Supplement #2

Additional Suggestions for Consideration in Enacting a new

Land Use Management Ordinance

January 6, 2003

Suggestions have been offered from a variety of sources subsequent to the last memorandum that was prepared for the Council on December 9.   We have collected those suggestions and report them here in two groups.

I.  The first group of suggestions would serve to correct mistakes/omissions or to clarify meaning.  We believe that these are non-substantive, and intend to make these adjustments in the final draft unless the Council directs otherwise:

• Add/Clarify language about applicability of stormwater requirements to single-family home construction, making it clear that no stormwater standards apply to single-family or two-family developments that disturb less than 5,000 square feet of land area; and that volume standards for single-family/two-family developments only apply to construction that disturbs more than 5,000 square feet of land area on lots approved/created after the date of enactment (pages 167-168).  The following table illustrates how the three stormwater standards apply to different situations, according to the Fourth Draft:

Stormwater Management Standard to Apply	Single-Family/ Two Family, Under 5,000 sq. ft.	Single-Family/ Two Family, More than 5,000 sq. ft. Old Lots         New Lots	All Other Development
Rate Standards Apply?	No	Yes                 Yes	Yes
Quality Standards Apply?	No	Yes                 Yes	Yes
Volume Standards Apply?	No	No                  Yes	Yes

• Clarify that, for an existing 75-foot or 50-foot Resource Conservation District Boundary (left intact by grandfathering provisions), the first 50 feet closest to a stream should be considered the “streamside” zone.

• Clarify, on page 40 of the RCD regulations, that the grandfathering provisions apply only to the boundary, and that new standards within those old boundaries will apply.

• Add a definition of “hydrologic abstraction.”  (Term used on page 168, in Section 5.4.6, but not defined.)  The definition should be as follows, placed in Appendix A:  “Hydrologic Abstraction:  The reduction of total rainfall to effective rainfall through runoff interception, infiltration, surface storage, evaporation, and/or evapotranspiration.”

• Re-insert special provisions for maximum floor area for public elementary and secondary schools (included in current Development Ordinance, but left out of draft Land Use Management Ordinance).  Current regulations read: “For elementary and secondary schools, a LUI rating of 38 shall apply . . . unless a higher LUI rating is established.”  (Sec. 13.7.1 of current Development Ordinance). This means that Floor Area Ratios for elementary and secondary schools are currently a minimum of .174, regardless of the zoning district in which such a school is proposed.  We believe that it was an oversight to not carry this provision over to the draft Land Use Management Ordinance.  We also believe, based on past Council discussions, that it is the Council’s intent that such a special provision should be specifically limited to public elementary and secondary schools.   

• On page 162, Item (a) under Steep Slope provisions, the statement that reads “For purposes of this Section, a “slope” shall include only those areas with a horizontal distance of at least twenty feet.” should be adjusted to clarify an area, not a distance.  Suggestion:  “shall include only those areas of size 400 square feet or larger.”

• On page 162, Item (b) should be adjusted to clarify the intent of the steep slopes exclusion.  Suggested addition follows, in italics:  “Steep slope regulations contained in this Section shall not apply to single family dwelling units or two-family/accessory apartment dwelling units on lots lawfully created or for which a Preliminary Plat has been approved prior to the date of enactment of this ordinance.”

• Adjust the following typographical errors:

- Page 40:  Remove asterisk in the table that refers to an RCD elevation for Intermittent Streams.

- Page 43:  “S” for Streets/Bridges, not “V”

- Page 43:  For Detention/Retention, Managed Use should be “P”, not “V”.

- Page 295:  “Presence of fish . . .” phrase in the definition of Intermittent Stream is out of place and should be deleted.

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II.  The second group of suggestions would involve substantive changes to the regulations that are proposed in the Fourth Draft.  We offer these for the Council’s consideration below, along with a Manager’s Comment.  We will make these adjustments in the final draft if the Council so instructs:

• On page 173, the Parks and Recreation Commission has suggested that the standard for calculating a payment-in-lieu of required recreation area be based on the expected fair market value, pre-development, of the land being subdivided.  The language in the current Development Ordinance, and the Fourth Draft, calls for the payment to be based on expected fair market value after it is subdivided.

Manager’s Comment:  We believe that there are policy considerations to balance in prescribing whether such payments should be calculated based on pre-development or post-development land values.  Post-development values are higher than pre-development values.  The arguments for leaving the benchmark at post-development values are that this more accurately describes the cost of land were it to be purchased for recreational purposes in a particular development, and therefore in cases where the Council can require a payment-in-lieu (for small parcels), the amount would be higher and more realistic.  The argument for using a pre-development value is that applicants have historically been reluctant to make payments based on this higher value, and in some cases a payment would be more desirable than land.  Payments-in-lieu may be offered by the developer, but can be required by the Council only when the size of required recreation area is small.

We have recommended that the value continue to be based on post-development conditions.  We believe the Council could reasonably reach a different conclusion.

• Our Public Works Department has expressed concern that, without additional resources to provide for plan review and site inspections for 250+ single-family building sites per year (starting upon enactment of a new ordinance), enforcement of tree protection regulations for single-family home construction will not be as comprehensive and effective as would be desirable.  One option would be to adjust the new regulations so as to better target those situations where attention to tree protection would have the most significant impact. 

The Fourth Draft currently sets a land-disturbance threshold of 2,000 square feet for a single-family or two-family house as a trigger for tree protection regulations.  We have recommended to the Council that the threshold be raised to 5,000 square feet.  Our Public Works Department suggests that an additional threshold - - 5,000 square feet, plus ½ of the remaining lot above 5,000 square feet - - be established to determine whether a complete tree survey and site specific landscape protection plan need to be approved in order to receive a building permit.  This would mean that construction limit lines would be required to be delineated on all building permit applications, but that other tree protection regulations would not apply if these thresholds for land disturbance were not exceeded.  For example, on a 15,000 square foot lot:  5,000 square feet would be the “allowance” for construction of the house.  If the builder were to then commit to leave one-half of the remaining 10,000 square feet undisturbed, a permit could be issued without a staff site inspection and detailed site specific design review.  By establishing this secondary threshold, our Public Works Department suggests that builders may have an incentive to retain additional vegetation in order to expedite the permit approval process while at the same time reducing the staff resources needed to implement the regulations. 

Manager’s Comment:  We believe that there are substantive policy considerations to be made in balancing the desirability of regulations, the need for resources to administer regulations, and the effectiveness of regulations in achieving community objectives.   Our December 9 memorandum recommended a threshold of 5,000 square feet of disturbed land area for applying tree protection provisions to construction related to single-family and two-family dwellings.  We believe that the Council could reasonably set the threshold differently.

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We offer these ideas for the Council’s consideration.