There are four discretionary review processes provided in this section: subsection A of this section provides discretionary review for an applicant seeking only to partition a property; subsection B of this section provides discretionary review for an applicant who will comply with the development standards in Section
16.34.070, except that the applicant seeks to meet the mitigation requirements of that section on a different property from the property on which a HCA will be disturbed; subsection C of this section provides discretionary review for an applicant who will comply with the development standards in Section
16.34.070, except that the applicant seeks to meet the mitigation requirements of that section by proportionally varying the number and size of plants required to be planted; and subsection D of this section (Natural Resource Review) provides general discretionary review standards applicable to an applicant seeking some other type of discretionary approval of development that will disturb a Water Quality Resource or HCA.
Within HCAs that are not otherwise Water Quality Resources, applicants may choose to use the alternative discretionary development standards provided in this section rather than the development standards provided in Section
16.34.070. However, a Natural Resource Review is required for development within Water Quality Resources. All four types of discretionary reviews will be processed in accordance with the Type II procedures in Section
16.61.030.
A. Discretionary Review for Partitions. An applicant seeking to partition land in ways that do not accord with the standards established in Section 16.34.070(C)(5) may seek review under this subsection.
1. The applicant shall verify the boundaries of the HCAs on the property according to Section
16.34.060.
2. The applicant shall submit the following application materials:
a. A scale map of the entire property that includes:
i. Location of all high, moderate, and low HCA on the property;
ii. Location of any wetlands or water bodies on, or within 200 feet of the property, including a delineation of the Water Quality Resource Area;
iii. Location of 100-year floodplain and floodway boundary as defined by the Federal Emergency Management Agency (FEMA) and the area of the 1996 flood inundation; and
iv. A delineation of the proposed partition.
b. A written and documented explanation of how and why the proposed partition satisfies the approval criteria in subsection (A)(3). Such written documentation shall include an alternatives analysis of different possible partition plans, based on the characteristics and zoning of the property.
3. Approval Criteria. A partition shall be approved under this subsection provided that the applicant demonstrates that it is not practicable to comply with the partition standards in Section 16.34.070(C)(5), and that the applicant's partition plan will result in the smallest practicable percentage point difference in the percentage of HCA on the parcels created by the partition (this will minimize the amount of allowable disturbance areas within HCAs on the parcels, assuming that the development standards in Section
16.34.070 were applied to future development on such parcels).
4. Subsequent development on any parcels created by the partition and containing HCAs shall comply with all provisions of this Code, except that the map verification completed and approved as part of the partition may be used to satisfy the requirements of Section
16.34.060(C) for any such development.
B. Discretionary Review to Approve Off-Site Mitigation. An applicant seeking discretionary approval only for off-site mitigation within the same subwatershed (6th Field Hydrologic Unit Code), but who will comply with all other provisions of Section
16.34.070, may seek review under this subsection. An applicant who seeks to conduct the mitigation in a different subwatershed may apply for such approval under subsection
D.
1. The applicant shall submit:
a. A calculation of the number of trees and shrubs the applicant is required to plant under Section 16.34.070(C)(4); and
b. A map and accompanying narrative that details the following:
i. The number of trees and shrubs that can be planted on-site,
ii. The on-site location where those trees and shrubs can be planted,
iii. An explanation of why it is not practicable for the remainder of the mitigation to occur on-site, and
iv. The proposed location for off-site mitigation and documentation that the applicant can carry out and ensure the success of the mitigation, including documentation that the applicant possesses legal authority to conduct and maintain the mitigation, such as having a sufficient ownership interest in the mitigation site, and, if the mitigation is not within a HCA, documentation that the mitigation site will be protected after the monitoring period expires, such as through the use of a restrictive covenant.
2. Approval Criteria. Off-site mitigation shall be approved under this subsection provided that the applicant has demonstrated that it is not practicable to complete the mitigation on-site and that the applicant has documented that it can carry out and ensure the success of the off-site mitigation on a property within the same subwatershed (6th Field Hydrologic Unit Code) as the related disturbed HCA, and provided that, in all cases, mitigation provided is within the City of Happy Valley City limits.
