1994-24343-Ordinance No. 94-005 Recorded 6/16/199494-24343
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF
An Ordinance Amending Title 18.90, *
Sensitive Bird And Mammal Habitat *
Combining Zone And Declaring An
Emergency.
REVIEWED
LEGAL COUNSEL
DESCHUTES 0014TY,
OREGON—
NO. 94-005 0135-2256
WHEREAS, the Land Conservation and Development Commission
issued Remand Order 93 -RA -883 requiring Deschutes County to
amend Title 18.90 of the Deschutes County Code, Sensitive Bird
and Mammal Habitat Combining Zone, to implement site specific
economic, social, environmental and energy analyses (ESEE's) of
conflicting uses for sensitive bird and mammal sites in
Deschutes County; and
WHEREAS, Ordinance 94-004 amended "Fish and Wildlife
Inventories Conflict ESEE Analyses" of the Resource Element of
the Deschutes County Year 2000 Comprehensive Plan to adopt site
specific ESEE analyses for each inventoried sensitive bird and
mammal sensitive habitat area on non-federal land; and
WHEREAS, the ESEE decisions adopted by Ordinance 94-004
require amendments to the Deschutes County Code Chapter 18.90,
Sensitive Bird and Mammal Habitat Combining Zone; and
WHEREAS, public hearings have been held in conformance with
state law before the Deschutes County Planning Commission and
Board of County Commissioners for Deschutes County; and
WHEREAS, the Board of County Commissioners has considered
the recommendations of the Planning Commission and the public;
now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY,
OREGON, ORDAINS AS FOLLOWS:
Section 1. That Deschutes County Code Chapter 18.90,
Sensitive Bird and Mammal Habitat Combining Zone, of Title 18
of the Deschutes County Code is amended to read as described
in Exhibit 111," attached hereto and by this reference
incorporated herein.
Section 2. FINDINGS. The Board of County Commissioners
adopts as its findings and conclusions in support of this
ordinance the findings attached as Exhibit 112" by this
reference incorporated herein.
1 - ORDINANCE - NO. 94-005 (06/15/94) (;Isl
0135-2257
Section 3. SEVERABILITY. The provisions of this ordinance
are severable. If any section, sentence, clause, or phrase of
this ordinance or any exhibit thereto is adjudged to be invalid
by a court or competent jurisdiction that decision shall not
affect the validity of the remaining portions of this ordinance
or exhibit thereto.
Section 4. CODIFICATION. County Legal Counsel shall have
the authority to format the provisions contained herein in a
manner that will integrate them into the County Code consistent
with the the County Legal Counsel form and style for ordinance
codification. Such codification shall include the authority to
make format changes, to make changes in numbering systems and
to make such numbering changes consistent with interrelated
code sections. In addition, as part of codification of these
ordinances, County Legal Counsel may insert appropriate
legislative history reference. Any legislative history
references included herein are not adopted as part of the
substance of this ordinance, but are included for
administrative convenience and as a reference. They may be
changed to correct errors and to conform to proper style
without action of the Board of County Commissioners.
Section 5. REPEAL OF ORDINANCES AS AFFECTING EXISTING
LIABILITIES. The repeal, express or implied, of any ordinance,
ordinance provision, code section, or any map or any line on a
map incorporated therein by reference, by this amending
ordinance shall not release or extinguish any duty, condition,
penalty, forfeiture, or liability previously incurred or that
may hereafter be incurred under such ordinance, unless a
provision of this amending ordinance shall so expressly
provide, and such ordinance repealed shall be treated as still
remaining in force for the purpose of sustaining any proper
action or prosecution for the enforcement of such duty,
condition, penalty, forfeiture, or liability, and for the
purpose of authorizing the prosecution, conviction and
punishment of the person or persons who previously violated the
repealed ordinance.
Section 6. EMERGENCY. This ordinance being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this Ordinance
takes effect on its passage.
2 - ORDINANCE - NO. 94-005 (06/15/94)
DATED this day of , 1994. 0135-2258
AT T:
Recording Secretary
OF COUNTY COPMSSIONERS OF
, Chair
WE
TOM THROO$, Commissioner
BARRY it. SLAUGHTTER, Commissioner
3 - ORDINANCE - NO. 94-005 (06/15/94)
0135-2259
EXHIBIT 112" for ORDINANCE NO. 94-005
FINDINGS OF BOARD OF COUNTY COMMISSIONERS
SUPPORTING ADOPTION OF AMENDMENTS TO CHAPTER 18.90
OF THE DESCHUTES COUNTY CODE
Ordinance 92-042 adopted Title 18.90, the Sensitive Bird and
Mammal Habitat Combining Zone. The ordinance was adopted as
part of periodic review in order to comply with OAR 660-16,
the Goal 5 administrative rule.
