Battle over WashCo habitat protection continues through appeals
Washington County is one of the fastest-growing counties in the state by population, and it has been at the epicenter of the development boom in the Portland metropolitan area for a decade or more.
But there's a big problem with that, local environmentalists say: Even as backhoes are digging up dirt and concrete is being poured at construction sites from Cedar Mill to Sherwood, Washington County doesn't have proper rules in place to protect sensitive fish and wildlife habitat.
The Treekeepers of Washington County want the county to stop considering development proposals on land that is said to include habitat areas — at least until the state government has affirmed the county is taking the necessary steps to protect that habitat.
This month, the group asked the Oregon Land Use Board of Appeals to step in again.
"My big problem with this continued approval of development applicants during this time is there isn't any enforcement," Treekeepers attorney Kenneth Dobson said, adding, "They're flying without any kind of protections and continue to approve development applications, knowing (the county's) land use program does not comply with statewide land use goals."
The project proposal
At the heart of the legal battle is an area in Cedar Mill, just off Northwest Leahy Road.
Westwood Homes, a Portland-based company, has proposed a 15-lot subdivision it calls the Estates at Leahy Park.
It's a relatively small subdivision, compared to some that are already under construction elsewhere in Washington County, but it's close to where Treekeepers co-founder Joanne Delmonico lives. She's adamant the land shouldn't be developed — at least, not without assurances that the subdivision won't encroach upon a habitat area.
According to county staff, the parcel in question was designated as habitat for fish and wildlife some 40 years ago. Delmonico says there's a stream along the property that is home to beavers, amphibians and birds, prompting the necessity for its protection.
"We have so little significant natural resources in the county, in the urban county in particular, we need to protect what's there," Delmonico said.
The Washington County Department of Land Use & Transportation, via principal planner Stephen Shane, initially approved the Cedar Mill project in March.
In a series of legal twists and turns, Dobson and the Treekeepers appealed that approval, and a county hearings officer denied the appeal in July. Dobson has since appealed that denial to the Land Use Board of Appeals.
The Treekeepers argue that proposals like the Estates at Leahy Park shouldn't even be considered until the Oregon Department of Land Use and Conservation affirms that Washington County's planning rules comply with statewide standards.
Rules don't fit
The department first created planning goals to protect habitat areas in 1969. Local jurisdictions throughout Oregon were expected to come into compliance as a result of a 1973 Senate Bill.
It took until the early 1980s before it met the state's requirements — making an inventory of natural resources and updating its policies according to LCDC standards.
Washington County also joined the Tualatin Basin Program through the Metro Council in the early 2000s, which was meant to improve the county's ability to meet the state's standards.
Environmental groups didn't begin to question the rules and whether specific aspects meet the state goals until late 2016.
By 2018, the Land Use Board of Appeals and the Oregon Court of Appeals both ruled that the county's code on resources and development did not have "clear and objective" standards. LCDC stepped in, ordering the county to revise the rules by May 2021.
While the county approved new rules in December 2020, environmentalists almost immediately challenged them again. Dobson said they "didn't have any teeth and were very pro-development." He appealed the rules to LUBA again last year, and the board again remanded the decision to the county, telling it to rewrite the rules once more — but without giving it a firm deadline to do so. That's where things are now.
Without county rules in place that comply with the state's mandatory planning goals, county officials ask developers to explain how their proposal meets the county and state's goals, as the county interprets them.
In this case, the county said the developer has met the criteria.
Dobson said he expects to hear back from LUBA on the appeal of the Estates at Leahy Park development plan by the end of November. His ideal outcome, he said, would be for the state agency to reverse the county's approval of the project.
Bill Wagoner of Westwood Homes, the developer for Estates at Leahy Park, did not respond to a request for comment on whether the appeals have affected his plans for the project.
Dobson said he has also petitioned the Land Conservation and Development Commission, which oversees the statewide rules, to bar the approval of new developments altogether while the development rules are being rewritten. He also hopes the commission will set a firm deadline for the county to complete those rules.
Dobson has been fighting for Washington County's environmental regulations for years, arguing that the protections of significant natural areas — like fish and wildlife areas — were not being properly enforced.
The proposals he has appealed locally include six residential lots in the Metzger area, as well as an 11-lot subdivision on Southwest Rigert Road in Beaverton.
Delmonico said Treekeepers' goal isn't to stop development entirely. The group wants it to be done the right way, following the statewide planning goals.
"We know, at some point, that there will be development," Delmonico said. "We're just asking the county hold developers to this statewide (goal) and update the ordinance, and not continue to accept and approve applications until that happens."
Delmonico said she was told by county planners that they have made a habit of warning new developers on these significant natural resource sites that they may face appeals and challenges.
But while the county goes through the process of rewriting the rules, Dobson says housing developments are being permitted that might not be allowed if the statewide goals were being applied. He called it a "loophole" that builders are exploiting.
"Developers know there is this opportunity to develop in these areas because they understand they may be subject to legal challenges, but there's so much money to be made that they can throw money and see what sticks and what get through the LUBA challenges," Dobson said.
In the meantime, the Washington County Department of Land Use and Transportation is rewriting its rules again. But a spokesperson suggested they might not be complete even by the end of 2023.
"The county is in the process of hiring a consultant to help with that work, including a limited update of the county's wildlife habitat inventory, an analysis of potential impacts to natural resources and refinement of regulations to help us further meet Goal 5 requirements as outlined in the LUBA remand," department spokesperson Melissa De Lyser said in an email Thursday, Nov. 10.
That process will take "about 18 months," De Lyser said, including a public process. Members of the public will be invited to weigh in, and the Washington County Board of Commissioners will ultimately have to vote to approve or reject the new rules.
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