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Regulatory creep – its not desirable, but its occurring

Regulatory creep is the expansion of a regulation beyond the boundary of its current intent. It's a term that usually implies disapproval by those affected by the boundary expansion. 

Here in Lake Oswego, regulatory creep has occurred primarily in two ways: In planning commission meetings, where proposals for new regulations occur regularly and sometimes compulsively, and second, in the various committees where new plans and updates of existing plans occur.

Regulatory creep is undesirable because new information can be embedded in the text of old documents in ways that are difficult to recognize and can easily go unnoticed.

In the past, sensitive lands were defined in the Community Development Code (CDC) as:

'Lands containing natural resources that have environmental significance with the Lake Oswego planning area (Urban Service Boundary) including wetlands, streams corridors and tree groves. Such lands are more sensitive or easily damaged by development impacts than non-resource lands.' (Article 50.02 CDC).

What follows is part of an extensive update to Lake Oswego's Community Development Code (DCD) update, which is scheduled to be heard by the city council on June 29 and which shows significant regulatory creep:

The phrase 'sensitive lands' is going to be changed to natural areas:

'Natural area - an area of land or water that has a predominantly undeveloped character. Natural areas may have been affected by human activity such as vegetation removal, agriculture, grading or drainage if such areas retain significant natural characteristics or have recovered to the extent that they contribute to the city's natural systems including hydrology, vegetation or wildlife' (pg. 34, see link below.)

To that definition, the proposed amendments include the following (pg. 34, link below):

'The purpose of natural areas is to provide scenic, aesthetic appearance and/or protecting natural processes, providing passive recreational uses, and/or maintaining natural vegetation. Natural areas shall be either dedicated to the public or by other means committed to use for the general public or may also be permanently reserved by common ownership among the owners of a development. Except as otherwise set out in LOC 50.46.020, Standards for Maintenance, natural areas shall remain in natural conditions existing at the time of their designation. (Areas designated as 'open space' prior to effective date of this ordinance is a 'natural area' under this definition.)

'This amendment treats public facility system structures the same whether they are on private or public lands, because public facilities are always within public easements, dedicated lands or publicly owned properties. There is no distinction in the nature of facility depending on whether the underlying land ownership is public or private' (pg. 37,link below.)

'Regional trails, community connector trails and local access trails, as designated on the city's Trails and Pathway Master Plan, would be defined as 'public transportation facilities' and would be permitted development within sensitive lands. ('Public Transportation Facilities' is used in LOC 50.16.060 and 50.16.075).' (p 37- link below) www.ci.oswego.or.us/plan/Land_Use_App/2008/LU_08-0052_CDC_Minor_Housekeeping/Findings-Attachment-A_5006060_110519-2_05-26-11.pdf

The regulatory creep in the new code automatically dedicates private property as public property for public use. More regulatory creep occurs with the statement that natural areas shall remain in natural condition, restricting owners' rights of use, but allowing the city can put in a pathway. Also, land under public utility structures automatically becomes public property, rather than what was previously an easement.

Carolyne R. Jones is a resident

of Lake Oswego