource than other practicable alternatives, including significantly different practicable alternatives that propose less development within the resource area.
b.
Minimize
If the applicant demonstrates that there is no practicable alternative that will avoid disturbance of the designated natural resource, then the proposed activity within the resource area must minimize detrimental impacts to the extent practicable.
(1)
The proposed activity must minimize detrimental impacts to ecological functions and loss of habitat, consistent with uses allowed by right under the base zone, to the extent practicable.
(2)
To the extent practicable within the designated natural resource, the proposed activity must be designed, located, and constructed to:
(a)
Minimize grading, removal of native vegetation, and disturbance and removal of native soils; by using the approaches described in Subsection 19.402.11.A, reducing building footprints, and using minimal excavation foundation systems (e.g., pier, post, or piling foundation).
(b)
Minimize adverse hydrological impacts on water resources.
(c)
Minimize impacts on wildlife corridors and fish passage.
(d)
Allow for use of other techniques to further minimize the impacts of development in the resource area; such as using native plants throughout the site (not just in the resource area), locating other required landscaping adjacent to the resource area, reducing light spill-off into the resource area from development, preserving and maintaining existing trees and tree canopy coverage, and/or planting trees where appropriate to maximize future tree canopy coverage.
c.
Mitigate
If the applicant demonstrates that there is no practicable alternative that will avoid disturbance of the designated natural resource, then the proposed activity must mitigate for adverse impacts to the resource area. All proposed mitigation plans must meet the following standards:
(1)
The mitigation plan must demonstrate that it compensates for detrimental impacts to the ecological functions of resource areas, after taking into consideration the applicant's efforts to minimize such detrimental impacts.
(2)
Mitigation must occur on the site of the disturbance, to the extent practicable. Off-site mitigation for disturbance of WQRs will not be approved. Off-site mitigation for disturbance of HCAs will be approved if the applicant has demonstrated that it is not practicable to complete the mitigation on-site and if the applicant has documented that they can carry out and ensure the success of the off-site mitigation as outlined in Subsection 19.402.11.B.5.
In addition, if the off-site mitigation area is not within the same subwatershed (6th Field Hydrologic Unit Code) as the related disturbed HCA, the applicant must demonstrate that it is not practicable to complete the mitigation within the same subwatershed and that, considering the purpose of the mitigation, the mitigation will provide more ecological functional value if implemented outside of the subwatershed.
(3)
All revegetation plantings must use native plants listed on the Milwaukie Plant List.
(4)
All in-stream work in fish-bearing streams must be done in accordance with the allowable windows for in-water work as designated by ODFW.
(5)
A mitigation maintenance plan must be included and must be sufficient to ensure the success of the planting. Compliance with the plan will be a condition of development approval.
2.
Municipal Water Utility Facilities Standards
In addition to all other applicable criteria of Subsection 19.402.12.B, and if not already exempted by Subsection 19.402.4, municipal potable water, stormwater, 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) may be built, expanded, repaired, maintained, reconfigured, rehabilitated, replaced, or upsized in accordance with the following criteria:
a.
Such projects are not required to avoid the resource area per Subsection 19.402.12.B.1.a, provided that, where practicable, the project does not encroach closer to a protected water feature than existing operations and development; or, for new projects where there are no existing operations or development, provided that the project does not encroach closer to a protected water feature than practicable.
b.
Best management practices will be employed that accomplish all of the following:
(1)
Account for watershed assessment information in project design.
(2)
Minimize the trench area and tree removal within the resource area.
(3)
Utilize and maintain erosion controls until other site stabilization measures are established, post-construction.
(4)
Replant immediately after backfilling, or as soon as effective.
(5)
Preserve wetland soils and retain soil profiles.
(6)
Minimize compactions and the duration of the work within the resource area.
(7)
Complete in-water construction during appropriate seasons, or as approved within requisite federal or state permits.
(8)
Monitor water quality during the construction phases, if applicable.
(9)
Implement a full inspection and monitoring program during and after project completion, if applicable.
C.
Limitations and Mitigation for Disturbance of HCAs
1.
Discretionary Review to Approve Additional Disturbance within an HCA
An applicant seeking discretionary approval to disturb more of an HCA than is allowed by Subsection 19.402.11.D.1 must submit an Impact Evaluation and Alternatives Analysis, as outlined in Subsection 19.402.12.A, and will be subject to the approval criteria provided in Subsection 19.402.12.B.
An applicant may use the nondiscretionary mitigation options presented in Subsection 19.402.11.D.2 as a guide for proposing mitigation measures that will then be evaluated against the approval criteria provided in Subsection 19.402.12.B.
2.
Discretionary Review to Approve Mitigation that Varies the Number and Size of Trees and Shrubs within an HCA
An applicant seeking discretionary approval to proportionally vary the number and size of trees and shrubs required to be planted under Subsection 19.402.11.D.2 (e.g., to plant fewer larger trees and shrubs or to plant more smaller trees and shrubs) but who will comply with all other applicable provisions of Subsection 19.402.11, will be subject to the following process:
a.
The applicant shall submit the following information:
(1)
A calculation of the number and size of trees and shrubs the applicant would be required to plant under Subsection 19.402.11.D.2.
(2)
The number and size of trees and shrubs that the applicant proposes to plant.
(3)
An explanation of how the proposed number and size of trees and shrubs will achieve, at the end of the third year after initial planting, comparable or better mitigation results than would be achieved if the applicant complied with all of the requirements of Subsection 19.402.11.D.2. Such explanation must be prepared and signed by a knowledgeable and qualified natural resource professional or a certified landscape architect. It must include discussion of site preparation including soil additives, removal of invasive and noxious vegetation, plant diversity, plant spacing, and planting season; and immediate post-planting care, including mulching, irrigation, wildlife protection, and weed control.
(4)
A mitigation, site-monitoring, and site-reporting plan.
b.
Approval of the request shall be based on consideration of the following:
(1)
Whether the proposed planting will achieve, at the end of the third year after initial planting, comparable or better mitigation results than would be achieved if the applicant complied with all of the requirements of Subsection 19.402.11.D.2.
(2)
Whether the proposed mitigation adequately addresses the plant diversity, plant survival, and monitoring practices established in Subsection 19.402.11.B.
§ 19.402.13 Land Division and Property Line Adjustments.
