SPRINGWATER CORRIDOR - NON-PARK USES
Administrative Rules Adopted by Council
Section 1 - Purpose Statement
This document establishes policies and procedures governing non-park uses of the Springwater Corridor and includes, as well, construction and maintenance standards for approved facilities.
Portland Parks and Recreation seeks first and foremost to provide the greatest degree of protection to the land and the recreational users of Springwater Corridor. The regulated use of the Corridor will preserve its use and enjoyment as a public park with trails, natural resource areas and picnic and rest areas.
In addition to the public recreation use, the long term benefit of these policies and procedures will be the preservation and maintenance of the linear integrity of the Corridor for potential future rail service and its continuing use as a utility corridor.
The policies herein are aimed at implementing the goals contained in the Springwater Corridor Master Plan adopted by City Council on November 12, 1992, including:
1. Foster a safe and inviting environment for the widest possible array of user groups,
2. Enhance and preserve the natural resources of the Corridor,
3. Preserve the linear integrity of the Corridor and encourage responsible use of the surrounding area,
4. Sustain use of the Corridor for utility purposes, and potential future restoration of rail service.
Some of the specific objectives established to achieve the Master Plan goals include Parks' intention to:
1. Inform prospective non-park users, other City bureaus and government entities and the public, in general, of the general policies of Portland Parks and Recreation with respect to non-park uses of the Springwater Corridor.
2. Minimize inconvenience to park patrons.
3. Minimize damage to park land and facilities.
4. Shift legal liability to non-park users.
5. Establish and define standards for construction and restoration.
6. Discourage unnecessary encroachments.
7. Allow for the fair and uniform administration of the licensing program, and
8. Recover its administrative costs and receive appropriate compensation for non-park use of park property.
Section 2 - Policy on Easements and Licenses
The City of Portland adopts the following general policy statements to guide Portland Parks and Recreation (Parks) in the approval and granting of requests for non-park uses within the Springwater Corridor:
A. General Policy Statements
1. Presumption of Best Use.
The Springwater Corridor was acquired for use and benefit as a park and regional trail facility. Park, trail and related recreational uses shall be deemed to be the paramount uses of the Springwater Corridor property.
2. Non-Park Use
Non-park use is defined as any use of the real property under the jurisdiction of Parks for other than park, trail, or recreation purposes. See Section 6 - Supplemental Documents, A. Examples of Non-Park Uses.
3. Policy Subject to Outstanding Rights
Springwater Corridor is covered by an interim trail use/railbanking designation under Section 8 (d) of the National Trails System Act, 16 U.S.C. § 1247 (d). Any non-park uses granted shall be considered subject to pre-existing rights and interests held by others, including but not limited to the federal government as a result of grant assistance. When required, Parks shall obtain federal government approval prior to the granting of non-park uses. To the greatest extent practicable, Parks will give priority for non-park uses to existing licensees and other users, including but not limited to the Cities of Gresham and Milwaukie, Multnomah County, Clackamas County and the State of Oregon.
4. Policy Subject to Prior Commitments
This policy shall not serve to terminate legally existing non-park uses or to invalidate prior commitments to allow non-park uses but shall take effect with respect to any renewals following the expiration of legally existing uses or commitments. Further, Parks reserves the right to apply its policies, procedures and regulations to existing non-park uses at the earliest renewal or negotiation of an agreement.
5. Exceptions for Parks' Needs
While Parks will endeavor to follow these policies in all cases, it shall not be obligated to follow all of the conditions stated herein when easements or other out-conveyances are required in order to obtain utility services or roadways to serve park needs or Springwater Corridor.
6. Minimum Rights
Non-park rights and uses granted shall be the minimum necessary to reasonably accomplish the objectives of each specific request.
7. Minimum Term
The term of licenses, easements and other approvals shall be the minimum necessary to satisfy the needs of each specific request.
8. Granting of Interest in Land
Generally, Parks will not convey title or easement rights to the Springwater Corridor property. In most instances, revocable licenses will be granted for a specified period of time. Parks will conform its grants to any applicable Federal government requirements.
9. Reversionary Clause
Easements or other instruments which convey an interest in the Springwater corridor shall contain reversionary clauses which provide that rights or interests granted shall revert to Portland Parks and Recreation in the event of abandonment or termination of use by the grantee or in the event that Springwater Corridor property is returned to railroad use.