Oregonians in Action, a state land use organization, objected
to the County's final periodic review order. The objections
pertained to the Goal 5 ESEE analysis for sensitive bird and
mammal species. The Land Conservation and Development
Commission upheld the objections of Oregonians in Action and
issued a periodic review remand order (93 -RA -883). The
remand order required the county to:
1. Identify specific conflicting uses and evaluate
the ESEE consequences of those conflicting uses
for the inventoried sensitive bird habitat
sites.
2. Revise the Sensitive Bird and Mammal Habitat
Combining Zone to: (1) require that any
special condition resulting from the
site-specific ESEE analysis (e.g., setbacks
timing of activities, etc,) be applied as a
condition of approval to the development
approval; (2) clarify how a proposed action in
the identified "sensitive" area triggers a
review; and (3) delete the repetitive step in
the review process (Section 18. 90.050 (A))
The Department of Land Conservation and Development approved
a Periodic Review Work Plan (Order #00055) for Deschutes
County. Work Task #3 of the approved work plan includes a
requirement to amend the SBM zone as required by the Remand
Order. The deadline for completion of work task #3 is June
15, 1994.
The Deschutes County Planning Commission conducted public
hearings on File TA -94-3 and Ordinance 94-005, proposed
amendments to Title 18.90, on March 30 and April 14, 1994.
Staff revised the draft amendments to Title 18.90 based on
testimony received and recommendations from the planning
commission. The planning commission forwarded the revised
draft amendments to the Board of County Commissioners with a
recommendation for adoption. The Board of County
Commissioners conducted a public hearing on the proposed
amendment to Title 18.90 on May 23, 1994.
1 - Exhibit 112" FOR ORDINANCE NO. 94-005 (06/15/94)
0135-2260
The Board finds that with the adoption of Ordinance No 94-005
the county complies with the Periodic Review Remand Order
requirement for amendment to Title 18.90, the Sensitive Bird
and Mammal Habitat Combining Zone, for the following reasons:
1. Section 18.90.050(D) and Section 18.90.060(A)(7)
requires conformance with the ESEE analysis for
each sensitive bird or mammal site.
2. Section 19.90.040 defines how a proposed action
in the sensitive habitat area triggers review
under the Sensitive Bird and Mammal Habitat
Combining Zone.
3. Section 18.90.050(A) has been deleted.
The Board finds that with adoption of Ordinances 94-005,
94-004 and 94-021 the County has completed Periodic
Review Work Task 3 as required by the Department of Land
Conservation and Development.
2 - Exhibit 112" FOR ORDINANCE NO. 94-005 (06/15/94)
EXHIBIT "1" FOR ORDINANCE NO. 94 -00 -r -n 35-2261
AMENDMENTS TO CHAPTER 18.90, SENSITIVE BIRD AND MAMMAL
HABITAT COMBINING ZONE, OF THE DESCHUTES COUNTY CODE
NOTE: Additions are shown in BOLD and deletions are shown
with brackets [ ].
Chapter 18.90.00
Sensitive Bird & Mammal Habitat Combining Zone - SBMH
Section 18.90.010 Purpose
A[1]. The purpose of the Sensitive Bird and Mammal Combining
Zone is to insure that sensitive habitat areas
identified in the County's Goal 5 sensitive bird and
mammal inventory as critical for the survival of the
northern bald eagle, great blue heron, golden eagle,
prairie falcon, osprey, great grey owl, sage grouse,
and the Townsend's big -eared bat are protected from the
effects of conflicting uses or activities which are not
subject to the Forest Practices Act. [This objective
shall be achieved through the establishment of site
specific management plans that are developed to insure
that proposed uses and activities will neither destroy
or result in the abandonment of sensitive bird or
mammal habitat areas.] This objective shall be
achieved by implementation of the decision resulting
from the economic, social, environmental and energy
analysis (ESEE) for each inventoried sensitive habitat
area.
Section 18.90.020 Definition of Sensitive Habitat [Sites]
Area
A[1]. The sensitive habitat area is the area identified in
the Deschutes County Comprehensive Plan Resource
Element inventory and site specific ESEE for each
sensitive bird or mammal site. The sensitive habitat
[site] area to be protected by the provisions of this
chapter is defined as the area:
1. Within a radius of 1320 feet of a golden eagle,
bald eagle, prairie falcon nest, [osprey nest,]
sage grouse lek, or a Townsend's big -eared bat
hibernating or nursery site.