3. Mitigation approved under this subsection shall be subject to all of the requirements of Section 16.34.070(C)(4), except for the requirements of Section 16.34.070(C)(4)(e).
C. Discretionary Review to Approve Mitigation that Varies the Number and Size of Trees and Shrubs. An applicant seeking discretionary approval only to proportionally vary the number and size of trees and shrubs required to be planted under Section 16.34.070(C)(4)—for example, to plant fewer larger trees and shrubs or to plant more smaller trees and shrubs—but who will comply with all other provisions of Section
16.34.070, may seek review under this subsection.
1. The applicant shall submit:
a. A calculation of the number of trees and shrubs the applicant would be required to plant under Section 16.34.070(C)(4);
b. The numbers and sizes of trees and shrubs that the applicant proposes to plant;
c. An explanation of why the numbers and sizes of trees and shrubs that the applicant proposes to plant will achieve, at the end of the fifth year after initial planting, comparable or better mitigation results than the results that would be achieved if the applicant complied with all of the requirements of Section 16.34.070(C)(4). Such explanation shall be prepared and signed by a knowledgeable and qualified natural resources professional or a certified landscape architect and shall include discussion of site preparation, including soil additives and removal of invasive and noxious vegetation, plant diversity, plant spacing, planting season, and immediate post-planting care, including mulching, irrigation, wildlife protection, and weed control; and
d. The applicant's mitigation site monitoring and reporting plan.
2. Approval Criteria. A request to vary the numbers and sizes of trees and shrubs to be planted shall be approved if the applicant demonstrates that the proposed planting will achieve, at the end of the fifth year after initial planting, comparable or better mitigation results than the results that would be achieved if the applicant complied with all of the requirements of Section 16.34.070(C)(4). Such determination shall take into consideration all of the information required to be submitted under subsection (C)(1).
3. Mitigation approved under this subsection shall be subject to the requirements of Sections 16.34.070(C)(4)(d) through (4)(i), and it is recommended that such mitigation also follow the practices recommended in Section 16.34.070(C)(4)(j).
D. Natural Resource Review (NRR). An applicant seeking discretionary approval to undertake any development activity within a Water Quality Resource or HCA that does not comply with Section
16.34.070 and is not described in subsections
A,
B or
C shall apply for a Natural Resource Review pursuant to subsection
D. Natural Resource Review (NRR) is the discretionary process by which the City analyzes the impacts of development on natural resources, as well as measures to prevent negative impacts, and also provides mitigation and enhancement requirements. The Planning Official may consult with a professional with appropriate expertise to evaluate an applicant's NRR application prepared under this section or may rely on appropriate staff expertise, in order to properly evaluate the report's conclusions.
1. Agency Coordination. Other state and regional agencies regulate some of the natural resources that are protected by the standards of this chapter. In order to avoid unnecessary duplication, an applicant may substitute application materials prepared by another regulating agency, for the materials required by this section where these materials will provide sufficient information for the City to address the approval criteria in subsection (D)(3).
2. Application Requirements. The applicant shall provide all items described in Section
16.34.070(A), except that, for utility projects undertaken by public utilities across property that is not owned by the utility, the utility shall not be required to map or provide any information about the property except for the area within 300 feet of the location of the proposed disturbance area of the utility's project, and the applicant shall also provide all of the following:
a. A topographic map of the site with two-foot vertical contours in areas of slopes less than 15%, and at five-foot vertical contours of slopes 15% or greater showing a delineation of the Water Quality Resource, which includes areas shown on the Happy Valley Steep Slopes and Natural Resources Overlay Zone Map, and that meets the definition of water quality resource areas in Table 16.34.030-1;
b. Location of Title 3 Wetlands. Where Title 3 wetlands are identified, the applicant shall follow the Division of State Lands recommended wetlands delineation process. The delineation shall be prepared by a professional wetlands specialist;
c. An inventory, location and plan for removal of any existing debris and noxious materials;
d. An assessment of the existing condition of any Water Quality Resources, including an inventory and map of the existing plant communities including the number and area covered by each plant community present. A plant community is defined as a grouping of plants that often occur together growing in a uniform habitat. For each sample point, document the area covered by all species providing greater than five percent cover within the plot boundary. A 10 foot radius plot for herbs (non-woody vegetation) and a 30 foot radius plot for woody vegetation are required; however, plot boundaries may be adjusted to ensure that only one plant community is represented in a plot. The inventory and map shall specify cover by native species, invasive species, and noxious species.