The granting of non-park rights and uses in the Springwater Corridor shall not be made without just compensation. Parks may establish procedures and guidelines for determining appropriate compensation. It shall be Parks policy to recover 100% of the costs of administering non-park uses and to preserve the total value of Parks assets. Parks reserves the right to accept alternative consideration in lieu of cash compensation.
11. Liability Requirements
All legal liability resulting from the interest or use granted by Parks shall be assumed by non-park users. When appropriate, Parks may require that the grantee/licenses maintain liability insurance. A Certificate of Insurance certifying coverage shall be maintained on file with the City Auditor. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the City Auditor and shall name the City of Portland, its officers, agents, and employees as additional insureds. The adequacy of the insurance shall be subject to the approval of the City Attorney.
Easements, licenses or other instruments granting non-park interests or uses in the Springwater Corridor shall require licensees/grantees to provide assurances satisfactory to Parks and subject to approval of the City, Attorney for the timely and proper completion of any work to be performed on park land. Parks, in its sole discretion, shall determine the form of assurance.
13. Roads and Surface Utilities
a. Except as required for park purposes, no highways, streets, roads or overhead utilities, including but not limited to overhead electric transmission lines, except as provided to Portland General Electric from Portland Traction Company by Easement dated April 23, 1953, or its replacement document, shall be approved through the Springwater Corridor unless:
(1) Parks has determined that there is an absolute need for the road or surface utility; and
(2) Parks has determined that there is no feasible and prudent alternative to the use of the Springwater Corridor property for such road or surface utility; and
(3) Parks has determined that all possible planning has been carried out to minimize adverse and harmful effects to the Springwater Corridor which might result from such roads or surface utilities; and
(4) In Parks' sole discretion there are compelling public interests served by permitting the requested use. For public right of way crossings, Parks will consult with the owner of the right of way to insure that any crossing deemed necessary will have minimum impact on Springwater Corridor and its users.
14. Maintenance Requirements
Instruments granting non-park rights and uses in the Springwater Corridor shall require the licensee/grantee to provide adequate maintenance of land or any structures during the life and use of same. In the event Parks determines that it is impracticable for a grantee to maintain a facility or to ensure maintenance over a long period of time, Parks may require and accept from. the grantee an appropriate maintenance/replacement fund which Parks shall place in escrow to cover future maintenance or replacement costs. Routine maintenance to public right of ways by the owner is encouraged and shall not require the written approval of Parks.
15. Restriction on Expansion or Reconstruction
Instruments granting non-park rights and uses in the Springwater Corridor shall not allow the expansion, upgrading or reconstruction of structures or improvements of facilities without the written approval of Parks. Such change in use may require separate or additional licenses. Parks reserves the right to determine if a separate or additional license is necessary.
16. Restoration of Surface Conditions
Instruments granting non-park rights and uses in the Springwater Corridor which involve land-disturbing activities shall reserve to Parks the right to prescribe the final grade and/or conditions, including but not limited to trail and planting restoration, to be established following any construction activities.
17. Locations of Utility Crossings
Generally, any utility which crosses the Springwater Corridor shall do so at a location where the most direct route across the Corridor occurs or where the minimum adverse impact is sustained. Parks reserves the right to require crossings at locations determined by Parks to preserve maximum benefit for recreational users of the Corridor. Generally, Parks prefers that utilities be placed within or adjacent to road rights-of-way or adjacent to other utility crossings. Linear runs shall be permitted in extraordinary cases only; such facilities are deemed to have a substantial and negative effect on the value and usefulness of the Corridor.
Persons desiring non-park uses shall apply to Parks for permission to use Springwater Corridor for non-park purposes. An application for non-park uses in the Springwater Corridor shall be considered only after the applicant has submitted satisfactory information which will allow Parks to determine the extent and impact of the use requested. Parks shall establish standards, criteria, guidelines, procedures and forms for receiving, reviewing and acting on applications for particular non- park uses of the Springwater Corridor. Parks shall deny non-park uses which, in its sole discretion, will adversely impact Park users.