2. Within a radius of 300 feet of a great blue heron
rookery or osprey nest.
3. Within a radius of 900 feet of a great grey owl
nest site.
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[For purposes of triggering the review process set
forth in this Chapter, where the precise location of
the nest, hibernation or nursery site or rookery can be
located only to the nearest quarter section, the nest,
lek, hibernation or nursery site or rookery shall be
deemed to take up the entire quarter section.]
B[2]. Inventoried [S]sensitive bird or mammal [Habitat] sites
located on federal land are not subject to the
provisions of this chapter unless the sensitive habitat
area identified in Section 18.90.020 (1) extends onto
non-federal land.
Section 18.90.030 Limitations [Development] and Uses
Permitted
A[1]. Uses permitted in the underlying zone(s) are permitted
or conditionally permitted in the Sensitive Bird and
Mammal Combining Zone subject to the additional
procedure and requirements of Section 18.90.040 and the
provisions of the ESEE decision. The Sensitive Bird
and Mammal Habitat Combining Zone does not regulate or
prohibit forest practices subject to ORS 527.610 to
527.770 and the rules adopted pursuant thereto; [the
Forest Practices Act] or to farm practices as defined
by ORS 30.947(2).
B. When there is a conflict between the site specific ESEE
analysis and the provisions of this title, the
site-specific ESEE analysis shall control.
Section 18.90.040 Applicability
A. Review under this Chapter shall be triggered by the
following proposals occurring within a [wildlife]
sensitive habitat [site] area, as defined in Section
18.90.020 of this Chapter:
1. An application for a building permit for a new
structure or addition to an existing structure;
2. Land divisions creating new lots or parcels
within the sensitive habitat area;
3. An application for a conditional use permit; or
4. An application for site plan approval.
[B. Site-specific determination of applicability:
1. In instances where the precise location of the
habitat site has not been identified in the
County's Goal 5 inventory of sensitive birds and
mammals, the County shall prior to acceptance of
an application seek a determination from ODFW
2 - EXHIBIT 111" - ORDINANCE NO. 94-005 (06/15/94)
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pursuant to a determination of whether any part
of applicant's lot or parcel falls within the
habitat site.
2. If ODFW finds that applicant's lot or parcel or a
portion thereof does lie within the habitat site,
applicant shall be required to proceed in
accordance with Section 18.090.060. If ODFW
finds the applicant's lot or parcel does not fall
within the habitat site, applicant's proposal
shall not be governed by this Chapter.
3. If ODFW fails to respond with the 20 -day time
period, it shall be presumed that applicant's
property does not lie within the habitat site.]
[Section 18.90.050 Preapplication Consultation with ODFW
A. Prior to acceptance of an application involving a lot
or parcel lying in whole or in part within a habitat
site as defined in Section 18.90.020, applicant shall
submit sufficient information to the County about its
proposal so that the County, in consultation with ODFW,
can determine whether applicant's property falls within
the habitat site and if so what impacts the proposal
may have on the habitat site.
B. Upon notification, ODFW shall have 20 days to respond
to the County, identifying the precise location of the
sensitive bird or mammal site, determining whether the
wildlife site is active or abandoned, and determining
whether the proposal will destroy a nesting,
hibernating, nursery, lek or rookery site or to a
reasonable certainty cause the site to be abandoned.]
Section 18.90.0[6]50 Site [Management] Plan Review
Requirement
A. For those proposals identified in Section 18.90.040 to
be sited [on a lot or parcel located] within an
inventoried sensitive habitat area [site], as defined
under Section 18.90.020 [and verified by ODFW under
Section 18.90.040], a site [management] plan shall be
prepared in accordance with the requirements of this
section [prior to acceptance of an application subject
to this Chapter]. The site plan shall be approved
prior to issuance of a building permit, land division,
conditional use permit or site plan identified in
Section 18.90.040.
[A. Notwithstanding the remainder of this section, if the
habitat site covers only a portion of applicant's lot
or parcel and applicant proposes to locate the proposed
use outside of the habitat site, the management plan
shall consist of a plot plan detailing the location of
3 - EXHIBIT 111" - ORDINANCE NO. 94-005 (06/15/94)
0135-2264
the proposed use in relation to the habitat site as it
falls on the lot or parcel. Said plot plan shall be
approved as a management plan under this section if it
shows the subject use to be located outside the habitat
site. Approval of the use shall be conditioned upon
location the use in accordance with the approved plot
plan.]