The following standards apply to property line adjustments and all forms of land division defined in Chapter 17.08. These standards apply in addition to the applicable requirements provided in Title 17 Land Division and elsewhere in Title 19 Zoning. Lot consolidations, as defined in Chapter 17.08, are not subject to the provisions of Section 19.402.
A.
Boundary Verification
Whether or not an applicant believes the NR Map is accurate, the applicant must verify the boundaries of the WQR and HCA on the property according to Subsection 19.402.15.
B.
Construction Management Plans
1.
In accordance with Subsection 19.402.9, a construction management plan is required for applications for land division that will require physical site improvements (e.g., grading and/or construction of structures, streets, or utilities) within, or within 100 ft of, a WQR or HCA.
2.
A construction management plan is not required for applications for land division that do not require grading; constructing structures, streets, or utilities; or making other physical improvements to the site.
C.
Impacts from Site Improvements
Applications for land division that will require physical site improvements (e.g., grading and/or the construction of streets, sidewalks, culverts, bridges, or utilities) within a WQR or HCA must comply with the relevant standards for disturbance limitation and mitigation provided in Subsections 19.402.11 and/or 19.402.12, as applicable.
D.
Mitigation for Future Structures or Improvements
Applications proposing a division of land on which future construction may impact a WQR or HCA must comply with one of the following two standards:
1.
Complete the mitigation requirements for any impacts to the WQR or HCA, in accordance with the requirements of Section 19.402, thereby exempting all subsequent development on lots containing a WQR and/or HCA from further review if in compliance with the related approval. When mitigation is required for new streets created as part of a subdivision, as outlined in Subsection 19.402.13.H, such mitigation must be completed prior to approval of the final plat for the subdivision, unless the Planning Commission's approval establishes a different schedule.
E.
Property Line Adjustments
Applications for property line adjustment, when any of the properties include HCAs, must address the resulting change in the percentage of HCA coverage on each property and demonstrate compliance with one of the following standards:
1.
The proposed property line adjustment will result in no more than a 30-point difference in the percentage of HCA coverage on each property. Such an adjustment is subject to the Type I review process.
2.
The proposed property line adjustment will not contravene a condition of approval related to HCA distribution from a previously approved land division. Such an adjustment is subject to the Type I review process.
3.
The proposed property line adjustment cannot meet the standard of Subsection 19.402.13.E.1, above, but will result in the smallest practicable difference in the percentage of HCA coverage on each property. Furthermore, the new boundary configuration will mitigate, to the extent practicable, the potential future impacts to the HCA from access and development. Such an adjustment is subject to the Type II review process.
F.
Low-Impact Partitions
Applications for partitions are subject to Type I review if they demonstrate compliance with the following standards:
1.
For properties that contain HCAs, but no WQRs, and where the HCA covers 85% or less of the total lot area, the partition must achieve either of the following results:
a.
There must be no more than a 30-point difference in the percentage of HCA coverage on each of the new parcels. For example, a two-lot partition that would produce one parcel that is 55% HCA and the other that is 30% HCA is permissible with Type I review, whereas, a two-lot partition that would produce one parcel that is 75% HCA and the other that is 40% HCA is not permissible with Type I review and will be subject to the standards of Subsection 19.402.13.G.
b.
At least 90% of the original property's HCA is on a separate unbuildable parcel, protected by a conservation restriction.
2.
For properties that contain WQRs, the applicant must place 100% of the WQR in a separate unbuildable tract, protected by a conservation restriction.
3.
For properties that contain both WQRs and HCAs, the applicant must comply with both of the standards listed above in Subsections 19.402.13.F.1 and 2.
4.
For properties where the HCA covers more than 85% of the total lot area, the proposed partition is subject to the standards and review process established in Subsection 19.402.13.G.
G.
All Other Partitions
Applications for partitions that cannot comply with Subsection 19.402.13.F are subject to Type II review and must comply with one of the following two standards:
1.
For properties that do not contain any WQRs, but for which it is not practicable to comply with the partition standards in Subsection 19.402.13.F.1, and where the HCA covers 85% or less of the total lot area, the application must meet the following standards and is not subject to the requirements of Subsection 19.402.12:
2.
For properties that contain WQRs but cannot comply with Subsection 19.402.13.F.2, that contain both WQRs and HCAs but cannot comply with Subsection 19.402.13.F.3, or where the HCA covers more than 85% of the total lot area, the application must comply with the following standards:
a.
To the extent practicable, the parcel configuration must mitigate the potential future impacts to WQRs from access and development.
b.
An Impact Evaluation and Alternatives Analysis must be prepared in accordance with the relevant portions of Subsection 19.402.12.A.
c.
For properties where the HCA covers more than 85% of the total lot area, the Impact Evaluation and Alternatives Analysis must address how the applicant's proposal retains the greatest practicable degree of contiguity of the HCA across the new parcels.
H.
Subdivisions
Applications for subdivisions are subject to Type II review and must comply with one of the following two standards:
1.
At least 90% of the property's HCA and 100% of the property's WQR must be located in a separate tract. Applications that meet this standard are not subject to the discretionary review requirements of Subsection 19.402.12.
2.
If a subdivision cannot comply with the standards in Subsection 19.402.13.H.1, the application must comply with the following standards:
a.
All proposed lots must have adequate buildable area outside of the WQR and HCA.
b.
To the extent practicable, the lot and access configurations must mitigate the potential future impacts to the WQR and HCA from access and development.
c.
An Impact Evaluation and Alternatives Analysis must be prepared in accordance with the relevant portions of Subsection 19.402.12.A.
d.
For properties where the HCA covers more than 85% of the total lot area, the Impact Evaluation and Alternatives Analysis must address how the applicant's proposal retains the greatest practicable degree of contiguity of the HCA across the new lots.
I.
Resource Area as a Separate Tract
Where required by Section 19.402, the new subdivision or partition plat must delineate and show all WQRs and HCAs as being located in a separate unbuildable tract(s) according to the following process:
1.
Prior to preliminary plat approval, the designated natural resource (whether WQR, HCA, or both) must be shown as a separate tract(s), which cannot be part of any lot or parcel used for construction of any structures.
2.
Prior to final plat approval, ownership of the separate natural resource tract(s) must be identified to distinguish it from lots or parcels intended for sale. Ownership in common or by a homeowners association is strongly discouraged. The tract(s) may be identified as any one of the following:
a.
