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HomeMy WebLinkAboutMiscellaneous Miscellaneous 8/10/2005 SPRINGFIELD HEARINGS OFFICIAL REQUEST FOR A DETERMINATION OF A GREENWAY SETBACK LINE PER SECTION 25.060 OF THE SPRINGFIELD DEVELOPMENT CODE Application Summary • Phil L. Marvin requests the establishment of the Greenway Setback Line (Setback) within the Willamette Greenway Overlay District on tax lot 100, assessor's map 17-03-34-41. Application History Hearing Date: August 10,2005 (Record Held Open Until August 31, 2005) Decision Date: September 26,2005 Appeal Deadline: October 17, 2005 Oregon Land Use Board of Appeals Statement of Criteria and Standards Section 1.030(2) Springfield Development Code Section 25.060 Springfield Development Code Eugene—Springfield Metropolitan Area General Plan (Metro Plan) Glenwood Refinement Plan Willamalane Park and Recreation District 20—Year Comprehensive Plan (2004) TransPlan (Eugene—Springfield Transportation Plan) Facts Relied Upon (Findings) 1. The applicant, Phil L. Marvin, requests the establishment of the Greenway Setback Line (Setback) within the Willamette Greenway Overlay District on tax lot 100, assessor's map 17- 03-34-41. This property, hereinafter referred to as.the"subject property, " is located immediately downstream from the Glenwood—Springfield bridge,outside the Springfield City limits and within the urban growth boundary (UGB). The subject property is subject to the Willamette Greenway Overlay zone that establishes a"temporary setback"of 150 feet. The subject property is about 7 acres in size and is triangular in shape. It is vacant and the applicant has not identified a future use for the property. The subject property has had a long history of use in agriculture, being used as an orchard as early as 1936. By 1944, most of the subject property's riparian vegetation had been removed and a more active row cropping was evident. By 1968, the orchard was eliminated, and the site was primarily in a meadow/leveled and disturbed condition, with a redeveloping riparian ribbon. The 1973 and 1979 aerials show the site as an abandoned meadow, with small trees becoming evident in the meadow area, as well as Armenian blackberry. The 1990 and 2000 aerial photographs show the parcel as vacant, with large patches of blackberry, scattered trees and numerous trails present in the meadow area, and the riparian ribbon displaying more trees, specifically along the bank and top of bank on the river. Bete Reeelved: l 05 Planner: I oc-c & P ) r ` ti Jo. No. SHR 2005-00004 September 26,2005 Page 2of6 2. In August of 2005, the riparian vegetation along the riverbank of the subject property was marked.' Beginning at the northwest corner of the subject property, a flag was placed every 50 feet along the subject property' s perimeter along the river, with a flag being placed either at the edge of the riparian vegetative canopy or at 10 feet from the top of the riverbank, whichever distance was set back farther from the riverbank. The riparian vegetative canopy was found to vary from one to 26 feet back from the river bank, with eight of the 17 flags being placed greater than 10 feet back from the riverbank. Only three flags were farther than 20 feet from the riverbank. 3. Several functional and refinement plans of the Metro Plan reference a bike path along the south bank of the Willamette River,across the subject property. TransPlan (July 2002)identifies the path as South Bank Trail (A), running from I-5 to the Springfield Bridge, and lists it as Project 851. Project 851 is listed as a Future Bikeway Project,one that is not planned for construction during the 20-year.planning period.Transportation System Improvement Bicycle Policy#1 . -supports construction of multiple—use bicycle/pedestrian paths along the Willamette River within the Willamette River Greenway. The Glenwood Refinement Plan (November 1999) (Pg 53)notes that the bike path is a continuation of the South Bank Trail and that it is a conceptual alignment. Transportation Policy 4.5 acknowledges that bicycle path access easements along the river would have to be acquired by purchase or donation and that the bicycle paths must be designed and constructed to ensure the public's safety and the protection of private property. The Willamalane Park & Recreation District's 20—Year Comprehensive Plan serves as the City of Springfield's recreational master plan. Chapter 4 Strategies and Actions Map 3 shows the South Bank Trail as a proposed off—street bike path and Table 4(Item 4.15)identifies the bike path as TransPlan Project 85 1. • Decision IN REGARD TO JOURNAL NUMBER SHR 2005-00004,THE SPRINGFIELD HEARINGS OFFICIAL CONCLUDES THAT THE LOCATION OF THE GREENWAY SETBACK ON TAX LOT 100,ASSESSOR'S MAP 17-03-34-41, SHALL BE THE EXISTING RIPARIAN VEGETATION LINE,AS DETERMINED BY THE SURVEY CONDUCTED BY COYOTE CREEK ENVIRONMENTAL SERVICES, INC. THE LOCATION OF THE GREENWAY SETBACK LINE SHALL BE SURVEYED AND MOUNTED AND THE SURVEY SHALL BE FILED WITH THE CITY OF SPRINGFIELD. Not a part of this decision, but as notice to all parties, Section 25.070 of the SDC requires that development within the Willamette River Greenway Overlay Zone be subject to the discretionary use permit criterion of Section 10.030 of the SDC and to the application of Section 25.060 of the SDC. Other approval criterion