NON-PARK USE OF PARK PROPERTY
Binding City Policy
BCP-PRK-1.02
PURPOSE
In accordance with its responsibility as the park provider for the City of Portland, Portland Parks and Recreation wishes to provide the greatest degree of protection to the City's park land and its recreational users. Therefore, these policies and procedures have been developed and adopted to guide Portland Parks and Recreation in the protection, preservation and enhancement of the City's real property park assets.
This document has the following objectives:
to establish and define standards for non-park use of park property
to inform prospective users and the public in general of the expectations and intentions of Portland Parks and Recreation with respect to non-park users and activities
to discourage unnecessary and inappropriate use of park property
to enable Portland Parks and Recreation to recover its administrative costs when working with non-park users
to enable Portland Parks and Recreation to receive appropriate compensation for non-park use of property and for corresponding damages
to place legal liability with non-park users
to minimize damage to Park land and facilities
to allow for the fair and uniform administration of non-park property use.
POLICY & PROCEDURES
WHEREAS, Portland Parks and Recreation has stewardship of land and resources that belong to and serve the park and recreational needs of the people of Portland as well as many visitors, and
WHEREAS, Portland Parks and Recreation is acquiring land and interests in land to improve park and open space opportunities and to enhance the environment of Portland, and
WHEREAS, Portland Parks and Recreation frequently receives requests from public and private parties for granting of licenses, permits, leases, easements, or other authorizations to allow various uses in park land, hereinafter referred to as "non-park uses", and
WHEREAS, it is the desire and policy of the City Council to grant such non-park uses only when the best interests of Portland Parks and Recreation and its public would be served,
NOW THEREFORE, the City of Portland hereby adopts the following general statements of policy to guide the consideration and evaluation of public and private parties' requests for non-park uses and activities of park property.
1. Standards for Non-Park Use of Property
Inasmuch as City of Portland owned land and property assigned to the Portland Parks and Recreation has been primarily acquired for park and recreation purposes, those parties requesting non-park use shall assume the burden of proof respecting the needs for those other uses. Unless otherwise specifically determined by Portland Parks and Recreation, park and related recreational use shall be deemed to be the paramount uses of park property. Portland Parks and Recreation shall deny requests for non-park uses, which in its sole determination, would materially and adversely affect its land or real property.
2. Policy Subject to Outstanding Rights
Any non-park use granted shall be considered subject to pre-existing rights and interests held by others, including but not limited to the United States government as a result of grant assistance. When required, Portland Parks and Recreation shall obtain federal government approval prior to the granting of non-park uses. Portland Parks and Recreation may, as a condition of any non-park use, require the user to obtain, at the user's expense, required federal government approval for the non-park use, or to reimburse Portland Parks and Recreation for any costs incurred by Portland Parks and Recreation in obtaining such approval.
3. 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 legal existing uses or commitments. Portland Parks and Recreation reserves the right to apply its policies, procedures and regulations to existing non-park uses at the earliest renewal or negotiation of an agreement.
4. Exceptions for Park and Recreation Needs
While Portland Parks and Recreation will endeavor to follow these policies consistently, it shall not be obligated to follow all of the conditions stated herein when easements, permits or other out-conveyances are required in order to obtain utility services or roadways to serve park or related recreational needs.
5. Uniformity in Administration
This policy shall be administered as uniformly as practicable with respect to all non-park uses of similar nature, whether requested by public or quasi-public or private companies, corporations, non-profit organizations or individuals.
6. Minimum Rights
Non-park rights and uses granted shall be the minimum necessary to reasonably accomplish the objectives of any particular request.
7. Minimum Term
The term of any license, permit, easement or other agreement shall be the minimum necessary to satisfy the needs of the requesting party. It shall not exceed the facility life of any structure, inclusive of maintenance.
8. Granting of Interest in Land
Generally, Portland Parks and Recreation will not convey title to or easement rights in City-owned property. In most instances, it will grant licenses or revocable permits for a specified period of time. If certain federal or state grant funds were used in the acquisition and/or development of a given park project, no interest in the property can or will be granted without appropriate approvals under "conversion of use" regulations; except, however, that easements to improve and maintain storm drainage facilities may be granted without such approvals provided the facilities have an environmental, recreational and/or aesthetically positive impact and would not have a significant adverse effect on the park, open space and/or recreational uses for which grant funds were received, and provided the proposed user assumes full responsibility for maintaining the storm drainage facilities.
9. Reversionary Clause
Easements or other instruments which convey an interest in the City-owned property assigned to Portland Parks and Recreation shall contain reversionary clauses which provide that rights or interests granted shall revert to the City of Portland in the event of abandonment or termination of use by the grantee.
10. Non-Alienability of Interests
Non-park interests, rights and uses in the land and property assigned to Portland Parks and Recreation shall be personal to the grantee/permittee and shall be void if assigned, conveyed or otherwise transferred without the express written consent of Portland Parks and Recreation. This policy shall not restrict the Portland Parks and Recreation from granting licenses, permits or other rights which, upon the satisfaction of certain requirements, automatically transfer to consenting third parties (such as public body operators of utilities).
11. Compensation
The granting of non-park rights and uses shall not be made without just compensation as determined by Portland Parks and Recreation. Portland Parks and Recreation reserves the right to negotiate to obtain from non-park users alternative direct benefits in lieu of or in addition to monetary consideration. Portland Parks and Recreation may request one-time or periodic use fees and administration fees.
