State sides with WashCo on Cedar Mill project, habitat protection
A proposed housing development in the Cedar Mill area will be allowed to proceed after a state land use board determined Washington County was correct in giving it the go-ahead earlier this year.
The 15-home subdivision dubbed Estates at Leahy Park, first approved in March, is serving as the case study for environmental challenges over whether Washington County has proper rules in place to protect sensitive fish and wildlife habitat.
A local environmental group, the Treekeepers of Washington County, had appealed the county's decision and asked that the state preclude the new housing development, at least until the same state agency affirms that Washington County's planning rules comply with statewide wildlife protection standards.
LUBA sided with Washington County in allowing the new development to move forward in a decision filed Monday, Nov. 21. The published opinion stated that Washington County and its hearings officer were correct in using the previous wildlife protection code — which has been since updated as portions were found to not meet "clear and objective" standards in recent years — in determining whether the Westwood Homes project should be able to move forward.
LUBA said that since the county's original rules had been found, at one time, in compliance with the state, they can be used again while new rules are being rewritten.
So far, the county and the state have sided with the developer, which stated that everything has been done to follow Washington County rules on significant natural resource areas and their protection from development. The county's rules, though, have themselves been the subject of ongoing legal battles.
Washington County created its habitat protection code in the 1980s to comply with earlier legislation to protect fish and wildlife. 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, known as Goal 5.
It wasn't until 2016 that environmental groups began questioning the rules and whether specific aspects meet the state requirements or weren't being properly enforced.
That led to challenges to the code being taken up by the county, LUBA, the Oregon Court of Appeals and the state Land Conservation and Development Commission as the appeals worked up the legal ladder.
By 2018, LUBA 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.
The county had new rules in place ahead of the deadline, in December 2020, and environmentalists almost immediately challenged them again. LUBA eventually told Washington County to rewrite the rules once more — but without giving it a firm deadline to do so.
Washington County Department of Land Use and Transportation is in the process of rewriting its rules again, to be completed by early 2024.
The future of development
In the meantime while the regulations are being rewritten, developments proposed on land with significant natural resources are being allowed, based on the earlier version of the county code. County officials ask developers to explain how their proposal meets the county's goals, as it interprets them.
That's where the Treekeepers' concerns lie.
Joanne Delmonico, co-founder of the Treekeepers, said in an interview earlier this month that it's not that the group doesn't want development, but that it needs to be done in the right way.
"We know, at some point, that there will be development," Delmonico said earlier this month. "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."
Outside of the one development proposal in Cedar Mill, the Treekeepers are looking to force a faster overhaul of the rules and to stop the county from allowing new developments on wildlife habitat in the interim.
Kenneth Dobson, attorney for the Treekeepers, has petitioned the LCDC 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.
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