Zoning and land use - Confederated Tribes of the Warm Springs

WARM SPRINGS TRIBAL CODE

CHAPTER 411

ZONING AND LAND USE CODE

Table of Contents

411.001 Legislative History and Purpose
411.005 Territorial Applicability
411.015 Existing Nonconforming Uses
411.20 Compliance with Chapter

II. ESTABLISHMENT OF ZONES
411.100 Primary Zones
411.110 Overlaying Zones
411.115 Location of Zones
411.120 Official Zoning Map
411.125 Adoption of Initial Official Zoning Map
411.130 Amendment of Official Zoning Map
411.135 Zoning Boundaries

III. ZONE USES AND STANDARDS
411.200 Forest Lands
411.205 Range Lands Zones
411.210 Agricultural Land Zones
411.215 Wilderness Land Zones
411.220 Community Area Zones
411.225 Recreation/Scenic Zones
411.230 Rural Housing Zones
411.235 Fish and Wildlife Zones
411.240 Water Zones
411.245 Traditional, Cultural and Historical Zones
411.250 Mineral and Energy Resource Zones
411.255 Site Plans and Energy Conservation Guidelines

IV. APPLICATION AND PERMITTING PROCESS
411.300 Permits Required
411.305 Land Use Office
411.310 Uniform Application Process
411.315 Tribal Council Review of Land Use Status

V. COMMUNITY, SUBDIVISION AND HOME SITE DEVELOPMENT
411.400 Community, Subdivision and Home Site Development Policy
411.405 Community, Subdivision and Rural Residential Development Areas

VI. ENFORCEMENT
411.900 Remedies Available for Enforcement of Land Use Code
411.905 Private Party Remedies
411.910 Persons Responsible for Enforcement
411.915 Land Assignment Compliance
411.990 Definitions

WARM SPRINGS TRIBAL CODE

CHAPTER 411

ZONING AND LAND USE CODE

411.1 Legislative History and Purpose. It is the purpose of this Chapter to provide for the orderly development of Reservation lands and resources and to provide for the protection of all Reservation resources. This Chapter is the specific implementation of two Tribal Council powers enumerated in the Constitution; specifically, Article V, Sections 1(l) and (n), give the Tribal Council the power to:

regulate the uses and disposition of tribal property; protect and preserve the tribal property, wildlife and natural resources; cultivate Indian arts, crafts and culture; administer charity; protect the health, security and general welfare of the members of the Confederated Tribes; and
establish ordinances relating to the assignment, use, or transfer of tribal lands within the jurisdiction in conformity with Article VII of the Constitution.

It is the intent of this Land Use Code to recognize in the land use planning process the traditional and cultural values of the Tribes, particularly the communal use of lands. The provisions of this Code are intended to facilitate common sense, practical decisions regarding the use of Reservation lands. They are not intended as inflexible standards which can be applied without an evaluation of all factors relevant to a wise land use decision.

This Chapter is further intended to implement those provisions of the Tribal Comprehensive Plan that relate to Reservation lands and resources. Specifically, this Chapter is intended to implement the land tenure and land use missions and policies contained in Chapter 16 of the Tribal Comprehensive Plan. The primary land use missions are to “designate lands needed for homes and livelihoods for present and future tribal members” and to “designate a variety of land uses so that conflicts between uses can be minimized.”

This Chapter replaces and supersedes the previous zoning ordinance, Ordinance No. 56.

411.005 Territorial Applicability. This Chapter shall apply to all lands within the external boundaries of the Warm Springs Reservation and to lands held in trust for the Confederated Tribes by the United States outside the boundaries of the Reservation.

411.015 Existing Nonconforming Uses. Uses of land which do not conform with the requirements of this chapter, but which existed at the time of enactment of this chapter, shall be deemed in compliance with the chapter. However, those uses may only be expanded or altered if done in compliance with the requirements of this chapter.

411.20 Compliance with Chapter. Land may be used and a structure or part of a structure may be constructed, reconstructed, altered, occupied or used only as this Chapter permits.

This Chapter should be read in conjunction with the following plans, regulations and laws and in consultation with the designated committees:

The Tribal Comprehensive Plan; (Land Use Committee)
25 CFR Part 162 “Leasing and Permitting”; (Land Use Committee)
25 CFR Part 163 “General Forest Regulations”; (Timber Committee)
The Forest Management Plan; (Timber Committee)
The Warm Springs Forest Products Industries Logging Unit Agreement; (WSFPI Board of Directors and Timber Committee)
Agriculture and Range Management Plan; (Range Committee)
Tribal Water Code; (Water Board)
Streamside Management Plan; (Water Board)
Fish and Wildlife Code; (Fish and Wildlife Committee)
25 CFR Parts 211 and 225 “Minerals”; (Land Use Committee)
WSTC Chapter 400 “Housing”; (Housing Committee)
McQuinn Strip Act; (Land Use Committee).