[B. A management plan shall consider the biology of the
identified sensitive species, nesting trees, critical
nesting periods, roosting sites and buffer areas. Where
appropriate, the plan shall specify timeframes for
implementation. The plan may dictate placement of the
proposed use within the habitat site and place
restrictions upon the manner and time period of
operations.]
B. The site plan application shall provide the following
information:
1. A plot plan showing the location of all
development including existing and proposed
roads, driveways and structures.
2. Description of operating characteristics of the
proposed use including times when activity within
the sensitive habitat area would generate noise,
dust, vibration, lights, traffic or be visible
from the nest, lek, rookery or hibernation site.
3. Timing of construction activities included
grading or filling land, hauling materials and
building.
4. Description of existing vegetation and vegetation
to be removed for the proposed development.
C. The County shall submit a copy of the site [management]
plan to the Oregon Department of Fish and Wildlife
[ODFW] for comment. ODFW shall have 20 days from the
date of the site [management] plan is mailed to submit
written comments to the County.
D. Based upon the record, and evaluation of the proposal
based on the criteria in Section 18.90.060, and
conformance with the ESEE analysis for the site
contained in the Resource Element of the Comprehensive
Plan, the County shall approve or reject the site
[management] plan. [based upon whether the protection
proposed in the plan would avoid destruction of the
subject nesting site, lek, hibernation or nursery site
or rookery and or would to a reasonable certainty avoid
causing such a site to be abandoned.] In lieu of
rejection of the site [management] plan, the County may
allow the applicant to revise the site [management]
4 - EXHIBIT 111" - ORDINANCE NO. 94-005 (06/15/94)
0135-2255
plan if the applicant has not met the standards for
approval. Applicant shall waive the 120 -day time limit
if it chooses to revise the site [management] plan.
[E. In lieu of a management plan, if applicant believes
that its proposal would not destroy a nesting site,
lek, hibernation or nursery site or rookery or would
not with a reasonable certainty cause such a site to be
abandoned, applicant shall provide justification for
such an exception and County shall after consultation
with ODFW either approve or deny the exception
request.]
E[F]. Approval of a [management] site plan under this section
shall be conditioned upon applicant's implementation of
the plan.
Section 18.90.060 Site Plan Review Criteria
A. Approval of site plan shall be based on the following
criteria:
1. The site plan shall consider the biology of the
identified sensitive species, nesting trees,
critical nesting periods, roosting sites and
buffer areas. Based on the biology of the
species and the characteristics of the site, the
site plan shall provide protection that will
prevent destruction of the subject nesting site,
lek, hibernation site or rookery and will, to a
reasonable certainty, avoid causing the site to
be abandoned.
2. Development activities, including grading and
fill, mining, construction, or activities
generating noise or dust within the sensitive
habitat area shall be prohibited during the
nesting, strutting or hibernation season
identified in the site specific ESEE analysis and
decision for each habitat site. An exception to
this standard may be made if the Oregon
Department of Fish and Wildlife determines in
writing that the nest, lek or rookery is not
active and will not become active during the
proposed construction period or if the sensitive
birds have fledged. Construction activities
within an enclosed structure may be conducted
during the nesting, strutting or hibernation
season. Construction activities necessary to
repair an existing septic system or to replace or
repair a structure destroyed or damaged by fire
or other natural causes may be conducted during
the nesting, strutting or hibernation season.
3. New roads, driveways or public trails shall be
5 - EXHIBIT 111" - ORDINANCE NO. 94-005 (06/15/94)
located at the greatest distance possible from
the nest, lek, rookery or hibernation site unless
topographic or vegetation or structural features
will provide greater visual and/or noise buffer
from the nest, lek, rookery or hibernation site.
4. Existing vegetation or other landscape features
which are located on the subject property and
which obscure the view of the nest, rookery, lek
or hibernation site from the proposed
development, shall be preserved and maintained.
A restrictive covenant to preserve and maintain
vegetation shall be required when specified in
the ESEE for the site.
5. No partitions or subdivisions shall be permitted
which would force location of a dwelling or other
structure, not otherwise permitted by the site
specific ESEE, within the designated senstive
habitat area.
6. All exterior lighting, including security
lighting shall be sited and shielded so that the
light is directed downward and does not shine on
the subject nest, rookery, lek or hibernation
site.
7. The site plan shall conform with the requirements
of the ESEE decision for the subject sensitive
bird or mammal site contained in the Resource
Element of the Deschutes County Comprehensive
plan.
6 - EXHIBIT "1" - ORDINANCE NO. 94-005 (06/15/94)