2.7.610 Purpose | Bend Development Code

2.7.610 Purpose.

A. Purpose. The Deschutes River and Tumalo Creek stream corridors within the urban growth boundary of the City of Bend are valuable economic, recreational, scenic and natural resources for the community. The Waterway Overlay Zone (WOZ) is inclusive of all special purpose provisions that pertain to these stream corridors. The WOZ is intended to conserve and enhance the natural resource values of areas along the Deschutes River and Tumalo Creek within the City by:

•Recognizing and respecting the unusual natural beauty and character of the City’s major waterways;

•Protecting and enhancing water quality for human use and aquatic life;

•Conserving and restoring habitat for wildlife, fish and other aquatic life;

•Conserving wetlands;

•Controlling erosion and reducing the effects of flooding;

•Improving coordination between the City and agencies regarding development activities near waterways;

•Promoting development that is compatible with the purposes of the WOZ;

•Promoting the preservation and restoration of native riparian vegetation;

•Maintaining the scenic quality of the canyon and rimrock areas along these waterways;

•Conserving and protecting property values; and

•Encouraging development, preservation and enhancement of reasonable public access to major waterways for recreational use and visual enjoyment.

B. Applicability. Provisions of this section apply to all property within the boundaries of the WOZ as shown on the Bend Urban Area Zoning Map and consistent with WOZ boundary determination procedures of subsection (C) of this section. Many parcels within the WOZ are affected by more than one sub-zone. Where this is the case, applicable development standards for each sub-zone shall apply within that sub-zone’s boundaries. Standards of this section shall apply in addition to applicable standards of the underlying zone. Where there are conflicts between sub-zone standards, the more restrictive standards shall control. The WOZ includes the following sub-zones which are included in this chapter as BDC 2.7.620 through 2.7.650:

1. Riparian corridor.

2. Deschutes River Corridor Design Review.

3. River Corridor Areas of Special Interest.

4. Floodplain.

C. WOZ Boundary Determination. The WOZ boundary is inclusive of all WOZ sub-zones, as specified in this section. Except for the River Corridor Areas of Special Interest and the Floodplain Sub-Zone, the boundary of all sub-zones shall be determined by distance measurement from the designated waterway. The boundary for the River Corridor Areas of Special Interest Sub-Zone is designated on the Bend Comprehensive Plan Map, and shall be considered to be the outer (upland) edge of the mapped boundary line. Unless otherwise provided for specific WOZ sub-zones, boundary measurements shall be made from the ordinary high water mark. Distance measurements shall be made horizontally and at right angles to the edge of the waterway.

1. Removal. Consistent with the purposes of this section, and because trees contribute to the overall health of the riparian corridor, removal of existing trees greater than four inches in diameter within the WOZ is prohibited, except as follows:

a. Where necessary to accommodate an approved development activity; or

b. Where the tree is determined by a qualified professional to be diseased or hazardous; or

c. Where necessary to mitigate potential fire hazard in accordance with the Fire Protection Act of 1997.

2. Findings. Tree removal under this subsection may be authorized by the Review Authority, based on findings demonstrating conformance with criteria in subsection (D)(1)(a), (b), or (c) of this section. Where tree removal is proposed apart from an approved development activity, the Review Authority may authorize removal as a development action. If no hazard will be created, a tree or snag requested for removal may be required to be left in place as wildlife habitat.

1. State Agency Coordination. Within the WOZ, the State of Oregon has jurisdiction over certain development activities. In order to ensure coordination between the City of Bend and affected State agencies, notice of proposed activities within the WOZ will be provided to the Division of State Lands, the Oregon Department of Fish and Wildlife, the Oregon Parks and Recreation Department, and the Department of Environmental Quality, in accordance with provisions of BDC 4.1.245, Notice to Public Agencies.

2. Application Information. In addition to application information required under BDC 4.1.220, Application Requirements, an application for a development or land use action within the WOZ shall include the following:

a. A detailed written explanation of the proposal, including the location, amount, and type (species) of any vegetation to be removed or planted, and any material to be graded, excavated, or filled.

b. An explanation of why any proposed grading, excavation, or fill of material and/or vegetation is necessary.

c. A site plan drawn to scale, accompanied by such drawings, sketches, photos, and descriptions as are necessary to describe and illustrate the proposed activity. The site plan shall, at a minimum, include:

•Any proposed structures or impervious surfaces on the site;

•Location of property lines, easements, existing and proposed structures;

•Identification of existing vegetation on the site, indicating areas of native and nonnative plant species;

•Any proposed modifications to existing vegetation;

•A grading and drainage plan, showing existing and proposed site contours at two-foot intervals, or less;

•All applicable WOZ sub-zone boundaries;

•Location of the ordinary high water mark;

•Location of designated wetlands on or abutting the site; boundaries of designated wetlands shall be delineated using methods accepted by the Oregon Division of State Lands;

F. Enforcement and Penalties. In addition to the enforcement and penalty provisions of BDC Chapter 1.3, Enforcement, the Review Authority may require the replacement of vegetation removed in violation of the Waterway Overlay Zone. The City may require greater than one-to-one replacement. The amount of replacement trees, shrubs and ground cover shall be determined by the area of removed vegetation. The property owner shall enter into a mitigation agreement plan approved by the City. The mitigation plan shall include:

1. Mitigation Plan. A plan providing for the planting and maintenance of the replacement vegetation. The plan shall make provisions for the replacement of plants that die within three years of planting.

2. Agreement. Failure to enter into a mitigation agreement plan as required by this section or failure to comply with any condition of that plan shall be a Class A civil infraction. Such failure shall be a separate infraction each day the failure to comply continues. In addition, the City may refuse to accept any development permit application for the subject property or stop work on any development approved for the subject property until an acceptable mitigation plan has been executed or complied with.

3. Relief. In addition to monetary penalties, the City may seek injunctive relief to require the property owner or other responsible party to restore the property to the conditions prior to the violation. The injunctive relief may include imposition of a mitigation plan.

G. Replacement of Existing Structures. Notwithstanding other provisions to the contrary in the City of Bend Zoning Ordinance, in the event that an existing structure is partially or entirely damaged or destroyed by fire, natural disaster or other casualty, the subject structure may be repaired or replaced in the same location; provided, that additional riparian surface area is not disturbed. A property owner who has been convicted of any degree of arson (including inchoate offenses) in relation to a fire that damages or destroys the subject structure will not be permitted to utilize this section as a basis for rebuilding the damaged or destroyed structure. [Ord. NS-2016, 2006; Ord. NS-1931, 2004; Ord. NS-1846, 2002]