Private natural area held by the owner with a restrictive covenant and/or conservation easement.
b.
For residential subdivisions, private natural area subject to an easement conveying storm and surface water management rights to the City of Milwaukie, Clackamas County Water Environment Services, and/or any other relevant jurisdiction, and preventing the owner of the tract from activities and uses inconsistent with the purposes of Section 19.402.
c.
Public natural area where the tract has been dedicated to the City of Milwaukie or a private nonprofit with the mission of land conservation.
3.
The boundaries of all such separate tracts must be demarcated with stakes, flags, or some similar means so that the boundaries between tracts and adjacent properties are defined in perpetuity. Fences that prevent the unfettered passage of wildlife cannot be installed along the boundary of any tract.
§ 19.402.14 Adjustments and Variances.
To encourage applicants to avoid or minimize impacts to WQRs and/or HCAs, several types of adjustments and variances are available for use on any property that includes a WQR or HCA. These include adjustments to specific base zone and lot design standards, discretionary variances, and allowances for residential cluster development.
A.
Adjustments
The adjustments provided in Subsection 19.402.14.A cannot be used to avoid the requirement to submit a construction management plan, if deemed applicable per Subsection 19.402.3. The following adjustments are allowed by right as part of any Type I, II, or III application:
1.
Adjustments to Base Zone Standards
a.
Yard Setback (General)
Yard setback standards may be adjusted by up to 10%. This allowance applies only to the yard requirements established in base zones and does not apply to additional yard requirements for conditional uses or community service uses, yard exceptions established in Subsection 19.501.2, or transition area measures established in Subsection 19.504.4.
b.
Rear Yard Setback (Limited)
For residential development, if the subject property is adjacent to a separate tract that was established according to the standards of Subsection 19.402.13.I and the tract is adjacent to the rear yard of the subject property, the minimum rear yard requirement may be reduced to 10 ft.
2.
Adjustments to Lot Design Standards
When property boundaries are changed and/or land divided per Title 17 Land Division, an applicant may utilize the following adjustments to avoid or minimize impacts to a WQR or HCA:
B.
Variances
1.
Requests to vary any standards beyond the adjustments allowed in Subsections 19.402.14.A or B are subject to the review process and approval criteria for variances established in Section 19.911.
2.
In granting any variance request related to Section 19.402, the Planning Commission may impose such conditions as are deemed necessary to minimize adverse impacts that may result from granting the variance. Examples of such conditions include, but are not limited to, maintaining a minimum width of the vegetated corridor alongside a primary protected water feature and limiting the amount of WQR for which the adjacent vegetated corridor width can be reduced.
§ 19.402.15 Boundary Verification and Map Administration.
The NR Map shows the locations of WQRs and HCAs. For WQRs, the NR Map is a general indicator of protected water features and their associated vegetated corridors; the location of actual WQRs is determined according to the parameters established in Table 19.402.15. With respect to HCA locations, the NR Map is assumed to be correct unless demonstrated otherwise.
Table 19.402.15 Determination of WQR Location | |||
|---|---|---|---|
Protected Water Feature Type | Slope Adjacent to Protected Water Feature | Starting Point for measurements from Protected Water Feature | Width of Vegetated Corridor1 |
Primary Protected Water Features2 | < 25% | • Bankful stage (top of bank) or 2-year recurrence interval flood elevation • Delineated edge of Title 3 wetland | 50′ |
Primary Protected Water Features2 | ≥ 25% for 150' or more3 | • Bankful stage or 2-year flood elevation • Delineated edge of Title 3 wetland | 200′ |
Primary Protected Water Features2 | ≥ 25% for less than 150'3 | • Bankful stage or 2-year flood elevation • Delineated edge of Title 3 wetland | Distance from starting point of measurement to top of ravine (break in ≥ 25% slope)4 plus 50′5 |
Secondary Protected Water Features6 | < 25% | • Bankful stage or 2-year flood elevation | 15′ |
Secondary Protected Water Features6 | ≥ 25%3 | • Bankful stage or 2-year flood elevation | 50′ |
1 | Vegetated corridor width will be applied to the outer boundaries of water features, such as the edge of a wetland and both banks of a watercourse. |
2 | |
3 | Vegetated corridors in excess of 50 ft for primary protected features, or in excess of 15 ft for secondary protected features, apply on steep slopes only in the uphill direction from the protected water feature. |
4 | Where the protected water feature is confined by a ravine or gully, the top of ravine is the break in the 25% slope. |
5 | A maximum reduction of 25 ft may be permitted in the width of the vegetated corridor beyond the slope break if a geotechnical report demonstrates that the slope is stable. To establish the width of the vegetated corridor, slope will be measured in 25-ft increments away from the water feature until the slope is less than 25% (top of ravine). |
6 | Secondary protected water features include intermittent streams draining 50 to 100 acres. See Section 19.201 for the full definition. |
A.
Boundary Verification
To determine whether the standards of Section 19.402 apply to a proposed activity at any given location, the boundaries of any designated natural resource(s) on or near the site must be verified.
Agreement with the accuracy of the NR Map does not constitute or require a land use decision. However, for activities proposed within 100 ft of a wetland or its associated vegetated corridor, the boundary verification process outlined in Subsection 19.402.15.A.2.a(1)(b) must be followed to identify the specific location of wetlands on the subject property. The Planning Manager may waive the requirement for official wetland delineation, depending on the specific circumstances of the site and the proposed activity. Such circumstances may include, but are not limited to, the scale and potential impacts of the proposed activity, the proximity of the proposed activity to the mapped resource, and the Manager's confidence in the accuracy of the NR Map relative to the resource in question.
An applicant may challenge the accuracy of the NR Map through either of the boundary verification processes outlined in Subsections 19.402.15.A.1 and 2.
1.
Type I Boundary Verification
The following minor corrections to mapped HCAs may be proposed according to one of the following procedures, and are subject to Type I review per Section 19.1004:
a.
Simple Incongruities
In some cases, the vegetative cover data shown on the NR Map might not align with the location of existing legally established development or tree cover. An applicant who believes that the NR Map is inaccurate, based on such an obvious misalignment, must submit the following information regarding the property:
(1)
A detailed property description and site plan of the property that includes all existing conditions plans listed on the City's Site Plan Requirements checklist.