II. ESTABLISHMENT OF ZONES

411.100 Primary Zones. There are hereby established the following primary zones which are mutually exclusive of each other. All zoned lands will be zoned in one, and only one, of these categories:

Forest lands;
Range lands;
Agricultural lands;
Wilderness lands; and
Community areas.

411.110 Overlaying Zones. There are hereby established the following overlaying zones, one or more of which may overlay a primary zone:

Recreation/scenic zone;
Rural housing zone;
Fish and wildlife zone:
Water zone;
Traditional, cultural, historical zone; and
Mineral and energy resource zone.

411.115 Location of Zones. The boundaries adopted for the zones listed in this Chapter shall be indicated on the Warm Springs Reservation Zoning Map which shall be adopted in accordance with WSTC 411.125. The boundaries shall be modified in accordance with zoning map amendments which shall be adopted by Tribal Council resolution.

411.120 Official Zoning Map. The official zoning map adopted pursuant to WSTC 411.125 shall be prepared by the Bureau of Indian Affairs Realty Department in conjunction with the Land Use Committee. A copy of the map or map amendments shall be kept in the BIA Realty Office and the Tribal Planning Office.

411.125 Adoption of Initial Official Zoning Map. The initial official zoning map shall be adopted by Tribal Council resolution. The map shall be prepared under the direction of the Land Use Committee in conjunction with the Tribal Planning Department and the Realty Office. In preparing the map, the Land Use Committee shall confer and coordinate with all affected tribal and Bureau of Indian Affairs departments and shall insure adequate community involvement in the planning process.

411.130 Amendment of Official Zoning Map. The initial official zoning map may be subsequently amended by Tribal Council resolution. The procedures set forth in WSTC 411.125 for adoption of the initial official zoning map shall likewise be followed in adoption of amendments to the official zoning map.

411.135 Zoning Boundaries. Unless otherwise specified, zone boundaries are section lines, subdivision lines, lot lines, centerlines of street rights–of–way, water courses, ridges or rimrocks, or other readily recognizable or identifiable natural resources, or the extension of such lines.

III. ZONE USES AND STANDARDS

411.200 Forest Lands.

Management, Objectives and Purposes. The purposes of forest land zones are to conserve and protect designated forest lands for continued commercial growing and harvesting of timber in the production of wood fibre and other forest uses; to increase the productivity of the land over time; to protect the forest lands from fire, insects, and disease; to conserve and protect watersheds, wildlife habitats and other forest associated uses; to yield to the Tribes sustained income and employment; to provide for management of forest lands on a sustained yield basis; to protect scenic uses; to provide for agricultural uses; to assure orderly and planned development of recreational and other uses which are compatible with forest use and to minimize potential hazards or damage from fire, pollution, erosion or urban development.
Permitted Uses. (a) Management, propagation or harvesting of a forest product; (b) Hunting and fishing by tribal members; (c) Food gathering and other cultural uses by tribal members; (d) Noncommercial recreational use, including camping, by tribal members; (e) Access by tribal members; (f) Livestock grazing; and (g) Other similar uses consistent with the management objectives and purposes set forth in this section.
Conditional Uses. Conditional uses will include: (a) Rock/mineral extraction; (b) Spring development; (c) Access by nontribal members; (d) Camping by nontribal members; (e) Fishing by nontribal members; (f) Open fires during declared fire season; (g) Power line construction;(h) Stream side and riparian activities (use stream side management guidelines); (i) Communications installations and equipment; (j) Fire control lookouts; (k) Commercial recreation; (l) Commercial or industrial activities related to forest products; (m) Highway commercial uses;(n) Rural homesites in designated marginal forest areas; and (o) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. The following guidelines shall apply to a conditional use permitted in subsection 3 of this section: (a) The use does not interfere with accepted forest management practices; (b) The use is compatible with forest use and is consistent with the purposes set forth in this section; (c) The use does not alter the stability of the overall land use pattern of the area; (d) The use does not constitute an unnecessary fire hazard and provides for at least a minimum of fire safety measures in planning, design, construction and operation; and (e) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.
Related Regulations and Procedures. (a) 25 CFR Part 162 “Leasing and Permitting”; (b) 25 CFR Part 163 “General Forest Regulations”; (c) Forest Management Plan; and (d) Warm Springs Forest Products Industries Logging Unit Agreement.