In computing compensation, Portland Parks and Recreation shall consider, among other things, diminished value and usefulness for park purposes; damages to park property; disruption and inconvenience to Portland Parks and Recreation and park users; liquidated damages resulting from encroachment or noncompliance with permit requirements; as well as any coincidental enhancements to the value of park land which may result from the granting of non-park uses. It shall be Portland Parks and Recreation policy to recover 100% of the costs of administering non-park uses and to preserve the total value of City of Portland park property assets.
12. Assessment of Fees
Fees shall be assessed for non-park use of Portland Parks and Recreation property by other City bureaus, businesses or corporations, non-profit institutions and private individuals. Fees shall be assessed in accordance with Oregon Revised Statutes, City Charter, City Code and other applicable regulations. Fees for non-park use of park property by other City bureaus shall be the same as those charged to the general public unless otherwise specified in an inter-agency agreement or restricted by City policy.
13. Liability Requirements
Instruments granting non-park interests or uses shall contain "hold harmless" clauses stipulating that the user will assume all liability 'with respect to damages and injuries resulting from the interest or use granted by Portland Parks and Recreation. Portland Parks and Recreation may require that the user maintain public liability insurance to support the hold harmless requirement. The adequacy of the insurance shall be subject to the approval of the City Attorney. A Certificate of Insurance naming the City of Portland as an additional insured and 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.
14. Bonding
Licenses, permits, easements or other instruments granting non-park interests or uses shall contain, where appropriate, requirements that the non-park user provide assurances satisfactory to Portland Parks and Recreation for the timely and proper completion of any work to be performed on park property. Portland Parks and Recreation, in its sole discretion, shall determine the form of assurance.
15. Maintenance Requirements
Licenses, permits, easements or other instruments granting non-park interests or uses shall require the holder to provide adequate maintenance of the land and/or any structures during the life and use of. same. Maintenance shall be conducted, to the greatest extent possible, by use of specialized methods, techniques, equipment and other appropriate means necessary to ensure the least possible impact on park land, facilities, users and the general public.
In the event Portland Parks and Recreation determines that it is impracticable for the non-park user to provide maintenance or to ensure said maintenance over a long period of time, Portland Parks and Recreation may require and accept from the user appropriate funds for maintenance, replacement and/or restoration, which Portland Parks and Recreation shall place in an escrow fund to cover future maintenance, replacement and/or restoration costs.
16. Restriction on Expansion or Reconstruction
Instruments granting non-park rights and uses on park land shall not allow the expansion, upgrading or reconstruction of structures or improvements without the written approval of Portland Parks and Recreation, which written approval may constitute separate or additional agreements. Portland Parks and Recreation reserves the right to determine if a new instrument is necessary.
17. Restoration of Surface
Instruments granting non-park rights and uses in park land which involve land-disturbing activities shall contain provisions that Portland Parks and Recreation reserves the right to prescribe the final grade or conditions to be established following any construction activities. Restoration shall always be required to Portland Parks and Recreation's satisfaction.
18. Removal of Structures
When licenses, permits, easements or other instruments granting non-park rights and uses in park land allow the installation of structures, such instruments shall provide that, at the discretion of Portland Parks and Recreation, the structures must be removed by the permittee/grantee upon the termination of use of the facility or the expiration of the license, permit or easement, whichever time comes first.
19. Construction
To the greatest extent practicable, construction of non-park improvements on park property shall be carried out using any specialized methods, techniques, equipment and other appropriate means necessary to ensure the least possible impact on park land, facilities or users.
20. Tree Replacement Policy
The City Forester shall be consulted when it is determined that a request for non-park use of park property will affect the City's tree resources, and the City Forester's approval must be received prior to completion of negotiations for non-park use of park property. A high degree of care must be taken to preserve and protect specimen trees on park property.
21. Recording of Documents
When considered appropriate by Portland Parks and Recreation, licenses, permits, easements and/or other instruments granting non-park uses shall be recorded in appropriate land records.
22. Application for Non-Park Use
Parties desiring to use park property for non-park use shall apply to Portland Parks and Recreation. An application for non-park use of park property shall be considered only after the applicant has submitted satisfactory information that will allow Portland Parks and Recreation to determine the extent and impact of the use requested. Portland Parks and Recreation shall establish and from time to time may amend standards, criteria, guidelines, procedures and forms for receiving, reviewing and acting on applications for non-park uses of park property. Portland Parks and Recreation shall deny non-park uses which, in its sole determination, would materially and adversely impact park users.
23. Administration of Non-Park Property Program
The Property & Business Development Manager for Portland Parks and Recreation shall have the day-to-day responsibility and authority to administer this policy and related procedures and is authorized to enter into negotiations on behalf of the City regarding the general administration of non-park use of Portland Parks and Recreation property. The Director may designate the Property & Business Development Manager the authority to approve or deny requests for non-park use. Subject to the authority granted to the Director under Sections 20.08.070 and 20.12.080 of the City Code, the Commissioner in Charge has final authority to grant or deny permits, easements or other instruments governing non-park use of park property.
HISTORY
Amended by Emergency Ordinance No. 188933, passed by City Council and effective May 9, 2018.
Emergency Ordinance No. 171011, passed by City Council and effective March 19, 1997.