TO: Mayor and City Council
THROUGH: Krishna Namburi, Interim City Manager
FROM: Kristin Retherford, Director, Community Planning and Development Department
SUBJECT:
title
Ordinance Bill amending the Salem Revised Code Chapter 220, 300, and 601 relating to Floodplain Development Permit requirements in the City of Salem.
Ward(s): All Wards
Councilor(s): All Councilors
Neighborhood(s): All Neighborhoods
Result Area(s): Natural Environment Stewardship; Safe and Healthy Community; Safe, Reliable and Efficient Infrastructure
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SUMMARY:
summary
Ordinance Bill No. 6-25 (Attachment 1) relates to Floodplain Development Permits within the City of Salem. The amendments require developers to complete a Mitigation Assessment for floodplain projects, ensuring "no net loss" of flood storage, water quality, or vegetation. Recommending approval of the code amendments prevents potential Federal Emergency Management Agency (FEMA) sanctions, National Flood Insurance Program suspension or Community Rating System termination, thus preserving eligibility for federally backed flood insurance in Salem, flood insurance discounts, and federal disaster relief.
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ISSUE:
Shall City Council advance Ordinance Bill No. 6-25 amending the Salem Revised Code (SRC) updating Chapter 220 (Site Plan Review), Chapter 300 (Procedures for Land Use Applications and Legislative Land Use Proposals), and Chapter 601 (Floodplain Overlay Zone) to address Floodplain Development Permit requirements within the City of Salem to second reading for enactment?
RECOMMENDATION:
recommendation
Advance Ordinance Bill No. 6-25 amending the Salem Revised Code (SRC) updating Chapter 220 (Site Plan Review), Chapter 300 (Procedures for Land Use Applications and Legislative Land Use Proposals), and Chapter 601 (Floodplain Overlay Zone) to address Floodplain Development Permit requirements within the City of Salem to second reading for enactment.
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FACTS AND FINDINGS:
Procedural Findings
1. Pursuant to SRC 300.1110(a)(2), the Planning Commission may initiate a legislative land use proceeding by the adoption of a resolution referring the matter to public hearing for review and recommendation to the City Council.
On March 4, 2025, the proposed code amendments were initiated by the Planning Commission with the adoption of PC Resolution No. 25-01.
2. ORS 197.610 and OAR 660-018-0020 require that notice be provided to the Department of Land Conservation and Development (DLCD) on any proposed amendment to a local land use regulation at least 35 days prior to the first public hearing. Notice of the Planning Commission hearing to DLCD was submitted on March 6, 2025, 40 days prior to the Planning Commission public hearing.
3. Public notice of the Planning Commission public hearing, as required under SRC 300.1110(e)(1)(A), was mailed March 17, 2025, and public notice was published in the newspaper, as required under SRC 300.1110(e)(2), on April 1, 2025, and April 13, 2025.
4. ORS 227.186 requires that notice be provided to all affected property owners at least 20 days, but no more than 40 days, prior to the first public hearing. Public notice of the Planning Commission public hearing, as required under ORS 227.186, was mailed on March 17, 2025, to all property owners within the Special Flood Hazard Area.
5. On March 17, 2025, the City of Salem provided the draft code language to the Federal Emergency Management Agency (FEMA) for review in advance of the Planning Commission public hearing.
6. A public hearing on the proposed code amendments was held on April 15, 2025 before the Planning Commission. The Planning Commission favorably recommended that the City Council accept the ordinance bill for first reading (Attachment 3).
Substantive Findings
In order for a code amendment to be approved, the City Council must find that they comply with the applicable approval criteria. SRC 110.085(b) establishes the approval criteria applicable to amendments to the Unified Development Code (UDC).
Findings demonstrating the proposal’s conformance with the applicable approval criteria are included in Ordinance Bill No. 6-25 (Attachment 1).
Proposed Code Amendments
The proposed code amendments within the Ordinance Bill (Attachment 1) are generally summarized below. The proposed text of the amendments is included as Exhibit A of the Ordinance Bill (Attachment 2).