19. Administration of Easements and License Program
The Property Manager for Parks shall have the day to day responsibility and authority to administer this policy and is authorized to enter into negotiations on behalf of Parks regarding the general administration of non-park use of the Springwater Corridor. Parks' chief Planner and the Superintendent of Park Operations shall be consulted and will approve or deny the request for non-park use. Licenses, easements or other instruments for a term of more than one year may be granted by the City Council at the request of the Director of Portland Parks and Recreation and the Commissioner in Charge of Parks and Recreation.
20. Recordation of Documents
When considered appropriate by Parks, easements, licenses, and/or other instruments granting non-park uses shall be recorded in appropriate county land records.
21. Alignment and Surface Prerequisites
It shall be the policy of Parks that the primary (paved) trail shall generally follow the grade and alignment of the original railroad right-of-way In accordance with the Master Plan, utilities shall follow the shortest feasible route (cross Springwater Corridor at right angles), be placed within public roadways, be placed underground and installed by boring or tunneling unless determined by Parks to be unfeasible. Generally, surface structures are prohibited.
Requests for non-park use involving the granting of permanent interests in or substantial impacts on land within Springwater Corridor which were developed or are planned to be developed with financing from state or federal grant funds are considered "conversions" and are subject to review and approval by the grant agencies. In addition, such projects are subject to "replacement land" requirements whereby the non-park user will be required to provide Parks with fee interest in suitable land of at least equivalent size, value and usefulness within the same governmental jurisdiction.
Section 3 - Application and Licensing Procedure
1. Application for Non-Park Use
- Submit written application form (with construction plans, methods & schedule)
- Submit map and photographs of area
- Submit $1000.00 processing fee
2. Parks Review and Analysis
- Review request/application and supporting materials
- Check existing agreements, adjacent land uses and zoning for potential conflicts
- Develop recommendation for compensation
- Staff approval, conditional approval or denial
3. Prerequisites to Agreement
- Parks management approval
- Federal, state and local government review, where appropriate
- PGE approval, where appropriate
- Parks approval of construction plans, methods & schedule
- City prepares document
- User prepares and submits exhibits (maps, drawings, etc.)
- User signature and submission of insurance certificate
- City Attorney approval
City Council approval, if appropriate
- User acceptance of City's conditions
- User payment of fees
5. Property Management
- Site inspections
- Submission and review of as-built plans
- Monitor on-going activity for compliance
- Contract enforcement
Section 4 - Administration Fees
1 . The purpose of administration fees is to recover 100% of Parks' costs and expenses incurred in connection with administering non-park activities and uses, including staff costs, overhead and out-of-pocket expenses.
2. For purposes of imposing administration fees, a license project generally will be deemed to have been completed when active use of the Springwater Corridor property has ceased and all restoration and outstanding implementation actions are completed. For a project involving construction on the Springwater Corridor, this generally would occur simultaneously with the final inspection and approval by the City of Portland.
B. Determination of Fees
1. It is the policy and intention of Parks that each non-park user pay the costs and expenses directly attributable to its project. Administration costs and expenses will be accounted for in two principal categories:
a. Staff costs and overhead; and
b. Out-of-pocket expenses.
C. The Springwater Corridor Property Manager is authorized to negotiate and approve lump sum, one-time administration fees for projects of a routine or low-risk (in terms of predictability of Parks' expenses) nature, provided the fees so established reflect the best estimate, based on experience, of the administration costs and expenses Parks will incur. The Springwater Corridor Property Manager will document such determinations. Such pre-determined fees shall no longer prevail if the nature or scope of the project changes materially or if Parks is required to assume or perform activities, work or services (such as contract enforcement or problem solving) not contemplated when the negotiated fees were established.
2. After completion of a license project, administration fees will not usually be imposed for ordinary, routine and ongoing activities (such as maintaining utility location records, mowing around drainage structures, maintaining use fee records and supervising minor maintenance activities of the licensee) required of Parks in connection with the licensee's passive use and occupancy of the Springwater Corridor property. However, Parks reserves the right to impose additional administration fees at any time when significant unplanned actions by Parks become necessary by virtue of Licensee's use.