411.205 Range Lands Zones.

Management Objectives and Purposes. The purposes of range land zones are to conserve and protect designated range lands for continued range and grazing uses; to preserve and protect open spaces and scenic resources; to maintain and improve the quality of air, water and land resources of the Reservation and to establish criteria and standards for range uses and related supportive uses which are deemed appropriate.
Permitted Uses. (a) Grazing pursuant to a grazing permit; (b) Food gathering; (c) Hunting and fishing by tribal members; and (d) Other similar uses consistent with the management objectives and purposes set forth in this section.
Conditional Uses. (a) Commercial activities in conjunction with range uses; (b) Rural housing, including guest homes; (c) Parks, hunting and fishing preserves, campgrounds; (d) Mining; (e) Log storage; (f) Propagation or harvesting of agricultural or forest products; (g) Farming and ranching; (h) Wood gathering; (i) Landfill sites; (j) Highway commercial uses; and (k) Other similar uses consistent with the management objectives and purposes set forth in this section.
Limitations on Conditional Uses. The following guidelines shall apply to a condition use in a range lands zone: (a) Is compatible with community area uses and is consistent with the purposes and management objectives set forth in this section; (b) Does not interfere seriously with accepted range practices on adjoining lands; (c) Does not materially alter the stability of the overall land use pattern of the area; (d) Is situated upon generally unsuitable land for the production of farm crops and livestock, considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location and size of the tract; (e) Minimizes potential adverse effects on terrain, slope and ground cover; (f) The conversion of range lands to nonrange uses shall be based upon consideration of the following factors: (i) Environmentally, energy, social and economic consequences; and (ii) Compatibility of the proposed use with related range land; and (g) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.
Related Regulations and Procedures. (a) WSTC Chapter 460, Range and Livestock Ordinance.

411.210 Agricultural Land Zones.

Management Objectives and Purposes. The purposes of agricultural land zones are to preserve and maintain agricultural lands for farm use consistent with existing and future needs for agricultural products, forest and open spaces; to improve utilization of tillable land; to improve irrigation on agricultural lands; to conserve and protect scenic resources; to maintain and improve the quality of air, water and land resources of the Reservation, and to establish criteria and standards for agricultural uses and related supportive uses which are deemed appropriate.
Permitted Uses. (a) Crop production; (b) Pasture and/or livestock production; (c) Root gathering; and (d) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Conditional Uses. (a) Commercial activities in conjunction with agricultural uses; (b) Rural homesites; (c) Parks, hunting and fishing preserves, and campgrounds; (d) Irrigation system development; (e) Landfill sites; (f) Highway commercial uses; and (g) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. The following guidelines shall apply to a conditional use in an agricultural land zone: (a) Is compatible with agricultural uses and the management objectives and purposes set forth in this section; (b) Does not interfere seriously with accepted farming practices on adjacent lands devoted to farm uses; (c) Does not materially alter the stability of the overall land use pattern of the area; (d) The use is compatible with community area uses and is consistent with the purposes and management objectives set forth in this Section. (e) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.

411.215 Wilderness Land Zones.

Management Objectives and Purposes. The purposes of the wilderness land zones are to protect designated areas of scenic and natural resources; to restrict development in areas with fragile, unusual, or unique qualities; to protect and improve the quality of the air, water and land resources; to maintain and enhance scenic vistas; and to preserve and protect the fish and wildlife.
Permitted Uses. (a) Hunting, fishing and trapping by tribal members; (b) Food gathering and other cultural uses by tribal members; (c) Nonvehicular access by tribal members; (d) Hiking; (e) Camping; (f) Wilderness administration; (g) Fire protection in accordance with an adopted fire management plan; and (h) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Conditional Uses. (a) Fishing by nontribal members; (b) Camping by nontribal members; (c) Access by nontribal members; (d) Forest protection; (e) Burning; (f) Trail development, movement or improvement; (g) Motorized vehicles; and (h) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. The following guidelines shall apply to a conditional use in a wilderness zone: (a) Shall be compatible with wilderness use and consistent with the management objectives and purposes contained in this section; (b) Does not alter the stability of the overall land use pattern of the area; (c) Does not constitute an unnecessary fire hazard and provides for at least a minimum of fire safety measures in planning, design, construction and operation; (d) Motorized vehicles used only for emergencies such as fire suppression or search and rescue; (e) No fires allowed during the fire season; and (f) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.