1. SRC Chapter 220.005 (Site Plan Review) is amended to:
a. Eliminate the submission of a geotechnical report as a Class 3 Site Plan review trigger; and
b. Add the submission of a Mitigation Assessment as a Class 3 Site Plan Review trigger.
The current code states that a Class 3 Site Plan Review is required for any project which includes a geotechnical assessment required under SRC Chapter 810. The current code makes no reference to the Floodplain Overlay Zone (SRC Chapter 601).
The proposed amendments remove the submission of a geotechnical report as a trigger for a Class 3 Site Plan Review and instead add the submission of a Mitigation Assessment as a new trigger. According to SRC Chapter 300, a Class 3 Site Plan Review follows a Type II procedure. Per SRC 300.100(a) Table 300-1, a Type II procedure is used when the standards and criteria require limited discretion or legal judgment in their application. Geotechnical reports are not discretionary in nature and do not require staff judgement. While geotechnical reports will still be required for development subject to SRC Chapter 810, they will no longer necessitate a Class 3 Site Plan Review. In contrast, Mitigation Assessments may involve discretionary review and typically require mitigation measures based on the assessment findings. This level of staff discretion and the potential for mitigation to be a condition of the development requires the use of a Type II procedure. As a result, staff has included the Mitigation Assessment as a trigger for Class 3 Site Plan Review.
2. SRC Chapter 300 (Procedures for Land Use Applications and Legislative Land Use Proposals) is amended to:
a. Update Table 300-2 (Land Use Applications by Procedure Type) to establish a Class 1 Floodplain Development Permit and Class 2 Floodplain Development Permit;
b. Update Table 300-3 (Expiration and Extension of Approvals) to establish an expiration for Class 1 and Class 2 Floodplain Development Permits as four years.
In the current code, there is one type of Floodplain Development Permit, which is a Type 1 Procedure. The proposed amendments will establish a Class 1 Floodplain Development Permit (Type I Procedure) and a Class 2 Floodplain Development Permit (Type II Procedure). The amendments to Chapter 300 are intended to implement the new permit requirements. These are discussed further in the narrative for amendments to the Floodplain Overlay Zone Chapter.
3. SRC Chapter 601 (Floodplain Overlay Zone) is amended to:
a. Include updated and additional definitions in SRC 601.005;
b. Update the duties of the Floodplain Administrator listed in SRC 601.040 to include Mitigation Assessment record keeping;
c. Modify the Floodplain Development Permit process and requirements of SRC 601.045 to align with other permit types within the Salem Revised Code and to add a Type 1 and Type 2 Floodplain Development Permit:
d. Reorganize the Floodplain Overlay Zone Variance section in SRC 601.050;
e. Update the flood zone construction standards in SRC 601.075 to clarify enclosed areas below the base flood elevation are not to be used for parking and storage; and
f. Add a new section of code for establishing the Mitigation Assessment requirement.
Modifications to the Floodplain Development Permit and Floodplain Overlay Zone Variance are largely reorganization of existing code and standardizing these permit sections to be similar to other permit types within the Salem Revised Code.
The addition of a Class 1 and Class 2 Floodplain Development Permit is required to implement the Mitigation Assessment requirements. Staff proposes that a Class 1 Floodplain Development Permit be a Type I procedure. Currently all Floodplain Development Permits are processed as a Type 1 Procedure. Class 1 Floodplain Development permits will be required for all developments which are exempted from the Mitigation Assessment requirements listed in the amended code language. Class 2 Floodplain Development Permits will be required for any development in the floodplain which requires a Mitigation Assessment. According to SRC Chapter 300, a Class 3 Site Plan Review and a Type II procedure. Per SRC 300.100(a) Table 300-1, a Type I procedure is used when there are clear and objective standards and criteria that do not require interpretation or the exercise of policy or legal judgment in their application and Type II procedure is used when the standards and criteria require limited discretion or legal judgment in their application. Staff finds that the review of a Mitigation Assessment would require discretion, and potentially the imposition of conditions of approval, requiring a Type II procedure.