(2)
A copy of the applicable NR Map section.
(3)
The latest available aerial photograph of the property, with lot lines shown, at a scale of at least 1 map inch equal to 50 ft for lots of 20,000 or fewer square feet, and a scale of 1 map inch equal to 100 ft for larger lots.
(4)
A documented demonstration of the misalignment between the NR Map and the property's tax lot boundary lines and/or the location of existing legally established development.
(5)
Any other factual information that the applicant wishes to provide to support boundary verification.
b.
Legal Development Prior to Adoption Date
If a property was legally developed between the summer of 2002 (when the aerial photograph used to determine the regional habitat inventory was taken) and September 15, 2011, the effective date of Ordinance #2036, the applicant must submit the following information regarding the property:
(1)
The information described in Subsection 19.402.15.A.1.a.
(2)
A summer 2002 aerial photograph of the property, with lot lines shown, at a scale of at least 1 map inch equal to 50 ft for lots of 20,000 or fewer square feet, and a scale of 1 map inch equal to 100 ft for larger lots.
(3)
Any approved building permits or other development plans and drawings related to the development of the property that took place between summer 2002 and September 15, 2011, the effective date of Ordinance #2036.
(4)
A clear explanation and documentation, such as supporting maps or drawings or a more recent aerial photograph, indicating the new development that has occurred and where previously identified habitat no longer exists because it is now part of a developed area.
2.
Type II Boundary Verification
Corrections to mapped WQRs and/or detailed verification of mapped HCAs may be proposed according to the following procedures, and are subject to Type II review per Section 19.1005.
a.
Corrections to WQRs
(1)
Submittal Requirements
To propose a correction to a WQR shown on the NR Map, the applicant must submit the following information, depending on the type of water feature in question:
(a)
Drainages
In the case of drainages; including rivers, streams, springs, and natural lakes; the applicant must submit a report, prepared by a qualified scientist or professional engineer who specializes in hydrology, demonstrating whether or not the drainage meets the definition of a protected water feature. If the drainage is demonstrated to be a protected water feature, the applicant must provide a topographic map of the site, with contour intervals of 5 ft or less, that shows the specific location of the drainage on the subject property.
(b)
Wetlands
In the case of wetlands, the applicant must submit a wetland delineation report, prepared by a professional wetland specialist in accordance with the 1996 Oregon Freshwater Wetland Assessment Methodology and following the wetlands delineation process established by DSL, demonstrating the location of any wetlands on the site. The delineation report will be accepted only after approval by DSL. If the wetland is demonstrated to be a primary protected water feature, the applicant must provide a topographic map of the site, with contour intervals of 5 ft or less, that shows the specific location of the wetland on the subject property.
The Planning Manager will confer with DSL and Metro to confirm delineation and hydrology reports, as may be needed, prior to issuing a notice of decision on a requested map correction. In cases where the City initiates the boundary verification for purposes of improving the accuracy of the NR map, a formal delineation approval by DSL is not required, though a report following the delineation process established by DSL must be provided.
(2)
Approval Criteria
The City will update the NR Map if the wetland or hydrology report submitted demonstrates any of the following:
(a)
That there was an error in the original mapping.
(b)
That the boundaries of the WQR have changed since the most recent update to the NR Map.
(c)
That a primary protected water feature no longer exists because the area has been legally filled, culverted, or developed prior to January 16, 2003, the effective date of Ordinance #1912.
b.
Detailed Verification of HCAs
An applicant who believes that an HCA shown on the NR Map should be corrected for a reason other than those described in Subsections 19.402.15.A.1.a or b may propose a detailed verification.
(1)
Submittal Requirements
The applicant must submit a report prepared and signed by either a knowledgeable and qualified natural resource professional; such as a wildlife biologist, botanist, or hydrologist; or a civil or environmental engineer registered in Oregon to design public sanitary or storm systems, stormwater facilities, or other similar facilities. The report must include:
(a)
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.
(b)
The information described in Subsection 19.402.15.A.1.a.
(c)
The information described in Subsection 19.402.15.A.1.b, if the applicant believes such information is relevant to the verification of habitat location on the subject lot or parcel.
(d)
Additional aerial photographs, if the applicant believes they provide better information regarding the property, including documentation of the date and process used to take the photos and an expert's interpretation of the additional information they provide.
(e)
A map showing the topography of the property shown by 2-ft vertical contours in areas of slopes less than 15%, and at 5-ft vertical contours of slopes 15% or greater.
(f)
Any additional information necessary to address each of the detailed verification criteria provided in Subsection 19.402.15.A.2.b.(2); a description of where any HCAs are located on the property, based on the application of the detailed verification criteria; and factual documentation to support the analysis.
(2)
Approval Criteria
A boundary verification request submitted under Subsection 19.402.15.A.2.b will be evaluated according to the following three-step process:
(a)
Identify Riparian Habitat
Locate the water feature that is the basis for identifying riparian habitat.
(i)
Locate the top of bank of all streams, rivers, and open water within 200 ft of the property.
(ii)
Locate all flood areas within 100 ft of the property.
(iii)
Locate all wetlands within 150 ft of the property, based on the NR Map. Identified wetlands must be further defined or informally delineated consistent with methods currently accepted by DSL and the Corps.
(b)
Identify Vegetative Cover Status
Identify the vegetative cover status of all undeveloped areas on the property that are within 200 ft of the top of bank of streams, rivers, and open water; are wetlands or are within 150 ft of wetlands; and are flood areas (i.e., 100-year floodplain) and within 100 ft of flood areas. For purposes of this subsection, "undeveloped areas" means those portions of the property that have not been changed from a more natural, pre-development state by buildings, accessory structures, parking and loading areas, paved or graveled areas, improved open areas (such as plazas and walkways), hardscape landscaping, above-ground utilities, and/or similar improvements.
Determine whether these undeveloped areas fall into any of the following three categories:
(i)
Low structure vegetation or open soils = Undeveloped areas that are part of a contiguous area 1 acre or larger of grass, meadow, croplands, or areas of open soils located within 300 ft of a surface stream. Low structure vegetation areas may include areas of shrub vegetation less than 1 acre in size; if they are contiguous with areas of grass, meadow, croplands, orchards, Christmas tree farms, holly farms, or areas of open soils located within 300 ft of a surface stream; and if those contiguous areas together form an area of 1 acre in size or larger.