411.220 Community Area Zones.

Management Objectives and Purposes. The purposes of community area zones are to encourage, accommodate, maintain and protect urban and suburban–type residential developments; to protect a suitable environment for family living; to provide for the location of businesses, industry and services;
Permitted Uses. (a) Residences constructed in accordance with approved subdivision plans; (b) Commercial uses in designated commercial areas; (c) Industrial uses in designated industrial areas; and (d) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Conditional Uses. (a) Multi–family dwellings, including duplexes; (b) Parks; (c) Business and industry located in nondesignated areas; (d) Mobile home parks; (e) Planned unit developments; (f) Public use; (g) Government buildings and operations; (h) Community buildings and operations; (i) Churches; (j) Recreational facilities; (k) Grazing; (l) Subdivisions; (m) Farming; (n) Home occupations; (o) Sweat lodges; (p) Businesses selling or serving alcoholic beverages; and (q) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. The following guidelines shall apply to a conditional use in a community area zone: (a) There shall be minimum setback requirements of 20 feet from the front lot line, 10 feet from the side lot line and 15 feet from the rear lot line; (b) The use is compatible with community area uses and is consistent with the purposes and management objectives set forth in this Section; (c) The use does not alter the stability of the overall land use pattern of the area; and (d) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.

411.225 Recreation/Scenic Zones.

Management Objectives and Purposes. The purposes of scenic/recreation land zones are to provide lands for outdoor recreational usage; to preserve scenic lands and vistas; to enhance fish and wildlife for recreational use; to provide lands for commercial recreation; and to provide designated areas for tribal member recreational use only.
Permitted Uses. (a) Passive recreation, such as, fishing, photography, and nature observation; (b) Traditional uses; (c) Trails recreation, such as, horseback riding and hiking; and (d) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Conditional Uses. (a) Public use; (b) Winter recreation areas; (c) Recreation horse riding; (d) Grazing; (e) Moving of livestock; (f) Commercial recreation; (g) Off–road vehicle access; (h) Highway commercial uses; and (i) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. The following guidelines shall apply to a conditional use in a scenic/recreation zone: (a) Minimum setback for development in a scenic zone shall be 1,320 feet, except where natural terrain provides a visual barrier; (b) Does not materially alter the stability of the overall land use pattern of the area; (c) Is compatible with recreation/scenic uses and the management objectives and purposes set forth in this section; and (d) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.

411.230 Rural Housing Zones.

Management Objectives and Purposes. The purposes of rural housing zones are to provide rural homesites to tribal members desiring them; to provide homesites near the resident’s farming or grazing operation; to protect prime agricultural land; and to promote a rural living environment.
Permitted Uses. (a) Homes, storage buildings, and agricultural or ranch related outbuildings, together with access roads built in accordance with an approved rural housing development plan or subdivision plan; and (b) Other similar uses consistent with the management objectives and purposes set forth in this Section; and
Conditional Uses. The following are conditional uses when not done pursuant to an approved rural housing development plan or subdivision plan: (a) Water wells; (b) Roads; (c) Irrigation facilities; (d) Guest house; (e) Home occupations; (f) Livestock home base development;(g) Subdivision plans and rural housing development plans; and (h) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. The following guidelines shall apply to a conditional use in a rural housing zone: (a) Development shall not occur in prime agriculture and range lands; (b) Shall be compatible with rural homesite use and consistent with the management objectives and purposes contained in this section; (c) Does not alter the stability of the overall land use pattern of the area; (d) Does not constitute an unnecessary fire hazard; (e) A minimum setback of 100 feet from streams and (f) A minimum lot size of 2 acres unless in a rural subdivision; and (g) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.

411.235 Fish and Wildlife Zones.

Management Objectives and Purposes. The purposes of fish and wildlife zones are to protect, maintain and enhance habitats and populations of fish and wildlife; to systematically identify habitat as a basis for population and density levels and management objectives by species; to protect habitat, control habitat altering land uses and prevent habitat destruction so as to maintain selected species, while protecting rare and endangered species as identified by the Tribes; to build winter deer and elk population and maintain a balance between livestock and fish and wildlife resources; to protect and enhance anadromous fish; to provide regulations and controls for orderly harvest of selected species of fish and wildlife; recognizing ceremonial and subsistence values of tribal members; to control hunting and fishing by nonmembers; to protect and preserve treaty rights in ceded areas; and to maintain and protect a high quality of sport fishery.
Permitted Uses. (a) Hunting, fishing and trapping by tribal members; (b) Recreation; (c) Grazing; and (d) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Conditional Uses. (a) Housing development; (b) Water withdrawal; (c) Mining; (d) Nonmember fishing; (e) Nonmember camping; (f) Road construction; (g) Grazing; (h) Out of season hunting; and (i) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. (a) Shall be compatible with fishing and wildlife use and consistent with the management objectives and purposes contained in this section; (b) Does not alter the stability of the overall land use pattern in the area; and (c) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.