Section 5 - Use Fees
A. Principal Factors
Use fees shall be based on factors which impact the Springwater Corridor property, park use, park patrons and land values and land rights. Principal factors include:
1. Real Estate Value of Springwater Corridor property or value of adjoining lands.
2. Duration (term) of use and impacts.
3. Area (size) of park property affected.
4. Nature of non-park use and its relationship to fee ownership.
5. Nature of impact on property, park users and operations.
6. Severity of disturbance.
Generally, use fees shall be based on the highest supportable value as determined by sound, uniformly applied valuation methods and principles.
Use fees for such qualifying public and quasi-public projects may be discounted when the project occupies certain areas of limited park usability, for example, a road right-of-way.
Use fees shall be in the form of annual or other periodic payments when park property is occupied for private, profit-motivated purposes generating ongoing revenues; except Parks reserves the right to enter into contracts requiring one-time use fee payments, which reflect the present value of the long-term use, when deemed by Parks to be in its best interest.
At its sole discretion, Parks may make downward adjustments in computing use fees when it determines that substantial enhancements to the Springwater Corridor or other benefits will be derived by Parks as a result of licensee's project.
Use fees may include an additional assessment when a non-park use results in substantial impacts adversely affecting the Springwater Corridor property value, the quality of the recreation/park experience of users, maintenance and operational activities of Parks and other elements relating to the usability and function of the Springwater Corridor.
Parks reserves the right to negotiate lump-sum or other special use fee arrangements when projects involve multiple uses or other complex circumstances.
B. Calculation of Fees
1. Application of Real Estate Values
The land value to be considered in any given instance shall be the value of the affected Springwater Corridor property or the value of equivalent nearby property, whichever is greater.
2. Long-Term Use Fee Considerations
a. Parks first will establish a present value for a given long-term use. If payments will apply to that use, Parks will convert the long-term value to an annual or periodic fee.
b. Long-term non-park use values (expressed in terms of percent of real estate value) to be used to guide Parks in making license fee determinations are:
(1) Overhead use 75%
(2) Surface 100%
(3) Sub-surface 50%
c. Long-term uses may be viewed as easement interests, and corresponding long-term use values may be determined much the same as values for easement rights. In cases where licenses are under consideration, a slight downward adjustment from an easement value may be made, reflecting the right of cancellation of licenses. Frequently the long-term-use value will be expressed as a function of the real estate value (example -- 75% of fair market value), or reduced to a square-foot value.
d. Among the criteria to be considered in establishing long-term values are (these are not necessarily mutually exclusive):
(1) Size of area permanently occupied.
(2) Size of land area disturbed.
(3) Degree of land disturbance (intensity).
(4) Degree of ongoing user disturbance.
(5) Permanent physical damage to Springwater Corridor lands and facilities.
(6) Planned duration of the use/activity.
(7) Perceived duration of the use/activity
(8) Volatility of the non-park facility (e.g. natural gas pipeline, etc.).
(9) Ease of relocation of the non-park facility.
(10) Level of facility operator's ongoing activity (maintenance).
(11) Visual/aesthetic impact.
(12) Impact on existing or future recreational use or opportunity.
(13) Location in an area of limited park usability.
(14) Necessity versus convenience.
(15) Depth of underground facilities.
(16) Parks assumption of new maintenance/operation liabilities.
(17) Parks assumption of new legal liabilities.
3. Short-Term Considerations
a. The calculation of non-park use fees shall include consideration of any short-term impacts which may be greater than the ongoing impact of the use once it is in place. Such short-term impacts may arise when there is a high degree of disturbance to the land or where the project disturbs or otherwise inconveniences Springwater Corridor users. This is most likely to occur when the project involves construction.
b. Parks will establish a value for the short-term use/occupancy/disturbance of any additional property, using the same principles and methods used to value long-term occupancy. When short-term use areas overlap long-term use areas, appropriate adjustments will be made in computing the use fees.
4. Annual or Periodic and Short-Term Use Fees
Annual or periodic and short-term use fees will be calculated as a fraction or percentage of the corresponding long-term use fee for that type of use. Annual fees will be ten percent (10%) per year of the long-term use fee. Monthly fees will be one and one-half percent (1.5%) per month of the long-term use fee. Parks may engage real estate or financial advisors to assist in establishing real estate values and long-term use fees.