(ii)
Woody vegetation = Undeveloped areas that are part of a contiguous area 1 acre or larger of shrub or open or scattered forest canopy (less than 60% crown closure) located within 300 ft of a surface stream.
(iii)
Forest canopy = Undeveloped areas that are part of a contiguous grove of trees of 1 acre or larger in area with approximately 60% or greater crown closure, irrespective of whether the entire grove is within 200 ft of the relevant water feature.
(c)
Confirm HCA Boundaries
Using Table 19.402.15.A.2.b.(2).(c), determine whether any portion of the identified undeveloped riparian areas on the subject property is classifiable as HCA.
Table 19.402.15.A.2.b.(2).(c) Identifying Habitat Conservation Areas (HCAs) | |||
|---|---|---|---|
Distance from Protected Water Feature | Vegetation Status of Undeveloped Riparian Area | ||
Low Structure Vegetation or Open Soils | Woody Vegetation (shrub and scattered forest canopy) | Forest Canopy (closed to open forest canopy) | |
Surface Streams | |||
0 ft — 100 ft | HCA | HCA | HCA |
101 ft — 200 ft | HCA if slope > 25%1 (otherwise not HCA) | HCA if slope > 25%1 (otherwise not HCA) | HCA2 |
Wetlands (wetland feature itself is an HCA) | |||
0 ft — 100 ft | HCA | HCA | HCA |
101 ft — 150 ft | Not HCA | Not HCA | HCA |
Flood Areas (FEMA's 1% annual chance flood hazard area or 1996 Metro flood area) | |||
Within 300 ft of river or surface stream | HCA | HCA | HCA |
More than 300 ft from river or surface stream | HCA | HCA | HCA |
0 ft — 100 ft from edge of flood area | Not HCA | HCA | HCA |
Notes: | |||
|---|---|---|---|
1 | Measure slope adjacent to the protected water feature using the methodology outlined in Table 19.402.15. | ||
2 | Those portions of the riparian area that are 151 to 200 ft from the protected water feature and have a slope less than 25% are not HCA. | ||
(3)
Notification to Metro and DLCD
When an application for boundary verification proposes corrections to mapped HCAs that would result in a change in HCA designation of 1 acre or more, the City will notify Metro and the Oregon Department of Land Conservation and Development within 7 days after the application has been deemed complete, in accordance with the Type II referral procedure outlined in Subsection 19.1005.3.A.
3.
Type III or V Boundary Verification
Corrections to mapped WQRs or HCAs that are not subject to processing according to the provisions outlined in either of Subsection 19.402.15.A.1 or A.2, such as in cases where the City initiates the change without property owner authorization and/or where the changes involve more properties than for which it is practicable to obtain all property owners' authorization, will be processed in accordance with the procedures for zoning map amendments as provided in Subsection 19.902.6. Such corrections will be processed with either Type III or Type V review, accordingly, but do not constitute amendments to the Zoning Map itself, only to the NR Map.
B.
Map Administration
1.
Updates to the NR Map
When a boundary verification, conducted in accordance with the standards of Subsection 19.402.15.A, demonstrates an error in the location of a WQR or HCA shown on the NR Map, the City will update the NR Map to incorporate the corrected information as soon as practicable. Changes to the NR Map are not considered amendments to the City's Comprehensive Plan, to Comprehensive Plan Map 6 (Natural Resources Inventory), or to the Zoning Map.
2.
3.
Designation of Annexed Areas
When land annexed to the City includes WQRs and/or HCAs, as designated by Clackamas County, those same designations will be shown on the City's NR Map at the time of annexation. Verification of the boundaries of such WQRs and/or HCAs will be processed in accordance with the applicable provisions established in Subsection 19.402.15.A; not necessarily at the time of annexation, but at such time as a new activity is proposed on the annexed property.
§ 19.403 Historic Preservation Overlay Zone HP
(Ord. 2025 § 2, 2011; Ord. 2112 § 2 (Exh. B), 2015; Ord. 2218 § 2 (Exh. B), 2022)
§ 19.403.1 Purpose.
The intent and purpose of this section is to promote the general welfare by providing for the identification, protection, enhancement, perpetuation, and use of sites, structures, districts, objects, and buildings within the City that reflect the City's unique architectural, archaeological, and historical heritage, and to facilitate preservation of such properties in order to:
A.
Safeguard the City's heritage as embodied and reflected in such resources;
B.
Encourage public knowledge, understanding, and appreciation of the City's history and culture;
C.
Foster community and neighborhood pride and sense of identity based on recognition and use of cultural resources;
D.
Promote the enjoyment and use of cultural resources appropriate for the education and recreation of the people of the City;
E.
Preserve diverse and significant architectural styles reflecting phases of the City's history, and encourage complementary design and construction relative to cultural resources;
F.
Enhance property value and increase economic and financial benefits to the City and its residents;
G.
Identify and resolve conflicts between the preservation of cultural resources and alternative land uses;
H.
Integrate the management of cultural resources and relevant data into public and private land management and development processes; and
I.
Implement the goals and policies of the Comprehensive Plan.
§ 19.403.2 Applicability.
§ 19.403.3 Definitions.
"Landmark alteration"
means a change, addition, or modification of a landmark which affects the exterior of the landmark, excluding routine maintenance as defined in Subsection 19.403.6 of this section.
means the City of Milwaukie Planning Commission.
means an historic resource ranking whereby buildings, sites, structures, or objects are less significant examples of architecture or of lesser historical association. These, over time, may become a source for additional "significant" resources. To be designated as "contributing," an historic resource must receive a rating score level of 50 to 60% on the evaluation worksheet or score a high of 10 in at least one of the categories of the evaluation worksheet.
means to raze, destroy, dismantle, deface, or in any other manner cause partial or total destruction of a designated resource or building in an historic district.
means a rating system used by the City to rank historic resources as to their historic, architectural, or environmental characteristics. The ranking system is numerical with a top score of 86 and is part of the historic and cultural resources inventory, located in the background paper.
means the 1988 Milwaukie Historic and Cultural Resources Inventory included as part of the Historic Resources Background Paper of the Comprehensive Plan.
means any site, object, building, ensemble, district or structure which is included in the Historic and Cultural Resources Inventory.
means a cultural resource that has been designated by the City Council as per Subsection 19.403.4 of this section.
means an historic resource ranking whereby important buildings, sites, structures, or objects in Milwaukie are distinguished by outstanding qualities of architecture, relationship to environment, and/or historic associations. To be designated as "significant," an historic resource must receive a rating score level of 60% or greater on the evaluation worksheet and be at least 50 years old, or score a high of 10 in at least two of the categories of the evaluation worksheet, or be listed on the National Register of Historic Places.
means historic resources that lack sufficient information to be ranked. When that information is available, those found to be "significant" or "contributing" shall be recommended by the Planning Commission for designation as "landmarks."