411.240 Water Zones.

Management Objectives and Purposes. The purposes of a water zone shall be to maintain the integrity of the lakes, springs and streams of the Reservation by protection of watershed areas minimizing erosion, promoting bank stability and prevention of pollution; to preserve scenic quality, recreational potentials, traditional and cultural values; to provide for the beneficial and equitable uses of water resources and to plan for the maximum utilization of Reservation water resources as an exercise of the Warm Springs Tribal Water Rights; to coordinate water planning and management with multi–year management plans for other resources and developments so as to insure long–term protection for water resources; and to implement the Warm Springs Water Management Plan and Streamside Management Plan.
Permitted Uses. (a) Appropriation of the water resource for a beneficial use; (b) Noncommercial recreation, including fishing, boating, and swimming for tribal members; (c) Grazing pursuant to an official grazing authorization; and (d) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Conditional Uses. (a) Housing development; (b) Grazing; (c) Impoundments; (d) Stream diversions; (e) Consumptive uses; (f) Irrigation; (g) Commercial recreation; and (h) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. (a) A minimum setback of 100 feet from stream side for housing development; (b) No water pollution; (c) No feed lots for livestock within 100 yards of stream channel; (d) No subsurface sewage disposal drain fields within 100 feet of a stream bank; (e) Does not materially alter the stability of the overall land use pattern of the areas; (f) Is compatible with water uses and the management objectives and purposes set forth in this Section; and (g) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.

411.245 Traditional, Cultural and Historical Zones.

Management Objectives and Purposes. The purposes of traditional, cultural and historic zones are to preserve and protect lands with traditional, cultural or historic significance; to preserve and protect longhouses, camp areas such as HeHe, pictograph areas, cemeteries, sweat houses, food preparing areas, root gathering areas, berry gathering areas, special fishing areas such as Whiskey Dick’s, Whitehorse Rapids, and Sherars Falls, CCC and mill site areas, archaeological sites including glyph areas, campsite areas, and burial sites, trails, traditional special use areas related to natural products such as cedar bark, pine nuts, tule roots, medicine, moss, oak, alder, mushrooms, and willow, boundary markers, homesteads including buildings and rock fences; to preserve, improve and re–establish areas that produced traditional foods and other natural products; to provide a physical basis for educating and instilling in Indian children, traditional, cultural and historic values; and to establish zones suitable for propagation of traditional foodstuffs and other plants.
Permitted Uses. (a) Activities to accomplish and further the purposes and management objectives set forth in this section; and (b) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Conditional Uses. (a) Traditional, cultural and historical studies; (b) Uses consistent with the underlying zone; (c) Housing; and (d) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. The following limitations shall apply to a traditional, cultural and historic zone: (a) Shall not destroy the traditional, cultural or historic character of the site; (b) Shall contain adequate provision for study and documentation of traditional, cultural or historic use; (c) Shall contain limits on types of equipment to be used on the site; (d) Shall be compatible with traditional, cultural and historical use and consistent with the management objectives and purposes contained in this Section; (e) Does not alter the stability of the overall land use pattern in the area; and (f) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.

411.250 Mineral and Energy Resource Zones.

Management Objectives and Purposes. The purposes and management objectives of mineral and energy zones are to provide controls for the identification and management of mineral and energy resources; to manage mineral and energy resource development in coordination with water resource planning and management so as to protect water resources and water quality; to control exploration for and extraction of resources so as to minimize impacts on adjacent land uses, quality of the visual landscape and on stream side management zones and provide for proper reclamation of disturbed lands; to establish areas for the inventory and assessment of mineral and energy potential and provide maximum tribal control over exploration and development of the resources; to insure adequate provision for developing hydroelectric potential; to provide for the orderly development of alternative energy sources (solar, wind and geothermal); and to provide for the proper placement of electrical transmission lines associated with energy development.
Permitted Uses. (a) None (all uses are subject to conditional use procedures).
Conditional Uses. (a) Seismic exploration; (b) Prospective drilling; (c) Prospective excavation for gravel, rock and ores; (d) Expansion of existing sand, gravel and borrow pits; (e) Other mining; (f) Hydroelectric facilities; and (g) Other similar uses consistent with the management objectives and purposes set forth in this Section.
Limitations on Conditional Uses. The following guidelines shall apply to conditional uses in mineral and energy resource zones: (a) Is compatible with management objectives and purposes set forth in this section; (b) Does not materially alter the stability of the overall land use pattern of the area; (c) Minimizes potential adverse affects on terrain, slope and ground cover; (d) Contain adequate safety provisions; (e) Do not unacceptably conflict with purposes of underlying zone or other overlaying zones; (f) Do not adversely impact water quality; (g) Contain adequate provision for prevention of excessive dust or noise pollution from open pit mines; and (h) In the event that the conditional use involves the erection of a physical structure or a physical disturbance of the area, a site plan shall be submitted for the proposed use in accordance with WSTC 411.255.
Related Regulations and Procedures. (a) 25 CFR Part 211 and 25 CFR Part 225; (b) Public Law 95–382; (c) Mineral Development Act of 1982; and (d) Paragraph 30, BIAM (NEPA).