e. Impact Evaluation and Alternatives Analysis. An impact evaluation and alternatives analysis is required to determine compliance with the approval criteria and to evaluate development alternatives for a particular property. The alternatives must be evaluated on the basis of their impact on Water Quality Resources and HCAs, the ecological functions provided by the resource on the property, and off-site impacts within the subwatershed (6th Field Hydrologic Unit Code) where the property is located. The impact evaluation shall include the following:
i. Identification of the ecological functions of riparian habitat found on the property as described in Table 16.34.075-1.
ii. An assessment of the water quality impacts related to the development, including: sediments, temperature and nutrients, sediment control, temperature control or addressing any other condition with the potential to cause the Protected Water Feature to be listed on DEQ's 303(d) list.
iii. Evaluation of alternative locations, design modifications, or alternative methods of development to determine which options reduce the significant detrimental impacts on the HCAs and the ecological functions provided on the property. At a minimum, the following approaches must be considered:
(B) Multi-story construction;
(C) Minimizing building and development footprint;
(D) Maximizing the use of native landscaping materials; and
(E) Minimal excavation foundation systems (e.g., pier, post or piling foundation).
iv. Determination of the alternative that best meets the applicable approval criteria and identification of significant detrimental impacts that are unavoidable. Where Water Quality Resources are proposed to be impacted, the applicant shall also demonstrate that no practicable alternatives to the requested development exist that will not disturb the Water Quality Resource; that development in the Water Quality Resource has been limited to the area necessary to allow for the proposed use; and that the Water Quality Resource can be restored to an equal or better condition.
Table 16.34.075-1 Ecological Functional Values of Riparian Corridors |
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Ecological Function | Landscape Features Providing Functional Values |
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Microclimate and shade | Forest canopy or woody vegetation within 100 feet of a stream; a wetland1; or a flood area2. |
Streamflow moderation and water storage | A wetland or other water body3 with a hydrologic connection to a stream; or a flood area2. |
Bank stabilization, sediment and pollution control | All sites within 50 feet of a surface stream; |
Forest canopy, woody vegetation, or low structure vegetation/open soils within 100 feet of a stream or a wetland; or forest canopy, woody vegetation, or low structure vegetation/open soils within a flood area; and |
Forest canopy, woody vegetation, or low structure vegetation/open soils within 100—200 feet of a stream if the slope is greater than 25 percent. |
Large wood and channel dynamics | Forest canopy within 150 feet of a stream or wetland; or within a flood area; and |
The channel migration zone is defined by the floodplain, but where there is no mapped floodplain a default of 50 feet is established to allow for the channel migration zone. |
Organic material sources | Forest canopy or woody vegetation within 100 feet of a stream or wetland; or within a flood area. |
NOTES: |
|---|
1 Refers to "hydrologically-connected wetlands," which are located partially or wholly within one-quarter mile of a surface stream or flood area. |
2 Developed floodplains are not identified as HCAs because they do not provide primary ecological functional value. |
3 "Other water body" could include lakes, ponds, reservoirs, or manmade water feature that is not a water quality facility or farm pond. |
f. Mitigation Plan. The purpose of a mitigation plan is to compensate for unavoidable significant detrimental impacts to ecological functions that result from the chosen development alternative as identified in the impact evaluation.
i. An applicant may choose to develop a mitigation plan consistent with the requirements of Section 16.34.070(C)(4). If an applicant so chooses, then the applicant shall submit a mitigation plan demonstrating such compliance.