The factor of severity can occur when a non-park use or activity is so overwhelming and extensive that it permanently disrupts or destroys the value and usefulness of the Springwater Corridor property, or severely affects the quality of the recreation experience for the Springwater Corridor users, or creates severe new burdens on Parks. When Springwater Corridor property is severed or the aesthetic qualities of the property are destroyed, Springwater Corridor users are permanently inconvenienced, and new legal or operating liabilities are imposed upon Parks. Parks may require applicant to provide the cost of designed alternative locations.
6. Determination of Areas Affected
By definition, the space occupied shall encompass the area occupied by or reserved for the non-park use and/or the construction limit line. In the case of utilities, the area to be used in computing use fees shall reflect the usual easement width reserved by the utility operator in similar conditions over private land including area to be used for maintenance access. Where utilities are required to be installed and maintained by means of boring or tunneling, Parks may define a license area width narrower than the usual width required for open cut installations. In no event shall the width of a utility facility be deemed less than ten feet.
7. Adjustment for Project Occupying Area of Limited Park Usability
Parks may make a downward adjustment in the level of the use fee for any qualifying facility installed within an area or space of substantially limited usefulness to Parks. Examples would be the placement of facilities within an existing highway right-of-way.
Section 6 - Provision for Single License for Multiple Facilities
1. Provisions: Subject to the Discretion of Parks:
a. License shall cancel, supersede and replace all existing licenses, leases and other agreements and instruments granting rights and privileges to a single user for use of the Springwater Corridor property.
b. License shall identify, describe and authorize all existing facilities and specify applicable annual or periodic payments or one-time use fees for each facility.
c. License shall provide for inclusion of future facilities, subject to specific approval of Parks. Approval of future facilities shall be made according to policies, criteria, standards and use fees in effect at the time request for approval is made.
d. License shall contain an agreement by Licenses to promptly reimburse Parks for all administrative costs incurred by it in connection with the administration and oversight of the license and corresponding covered projects by Licensee.
e. License shall contain general criteria for Licensee's application for future uses (intended to streamline the process).
f. License shall contain minimum standards for construction, installation, maintenance and operational activities (including use of vehicles and equipment) covering approved (existing uses).
g. License shall contain minimum standards for restoration of the Springwater Corridor property and improvements but subject to change at the discretion of Parks with respect to future projects.
h. License shall contain provisions for periodic adjustment of fees and payments.
i. License shall provide for removal of any facility at the discretion of the Licensee, with the cancellation of the license with respect to that facility, and a corresponding prorating of any payment (but with no adjustment in any one-time use charge).
i. License shall contain a series of facility inventory sheets with corresponding plats, one for each licenses facility, with new (future) facilities being incorporated by added sheets/plats signed by both the Licensee and Parks and representing amendments to the master license. In addition, a master schedule, listing each project by a code number (corresponding to the inventory sheet and plat), and its respective annual rental amount, and with vacant columns for future fee adjustments, would serve as a summary page.
k. License shall be effective for no more than 20 years.
Section 7 - Supplemental Documents
A. Examples of Non-Park Uses (Applies to Both Public and Private Uses)
- Agricultural use
- Sanitary sewer facilities
- Water service facilities
- Gas line service facilities
- Telephone/Communication service facilities
- Electric service facilities
- Cable TV service facilities
- Roadway and street improvements
- Installation of fencing
- Installation of landscaping improvements
- Connector trails
- Parking Areas
- Curb/gutter improvements
- Sidewalk crossings and connections
- Storm sewer facilities and drainage improvements
- Grading and other earth disturbing activities
- Soil/Geotechnical studies and testing
- Locating utilities
Replacing, upgrading and relocating existing utilities and improvements
B. Instructions for Submitting Application for Non-Park Use
1. Licenses are required for both temporary and permanent uses. Applications for licenses shall be in a form designated by Parks and shall contain such information as Parks may require to enable it to fully evaluate the nature of the proposed use and its impact on the Springwater Corridor and its users. Supplemental information required as part of a non-park use application includes:
a. Plat of Springwater Corridor property showing land contours, park boundaries and all existing park improvements and land features (Park plats may be obtained from the Springwater Corridor Property Manager).
b. Profile drawings (at equal horizontal and vertical scales) showing relationships between existing grades and improvements and proposed grades and new facilities.
c. Typical section (at equal horizontal and vertical scales) showing relationships of existing roads and trails to proposed now grades and facilities.
d. Certification that applicant's property boundaries conform to Parks' boundary data.
e. Size and type of vehicles that will require permanent or temporary access to Springwater Corridor.
f. Application review fees as determined by Parks.
g. Photographs of the affected and surrounding area.
h. Written permission from Portland General Electric Company to encroach upon its easement which encompasses the entire Springwater Corridor.