411.255 Site Plans and Energy Conservation Guidelines.

Where required, site plans shall be prepared for submission to the land use committee. Contained on the site plan shall be scale drawings which locate buildings, streets, driveways, parking areas, utilities, landscaping, excavation, water wells, irrigation facilities, and all other physical structures or uses which physically change the land. Buildings and other improvements shall be located to minimize disturbance to existing natural land forms, trees, shrubs and other natural vegetation. For temporary uses, such as surface mining, an additional site plan shall accompany the application depicting the land reclamation plan.
Where practical, building construction, including homes, shall be designed and located to optimize energy conservation through solar access techniques. Consideration should be given to building orientation, window usage, landscaping, overhangs, shading devices, and use of skylights to provide natural lighting and heating.

IV. APPLICATION AND PERMITTING PROCESS

411.300 Permits Required. Permits shall be required for the land use actions enumerated below and shall be issued only in conformance with the procedures and standards established by this Chapter:

Home site leases.
Exchange allotments.
Exchange assignments.
Standard assignments.
Leases of tribal lands.
Building permits.
Mining permits.

411.305 Land Use Office. There is hereby established the Tribal Land Use Office which shall be responsible for processing all applications for permits under this Chapter.

411.310 Uniform Application Process. A uniform process will be used for all land use actions. The process shall consist of the following steps:

Submittal of Application. The Land Use Office shall maintain land use action application form for distribution to applicants. The Land Use Office shall assist the applicant in completing the form and obtaining the necessary attachments. The Land Use Office shall be responsible for routing the application to the appropriate reviewing offices for consideration.
Reviewing Offices. The Land Use Office shall maintain a list of appropriate reviewing offices within the Bureau of Indian Affairs and the Tribes for each land use action. The reviewing office shall be responsible for reviewing applications routed to the office on a timely basis and providing comments and conditions to the Land Use Office within time guidelines established by the Land Use Committee.
Proposed Use Check. The Land Use Office shall check each application with the following documents to insure that it is compatible with each of them: (a) Official zoning map. (b) Tribal Comprehensive Plan (c) Appropriate management plan. (d) WSTC Chapter 411 Land Use Code.
Field Review and Investigation. The Land Use Office will cause the appropriate person to make a field review and investigation in connection with the application. The investigator will examine and report on the condition of the legal descriptions, the boundaries, potential site impacts, potential impacts on adjacent lands, and feasibility of the site plan.
Special Assessments and Clearances. In appropriate cases, the Land Use Office will require special assessments and clearances when the proposed land use actions will have significant impacts on the following areas: (a) Environmental impact. (b) Archaeological impact. (c) Culture/tradition impacts.
Staff Report. Upon the completion of the foregoing steps, a staff report will be issued by the Land Use Office in a standard format and shall contain the Land Use Office’s recommendations with regard to the application and shall contain any conditions that are recommended.
Committee Review. The Land Use Committee shall review all applications. The Land Use Committee shall insure that notices of application are given to the public through public posting, tribal newspapers, tribal broadcasting or other means. The Land Use Committee, in its discretion, may schedule a public hearing on a pending application. The Committee shall issue a written decision on the application, including all conditions and stipulations that the Committee believes appropriate. The decision shall be issued in a standard format. This procedure shall also apply to amendments of the official zoning map, except that all such amendments shall be presented to the Tribal Council for final approval.
Tribal Council Appeal. Planned use applicants and other interested persons may appeal the decision of the Land Use Committee by submitting a written appeal request to the Tribal Council secretary within 45 days of the decision by the Land Use Committee. The Tribal Council shall hear appeals on all land use decisions and shall take action by resolution on the application. The Tribal Council may add or delete conditions to the application. Except for applications for which Bureau of Indian Affairs’ review is required, the decision of the Tribal Council shall be final. Final decisions of the Tribal Council will be transmitted to the applicant and to the Land Use Office for recording and mapping, if appropriate.
Bureau of Indian Affairs Action. Where required, the Bureau of Indian Affairs will review applications received from the Tribal Council. Applications which are approved will also be forwarded to the Land Use Office for recording and mapping.

411.315 Tribal Council Review of Land Use Status. The Land Use Committee with the assistance of the Land Use Office shall present quarterly and annual reviews of all land use actions to the Tribal Council to assist the Tribal Council in overseeing the orderly development of the Reservation.