§ 19.403.4 Process for Designation or Deletion of a Landmark.
A.
Application Request
The owner of record, contract purchaser, or an agent of any of the foregoing, of property within the City may make application for resource designation or deletion. The application shall be in such form and detail as the Planning Director prescribes and processed per Section 19.1007 Type IV Review. The application shall be submitted to the Planning Director. The Planning Commission or the City Council may also initiate such proceedings on their own motion.
B.
Planning Commission
The Commission shall conduct a public hearing to evaluate the request. The Commission shall enter findings and make a written recommendation to the City Council.
C.
City Council
The City Council shall conduct a public hearing to consider the recommendation of the Planning Commission on the request and shall either approve, approve with conditions, or deny the request.
D.
Pending Permits
No new construction, exterior alteration, demolition, or removal permits for any improvement, building, or structure relative to a proposed landmark shall be issued while any public hearing or any appeal affecting the proposed action is pending.
E.
Interim Measures
Upon a request for new construction, exterior alteration, or demolition of a resource which is on the inventory but designated as "unrankable," for lack of information regarding location, quality, or quantity, the applicant shall be required to first complete the designation process for the resource as outlined in this subsection.
§ 19.403.5 Alteration and Development.
A.
Review Required
Any exterior alteration of a landmark shall be subject to review under the provision of this Subsection 19.403.5. This review applies only to those resources determined to be "significant" on the inventory. Resources designated "unrankable" must complete the process referred to in Subsection 19.403.4.
B.
Application Request
The application shall be submitted to the Planning Director. The application shall be in such form and detail as the Planning Director prescribes. Applications subject to Subsection 19.403.5.C below shall follow the Type I review process of Section 19.1004.
C.
Administrative Approval
1.
The Planning Director shall approve alteration requests if:
2.
The following minor alterations are exempt from review, provided these actions meet the above standards:
a.
Replacement of gutters and downspouts, or the addition of gutters and downspouts, using materials that match the appearance of those that were typically used on similar-style buildings;
b.
Repairing or providing a compatible new foundation that does not result in raising or lowering the building elevation;
c.
Replacement of building material, when required due to deterioration of material, with building material that matches the appearance of the original material;
d.
Repair and/or replacement of roof materials with the same kind of roof materials existing, or with materials which are in character with those of the original roof;
e.
Application of storm windows made with wood, bronze, or flat finished anodized aluminum, or baked enamel frames which complement or match the color detail and proportions of the building;
f.
Replacement of wood sashes with new woods sashes, or the addition of wood sashes when such is consistent with the original historic appearance;
g.
Installation of solar equipment so that it complies with Subsection 19.403.5.C.2.e above;
h.
The installation of security doors and security lighting systems.
D.
Other Requests
All requests that do not meet the provisions of Subsection 19.403.5.C above shall be forwarded to the Commission. The Commission's decision will be final after notice and public hearing held the same as Section 19.1006 Type III Review. The Commission shall approve or disapprove issuance of the permit. The Commission may attach conditions to the approval for permit which must be adhered to for the permit to remain valid.
E.
Criteria and Findings
Approval of a permit to alter a landmark or any property in the HP District shall be based on findings of adherence to the following guidelines:
1.
Retention of Original Construction
Distinguishing original qualities defining a resource's character shall not be destroyed. Removal or alteration of historic materials or distinctive architectural features should be avoided when possible.
2.
Building Height
Existing building heights should be maintained. Alteration of roof pitches shall be avoided. Raising or lowering a building's permanent elevation when constructing a foundation shall be avoided, except as required by building code or floodplain development permit.
3.
Horizontal Additions
The scale and proportion of building additions, including the relationship of windows to walls, shall be visually compatible with the traditional architectural character of the historic building. Contemporary design for alterations and additions is acceptable if the design respects the building's original design and is compatible with the original scale, materials, and window and door-opening proportions of the building.
4.
Windows
Window replacements shall match the visual qualities of original windows as closely as possible. Wood window frames are preferred in meeting this standard. However, if nonwood replacements exhibit similar visual qualities as their wooden counterparts, they may be acceptable. The original number of window panes shall be maintained or restored when replacements are required.
5.
Restoration Possible
Except where building code precludes it, new additions or alteration to buildings shall be done in such a manner that if such additions or alterations were to be removed in the future, the essential form and integrity of the original building could be restored.
6.
Signs and Lighting
Signs, lighting, and other appurtenances (such as walls, fences, awnings, and landscaping) shall be visually compatible with the original character of the building.
7.
Time Period Consistency
Buildings shall be recognized as products of their own time. Alterations that have no Historical basis or which seek to create an earlier appearance shall be avoided.
8.
Visual Integrity/Style
Distinctive stylistic features, such as a line of columns, piers, spandrels, or other primary structural elements, or examples of skilled craftsmanship which characterize a building, shall be maintained or restored as far as is practicable.
9.
Replacement or Additional Materials
Whenever possible, deteriorated architectural features shall be repaired rather than replaced. In the event replacement of an existing feature is necessary, or an addition is proposed, new materials should match those of the original building, to the extent possible, in composition, design, color texture, and other visual qualities.
§ 19.403.6 Maintenance and Repair.
Nothing in this title shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature which does not involve a change in design, material, or appearance of such feature, or which the building official shall certify is required for Public safety due to an unsafe or dangerous condition.
§ 19.403.7 Demolition.
A.
Notification of Demolition Request
If an application is made for a building permit to demolish all or part of a designated cultural resource, to the extent that the historic designation is affected, the building official shall, within 7 days of the receipt of an application, transmit a copy of the application to the Commission. This review applies to all resources determined to be "significant" or "contributing" on the inventory. Resources determined to be "unrankable" shall first complete the process referred to in Subsection 19.403.4.
