Housing survey asks questions on ‘clear and objective’ phrasing

Florence Housing Implementation Plan Open House seeks community input on code

On Monday, Oct. 17, the City of Florence’s Housing Implementation Plan (HIP) online survey will close, leaving just days for the community to offer their input on the direction of housing in Florence.

One particular part of the survey, “Zoning Updates Comments or Questions,” has left some survey participants scratching their heads, faced with an essay-style question concerning 60 pages of highlighted city code.

While easy to skip over, this part of the survey could be considered the most critical, as it goes over specific details on what changes are to be made, particularly to Florence’s housing code.

But one section, “clear and objective,” takes up the majority of pages in the survey, yet is the most opaque and challenging of all the subjects. The topic, which deals with the interplay of natural resources and building construction, leads to a host of questions on what the future of Florence could look like and how code can help define that future.

How do homes interact with places like wetlands and wildlife habitats? What kinds of developments will be built in these areas, if they should be at all, and what rules will they have to follow?

“What kinds of things could you do?” City of Florence Planning Director Wendy FarleyCampbell asked. “If you're bringing all these houses into this area, could you not maybe do just avoidance, but mitigation?”

From how far back houses are placed to critical areas like wetlands, to the interplay between much needed housing and the unique environment of Florence, the survey is a chance for the public to not only think about these interplays, but allows the space to offer specific suggestions.

To help guide people through the most dense part of the HIP survey, FarleyCampbell went into depth on some of the suggested changes to code, and what people could be looking at when filling out the survey.


‘Clear and Objective’

Throughout the year, the city has been working on updating city code through HIP, and they partnered with research firm MIG/APG and Johnson Economics to do an audit of city codes that were updated in 2019, along with present possible changes.

In July, MIG/APG presented a draft of possible code changes to consider, with a host of suggestions from affordable housing regulations, transitional housing, and short term rentals.

But some of the biggest changes MIG/APG suggested comes from an audit they performed, where they found that certain portions of the 2019 code did not meet “clear and objective” standards for ORS 197.307(4).

“Clear” means that a code specifically states what a developer should do on a project, and “objective” tells them exactly what they should do to meet the code.

If a code is not objective, it could lead to gaps of understanding between the city and developers.

For example, the 2019 code states “clearance of vegetation on the remainder of the lot area, including that portion in the setback area otherwise permitted for vegetation clearance, is minimized.”

The rule is clear — developers need to minimize clearing vegetation beyond the building structure itself. But the word “minimized” is not objective.

“Nobody knows what minimum necessarily is; that's up to the developer,” FarleyCampbell said. “You can get one of those developers saying, ‘We got to take all this out, I gotta get my 20-foot wide CAT in here, I need all this room.’ Well, not really. You could take the smaller CAT and get it in there, grab 10 feet from the building foundation and get the space that you need. Right? It's not clear.”

It’s also possible that a city employee could look at the 20 foot CAT idea and believe it’s not cleared enough, and even more vegetation has to be removed. Or they could simply turn a blind eye and leave it up to the developer to figure out.

On the same token, the city could tell the developer that CAT’s weren’t allowed at all, developers have to use hand tools, and “minimum” means removing a single plant and nothing else.

“That's what we’re trying to avoid — planners being too strong, or not strong enough,” FarleyCampbell said.

So instead, the draft code puts in a clear set of rules. “Minimized” is erased and replaced with “... limited to the development footprint. Any vegetation removal must be placed on-site with native plant species. The planting replacement area must be at least 1.5 times area of the removed area of vegetation.”

The process would be simplified, easy for both the developer and the city to understand and follow, saving both time and resources for both parties, and avoiding possible litigation down the road.


Current standards

In the 2019 code, there are multiple instances of “clear and objective” updates on a wide variety of topics, from maintaining bank stability and avoiding sedimentation of coastal waters including lakes, to quality of surface and subsurface waters, according to MIG/APG.

But “clear and objective” changes only affect certain “overlay districts,” which are areas of the city’s buildable land that are subject to special conditions. Some of the overlays had minimal suggested changes, while other, more sensitive areas, did have large changes that were rarely, if ever, used. For example, Tsunami Zones.

But some, such as the Prime Wildlife Overlay District, which had a total of 17 changes, do get used.

This is not to say that the city has been leaving things up in the air. In fact, all the changes to the code are what the city is currently interpreting.

“Before they drafted all of these, I said, 'Let me tell you what we're doing before you start figuring out what to change.' So I have looked, and what they're proposing is largely how we're implementing it.”

If a project is on a slope, “They need to meet the building codes for the slope,” FarleyCampbell said. “We're not just going to let them get Jimmy Bob Local Contractor out there with his backhoe and start. He needs to get an engineer to help him.”

In fact, there’s portions of the MIG/APGs suggested changes where FarleyCampbell didn’t think it was objective enough.

In one instance, 2019 code stated that developers should “Avoid disturbance of the remainder of the vegetation cover beyond a point where the disturbance would be a detriment to the wildlife community which utilizes this area.”

