Brookings city councilors tabled discussion regarding the implementation of a riparian area protection overlay Monday night, citing inconsistencies in the proposed ordinance.

The ordinance is being considered to help protect 10 creeks within city limits and the Chetco River.

It stemmed from an incident in 2017 when the city issued a Brookings man a citation for building in a riparian zone at his house at the mouth of the Chetco River. The citation was thrown out in court because the city didn’t have an ordinance backing up the alleged violation.

“The judge gets to hear it and said, ‘You have nothing in your municipal code that talks about riparian setbacks — no ordinance, so how can I judge on this case?’” Councilor Ron Hedenskog said Tuesday. “You can’t hold someone in contempt of something in municipal court when you don’t have an ordinance. The city didn’t have a leg to stand on.”

Riparian overlay

Lane County Council of Government planner Jacob Callister helped craft the draft ordinance councilors debated this week. But discrepancies within it made the board uneasy about adopting it immediately; Hedenskog would like to create a subcommittee to address the details.

Among the problems the council had with the document were definitions that didn’t have data to back it up and maps that didn’t mesh with what was being explained.

“I didn’t even get out of page 1 and I had major conflicts,” Hedenskog said. “By page 4, I said this isn’t flying. I’m done. I had a real problem with the definitions.”

For example, is the definition of “Ordinary high water level: shall be regarded as the 2-year recurrent flood elevation.”

“We have no history of a 2-year recurrent flood level,” Hedenskog said. “We know what the 100-year flood is because it’s defined (by FEMA). And who’s going to measure this thing? If we don’t have data, how’s a professional going to measure that?”

“It’s not uncommon,” Callister said, via speakerphone from Eugene. “It’s incredibly expensive for cities to provide surveys and grade analysis for an entire system. This is not intended for someone to take a magnifying glass to. It’s a flag, for the city to say, ‘Property owner? We realize you have a boundary and now you have to determine (what to protect).’”

The “flag” would alert the property owner and the city to potential issues development could have on a riparian system so they could be mitigated — and most importantly, avoid the costly and time-consuming appeals process at the state level.

“This is so important on the Chetco,” Hedenskog said. “It’s an important river to us. You can’t have building going on so close to the river it causes a landslide and a massive amount of dirt goes into the river. You don’t want anything to pollute the river, ruin the aesthetics of it.

He also questioned the use of the word ‘delineation.’

“We’re kind of saying, go out there and throw a stick and where it lands is where this 2-year-flood line is,” he said. “I’ve never seen a 2-year flood delineation. And we’re dealing with an estuary that’s under tidal influence fluctuation four times a day. At what point do you figure where it the 2-year flood line in an estuary that’s under a tidal influence?”

He also pointed out that a graphic provided in the proposed ordinance doesn’t match the definition provided.

“I have a problem with that,” he said of “distinct break in slope” and “grade elevation changes” verbiage used. “There are places where (the top of the riverbank) can be 50 to 70 feet off the river — and then you have to add an additional 75 feet for a riparian setback. If you have a 100-foot lot, you just lost all but 25 feet. And you have to have a front-lot setback from the street, so now there’s nothing to build on.”

That, he said, could be viewed by a judge as an illegal seizure of property.

“If you own property down by the river, you just lost ‘x’ footage of it,” Hedenskog said. “Those kind of things make me tread carefully.”

“It’s complicated,” Callister admitted. “Hydrology is very complicated. And it changes every day. I don’t know that I have an answer that would satisfy you right now.”

Dan O’Connor of Medford, who purchased a parcel along the North Bank Chetco River Road and who has degrees in planning, said he could easily work with the council — at no cost — and craft a much shorter ordinance he felt would be amenable to all.

“This is a model ordinance that is used all over the state,” he said. “It’s three pages long, it has a few definitions and it’s pretty clear what you have to comply with.”

Hedenskog said that could be possible, adding the ordinance needed simplification. But he also emphasized the importance of protecting the river.

“The bottom line is the health and welfare of the people who own or rent (any) homes. I’m very cautious about this because this particular ordinance could be used so easily by government to overstep its bounds. I’m glad I wrapped my head around it, saw all the errors in it and stopped it in its tracks.”

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