2. Applications are administered by Parks' staff pursuant to adopted policies and procedures. Routine requests which have a use term for periods of one year or less may be approved or denied by staff and shall not have to be granted by City Council.
3. Applications involving road crossings, the transfer of permanent interests in the Springwater Corridor, proposals not covered by established policies and certain other complex projects are subject to consideration by and require approval from the Director of Portland Parks and Recreation and City Council.
C. General Conditions and Standards for Work and Construction
1. For work where encroachment into the Springwater Corridor is restricted or limited, approved users, which shall include Licensees, shall survey and stake-out the Springwater Corridor property boundary or other confines of limited access.
2. Licensee shall then install (and shall maintain for the duration of Licensee's work) a temporary fence or other barrier suitable to Parks to prevent Licensee and Licensee's employees and contractors from encroaching beyond the restricted or limited area.
3. For work by or on behalf of an adjoining landowner, Licensee shall take such steps as necessary (including boundary survey research and achieving adjustments in the adjoining landowner's deed description) to satisfactorily demonstrate to Parks that her/his common boundary with the Springwater Corridor property conforms to the Springwater Corridor property description.
4. For grading, excavating, trenching or other earth disturbing work by Licensee or for any other work activity affecting the Springwater Corridor boundary markers or identifying features (such as fences, tree lines, etc.), Licensee, upon completion of her/his work, shall engage a surveyor registered in the State of Oregon to reestablish the boundary as defined by Parks' data with identifying plastic or aluminum caps on iron rods placed on the line at all corners along the full distance of the affected area in accordance with the provisions of ORS Chapter 92.
5. All sanitary sewers, storm sewers, water lines, gas pipelines, electric lines, telephone communication lines, cable TV lines, and like facilities installed across any paved or other hard-surfaced road, walkway or trail which is heavily-used and not readily relocatable, shall be installed using boring or tunneling methods approved by Parks, except when demonstrated to the satisfaction of Parks that no feasible alternatives exist.
6. Utilities and roadways (when permitted) shall cross the Springwater Corridor in the shortest and most direct manner (normally at right angles to the Springwater Corridor property boundaries), unless otherwise directed by Parks. The exception to this policy is in the case when utilities are placed in or adjacent to existing roadways. In that case, the utilities may parallel the roadways.
7. To the greatest extent possible, utilities through or across the Springwater Corridor shall be placed within existing road rights-of-way or similar areas of limited usefulness as determined by Parks.
8. Utilities shall be placed underground, and no surface structures shall be permitted except when it is demonstrated to the satisfaction of Parks that no feasible alternatives exist. Pipelines must be buried at least 24 inches deep to protect them from surface disturbance. Utilities must be buried to a sufficient depth to protect them from surface disturbances arising from use of the Corridor by maintenance vehicles.
9. When exceptions to the General Conditions and Standards are granted, use and administration fees shall be adjusted upward to reflect the added effects and impacts of the non- standard work on the Springwater Corridor and on Parks' administration activities.
10. Unless a license specifically provides for and allows soil testing, utility line locating and surveying, all such work shall be covered by a separate license to be obtained by the contractor performing the work.
11. A proposed construction schedule, complete plans and a list of the names of all contractors and subcontractors working on the project shall be submitted to Parks.
12. All excavation or other subsurface activity shall be safeguarded for the prevention of accidents. All excavated or tunneled areas shall be filled in or adequately secured at the end of each work day.
(This document contains copyrighted material excerpted from the Northern Virginia Regional Park Authority Manual on Policies and Procedures Governing Easements and Licenses and Non-Regional Park Uses of Northern Virginia Regional Park Authority Property and is used with the permission of the Northern Virginia Regional Park Authority).
Ordinance No. 166982 passed by City Council and effective September 22, 1993.
Amendment approved by Parks Director February 5, 2007 and Commissioner Dan Saltzman February 7, 2007.
Amended in PPD February 7, 2007.