Determining what the “wildlife community” is could be interpreted in a wide variety of ways, so MIG/APG attempted to limit the space, changing it to, “Avoid disturbance of the remainder of the vegetation cover beyond the development footprint.”

“That to me is still not clear, because what’s development?” FarleyCampbell asked.

And that’s one of the goals of the project, and what the city hopes people will think about with the survey: How strict, or unstrict, should these codes be?

As for now, when asked if the city has been having issues with the developers, or vice versa, “The short answer is no,” FarleyCampbell said.

She only listed a handful of small properties that have been developed in the overlays with the most changes. Many were “infill lots,” vacant one-offs that are not part of a new development. Around eight were in the development Shelter Cove.

“The recession hit and a lot (of properties) sat there. Well, recession lifted, and all those lots started jockeying to get them gone or to build on them,” FarleyCampbell said. “And just about everybody pretty much sold them.”

There were other properties on Rhododendron Drive that were approved, but no major developments have occurred inside an overlay with significant changes.

But there are still issues.


Other codes

Recently, questions arose about a development where the bank on the property was sloughing.

“Well, there is nothing in code that we talk of that has anything to do with sloughing,” FarleyCampbell said. “There’s no code that says how to deal with it.”

Other times, developers don’t even apply for code — they just start working.

“There’s a lot of vegetation clearing that's happening that have been resolved after the fact. They clear it and they come in and get permits later,” FarleyCampbell said.

At times, the city has had to go back.

“You need to replant it. It’s not ‘homeless abatement,’” FarleyCampbell said.

For developments that are completed, Florence City Code currently does not have a way to check on housing afterwards.

“We don't go back and see if they've added bedrooms. Look at all the houses that have been approved, and there's tons whose garages have been turned into bonus rooms,” FarleyCampbell said. “Well, it was supposed to be in the code for the cars. That's what it says in code. Do we run around and tell people to go get a storage unit?”

It’s a slippery slope. Do city inspectors inspect every piece of housing?

But there is missing code that can have an adverse effect on Florence residents.

While HIP is currently not looking at the matter, MIG/APG pointed out that “City currently lacks code to define unsafe or unhealthy housing.”

Campbell said the city does plan to look at these sections, and there were quite a few code sections that need updating.

“For instance, we do not have a health officer and the county’s health department does not regulate anything that does not need a permit,” FarleyCampbell said. “So most derelict housing that does not have a true structural, electrical and fire protection defect is tough to legally regulate as written. We are talking tarps, mold, broken windows, siding falling off.”


The future

The process to change those codes could have large effects on the existing housing, but for the code changes HIP is currently looking at through “clear and objective,” Campbell states only two developments could be impacted by the changes: Three Mile Prairie as it moves into later phases, and a planned but not submitted proposal for a subdivision north of town with property owned by the Benedicks.

“We all know Benedick is planning to do something — they annexed, they are in the wildlife zone,” WendyFarleyCampbell said.

But if Florence continues to expand northward to build more houses in these zones, the changes to code could become more relevant.

“As we expand, these will apply,” FarleyCampbell said.

MIG/APG did offer an option that went beyond regulating how to build.

“The city may elect to prohibit all residential uses from these areas, thereby meeting the clear and objective standards by simply not allowing housing in these areas,” it reported.

Farley Campbell did not give an opinion on the questions, stating, “It’s whatever the public wants, if that’s the angle we want to take.”

But she did state that codes are being looked at in a way that does provide protections.

“I’m going to take wildlife as an example, because it has to do with Benedick,” she said. “So a prime wildlife chapter has a setback in it, to where you measure the wetland is, and there’s going to be a person that’s going to do that. They’re going to say, ‘Okay, here’s the edge of the wetland. And you have a setback that’s established on that, whereby you can’t do anything — nothing, not a tree being removed, not a bush, and it’s pretty generous.’ And so how much more clear and objective do you need to be?”

But ultimately, FarleyCampbell said it was for the community to decide what codes should be. And it’s a positive process she hopes could get people thinking about the future environment they live in.

“There could be all kinds of things,” she said. “We’ve got all these agency partners — Department of Fish and Wildlife, Department of Forestry. And they’ve got planners and scientists with degrees in ecology. They’re the stakeholders here, and could weigh in and provide some recommendations for some of these code changes, or certainly review them to see if there’s a way to strengthen some of those.”

It could lead to more walking areas and parks that could find a melding of nature and buildings.

“There’s not anything in code that says how you keep people from getting out there and tromping around in the wetlands,” FarleyCampbell said. “There’s nothing against that, but there’s probably a way of knowing how people are going to do that. Could you design something that creates areas for people to know where they’re allowed, and subsequently, not allowed? I don’t know.”

It’s for the community to figure out.

The HIP survey can be located at https://bit.ly/HIPHousingSurvey, and closes on Monday, Oct. 17.