V. COMMUNITY, SUBDIVISION AND HOME SITE DEVELOPMENT

411.400 Community, Subdivision and Home Site Development Policy. The following sections are intended to implement in part the following tribal policies:

Insuring the orderly development of the Reservation.
Providing lands for tribal member homes.

These sections are intended to deal with the historical problems that have developed in connection with the allotment and assignment systems. These problems include fractionated ownership, underutilization of land, and piecemeal conveyance of interests in lands. It will henceforth be the policy of the Confederated Tribes to direct the tribal organization and Bureau of Indian Affairs to make available to tribal members lands for home sites on an orderly basis and in a planned manner.

411.405 Community, Subdivision and Rural Residential Development Areas.

Development plans for community, subdivision, and rural residential zones established on the official zoning map shall be developed to provide home sites for tribal members on an orderly basis. The purposes of these plans are to encourage the orderly and efficient use of all Reservation lands; to protect public health and safety by controlling road and utility construction; to encourage design which compliments the Reservation’s appearance and livability; to minimize conflicts between different land uses; and to encourage cost–effective development conducive to energy efficiency in conservation.
All community, subdivision and rural residential plans shall be approved by the Tribal Council. Construction or development in accordance with an approved plan shall be a permitted use in the applicable zone.
Development plans may be required to include a firebreak area around the exterior boundaries of the planned area.
Subdivision and community names and street names shall be included in the plan to be approved by the Tribal council.
Plans submitted to the Tribal Council shall include survey data and shall be shown on a scale drawing which identifies all streets, easements, lots, utility lines and lot sizes.
Submitted plans may include conditions relating to housing construction standards and conditions including color and height limitations needed to protect the Reservation’s scenic resources.

VI. ENFORCEMENT

411.900 Remedies Available for Enforcement of Land Use Code. Whenever a building or other structure is, or is proposed to be, located, constructed, maintained, repaired, altered, or used, or any land is or is proposed to be used in violation of this Chapter, the Confederated Tribes shall have the following remedies:

Injunction. The Confederated Tribes may obtain an injunction seeking all appropriate relief, including cessation of activities, restoration of property, or other appropriate relief.
Money Damages. The Confederated Tribes may commence an action for money damages that may include costs of removal of offending structures or restoration of property.
Civil Penalties. All persons violating this ordinance are subject to a civil penalty for each infraction. Security may be seized for payment of penalties in accordance with the provisions of WSTC 200.700 through 200.750.
Criminal Penalties. Indians violating the provisions of this Chapter are subject to a criminal penalty not to exceed $500 fine and/or six months’ confinement.

411.905 Private Party Remedies. Private parties directly impacted by violations of this Chapter may maintain an action for injunctive relief or damages in Tribal Court, or may make a complaint to the tribal prosecutor for action under WSTC 411.900.

411.910 Persons Responsible for Enforcement.

Designated tribal and BIA employees shall be responsible and have the duty to report to the Land Use Office all violations of this chapter affecting the operations of their department.
The Land Use Office shall be responsible for monitoring compliance with this chapter by all activities on the Reservation. The Land Use Office shall initiate any necessary action to insure compliance with this chapter.

411.915 Land Assignment Compliance. The BIA Realty Office shall monitor land assignments for compliance with the provisions of Article 8, Section 5, of the Constitution of the Confederated Tribes of the Warm Springs Reservation of Oregon. The BIA Realty Office shall prepare a Land Use Compliance Report and review with the Land Use Committee any assignments subject to cancellation or reassignment due to abandonment, failure to improve the assignment, or the death of the assignment holder. The Land Use Committee shall then promptly prepare and submit to the Tribal Council a report recommending disposition of the assignment.