ii. If an applicant chooses to develop an alternative mitigation plan that would not comply with the requirements of Section 16.34.070(C)(4), including, for example, a proposal to create an alternative plant community type such as an oak savannah or a low-structure plant community, then the applicant shall submit a mitigation plan that includes all of the following:
(A) An explanation of how the proposed mitigation will adequately compensate for the impacts to ecological functions described in the impact evaluation required by subsection (D)(2)(e). The applicant shall use the mitigation that would be required under Section 16.34.070(C)(4) as the baseline mitigation required to compensate for disturbance to a HCA that provides an average level of ecological functions. Such explanation shall include:
(1) If the applicant uses the mitigation that would be required under Section 16.34.070(C)(4) as the baseline mitigation required to compensate for disturbance to a HCA, then the applicant shall submit a calculation of the number of trees and shrubs the applicant would be required to plant under Section 16.34.070(C)(4);
(2) A site plan showing where the specific mitigation activities will occur and the numbers and sizes of trees and shrubs that the applicant proposes to plant; and
(3) A discussion of site preparation including soil additives and removal of invasive and noxious vegetation, plant diversity, plant spacing, planting season, and immediate post-planting care including mulching, irrigation, wildlife protection, and weed control.
(B) Documentation of coordination with appropriate local, regional, special district, state, and federal regulatory agencies.
(C) A list of all parties responsible for implementing and monitoring the mitigation plan and, if mitigation will occur off-site, the names of the owners of property where mitigation plantings will occur.
(D) The applicant's mitigation site monitoring and reporting plan. Applicant must provide a minimum of three years of monitoring and maintenance (with removal of invasive species). All such maintenance must be documented and reported annually.
(E) If the proposed mitigation will not be conducted on-site, the applicant shall submit a map and accompanying narrative that details the following:
(1) The number of trees and shrubs that can be planted on-site;
(2) The on-site location where those trees and shrubs can be planted;
(3) An explanation of why it is not practicable for the remainder of the mitigation to occur on-site; and
(4) The proposed location for off-site mitigation and documentation that the applicant can carry out and ensure the success of the mitigation, including documentation that the applicant possesses legal authority to conduct and maintain the mitigation, such as having a sufficient ownership interest in the mitigation site, and, if the mitigation is not within a HCA, documentation that the mitigation site will be protected after the monitoring period expires, such as through the use of a restrictive covenant. In all cases, mitigation must be provided within the City of Happy Valley City limits.
(F) If the mitigation area is off-site and not within the same subwatershed (6th Field Hydrologic Unit Code) as the related disturbed HCA, the applicant shall submit an explanation of why it is not practicable to conduct the mitigation within the same subwatershed and of why and how, considering the purpose of the mitigation, the mitigation will provide more ecological functional value if implemented outside of the subwatershed.
(G) An implementation schedule, including timeline for construction, mitigation, mitigation maintenance, monitoring, reporting and a contingency plan. If the applicant is proposing any in-stream work in fish-bearing streams as part of the mitigation project, then the applicant shall submit documentation that such work will be done in accordance with the Oregon Department of Fish and Wildlife instream work timing schedule.
iii. In addition, where a Water Quality Resource is proposed to be impacted, the mitigation plan shall contain the following additional information:
(A) A description of adverse water quality impacts that will be caused as a result of development;
(B) An explanation of how development in the Water Quality Resource has been limited to the area necessary to allow for the proposed use and how the Water Quality Resource area will be restored to an equal or better condition; and
(C) A map showing where the specific mitigation activities will occur.
g. The Impact Evaluation and Alternatives Analysis required by subsection (D)(1)(e) and the Mitigation Plan required by subsection (D)(1)(f) shall be prepared and signed by either (i) a knowledgeable and qualified natural resource professional, such as a wildlife biologist, botanist, or hydrologist, or (ii) a civil or environmental engineer registered in Oregon to design public sanitary or storm systems, stormwater facilities, or other similar facilities. The application shall include a description of the qualifications and experience of all persons that contributed to the Impact Evaluation and Alternatives Analysis and to the Mitigation Plan, and for each person that contributed, a description of the elements of such reports to which the person contributed.