The new Mitigation Assessment Section in SRC 601.100 establishes the requirement to submit a Mitigation Assessment and also establishes exemptions. These exemptions are from previous guidance documents from FEMA as well as the Mitigation Assessment Guidebook published by FEMA in November of 2024.
Throughout the proposed code amendments initiated by the Planning Commission under PC Resolution No. 25-01, the term “Habitat Assessment” was originally used. However, staff has since learned that “Mitigation Assessment” is the preferred term referenced in the most recent FEMA guidance. As a result, the term “Habitat Assessment” has been replaced with “Mitigation Assessment” throughout the proposed code to align with current FEMA terminology.
FEMA’s updated guidance emphasizes a simplified approach that focuses on avoidance and mitigation of impacts to floodplain functions, rather than a comprehensive programmatic habitat assessment. The revised terminology helps clarify the distinction between:
• Projects subject to a local floodplain mitigation assessment under the City's ordinance, and
• Projects that may be required to conduct a full habitat assessment as part of a separate federal or state consultation process.
Applicants still have the option to prepare a full habitat assessment; however, the minimum requirement under the City’s code will be a floodplain mitigation assessment consistent with FEMA’s guidance.
Agency and Public Testimony
Prior to the Planning Commission public hearing, notice to affected property owners and agencies was mailed or provided via email, as described in the procedural findings above and found within the record. The mailed notice included the first iteration of the proposed Code Amendment. Based on feedback received, staff has amended the proposed code language to incorporate FEMA required changes. The proposed text of the amendments, which includes recommended language from FEMA, is included as Exhibit A of the Ordinance Bill (Attachment 2).
1. Agency Testimony:
• Federal Emergency Management Agency (FEMA): On March 17, 2025, the City of Salem provided the draft code language to FEMA for review in advance of the Planning Commission hearing and requested feedback on the proposed language. On March 27, 2025, FEMA responded with additional language that needed to be incorporated into the amendment in order to meet the minimum regulatory requirements. Staff has included this language in the proposed amendments, found in Exhibit A of the Ordinance Bill (Attachment 2).
2. Public comments and testimony were received prior to the April 15, 2025 Planning Commission public hearing; as well as during the hearing. All public comments and testimony received by the Planning Commission are included as part of the record of the public hearing and summarized below:
• Public Notice Requirements: One public comment asserts that the notice provided to landowners was not sufficient because it provided no details as to what was proposed to be changed in the code, only the subject of the amendment. The comment also asserts that landowners should have been notified about the November 25, 2024, City Council meeting where staff was directed to move forward with a code amendment to address the new Federal Emergency Management Agency (FEMA) requirements.
Staff Response: State Law requires that notice be provided to all affected property owners at least 20 days, but no more than 40 days, prior to the first public hearing (ORS 227.186). Public notice, as required under ORS 227.186, was mailed on March 17, 2025, to all property owners within the Special Flood Hazard Area (SFHA).
The City of Salem mailed the required notice to 4,914 property owners within the SFHA. State Law does not require that a copy of the amendments be mailed to each property owner, nor would that be fiscally feasible. The notice stated the primary purpose of the ordinance, which was to require a Habitat Assessment with floodplain development. At the time of mailing the public notice, the proposed amendments were posted on the City’s Website <https://www.cityofsalem.net/business/land-use-zoning/land-use-projects/legislative-land-use-proposals>, a link for which was provided in the public notice of the hearing. A link to the Planning Commission Webpage <https://www.cityofsalem.net/government/boards-commissions/commissions/salem-planning-commission> where the staff report would be posted was also included in the public notice. The notice also identified that the proposed amendments would be available in hard copy at City offices and provided contact information for Staff who could discuss the amendments and provide a copy, if requested. The Public Notice of the Planning Commission hearing was sufficient and complies with ORS 227.186.
Regarding the November 25, 2024, City Council meeting, a public notice was not required for this as it was not a Public Hearing on amendments. Rather, the November 25, 2024, Council meeting was a staff request for direction from Council on which draft amendments to pursue and when to hold a public hearing on amendments that would comply with FEMAs requirements for Pre-Implementation Compliance Measures (PICM). City Council does take testimony on agenda items and non-agenda items and no testimony regarding the Council direction was received ahead of, or during, the meeting.