411.990 Definitions.

“Affected persons” means those persons having an interest in land located within a minimum distance of 250 feet, exclusive of public street and other rights–of– way, from the property subject to a permit required by this Chapter.
“Agricultural land” means land which is suitable for farm use, taking into consideration soil fertility, suitable for grazing and cropping, climatic conditions, existing and future availability of water for farm irrigation purposes, existing land use patterns, technological and energy inputs required, and accepted farming practices.
“Building” means a structure, but not a mobile home, built for the support, shelter or enclosure of persons, animals, chattels or property of any kind and having a fixed connection to the ground.
“Camp, tourist or trailer park” means any area or tract of land used or designed to accommodate two or more trailers, or two or more camping vehicles, tents or outfits, including cabins, the primary purpose of which is to rent space or keep space for rent to any person for a charge or fee.
“Commercial use” means a structural use intended or used for business purposes, such as a retail store, a restaurant, an office, a service establishment, or a hotel or motel. A commercial use includes light repair service but does not include the repair or maintenance of heavy equipment or machinery or such other uses normally associated with an industrial use.
“Conditional use” means a use that may be permitted or denied at the discretion of the land use committee based on findings of fact as required by this Chapter.
“Confederated Tribes” or “Tribes” means the Confederated Tribes of the Warm Springs Reservation of Oregon.
“Dwelling, multifamily” means a building or portion thereof designed for occupancy by two or more families living independently of each other.
“Dwelling, single family” means a detached building containing one dwelling unit and designed for occupancy by one family only.
“Farming” means the use of land for raising and harvesting crops, or for the feeding, breeding and management of livestock, or for dairying or any other agricultural or horticultural purpose or use. It includes the construction and use of dwellings and other buildings customarily provided in conjunction with farming.
“Flood hazard boundary map” means an official map of the Tribes labeled a flood hazard boundary map and delineating the boundaries of the special hazard areas.
“Forest lands” means lands composed of existing and potential forest lands which are suitable for commercial forest uses; other forested lands needed for watershed protection, wildlife and fisheries habitats, and recreation; lands where extreme conditions of climate, soil and topography require the maintenance of vegetative cover irrespective of use; and other forested lands in urban and agricultural areas which provide urban buffers, windbreaks, wildlife and fisheries habitats, livestock habitats, scenic corridors and recreational use.
“Forest uses” means the production of trees and the processing of forest products; open space; buffers from noise and visual separation of conflicting uses; watershed protection and wildlife and fisheries habitats; soil protection from wind and water; maintenance of clean air and water; outdoor recreational activity and related support services and wilderness values compatible with these uses; and grazing for livestock.
“Home occupation” means a lawful occupation carried on by a resident of a dwelling as an accessory use within the same dwelling or accessory structure.
“Industrial use” means a structural use intended or used for manufacturing, processing, repairing or compounding, or for the storage of wholesale distribution of goods.
“Livestock” means domestic animals of types customarily raised or kept on farms.
“Lot” means an allotment, assignment, parcel or tract of land.
“Mobile home” means a vehicular or portable structure which is constructed for moving on the public highway; which is designed for use as a residence but which has not been demonstrated to conform to the requirements of the building code for other residences.
“Mobile home park” means a place where two or more mobile homes are located within 500 feet of one another on a lot, tract or parcel of land under the same ownership, the primary purpose of which is to rent space or keep space for rent to any person for a charge or fee paid or to be paid for the rental or use of facilities or to offer space free in connection with securing the trade or patronage of such person.
“Natural resources” means air, land, water and the elements thereof valued for the existing and potential usefulness to man.
“Nonconforming structural use” means a lawful, existing structure or use at the time this ordinance or any amendment thereto becomes effective, which does not conform to the requirements of the zone in which it is located.
“Owner” means an owner or assignee of property, or the authorized agent of an owner or assignee.
“Parcel” means a unit of land created by partitioning of land.
“Partition” means an act of partitioning land or an area or a tract of land partitioned in accordance with this Chapter.
“Partitioned land” means to divide an area or tract of land into two or three parcels within a calendar year when such area or tract of land exists as a unit or contiguous units of land under single ownership at the beginning of such year.
“Person” means a natural person, firm, partnership, association, social or fraternal organization, corporation, trust, estate, receiver, syndicate, branch of government, or any group or combination acting as a unit.
“Primary or principal use” means the first use to which property is or may be devoted, and to which all other uses on the premises are accessory or secondary uses.
“Public use” means a structure or use intended or used for a public or tribal purpose by the Confederated Tribes or by any governmental agency.
“Realty Office” means the Realty Office within the Warm Springs Agency of the Bureau of Indian Affairs.
“Recreation vehicle” means a vacation trailer or other vehicular or portable unit which is either self–propelled or towed or is carried by a motor vehicle; which is intended for human occupancy and is designed for vacation or recreation purposes but not residential uses.
“Recreation vehicle park” means a lot which is operated on a fee or other basis as a place for the parking of occupied recreation vehicles.
“Reservation” means the Warm Springs Reservation of Oregon and includes all lands within the exterior boundaries of the Reservation.
“Residential” means any dwelling unit or group of units built or used for human occupancy.
“Semi–public use” means a structure or use intended or used for a semi–public purpose by a church, lodge, club or other nonprofit organization.
“Superintendent” means the Superintendent of the Warm Springs Agency of the Bureau of Indian Affairs.
“Use” means the purpose for which land or a structure is designed, arranged or intended, or for which it is occupied or maintained.
“Variance” means an authorization for the construction or maintenance of a building or structure, or for the establishment or maintenance of a use of land, which is prohibited by zoning classification.