In Deschutes River zone, property rights vs protecting the river is a balancing act

Jun 09, 2018

Bend Bulletin

In Deschutes River zone, property rights vs protecting the river is a balancing act A weathered note stuck to the front door of a home on Riverfront Street in Bend directs visitors to go through to the backyard. The small house made from two century-old boxcars is filled with photos, boating decor and mementos from a 52-year marriage.

Neighbors, family, friends and dogs wander in and out of the house, stopping in to visit with the home’s owners, Jackie and Ray Haworth. The real draw, though, is their backyard, an expanse of brilliant green fake turf that surrounds a pickleball court and stretches to the Deschutes River.

When weather is warm, the yard fills up with inner tubes, river rafts, sunbathing guests and people and dogs clambering in and out of the river. It’s like a dog park and is the site of a popular Fourth of July party each year, Jackie Haworth said.

“This yard probably gets more use than any yard in the river, or Bend, or anywhere,” she said. “Probably more than the parks.”

The Haworths’ yard is also at the center of a dispute that could have wide-reaching ramifications in Bend. A long-term but slow-moving city attempt to create more natural areas around the Deschutes River means property owners along the river and Tumalo Creek have to follow stricter design and landscaping rules than landowners elsewhere in Bend.

The Haworths’ decision to replace their eroding lawn with artificial turf a year ago might not fit those guidelines.

The city’s planning commission is expected to decide Monday whether the Haworths can keep their turf lawn. The outcome of that case won’t just determine what one yard looks like — it could set precedent for riverfront property in Bend.

“The city wants it to be more natural, and the homeowners want it to be more user-friendly,” Haworth said.

Riverside rules

Bend has long had special standards for building in flood plains, but the city created its waterway overlay zone for properties adjacent to about 10 miles of the Deschutes River and a quarter-mile of Tumalo Creek in the early 2000s. The zone, which corresponded with statewide efforts to protect natural and scenic resources, limits how close new buildings can be to the river and what types of vegetation can be planted.

It doesn’t apply to homes, buildings and yards that were in place before the city approved the new zone in 2002. Those property owners can keep their grass lawns, docks and homes close to the river.

Those otherwise unallowed uses can continue even after the property changes hands. But when property owners within the zone rebuild or renovate their homes, or when they add docks, steps or new vegetation, they need approval from the city’s planning staff for small changes and from the planning commission for larger changes.

New buildings in the zone must be from 30 to more than 100 feet away from the high-water mark and painted in neutral earth tones that blend with surrounding vegetation and buildings. Property owners can’t remove trees unless they’re diseased, a fire hazard or in the way of development.

Property owners aren’t allowed to remove native riparian vegetation — plants that live where land and water meet — within 30 to 75 feet from the high-water mark or the edge of wetlands depending on where along the river that property is. People who have non-native lawns can maintain them, but some have chosen to rip out their yards to put in native plants and even dead tree snags that provide fish habitat, Bend Senior Planner Aaron Henson said.

“The purpose of that riparian corridor is mainly to have a strip down the river that has natural native vegetation,” Henson said.

Native vegetation growing along rivers stabilizes the banks and riverbed, slows down stream flows after heavy rain and provides food, oxygen and habitat for fish, frogs and other aquatic animals. It can improve water quality by filtering out sediment.

Under the waterway zone rules, houses with docks can keep them or replace them with docks of a similar size, Henson said, and the city’s planning commission has approved stairs and paths for riverfront property owners to access the river from their yards. Still, he said, the planning commission is left to decide how to balance the zoning in a way that preserves the natural river and protects property rights.

“It’s a difficult balancing act, I think, to try to respect people’s rights to use and enjoy their property while trying to improve the wildlife habitat and the river for all residents, not just those lucky enough to have a front-row seat to the river,” Henson said.

Turf wars

The Haworths, who spent much of their earlier years sailing, were drawn to the river when they moved to Bend. Their yard, just south of the Gilchrist Avenue footbridge, draws guests over for parties, river floating and casual visits. Friends of the family, wearing fringed green ribbons that said “yes,” filled Bend City Council chambers during a March hearing on their fake turf.

“I’ve lost so much sleep over this, worrying that they’re going to take our lawn,” Jackie Haworth said. “I’ve lived here since 1992, and we didn’t even know we were restricted in what we could do on our yard.”

It all started in 2007, when the Haworths added a pickleball court and a large dock while renovating their yard, without seeking city permission to build either.

The dock and the pickleball court stayed with no problems until 2015, when the Haworths and their next-door neighbor split the cost of removing a large diseased tree that was on the neighbor’s property. The Haworths had their side gate open to take the tree out, and someone caught a glimpse of the tree removal, the pickleball court, the dock and some pavers in the neighbor’s yard.

