Washington County ordered to write new wildlife area protections
For years, a group of Metzger residents have been battling to save a stand of old-growth Douglas fir trees from being torn down to make way for homes.
Now, that battle has prompted state land use regulators to take action.
In a May ruling, the Oregon Land Conservation and Development Commission said Washington County was out of compliance with planning goals designed to protect significant natural resources.
In its ruling, the commission ordered the county to stop processing housing development applications for areas designated as "significant wildlife habitats" until the county adopts new, enforceable regulations.
How much development the county's new rules will allow on significant wildlife habitats still remains to be seen, however.
Local environmentalists are pushing for the county's new regulations to make it difficult for developers to build on the county's last remaining areas designated as significant natural resources.
But the demand for housing continues to rise as the region's population grows, and local governments are eager to meet it after years of constraints.
The state requires only that housing regulations be "clear and objective," not that regulations prevent or promote housing developments on significant natural areas.
The county has until May 2021 to develop new rules to guide housing developments on significant wildlife habitats. The county's Department of Land Use & Transportation is currently working with a consultant to develop its new rules, and officials expect a new development code to be considered by the county commission as soon as this fall.
How much mitigation is enough mitigation?
LCDC issued its enforcement order after being petitioned by residents opposing a proposed housing development on a 2.56-acre property in Metzger.
Part of the property — located between Southwest Cedarcrest and Birch streets, about a mile east of Washington Square — has Douglas fir trees that are estimated at more than 100 years old and stand more than 150 feet tall.
The county has designated the area as a significant natural resource due to its wildlife habitat. The county gave the area its designation in the 1980s while adopting statewide planning Goal 5, which requires local governments to inventory significant natural resources and come up with programs to protect them. The programs include guidelines for permitting housing developments.
In 2016, Venture Properties Inc. applied to develop about half of the Metzger property into six residential lots. Most of the fir grove would be uprooted to make room for three of the six proposed lots.
Venture planned to mitigate the loss of the trees, as required by the county, by planting juvenile trees elsewhere on the property.
But neighbors of the property objected to the proposed mitigation. They said planting juvenile tress could not make up for the lost ecological value of the large fir trees.
"If you're cutting down 100-foot-tall trees that have been around for a long time and instead you plant a two-foot tree, it's going to take a long time for that to make up the difference," said Jim Long, who has been involved with neighbors' efforts to stop the development and is the chair of Community Participation Organization 4M, which covers Metzger, Durham and east Tigard.
After CPO meetings on the issue, more than 120 residents submitted letters urging the county to deny the development application. They argued the proposed mitigation was insufficient.
Neighbors compiled a list of more than 60 different species they've seen near the fir grove, including beavers, deer, and birds such as owls, hawks, woodpeckers and hummingbirds.
"I've seen a great blue heron," Long added.
He explained, "We're speaking up for wildlife — they can't speak up for themselves. They don't know when they're going from Washington County into Tigard or into Beaverton. We need to protect and maintain these wildlife corridors so they have places to move and hunt for their food."
Despite local opposition, a hearings officer for the county approved the development on the property.
The decision came after changes to the state's "needed housing" statute in 2017 invalidated the county's code guiding mitigation protections for significant natural resources, according to Ken Dobson, an attorney representing residents who opposed the development.
Historically, the needed housing statute applied only to land considered "buildable" and required any regulations on housing developments to be "clear and objective." Areas designated as significant natural resources were not considered buildable.
In 2017, the Oregon Legislature amended the needed housing statute, expanding the definition of buildable land by stating that all housing is considered "needed housing."
In approving the development on the Metzger property, the county hearings officer found that protections mandating mitigation for developments on significant natural areas could not be enforced because they were not clear and objective, as required by the recently amended needed housing statute, Dobson said.
A neighbor of the Metzger property, Jill Warren, appealed the county hearings officer's decision to the state Land Use Board of Appeals and then to the Oregon Court of Appeals. Both government bodies agreed that the protections for significant natural resources couldn't be applied because they were not clear and objective.
Dobson said the county has approved many developments that affect significant natural resources, accepting developers' proposed mitigation as a tradeoff. But the extent of that mitigation has varied widely from project to project because the county doesn't have clear standards, Dobson said.
During the application process, developers would hire consultants to analyze the ecological value of significant natural resources. But they would often downplay the ecological value, Dobson said.
"They'll go in and say, 'Oh, well, it's disturbed by human activity. There's non-native vegetation growing there. Some of the trees are dead. If it's not worth much, there's not much to mitigate, and we can plant some trees over here and everything will be fine,'" Dobson said.
A consultant hired by Venture Properties Inc. to evaluate the natural area of the Metzger property said at a 2017 public hearing that in the stand of fir trees neighbors want to protect, invasive species were abundant and the area was in a "degraded condition."
Balancing housing needs with environmental safeguards
Under pressure from advocates like Dobson and Long, the county ordered a review of its significant natural resources program when it started a long-range planning process in March 2018.
In a report published this May, the county found that of the "urban" wildlife habitat originally designated in the 1980s that hasn't yet been annexed into a city, nearly half has since been developed or now falls within a public right-of-way. It also found that developers' proposed mitigation varied significantly.
While the county was preparing the report, Warren petitioned the state Land Use and Development Commission to review the county's protections for significant natural resources and its Goal 5 compliance.
On May 22, the LCDC unanimously voted to impose an enforcement order on the county, requiring it to adopt "clear and objective" standards for protecting significant wildlife areas.
The commission also barred the county from processing development applications for property with wildlife habitat until it can show it is complying with Goal 5.
Residents who oppose the development of the Metzger property hope the order will bring better protections for wildlife habitats that have been dramatically reduced in recent decades.
"We want some meaningful protections," Long said, adding that residents should be involved in the process of making new regulations.
How much the county's future standards protect significant natural resources from development impacts is a policy judgment, said Gordon Howard, community services division manager for the Oregon Department of Land Conservation and Development.
"What the commission said is, 'You have to have clear and objective standards,'" Howard said. "There are several ways of doing that and there are gradations of development that you can allow or not allow on these kinds of lands."
The county could write a standard that says developers need to plant trees that are quantifiably proportional to the size of the trees that were cut, for example. The standard could also call for replanting of trees that aren't proportional to those cut, as long as developers have consistent guidelines, Howard said.
The extent to which the county prevents or promotes development on significant natural resources should be weighed against other goals such as the need for housing, Howard said.
"There is an assumption to some extent in urban areas that they're going to be urban, that you're not going to have huge natural areas going through areas that are supposed to be where people are living and working," Howard said.
As the county considers its next steps — it will need to hold public hearings before adopting any new development ordidances — the status of the proposed Metzger development remains unclear.
The LCDC order barring the county from processing development applications on significant wildlife areas only applies to applications submitted on or after June 1, 2020.
County officials did not respond to questions about the project's status before The Times' deadline.
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