may also be applicable at the time that a permit for development is submitted. August 19, 2005 letter from Michael W. Shippey,Coyote Creek Environmental Services,Inc. to Dan Terrell, regarding the flagging o •the;riparian'zorie on tax lot 100. Jo. No. SHR 2005-00004 September 26,2005 Page 3 of 6 Justification for the Decision (Conclusion) The subject property currently is regulated by the Greenway Overlay District, which applies to all land within 150 feet from the ordinary low water line of the Willamette River. This overlay district allows the uses permitted in the underlying zoning district except for that portion of the overlay zone subject to a Greenway Setback Line. Any request for land within the overlay district but without a setback line must be accompanied by an application for the establishment of a setback line. Section 25.060 of the SDC provides that the Greenway Overlay District shall substitute temporarily as the Greenway Setback Line where there is no established Setback Line. This section of the Code further provides that the Setback Line may be established without an accompanying request for development approval and requires that a setback determination must be consistent with eight criterion derived from Section C.3 of the Willamette River Greenway Goal. The City argues that the policies of the Glenwood Refinement Plan (GRP) must also be applied to the setback determination and points to guidelines on pages 37 and 38 of the GRP that suggest that structures (new or expanded)be set back between 25 and 35 feet from the top of the riverbank,unless floodway boundaries require a greater separation.The explicit intent of these guidelines is to protect the riparian area,to allow adequate space for uses that are not water—related or water—dependent,and to allow enough space for the construction of a riverfront bike path. Staff has noted that a 25—foot easement is necessary to support a bike path and related support structures (light poles,paving, shoulders). Section 25.060 provides several standards against which a requested interpretation must be reviewed. These standards are as follows: (1) Local, regional and state recreational needs shall be provided for consistent with the carrying capacity of the land. The possibility that public recreation use might disturb adjacent property shall be considered and minimized to the greatest extent possible. The need for a recreational, off—street bike path along the river bank through the subject property has been documented by TransPlan,the Glenwood Refinement Plan and the Willamalane 20—year Comprehensive Plan. The Glenwood:Refinement Plan suggests that,at a minimum,a 25—foot setback from the top of the river bank be maintained to allow for a bike/pedestrian access. One must conclude that there has been a strong and consistent statement of policy regarding the need for a bicycle/pedestrian path along the south side of the Willamette River through Glenwood. The Glenwood Refinement Plan acknowledges that the design for such a path must address public safety concerns and private property rights. The applicant questions whether a bicycle path could legally be considered as a "water— dependent"or"water—related" use. If not, then the bicycle path could not be constructed within the setback area that was sized to accommodate it! On its face, this argument appears to have some merit as it reflects various policy concerns regarding transportation facilities being located within the Willamette River Greenw,ay setback. For instance, "water—related" uses are defined by the Statewide Planning Goals as: "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 • r r Jo. No. SHR 2005-00004 September 26,2005 Page 4 of 6 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, are not generally considered dependent on or related to water location needs."(Emphasis mine) Also pertinent is Willamette River Greenway, River Corridors,and Waterway Element Policy #13 of the Metro Plan (Page II—D-5) which notes that an exception to the Statewide Planning Goals is required for non—water dependent transportation facilities that require the placement of fill within the Willamette River Greenway setback. TransPlan lists the proposed bike path(Project 851) as a multi—use facility, one that presumably has greater recreational value for bikers and pedestrians than transportation importance since _ TransPlan and the Glenwood Refinement Plan both call for on—street bike paths along Franklin Boulevard. I believe that a credible argument can be made that a bike path within the Greenway setback is a water—related use since it would provide visual access to the river. The above—discussion,however, is not directly related to the criterion, which demands a comparison of the recreational needs of the public with the carrying capacity of the land. The carrying capacity of the subject property for recreational uses is currently at its maximum, whatever that might be, since it is vacant. The establishment of the Greenway setback will not change that status and therefore has very little practical effect on the ability of the subject property to satisfy the recreational needs of the community. In actuality,the best time to address the carrying capacity analysis is at the time that development is proposed. (2) Adequate public access to the river shall be provided. There