Word made it to the city, and in October 2015, the city’s code enforcement department required the Haworths to get rid of their unpermitted dock and the neighbor, who has since moved away, to get rid of his pavers. The crane they used to remove the dock tore up the lawn, and traffic from frequent dog and human visitors kept it from growing back.

In April 2017, the Haworths installed their fake lawn, 1,080 square feet of turf over about 4 inches of gravel. To them, it was a simple way to replace the lawn, which they were allowed to maintain because it existed before the city created its waterway zone in 2002.

“All I had was a lawn that was mostly dirt, and I thought it was absolutely fine,” Haworth said.

To city employees, installing the fake turf was a change to the lawn, and any changes should have been to more natural, river-friendly plants — not turf.

“This was more than merely a replacement of a prior legal nonconforming use,” Henson told the planning commission in March. “Arguably, replacing a grass lawn with artificial turf was abandoning that use.”

The Haworths want the planning commission to decide that the turf and rock are just another version of the lawn they had. Alternatively, the planning commission could decide that the turf isn’t a structure, is permeable, is water-related and is allowed in the floodplain.

Or, the commission could force the Haworths to remove it.

The Haworths’ attorney, Laurie Craghead, tried to prove that the turf is permeable by holding a section of it over a clear bowl and pouring water on it. The water flowed through the turf, collecting in the bowl below. The Haworths had a Bend-based engineer and the turf’s manufacturer vouch for its permeability.

“This is not your mother’s artificial turf,” Craghead said. “It’s changed over the years.”

Roger Jewell, who lives on Gilchrist Avenue about a block from the Haworths, said turf is a better solution than regular lawns that can lose dirt and soil to the river and contribute to sediment like that which is slowly filling Mirror Pond. The city should encourage, not punish, the use of artificial turf, he said.

“As you go up and down the river, whether you’re floating or walking, you see the lawns deteriorating,” he said.

The city would rather see natural vegetation in its place, but Jackie Haworth’s response to this was similar to the response many Bend Park & Recreation District constituents had to news that the park district would rebuild the banks of Drake Park with natural greenery instead of concrete retaining walls.

“We’d have property with no view,” she said. “Why do we live here if you can’t see the river?”

Working with the river

While the Haworths’ property illustrates the conflicts between city efforts to preserve the river and residents’ desires to use it, other examples of riverfront development demonstrate how residents work within the zone’s constraints.

Bob Eimstad lives across the river from the Haworths, in a newer home just north of Columbia Park. When he and his wife, Deborah, built their home in 2011, they went through the waterway overlay zone approval process.

Eimstad can easily go canoeing or jump in the river from his yard, but he also planted greenery including rushes, willows, native dogwood and honeysuckle around the riverbanks to restore a more natural riverfront.

“I think it’s important that we work hard to keep it as natural as possible as it heads through town,” Eimstad said. “We’ve tried to use mostly native plants when possible.”

In an email to the city, Eimstad wrote the planning commission should not allow the Haworths to keep their fake grass because it would set a “terrible precedent” for the river.

“The Haworths may be nice people and they may have many friends along the river, but they show little or no consideration for maintaining or establishing native riparian habitat,” he wrote. “One of the responsibilities of a riparian owner is to be a good steward of the river and the riparian corridor.”

Still, Eimstad said he could see how it could be difficult for property owners to change their yards. The city or the Upper Deschutes Watershed Council, a local conservation group, could do a better job of educating homeowners about what their options are to preserve the natural river.

In April, planning commissioners heard another proposal to build in the waterway overlay zone: Jayson and Megan Bowerman, who live on the east bank of the river north of the Colorado Avenue bridge, wanted to demolish their garage and replace it with a two-story addition.

The Bowermans planned to keep their lawn but intended to plant native grass and sedges. The new construction would be in muted earth tones designed to blend with surrounding vegetation and the existing building.

“We wanted to hang on to as much of the original historic character as we could,” Jayson Bowerman said. “All the design elements are meant to be modern interpretations of a 100-year craftsman home.”

Planning commissioners voted 6-0 to approve the Bowermans’ project. It offered a substantive contrast to what the Haworths want to do, planning commissioner Vincent Mercurio said.

The Bowermans’ plans meet the spirit of what the city is trying to achieve, Mercurio said. He said fellow planning commissioners should consider both applications, and the differences between them, when they make their decisions.

— Reporter: 541-633-2160; jshumway@bendbulletin.com

Editor’s note: This article has been corrected. The original version misstated the distance new buildings must be from the river in the waterway overlay zone. The Bulletin regrets the error.

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