3. Approval Criteria.
a. All application requirements in subsection (D)(1) shall be met.
b. Avoid. An applicant shall first avoid the intrusion of development into Water Quality Resources and HCAs to the extent practicable. The development that is proposed must have less detrimental impact to Water Quality Resources and HCAs than other practicable alternatives, including significantly different practicable alternatives that propose less development within Water Quality Resources and HCAs. If there are both Water Quality Resource Areas and HCAs on a property and/or there is more than one type of HCA on a property, then the applicant shall first avoid the intrusion of development into the Water Quality Resource, then into the higher-valued HCA, to the extent practicable, and the development that is proposed must have less detrimental impact to the Water Quality Resource and higher-valued HCAs than other practicable alternatives. To avoid development in Water Quality Resources and HCAs, and to the extent practicable, applicants shall use the approaches described in subsection (D)(1)(e)(iii).
c. Minimize. If the applicant demonstrates that there is no practicable alternative that will not avoid disturbance of Water Quality Resources and HCAs, then the development proposed by the applicant within the Water Quality Resources and HCAs shall minimize detrimental impacts to the extent practicable. If there are both Water Quality Resource Areas and HCAs on a property and/or there is more than one type of HCAs on a property, then the development within Water Quality Resources and higher-valued HCAs shall be considered more detrimental than development within lower-valued HCAs.
i. Development 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.
ii. To the extent practicable within Water Quality Resources and HCAs, the proposed development shall 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 Section 16.34.070(C)(2), reducing building footprints, and using minimal excavation foundation systems (e.g., pier, post or piling foundation);
(B) Minimize adverse hydrological impacts on water resources such as by using the techniques described in Part (a) of Table 16.34.075-2, unless their use is prohibited by an applicable and required State or Federal permit issued to a unit of local government having jurisdiction in the area, such as a permit required under the Federal Clean Water Act, 33 U.S.C. Sections
1251 et seq., or the Federal Safe Drinking Water Act, 42 U.S.C. Sections
300f et seq., and including conditions or plans required by such permit;
(C) Minimize impacts on wildlife corridors and fish passage such as by using the techniques described in Part (b) of Table 16.34.075-2; and
(D) Consider using the techniques described in Part (c) of Table 16.34.075-2 to further minimize the impacts of development in the Water Quality Resources and HCAs.
Table 16.34.075-2 Habitat-Friendly Development Practices* |
|---|
Part (a): Design and Construction Practices to Minimize Hydrologic Impacts |
1. | Amend disturbed soils to original or higher level of porosity to regain infiltration and stormwater storage capacity. |
2. | Use pervious paving materials for residential driveways, parking lots, walkways, and within centers of cul-de-sacs. |
3. | Incorporate stormwater management in road rights-of-way. |
4. | Landscape with rain gardens to provide on-lot detention, filtering of rainwater, and groundwater recharge. |
5. | Use green roofs for runoff reduction, energy savings, improved air quality, and enhanced aesthetics. |
6. | Disconnect downspouts from roofs and direct the flow to vegetated infiltration/filtration areas such as rain gardens. |
7. | Retain rooftop runoff in a rain barrel for later on-lot use in lawn and garden watering. |
8. | Use multifunctional open drainage systems in lieu of more conventional curb-and-gutter systems. |
9. | Use bioretention cells as rain gardens in landscaped parking lot islands to reduce runoff volume and filter pollutants. |
10. | Apply a treatment train approach to provide multiple opportunities for stormwater treatment and reduce the possibility of system failure. |
11. | Reduce sidewalk width and grade them such that they drain to the front yard of a residential lot or retention area. |
12. | Reduce impervious impacts of residential driveways by narrowing widths and moving access to the rear of the site. |
13. | Use shared driveways. |
14. | Reduce width of residential streets, depending on traffic and parking needs. |
15. | Reduce street length, primarily in residential areas, by encouraging clustering and using curvilinear designs. |
16. | Reduce cul-de-sac radii and use pervious vegetated islands in center to minimize impervious effects, and allow them to be utilized for truck maneuvering/loading to reduce need for wide loading areas on site. |
17. | Eliminate redundant non-ADA sidewalks within a site (i.e., sidewalk to all entryways and/or to truck loading areas may be unnecessary for industrial developments). |