is nothing in the record that suggests that the subject property contains any unique public access resources for the public and public access is not currently accommodated. However,the various comprehensive plan provisions for a bike path in Glenwood along the southern bank of the Willamette River suggest that there is a general need for visual access to the river. (3) Significant fish and wildlife habitats shall be protected. The Glenwood Refinement Plan (Pg. 39) acknowledges that there are no significant fish or wildlife habitat areas identified within the Glenwood portion of the Willamette River Greenway. (4) Identified scenic qualities and view points shall be preserved. The Glenwood Refinement Plan (Pg. 39)notes that there are no identified scenic qualities or viewpoints within the Glenwood portion of the Willamette River Greenway. (S) The maintenance of public safety and protection of public and private property, especially from vandalism and trespass shall be provided for to the maximum extent practicable. The present application does not appear to be applicable to this criterion. Jo. No. SHR 2005-00004 September 26,2005 Page 5of6 (6) The natural vegetative fringe along the river shall be enhanced and protected to the maximum extent practicable. The detailed mapping done of the vegetative fringe along the river—side portion of the subject property identifies the boundaries of the riparian area. The mapping identifies eight areas where the riparian vegetation extends 10 or more feet back from the river bank. While City staff expressed surprise at the results of this mapping project, they did not challenge the determination. The applicant points out that if the design needs of a bicycle path are correctly identified (i.e,a 25—foot wide easement for lighting,paving,and shoulders) then a setback area established to allow the bicycle path would result in the obliteration of all but a small portion of the existing _riparian vegetation. (7) The location of known aggregate deposits shall be considered. Aggregate extraction may be permitted outside the Greenway Setback Area subject to compliance with State law, the underlying district and conditions of approval designed to minimize adverse effects on water quality,fish and wildlife, vegetation, bank stabilization,stream flow, visual quality, quiet and safety and to guarantee reclamation. The Glenwood Refinement Plan (Pg. 39)notes that aggregate extraction is not anticipated in the area subject to its jurisdiction. (8) Developments shall be directed away from the river to the greatest possible degree;provided, however, lands committed to urban uses shall be permitted to continue as urban uses, including port,public, industrial, commercial and residential uses, uses pertaining to navigational requirements, water and land access needs and related facilities. There is no development proposed with this application and therefore this criterion is not presently applicable. However, within the Greenway Overlay District, any change or intensification of use, or construction that has a significant visual impact must obtain Discretionary Use Approval (Section 10.030), even if a greenway setback line has been established. Section 25.070 requires that applications in the Greenway Overlay District also meet the standards of Section 25.060. An analysis of the above—listed criteria supports a conclusion that only one criterion appears to be directly related to the current circumstances of the subject property. That is Section 25.060(6), which requires that the natural vegetative fringe along the river be protected and enhanced to the maximum extent possible. This resource has been inventoried and mapped on the subject property and the only available tool to "protect and enhance" it is through the location of the Greenway Setback Line. In the context of this application, and without meaning to evoke Section 25.060(3),the plans for a bike path in Glenwood along the southern bank of the Willamette River are somewhat of a red herring. Clearly there is a public need for the bike path but it is also recognized that the location of the path may, in some cases, vary from the conceptual design. The most important point, and one raised by the applicant, is that it would be very difficult for the City to construct the proposed bike path in a manner suggested that was consistent with the retention of riparian vegetation as mandated by Section 25.060(6). • A; Jo. No. SHR 2005-00004 September 26,2005 Page 6 of 6 The best time to provide for the bike path is when development is proposed for the subject property. Section 25.060(8) makes it clear that a discretionary use permit will be required for any development within the 150—foot Willamette Greenway Overlay Zone. In this regard, Section 10.030(1)of the SDC requires that proposed uses conform to the Metro Plan and to applicable refinement plans. Further, Section 10.030(2)(b)of the SDC requires that adequate and safe pedestrian and bicycle circulation be provided. Section 25.060(8) also notes that the standards of Section 25.060 will also be applied at the time that development is proposed to occur within the Overlay Zone. These review standards must be applied regardless of whether a Greenway setback has already been established. Respectfully Submitted, _Gary rnielle . . Springfield Hearing Official