The Oregon Estuary Plan Book - p4

The Path to Estuary Planning

Oregon's land use planning program is a statewide effort to provide for needed growth and development without compromising the resources that make Oregon a special place to live. The program achieves this goal through locally adopted land use plans which decide in advance what lands will be available for needed industrial, commercial and residential development, and what lands will be protected for continued farming, forestry and other resource uses. Oregon's commitment to planning recognizes that the state can and must strike a balance between providing for growth and protecting its resources. Estuary plans are one element of this statewide program.

In the 1960s, people nationwide began to understand the extreme value and vulnerability of estuaries. The National Estuary Study, completed in 1969, documented the threat to estuaries and concluded that dramatic action was needed to prevent continued degradation of the nation's estuarine resources. In Oregon, concern about damage to estuaries led Governor Tom McCall to issue an executive order halting all state construction projects affecting estuaries. In 1971, the Removal-Fill Law established stringent regulations to limit dredging and filling in all waters of the state.

In the 1970s, proposals for estuary development became one of many battlegrounds between conservation and development interests. Local governments and state agencies were forced to weigh economic benefits against environmental losses. When permits for estuarine development were denied, developers argued that Oregon was a no-growth state, while environmentalists considered each new development project approval to be one more step in the irreversible loss of estuarine values. The state had no way to assure that both legitimate development needs and environmental protection would be provided for.

Impasse over specific projects led to a consensus among environmentalists and developers on the need for predictability about which areas would be developed and which would not. Environmentalists wanted a long-term commitment to estuary protection, and developers wanted to know what development was possible before they made major investments in land and development plans.

Reaching a consensus on how estuary planning should be done and agreement on what each plan should say has taken almost a decade. However, now estuary plans (and comprehensive plans) are in place which guide future decisions about where development will go. To the best of our knowledge and understanding, they provide for a level of development which provides for appropriate uses, yet still protect our estuarine ecosystems.

Land use planning: an overview

Oregon's state land use law, codified as Oregon Revised Statutes (ORS) Chapter 197, authorized the Land Conservation and Development Commission (LCDC) to adopt mandatory planning procedures and standards to guide land use decisions by local governments and state agencies. These standards are the Statewide Planning Goals. Every city and county in the state is required to adopt a comprehensive plan that complies with the Goals. Once approved by LCDC, the plan takes the place of the Goals as the state's standard for most land use decisions. (State agencies are required to comply with both the Goals and acknowledged plans. In most cases, acknowledged plans fully carry out the goals, but there are several goal requirements that are not implemented through plans which must be applied by state agencies.)

There are 19 Statewide Planning Goals. Four of the Goals set planning requirements for coastal resources: estuaries, shorelands, beaches and dunes, and ocean resources. The goal requirements for estuaries and shorelands are discussed later in this chapter.

What is a comprehensive plan?

"Comprehensive plan" means a generalized, coordinated land use map and policy statement of the governing body of a local government that interrelates all functional and natural systems and activities relating to the use of lands, including, but not limited to, sewer and water systems, transportation systems, educational facilities, recreational facilities and natural resources and air and water quality management programs. "Comprehensive" means all-inclusive, both in terms of the geographic area covered and functional and natural activities and systems occurring in the area covered by the plan. "General nature" means a summary of policies and proposals in broad categories and does not necessarily indicate the specific locations of any area, activity or use." "Land" includes water, both surface and subsurface, and the air.
(Definition from ORS 197.015(5))

A comprehensive plan is the legal document that guides land use decisions within the area covered by the plan. Estuary management plans are one element of city and county comprehensive plans. Plans are typically divided into three parts: inventories, policies and implementing measures. Each part of the plan must be periodically updated to reflect changing needs, circumstances and information.

Inventories

The factual information about land use, resources, and development trends within the planning area; they provide the basis for plan policies. Inventories must be periodically updated to reflect the best current information about resources and trends that would affect plan decisions.