B.
Property Owner Action
For a period of not less than 30 days prior to the public hearing the property owner shall do as follows:
1.
List the property for sale with a real estate agent for a period not less than 90 days with the intent of selling or relocating the resource intact. Such real estate agent shall advertise the property in local and state newspapers of general circulation in the area. This listing requirement can be reduced if the Commission approves the demolition request;
2.
Give public notice by posting a visible "For Sale" sign on the property which shall be in bold letters, no less than 6 in. in height, and shall read as a minimum: HISTORIC BUILDING FOR SALE—WILL BE DEMOLISHED UNLESS MOVED;
3.
Prepare and make available any information related to the history and sales of the property to all individuals, organizations, and agencies who inquire.
C.
Public Hearing Review
The Commission shall hold a public hearing within 45 days of application. The procedures shall be the same as those in Section 19.1006 Type III Review.
D.
Review Criteria and Findings
In determining the appropriateness of the demolition, as proposed in an application for a building permit, the Commission shall consider the following:
1.
All plans, drawings and photographs as may be submitted by the applicant;
2.
Information presented at a public hearing held concerning the proposed work;
3.
The City Comprehensive Plan, including the economic, social, environmental and energy consequences;
5.
The criteria used, and findings and decisions made, in the original designation of the landmark or historic district in which the property under consideration is located;
6.
The historical and architectural style, design, arrangement, materials, or its appurtenant fixtures; the relationship of such features to similar features of other buildings within the district; and the position of the building or structure in relation to public rights-of-way and to other buildings and structures in the area;
7.
The effects of the proposed work upon the protection, enhancement, perpetuation, and use of the district which cause it to possess a special character or special historic or aesthetic interest or value;
8.
Whether denial of the permit would involve substantial hardship to the applicant, and whether issuance of the permit would act to the substantial detriment of the public weLFare and would be contrary to the intent and purposes of this title.
E.
Approval of Demolition Request/Appeals
The Commission may approve the demolition request after considering the criteria under Subsection 19.403.7.D above. Action by the Commission approving the issuance of permit for demolition may be appealed to the City Council by any aggrieved party, by filing a notice of appeal, in the same manner as provided in Subsection 19.403.5.F. If no appeal is filed, the Building Official shall issue the permit in compliance with all other codes and ordinances of the City.
F.
Denial/Stay of Demolition
1.
The Commission may reject the application for permit if it determines that in the interest of preserving historic values, the property should not be demolished. In that event, issuance of the permit shall be suspended for a period not exceeding 30 days from the date of public hearing. The Commission may invoke an extension of the suspension period if it determines that there is a program or project under way which could result in public or private acquisition of the landmark, and that there is reasonable ground to believe that such program or project may be successful. Then the Commission, at its discretion, may extend the suspension period to 30 days, to a total of not more than 120 days from the date of public hearing for demolition permit.
2.
If all such programs or projects are demonstrated to the Commission to be unsuccessful, and the applicant has not withdrawn his or her application for demolition permit, the building official shall issue such permit, if the application otherwise complies with the codes and ordinances of the City.
3.
Action by the Commission suspending issuance of the permit for demolition may be Appealed to the City Council by the applicant for the permit, by filing a notice of appeal in the same manner as provided in Subsection 19.403.5.F.
§ 19.403.8 Uses Permitted.
A.
Primary Uses
A resource may be used for any use which is allowed in the underlying district, subject to the specific requirements for the use, and all other requirements of this Section.
B.
Conditional Uses
Except within moderate density residential designations, uses identified in SubSection 19.403.8.C below which would not be allowed in the underlying zones may be allowed when such use would preserve or improve a resource which would probably not be preserved or improved otherwise, subject to the provisions of Subsection 19.403.6. Such uses may also be allowed in the moderate density residential designations if located along minor or major arterial streets, with the exception of bed and breakfast establishments, which may be located on any street. Approval of such Uses shall include conditions mitigating adverse impact of the use on neighboring properties and other requirements as per Section 19.905 Conditional Uses.
C.
The following uses may be permitted after a public hearing conducted pursuant to Section 19.1006:
1.
Art and music studios;
2.
Galleries;
3.
Offices/clinics;
4.
Craft shops;
5.
Bed and breakfast establishments;
6.
Gift shops;
7.
Museums;
8.
Catering services;
9.
Bookstores;
10.
Boutiques;
11.
Restaurants;
12.
Antique shops;
13.
Community centers for civic or cultural events;
14.
Other uses determined by the Planning Commission to be similar to those listed above.
§ 19.404 Flex Space Overlay Zone FS
(Ord. 2110 § 2 (Exh. G), 2015)
§ 19.404.1 Purpose.
The Flex Space Overlay Zone implements the Central Milwaukie Land Use and Transportation Plan and is intended to provide flexibility for development of an identified opportunity site within central Milwaukie (Figure 19.404). This overlay provides targeted opportunities for employment uses and promotes buildings that can accommodate a variety of uses that may change over time. Uses in the Flex Space Overlay Zone may include employment-intensive uses beyond those allowed in the underlying GMU Zone and may change as appropriate to respond to market conditions and developer needs.
§ 19.404.2 Applicability.
The standards and requirements of this section apply to all properties within the Flex Space Overlay Zone as indicated on the Zoning Map.
§ 19.404.3 Consistency with Base Zone.
The General Mixed Use Zone GMU is the base zone for properties within the Flex Space Overlay Zone, and all requirements of the base zone apply unless otherwise noted in this section. Where conflicts occur between this section and other sections of the Milwaukie Municipal Code, the standards and requirements of this section shall supersede.
 |
§ 19.404.4 Permitted Uses.
In addition to those uses allowed by the base zone (GMU), Table 19.404.4 lists uses that are permitted within the Flex Space Overlay Zone.