• Incorrect Dates in the Staff Report: One comment received alerted staff to scrivener’s errors on some dates in the Staff Report.
Staff Response: Staff provided corrected dates in the written findings in a supplemental staff report provided to the Planning Commission and included as part of the record.
• Effective Date: One comment received questioned when the amendments would become effective.
Staff Response: The Staff Report states that FEMA has stated that communities have until July 31, 2025, to adopt their chosen PICM option performance standards into local floodplain ordinances. The date listed in the staff report, July 31, 2025, is the correct date in which the City must update it’s floodplain ordinance. Ordinance Bills relating to code amendments are effective 30-days after second reading at City Council.
• Vesting Dates: One public comment questioned what type of permits would pre date the effective date of the ordinance and be considered “vested” in the old standards.
Staff Response: Floodplain Development Permits for which a complete application is received, prior to the effective date of the ordinance, would be vested in the standards applicable at time of application. However, if that permit application expires and a new application is required, the standards in effect at the time of new application would apply.
• Merits of PCIM Option 2 (Model Ordinance): One comment received questioned why the staff report does not address the merits of Pre- Implementation Compliance Measure (PIC) Option 2, which would require the City to adopt a model ordinance drafted by FEMA.
Staff Response: As described in the staff report, at the November 25, 2024, City Council meeting, Council directed City Staff to move forward with code amendments to implement a Permit-by-Permit approach that requires a Habitat Assessment for all new development in the floodplain (File No. 24-455). The City Council provided direction at that meeting to amend the Code consistent with the permit-by-permit approach. The Public Hearing held before the Planning Commission was to make the proposed amendments, which requires a Habitat or Mitigation Assessment for all new development in the floodplain, in order to comply with FEMA’s PICM requirements under the option that City Council chose to pursue.
Adopting the model ordinance rather than the permit-by-permit approach does not change what properties would be impacted by the proposed amendment. The model ordinance still requires review of the essential habitat functions, as defined by FEMA, to ensure no-net loss and requires mitigation. The model ordinance requirements can be met by submitting a Habitat or Mitigation Assessment, which is the same as the permit-by-permit approach. However, the permit-by-permit approach allows communities more flexibility in modifying their local ordinances.
• Map of Areas Impacted: One comment stated that a map of the property impacted should have been included as part of the Public Notice.
Staff Response: The mailed notice states that the recipient is receiving the notice because they own property within the Special Flood Hazard Area (SFHA). The notice further states that the proposed amendments apply to all properties in the SFHA. A map of impacted properties is not included, nor is it required by ORS 227.186, which establishes the noticing requirements. A map of the SFHA is available on the City’s Website <https://www.cityofsalem.net/community/safety/flooding/salem-s-local-floodplain-map>, which includes an interactive tool to search for specific property addresses. Additionally, hard copies can be made available upon request by staff. The SFHA spans nearly 4,000 acres across the City and is difficult to display at a scale that shows individual property impacts, making a web-based map more effective in this case. A map of Salem’s SFHA is included as Attachment 4 for reference.
• FEMA Requirements and Statewide Planning Goals: One comment in opposition of the amendments provided claimed that FEMA and the City’s actions violate the US constitution, Oregon Constitution, and Statewide Planning Goals.
Staff Response: The City has ample rational basis for the proposed code amendment, and they do not violate constitutional rights as it does not prohibit uses or development in the floodplain, rather the amendments require mitigation for new development.
BACKGROUND:
1. NFIP and the Endangered Species Act
The Federal Emergency Management Agency (FEMA) is mandated to evaluate whether National Flood Insurance Program (NFIP) activities impact listed threatened or endangered species protected under the Endangered Species Act (ESA). The agency must consult with the National Marine Fisheries Service (NMFS) whenever its actions, funding, or authorizations may affect a listed endangered or threatened species or adversely impact their habitats. In 2009, the Portland Audubon Society filed a lawsuit against FEMA, claiming that the agency failed to consult with NMFS regarding the effects of implementing the NFIP in Oregon on the designated species within the State's watersheds. A settlement was reached in 2010, and informal consultations with NMFS began shortly thereafter. On April 4, 2016, NMFS provided a Biological Opinion (BiOp) stating that the NFIP in Oregon was likely to jeopardize the critical habitat and continued existence of 16 anadromous fish species and the Southern Resident Killer Whale, all of which are listed as threatened or endangered under the ESA. A Reasonable and Prudent Alternative (RPA) included within the BiOp proposed measures to avoid jeopardizing listed species and avoid adversely modifying critical habitat, which requires FEMA to change the minimum requirements for NFIP participation for communities in Oregon.
