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Lying west of Portland, Washington County is a mix of farm and forest lands adjacent to an urban growth boundary of a growing Portland-metro urban area. The county now has a population over 600,000 and serves as the center of Oregon鈥檚 鈥淪ilicon Forest鈥� 鈥� a thriving agglomeration of employment centers demonstrating the change in regional economy over the past half century from resource-based to technology-based, as farms and timber stands give way to wafer plants and houses. These changes have not been without conflict, however.

A substantial minority of the county鈥檚 residents still live outside incorporated cities (which undertake their own planning and zoning programs) in areas such as the Portland West Hills, Bethany, Bull Mountain, Metzger, and Sunset-West. Because these areas are planned for urban use, they are to be 鈥渂uilt out鈥� in 20 years just like lands within cities. These areas also have substantial natural resources, including riparian corridors, wildlife, wetlands, groundwater, and mineral and aggregate resources. The Oregon land use program insists that, where those resources are found, local governments must decide how, if at all, they can co-exist with conflicting uses, like residential or industrial development.

The state prescribes a process for evaluating the balance between natural resources and development under Statewide Planning Goal 5. The Goal 5 process includes an evaluation of the quantity, quality and location of 鈥渟ignificant鈥� resource sites, identification of the potential conflicts resulting from permitted development in the area, and an 鈥淓SEE analysis鈥� that evaluates the economic, social, energy and environmental consequences of that permitted development on the resource. This analysis must inform adoption of a zoning scheme that protects the resource entirely, allows development entirely, or restricts development through the imposition of 鈥渃lear and objective鈥� development criteria.

Since every city and county in the state has plans and regulations that were evaluated by the Land Conservation and Development Commission and deemed to comply with the statewide goals (a process known as 鈥渁cknowledgment鈥�), one might assume that those choices over the conflicts between these natural resources and development were now beyond challenge. But one would be wrong.

Washington County鈥檚 natural resource plans had been 鈥渁cknowledged鈥� by the LCDC to comply with Goal 5. For most purposes, acknowledgment nullifies any subsequent challenge to the application of local plans or land use regulations to a development proposal claiming a violation of the statewide planning goals, even if the acknowledgment be improvident.

But this seemingly immovable object was confronted by an irresistible force 鈥� a state law that required that certain 鈥渘eeded housing鈥� types within urban areas may only be constrained by 鈥渃lear and objective criteria.鈥� All well and good, but the Washington County land use regulations that dealt with conflicts with natural resources were anything but 鈥渃lear and objective.鈥� While the LCDC had acknowledged these county regulations and they were thus immune from challenges under the goals (even though they arguably did not comply with the Goal 5 鈥渃lear and objective鈥� requirements), that immunization would not shield the regulations from challenge under state statutory law.

Enter Jill Warren, who argued that the county could not avoid application of the acknowledged riparian standards that required an inquiry into whether a water area had been 鈥渄egraded鈥� and, if so, to require 鈥渆nhancement鈥� to improve water quality, even though these are not 鈥渃lear and objective鈥� standards because the land under consideration was not 鈥渂uildable.鈥澛� Under the pre- 2017 version of the state law, the 鈥渃lear and objective鈥� standard obligation applied only to housing on lands deemed 鈥渂uildable.鈥澛� Lands not deemed 鈥渂uildable鈥� would thus not be subject to the clear and objective criteria requirement.

On appeal, the Land Use Board of Appeals agreed with Warren, in part, and remanded finding that it was not clear whether the land were partially or fully in the 鈥渂uildable lands鈥� category. In 2018, the county again approved the application, which had been filed after the 2017 legislation requiring the use of clear and objective criteria to all housing applications regardless of its 鈥渂uildable lands鈥� status, came into effect. The county contended it correctly applied only its acknowledged land use regulations to protect water areas. LUBA thus had the question of whether the statute could require clear and objective standards to this residential development clearly before it and ultimately determined that the county decision violated state statutory law in applying water area protection standards that were not 鈥渃lear and objective.鈥� The Oregon Court of Appeals affirmed.

Warren had also brought an enforcement order proceeding against the county after the second application had been filed and after the new legislation took effect, contending that county land use regulations did not adequately protect several natural resources of statewide significance under Goal 5. The LCDC agreed and directed the county to revise its land use regulations to correct the deficiency. The county adopted new regulations and the LCDC lifted the enforcement order.

However, Warren wasn鈥檛 finished. She challenged the new regulations before LUBA, not under the goals (as acknowledgment made such a challenge superfluous), but for noncompliance with the statutory 鈥渃lear and objective鈥� requirement. LUBA determined that the new county regulations were not 鈥渃lear and objective鈥� because they depended on subsequent, unknown standards that had not been adopted yet. In a later case, when those subsequent standards were adopted, LUBA found them not to be clear and objective. What a mess!

Washington County now faces a dilemma. While its plan and land use regulations regarding Goal 5 resources are 鈥渁cknowledged鈥� and largely immune from challenges based on the statewide planning goals, the harsh realities of binding state law now make staff advice to the development community for development in natural resource areas somewhat precarious. At this moment, staffers are advising applicants that both the originally acknowledged regulations (along with Goal 5) and state law apply directly. In the light of LUBA and appellate decisions, this appears to be a suboptimal choice, as the expected predictability contemplated by the 鈥渃lear and objective鈥� statute and the goal of providing housing in the marketplace are frustrated.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.