Table 19.404.4 Flex Space Overlay Zone Uses | |
|---|---|
Use Category | Status |
A. Industrial Services | |
Industrial services are engaged in repair and/or servicing of industrial, business, or consumer machinery, equipment, products or by-products; or in training or instruction of such repair or servicing. Examples include electrical contractors, equipment rental facilities, tool or instrument repair, and data storage facilities. | P |
B. Manufacturing1 | |
Manufacturing comprises establishments engaged in the mechanical, physical, or chemical transformation of materials, substances, or components into new products, including the assembly of component parts. Examples include alternative energy development; biosciences; food and beverage processing; software and electronics production; printing; fabrication of metal products; products made from manufactured glass; products made from rubber, plastic, or resin; converted paper and cardboard products; and microchip fabrication. Manufacturing may also include high-tech and research and development companies. | P |
C. Trade Schools2 | |
Trade schools are establishments whose primary purpose is to provide training for industrial needs and job-specific certification. Examples include electronic equipment repair training, welding school, training for repair of industrial machinery, and other industrial skills training. | P |
D. Accessory Uses | |
Uses accessory to, and in conjunction with, uses permitted outright may include the following: Warehousing and distribution associated with a permitted manufacturing or industrial use. Products stored at, and distributed from, the warehouse shall be those assembled or manufactured at the facility permitted in the overlay zone. The accessory warehouse may be located within the associated manufacturing or industrial building or in a separate building and shall occupy up to a maximum of 40% of the floor area of the associated manufacturing or industrial building. | P |
P = | Permitted |
1. | Manufacturing uses shall only be conducted in an enclosed space. The following manufacturing uses are not allowed: explosive materials, concrete and asphalt mixing or batching, rock crushing, and aggregate storage. |
2. | All activities related to trade schools must be conducted inside an enclosed building. |
§ 19.404.5 Review Process.
All uses listed in Table 19.404.4 above require a Type II development review approval, pursuant to Section 19.906.
§ 19.404.6 Development Standards.
The development standards of Subsection 19.303.4 apply in the Flex Space Overlay Zone, except as noted below, for any of the uses permitted in Table 19.404.4.
A.
The minimum floor area ratio is 0.3:1
B.
There is no minimum street frontage requirement.
C.
The building height bonus in Subsection 19.303.4.B is available.
D.
The frontage occupancy requirement in Subsection 19.303.4.D only applies along 32nd Ave.
E.
The maximum front yard setback is 50 ft. The setback area must be landscaped, except where used for parking as allowed in 19.404.6.F.
F.
Parking may be located within the front yard setback, except when adjacent to 32nd Ave.
G.
All new buildings shall have at least 1 primary entrance facing the front of the property or, where a property does not front on a public street, the entrance shall face the primary access drive that serves the building.
H.
Flex Space Overlay Zone properties that abut a residential zone shall provide an 8-ft-wide landscaped buffer along the residential property line.
I.
Pedestrian and bicycle accessways into and through the site shall be separated from vehicle accessways by curbed landscaping, and/or planters, and/or similar physical separation.
§ 19.404.7 Design Standards.
The design standards in Subsection 19.505.7 Nonresidential Development apply to all new mixed-use and nonresidential development in the Flex Space Overlay Zone. The design standards apply in all locations, even those where the development is not adjacent to a public street.
§ 19.404.8 Additional Provisions for Off-Site Impacts.
In order to ensure compatibility between manufacturing and nonmanufacturing uses, the following off-site impact standards apply:
A.
Applicability
The off-site impact standards in this subsection apply to all new machinery, equipment, and facilities associated with manufacturing uses. Machinery, equipment, or facilities that were at the site and in compliance with existing regulations as of February 13, 2016, the effective date of Ordinance 2110, are not subject to these offsite impact standards.
C.
Vibration
Continuous, frequent, or repetitive vibrations that exceed 0.002g peak are prohibited. Generally, this means that a person of normal sensitivities should not be able to feel any vibrations.
D.
Odor
Continuous, frequent, or repetitive odors are prohibited. The odor threshold is the point at which an odor may just be detected. An odor detected for less than 15 minutes per day is exempt.
E.
Illumination
Machinery, equipment, and facilities may not directly or indirectly cause illumination on other properties in excess of 0.5 footcandles of light.
F.
Measurements
Measurements for compliance with these standards may be made from the property line or within the property of the affected site. Measurements may be made at ground level or at habitable levels of buildings.
G.
Documentation
An applicant must provide documentation certified by a registered engineer or architect, as appropriate, to ensure that the proposed activity can achieve compliance with these standards.
§ 19.405 Aircraft Landing Facility Zone L-F
(Ord. 2025 § 2, 2011; Ord. 2112 § 2 (Exh. B), 2015)
§ 19.405.1 Purpose.
The purpose of the L-F Zone is to minimize hazards related to aircraft landing facilities. Special height limitations or other restrictions in addition to those already embodied in this chapter may be necessary in order to prevent the establishment of obstructions to the air space required by aircraft in landing and taking off from airports, helicopter pads or other landing fields. Furthermore, establishment of any new aircraft landing facility should be undertaken only after an evaluation has been made of its effects on the safety, welfare, and property values of owners or occupants of nearby property. The L-F Zone is a superimposed zone applied in combination with existing regular zones.
§ 19.405.2 Limitations on Use.
In an L-F Zone an airport, helicopter, or other aircraft landing facility and a use or conditional use permitted in accordance with the provisions of the preestablished regular zone shall be permitted only as provided below:
A.
The height of any structure or part of structure, such as chimney, tower, antenna, etc., shall be limited according to requirements established by the Planning Commission or by other appropriate authorities.
B.
In approach zones to airports or other aircraft landing facilities, as designated by the Planning Commission or other appropriate authorities, no meeting place which is designed to accommodate more than 25 persons at one time shall be permitted.
C.
The size of the property upon which the airport or landing facility is proposed shall be sufficient to permit the safe operation of aircraft, to allow adequate space for all associated facilities, and to protect adjacent property from the impact of aircraft operation and associated activity.
D.
Prior to a decision on the establishment of an L-F Zone, the Planning Commission shall request a report and recommendation from the Oregon State Board of Aeronautics as to the suitability of the particular property for airport purposes and as to other conditions which might be necessary to safeguard the safety and general welfare of the public.
§ 19.405.3 Procedures.
The following procedures shall govern the application of L-F Zones:
A.
An L-F Zone may be established, altered, or abolished subject to the provisions of Section 19.902.
B.
An L-F Zone may be established in combination with other regular zones. An area approved as an L-F Zone shall be identified on the Zoning Map or map amendments with the letters "L-F" in addition to the abbreviated designation of the existing zoning.