18. | Minimize car spaces and stall dimensions, reduce parking ratios, and use shared parking facilities and structured parking. |
19. | Minimize the number of stream crossings and place crossing perpendicular to stream channel if possible. |
20. | Allow narrow street rights-of-way through stream corridors whenever possible to reduce adverse impacts of transportation corridors. |
Part (b): Design and Construction Practices to Minimize Impacts on Wildlife Corridors and Fish Passage |
1. | Carefully integrate fencing into the landscape to guide animals toward animal crossings under, over, or around transportation corridors. |
2. | Use bridge crossings rather than culverts wherever possible. |
3. | If culverts are utilized, install slab, arch or box type culverts, preferably using bottomless designs that more closely mimic stream bottom habitat. |
4. | Design stream crossings for fish passage with shelves and other design features to facilitate terrestrial wildlife passage. |
5. | Extend vegetative cover through the wildlife crossing in the migratory route, along with sheltering areas. |
Part (c): Miscellaneous Other Habitat-Friendly Design and Construction Practices |
1. | Use native plants throughout the development (not just in HCA). |
2. | Locate landscaping (required by other sections of the code) adjacent to HCA. |
3. | Reduce light spill-off into HCAs from development. |
4. | Preserve and maintain existing trees and tree canopy coverage, and plant trees, where appropriate, to maximize future tree canopy coverage. |
* | These development practices represent the state of scientific knowledge at the time of this Code's enactment; if more effective habitat-friendly practices become available, they should be used. |
d. Mitigate. If the applicant demonstrates that there is no practicable alternative that will not avoid disturbance of a Water Quality Resource or HCA, then development must mitigate for adverse impacts to the Water Quality Resource and HCA. All proposed mitigation plans must meet the following standards.
i. The mitigation plan shall demonstrate that it compensates for detrimental impacts to ecological functions provided by HCAs, after taking into consideration the applicant's efforts to minimize such detrimental impacts through the use of the techniques described in Table 16.34.075-2 and through any additional or innovative techniques. A mitigation plan that requires the amount of planting that would be required under Section 16.34.070(C)(4) based on the amount of proposed disturbance area within the HCA, and that otherwise complies with all of the mitigation requirements in Section 16.34.070(C)(4), shall be considered to have satisfied the requirements of subsection (D)(2)(d).
ii. Mitigation shall occur on the site of the disturbance, to the extent practicable. Off-site mitigation shall be approved if the applicant has demonstrated that it is not practicable to complete the mitigation on-site and that the applicant has documented that it can carry out and ensure the success of the off-site mitigation, as described in subsection (B)(1)(b)(iv). 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 shall 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. Mitigation shall not be allowed outside of the Metro jurisdictional boundary.
iii. All re-vegetation plantings shall be with native plants listed on the Happy Valley Plant List (Appendix A).
iv. All in-stream work in fish-bearing streams shall be done in accordance with the Oregon Department of Fish and Wildlife in-stream work-timing schedule.
v. A mitigation maintenance plan shall be included and shall be sufficient to ensure the success of the planting, and compliance with the plan shall be a condition of development approval.
e. Natural resource boundaries shall be located and staked by a qualified professional prior to any construction, demolition, grading or site clearing. Construction barrier fencing should be erected around the vegetated corridor prior to construction.
f. Protective measures and erosion control measures shall comply with the City's Erosion Control Ordinance No. 141. These measures shall remain in place throughout the development of the site.
g. No stockpiling of fill materials, parking, or storage of construction equipment shall be allowed within a significant natural resource or its buffer.
h. The types, sizes and intensities of lights must be placed so that they do not shine directly into the significant natural resource or its buffer.
i. The removal of native vegetation shall not be permitted from a resource area unless:
i. A permit has been issued by the City in accordance with the land development code; or
ii. Species to be removed are on the Happy Valley Plant List's Nuisance Plant List or Prohibited Plant List (Appendix A).
j. Plantings within the natural resource shall only be with species on the Happy Valley Plant List's native groundcovers, shrub or tree lists (Appendix A).
(Ord. 389 § 1(Exh. A), 2009; Ord. 398 § 1, 2010; Ord. 539 § 1, 2018; Ord. 545 § 1, 2019; Ord. 550 § 1, 2020)