Policies

The decision-making and standard-setting parts of a plan. They are mandatory, enforceable statements which direct all subsequent land use categories.

Implementing measures

The procedures and standards used to guide decisions on land use activities. They include zoning ordinances and other land use regulations which carry out plan policies. Zoning ordinances typically identify land use activities and the circumstances under which they are allowed in the various land use categories or zones. Capital improvement programs are another sort of implementing measure. They set priorities for how money is to be spent on sewers, roads and other capital improvements that shape the community.

Local land-use decision processes

Local decisions on specific estuarine and shoreland activities are made in several ways. There are basically three types of land use decisions: ministerial, quasi-judicial and legislative. Public notice requirements and the detail of local review depend upon the type and intensity of the proposed activity.

Ministerial decisions

These decisions involve activities which have been wholly anticipated in the plan and zoning ordinance. Such activities generally have minimal predictable impacts that can be controlled by requiring that routine standards or conditions be met. Decisions are made by the local planning department and involve standards that can be easily measured or checked for compliance. For example, review of a building permit involves assuring that a structure is allowed by the zoning, meets setback and other zoning requirements, and that the building meets minimum requirements of the building codes. Ministerial decisions, by definition, do not require the exercise of judgment by the reviewer, and as such they require neither public notice nor review by other agencies.

Quasi-judicial decisions

These involve the application of more general standards to a specific proposal. By definition, such decisions affect a limited, identifiable group of people. Some form of public notice and opportunity for public review, comment, and appeal is required, since some discretion is exercised by the reviewer. Most estuarine uses are subject to some form of quasi-judicial decision-making. The most common quasi-judicial review is for a conditional use, which is an activity that may be permitted if it complies with certain conditions. Such conditions are generally aimed at minimizing the impacts of an activity upon surrounding resources or other human activities. Procedures for notice and hearing vary. Conditional use decisions are usually made by a city or county planning director or hearings officer. Some local governments provide notice in advance and then hold a public hearing. In other situations, particularly for non-controversial uses, the planning director prepares a written report addressing the standards in the local ordinance in advance of public notice. Notice of the planning director's proposed decision is then mailed to affected and interested parties, who usually have 10 to 30 days to either appeal or request a hearing on the proposed decision. Appeals are then considered by the planning commission or the governing body.

Legislative

These decisions are decisions which affect either a large area or many people. They are typically zoning ordinance or plan policy amendments; as such, the group of people affected by a decision is not readily identifiable, and thus only the publication of a general notice is required by law. Proposals for major plan amendments must be sent to LCDC. LCDC then notifies interested persons about the proposals. Zoning ordinance amendments must be consistent with the local plan, and major plan amendments must conform with the Statewide Planning Goals.

Coordination

The Oregon Land Use Act of 1973 (ORS Chapter 197) and Statewide Planning Goal 2 (Land Use Planning) require that plans be "coordinated." A plan is "coordinated" when the needs of all levels of governments, semi-public and private agencies and the citizens of Oregon have been considered and accommodated as much as possible. Coordination means that local governments must provide other units of government an opportunity to express needs and interests in the planning area as the local government prepares, implements, or amends its comprehensive plan. Coordination is especially important in estuary planning, since several local, state and federal agencies are involved in the management of estuarine resources. Local governments must evaluate needs expressed by the local port district and other agencies involved in economic development. Locally adopted plans must also implement or be consistent with state and federal requirements for the management and protection of waterways and fish and wildlife resources. After plans are adopted and approved by LCDC, the state and federal agencies must adhere to them.

Most of Oregon's estuary plans were written with the close cooperation of affected units of government. They were prepared or reviewed by an interagency task force, and they reflect a consensus between local, state and federal agencies on how estuaries will be utilized in the future.

Coordination occurs as plans are both implemented and revised. Local governments give other units of government an opportunity to comment on land use decisions. DLCD provides notice of major plan amendments to interested parties through its post- acknowledgment plan amendment notice and through notice of periodic plan review.

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