Information on Lake Oswego's Sensitive Lands Overlay

Responses to Common Claims about Lake Oswego Sensitive Lands Overlays

I. Claim: ‘There is no need for land-use regulations on private land. Other policies (tree protection ordinance, erosion control, etc), public lands, and voluntary programs are adequate and legal.’

Responses:

·        Public land conservation cannot alone shoulder the burden of environmental protection across the landscape. 50% of environmentally sensitive lands covered by the SLO are on private land. Natural features such as wildlife corridors and streams and wetlands and associated riparian areas function as an interdependent system across the entire landscape. Many of these natural features currently exist in an impaired or degraded condition.  Allowing environmentally sensitive lands to be further lost, degraded and fragmented from the direct and cumulative impacts of development on private land will not safeguard public values such as water quality and quantity, biodiversity, and public health and safety. 

·        Voluntary Programs will NOT alone Protect Environmentally Sensitive Lands.  Incentives, education and other voluntary programs are important compliments to a regulatory program but are NOT a substitute for land-use regulations that require development to avoid, minimize, or, where appropriate, compensate for environmental impacts.  Voluntary stewardship is laudable but does not guarantee long-term protection for resources with the turnover in ownership that is ubiquitous in urban communities. At Portland Audubon we field calls from concerned citizens on a regular basis dealing with situation where development is destroying or degrading environmentally sensitive lands in the region.  Growth and development  during 1990s (before Title 3 or 13 were adopted) resulted in the loss of over 16,000 acres of wetlands, riparian corridors, and upland forests across the Portland-Metro region, an area the size of the City of Gresham. Audubon supports Lake Oswego in developing robust incentive and education programs to encourage protection and stewardship of all environmentally sensitive lands. However, these programs must complement not substitute regulatory protections. For example, we support provision of property tax reductions for sensitive lands protected by the SLO.

·        Other Policies Do Not Protect Sensitive Lands from Development. No other city policy and program protects environmentally sensitive lands when and where development occurs. The tree ordinance protects individual trees, not tree groves, native vegetation and soils along streams and wetlands, or other special wildlife habitats.  Erosion control standards minimize and mitigate impacts of ground disturbance associated with construction activities but do not require that impacts be avoided in the first place.

II. Claim:  ‘Lake Oswego can comply with Metro requirements and state law with an entirely voluntary approach and without land-use regulations.’

Response: This is false. No jurisdiction in the region has complied with Metro’s water resource and habitat conservation area requirements with an entirely voluntary program that contains no land-use regulations. Title 3 and Title 13 require that local governments to amend their comprehensive plan and zoning ordinances to substantially comply with the model ordinances by protecting regionally significant habitat and water resource areas.

II. Claim:  ‘Lake Oswego’s Sensitive Lands regulations are strongest in the region and go beyond what Metro requires.’  

Response:  Lake Oswego’s regulations are not the strongest in the Metro-region and they do not exceed what Metro requires.

In 2005 Metro inventoried 80,000 acres of regionally significant fish and wildlife habitat in the Portland-Metro region and committed the region to try to protect and restore as much inventoried habitat as possible. Metro and local governments developed a regulatory program to partially protect about half the inventoried habitat in the region. It requires that jurisdictions to either adopt a model ordinance protecting habitat near streams and wetlands or modify their zoning code to ‘substantially comply’ with the model ordinance. This provides local governments with considerable flexibility to meet Metro requirements. 

For example, Metro's model ordinance protects riparian areas within 50 to 200 feet of streams and wetlands depending on slope and vegetation condition. However Lake Oswego only requires maintaining riparian areas within 10-30 feet of streams and wetlands. Lake Oswego's program partly addresses this deficiency by providing more protection for upland tree groves. Overall, Lake Oswego protects about the same amount of habitat that would be required under Metro’s model ordinance.

Meanwhile, jurisdictions like Portland and Wilsonville protect more of the regionally significant habitat inventoried by Metro and go well beyond what Metro requires.

III. Claim:  ‘The SLO is unfair to some property owners due to lost development value.’

Responses:

·                    All land is not equal. All land within a watershed is environmentally significant but not all land is the same. The SLO protects the MOST environmentally sensitive lands within Lake Oswego’s watersheds, areas that must be developed with special care to protect our local environment and secure public investments to protect and enhance our watersheds.

·                    Development NOT prohibited. The SLO does not prohibit development.  It limits how development occurs on a site by requiring that significant environmental impacts be avoided, minimized and, where appropriate, mitigated.  The SLO contains hardship variances to ensure individual landowner’s property rights are not violated and that policies are Constitutional.  Density can be transferred from environmentally sensitive lands to adjacent non-resource lands at a ratio of 1:1.

·                    Most Other Local Government Actions Increase Property Values. Decisions by local governments regularly make decisions that directly or indirectly increase the development value to privately owned property. These decisions include public street improvements, water, sewer and other services, or the zoning decisions that increase allowed development under the base zone. For example, Lake Oswego is currently looking at allowing accessory dwelling units (granny flats) in single family residential zones.  In this context, it is fair and reasonable that the city require that new development happen in a way that does not significantly increase impacts to local ecosystems and the multiple public goods and services they provide.

IV. Claim:  ‘Deed restrictions are overly burdensome and put a red flag on properties.’

Response. SLO code allows up to 50% of Resource Conservation area to be developed. A deed restriction covenant on the remaining 50% (Protection Area) is only applied as a condition of approved development. The purpose is to ensure protection of resources from future development and to notice future landowners of obligation to protect environmentally sensitive lands.  Lake Oswego is one of many cities in the region that require a deed restriction or a conservation easement to protect environmentally sensitive lands as a condition of development, including the Wilsonville, Happy Valley, Hillsboro, Beaverton, Sherwood, Cornelius, Forest Grove, Tigard, Tualatin, City of Portland, and all urban areas in Clackamas County’s Water and Environmental Services District.

V. Claim: ‘Some tree groves and natural areas were mapped as environmentally sensitive and some were not due to favoritism’ 

Response: Sensitive lands covered by the SLO were mapped by natural resource professionals using a habitat assessment protocol widely in the Portland-Metro region.  Mapping is based on resource boundaries not property boundaries and on the size and proximity of a particular habitat patch size to other habitat patches. Therefore designations on particular properties may vary due to connectivity to habitat on adjacent properties or the overall size of the habitat patch.

VI. Claim: ‘Oswego Lake was not excluded from the sensitive lands overlay.’ 

Response: The water bodies, including Oswego Lake, themselves are not subject to land-use restrictions because they lack underlying zoning and could not be developed for commercial or residential use. There are natural resource conservation measures that should be applied to non-development-related uses on the open waters of Oswego Lake but they need not be addressed through the SLO code that regulates development practices and related land-use and disturbance activities. Metro's Habitat Conservation Areas and Lake Oswego’s Sensitive Land Overlays include riparian areas around the perimeter of Lake Oswego Lake; precise boundaries are not the same because of different criteria for mapping resources and designating protection areas.