Additional information on the NFIP - Endangered Special Act Integration in Oregon can be found on FEMAs website. This webpage also includes FEMAs Habitat Assessment Guide: <https://www.fema.gov/about/organization/region-10/oregon/nfip-esa-integration>
2. FEMA Pre-Implementation Compliance Measures:
On July 15, 2024, the Federal Emergency Management Agency (FEMA) notified communities that new National Flood Insurance Program (NFIP) standards would be required for participating communities in Oregon. FEMA provided three options for communities to comply with the new NFIP requirements, also referred to as Pre-Implementation Compliance Measures (PICM). These measures are considered short-term measures that communities are required to adopt to comply with the Endangered Species Act (ESA) requirements under the NFIP. FEMA has developed these measures to address Reasonable and Prudent Alternative (RPA) Element 2 (Interim Measures) in the 2016 National Fisheries and Marine Service (NMFS) Biological Opinion (BiOp), a result of several lawsuits related to ESA protections.
The three PICM options were to: 1. Restrict all new development in the floodplain; 2. Adopt a model ordinance drafted by FEMA; or, 3. Implement a permit-by-permit approach that requires a Habitat Assessment for all new development in the floodplain. FEMA directed local communities to notify them by December 1, 2024, which PICM path they would implement.
At the November 25, 2024, City Council meeting, Council directed City Staff to move forward with code amendments to implement a Permit-by-Permit approach and require a Habitat Assessment for all new development in the floodplain (File No. 24-455). City Staff notified FEMA of the City’s chosen PICM path on December 2, 2024.
FEMA indicated communities would default to the Permit-by-Permit approach effective December 1, 2024, and have until July 31, 2025, to adopt their chosen PICM option performance standards into local floodplain ordinances. However, FEMA has indicated that communities must still implement measures in the interim to ensure ESA compliance.
PICM is intended to address ESA compliance as an interim measure while FEMA undertakes a NEPA review of FEMA’s proposed long term implementation measures. PICM will be required through the remainder of the Environmental Impact Statement process, which is expected to end in 2026. At that time, long term implementation measures will need to be considered and adopted in most developed Oregon communities. This could include a new model ordinance to be adopted by local communities, which would be brought back to the Planning Commission for review.
3. Land Development Impacts:
Salem has nearly 4,000 acres within its city limits identified as Special Flood Hazard Area (SFHA), with approximately 3,000 existing structures located in the SFHA. Based on permit data from the last five years, an average of six new structures are built in the SFHA annually, indicating ongoing but limited development within the regulated SFHA.
Most undeveloped SFHA land is designated for public use as parks or open spaces, which limits development. However, around 800 acres remain zoned as residential, mixed-use, industrial, and commercial in the Salem Comprehensive Plan. This undeveloped acreage represents future development potential within the SFHA, where compliance with NFIP requirements, including floodplain Habitat Assessments and “no net loss” standards, will be challenging but regulated to ensure ecological protection, community safety, and compliance with NFIP standards.
ALTERNATIVES
City Council may:
A. Set a public hearing before the City Council on the ordinance bill;
B. Advance the ordinance bill to second reading for enactment without a public hearing;
C. Refer the proposal back to the Planning Commission for further deliberation; or
D. Decline to hold a public hearing or advance the ordinance bill to second reading.
Laurel Christian
Infrastructure Planner III
Attachments:
1. Ordinance Bill No. 6-25
2. Exhibit A to Ordinance Bill No. 6-25
3. Planning Commission Notice of Recommendation
4. Special Flood Hazard Area Map