Metro moves toward final adoption of regional land use rules
June, 2005
Metro, the government agency with jurisdiction over all cities in the Portland, Oregon metropolitan area, and more than one million residents of Multnomah, Clackamas and Washington counties, is taking the final steps toward adopting minimum requirements for natural resource protection for use in land use plans and to guide the decisions of local planning authorities.
Metro's elected council recently endorsed a long awaited staff proposal, to codify specific natural resource, fish and wildlife habitat protection in compliance with Oregon's Statewide Planning Goal 5 and Metro's "2040 Growth Concept," a 50-year growth management plan it approved about 10 years ago.
The "Nature in Neighborhoods" plan will significantly change the land use planning landscape for new development or re-development in areas Metro has identified as worth preserving. Metro will complete the process this fall and local jurisdictions will adopt them at a later date.
The Plan will apply to areas Metro has identified as having "regionally significant" natural resource attributes. Those areas will require additional protection beyond current state and federal regulations such as the Clean Water Act or Endangered Species Act.
Protection is generally focused on riparian and streamside areas, with the stated goals of:
· Preserving and improving habitat
· Preserving areas of contiguous habitat
· Avoiding habitat fragmentation
· Preserving and improving "special habitats of concern" such as oak and hardwood forests, native grasslands and wetlands
The heightened protections will be accomplished through voluntary, incentive-based mechanisms designed to "avoid, minimize or mitigate" impacts. However, if the development application is in an area identified by Metro as "Class I or Class II riparian habitat," the plan mandates protection measures.
The "Nature in Neighborhoods" plan will apply to areas identified in already-completed resource inventory maps. It will incorporate a Functional Plan for preserving the previously designated "regionally significant," fish and wildlife habitat and a Model Ordinance to guide local governments.
The Functional Plan contains the voluntary and incentive-based goals and objectives. The Model Ordinance contains the minimum development standards applicable to the high-value areas. These areas have certain characteristics in common that could greatly restrict, either by choice or by regulation, how a development could alter a piece of property.
Local jurisdictions (cities and counties) must comply with the Metro rules in their own land use planning and regulations.
They may comply by:
· Adopting Metro's Model Code and habitat maps
· Adopting or continuing a comprehensive land use plan that "substantially complies" with Metro's Functional Plan
· Conducting a "special planning process" (such as a Plan District) that meets the Metro program goals and objectives
· Adopting the Tualatin Basin Partners plan
Both the Functional Plan and the Model Ordinance application depends on how the individual property is designated on Metro's inventory map of "Habitat Conservation Areas." These designations will trigger either a goal or an obligation to minimize, mitigate or altogether avoid impacts to resources depending on the approach chosen by the local jurisdiction in its Ordinance.
Habitat areas have been identified by Metro as having high, moderate or low value. Metro's maps were prepared on broad fairly high-level scale, so it is highly likely that the actual on-the-ground features of a given site will not reflect the habitat values Metro has attributed to it. Metro's program does contain a process for challenging the map values ("verification"), which entails proving in a technical fashion that the site does not have regionally significant habitat attributes. In the event that Metro expands the urban growth boundary (UGB) in the future, both "Class A and B" upland areas will be included for protection at the same level as Class I and II habitats which are more tied to riparian areas.
When triggered by a development application in Class I and Class II areas, the goals or requirements could include "habitat friendly" development practices such as (listing just a few):
· Buffer zones for wetlands and riparian areas
· Reduced lot sizes and setbacks to allow clustering
· Reduce building footprints
· On-site storm water management
· Minimizing clearing and grading
· Using impervious paving materials
· Reducing the size of streets, sidewalks and parking areas
Until the fall of 2004, Metro had been entirely oriented toward imposing exclusively mandatory restrictions and limitations, but in response mainly to complaints from industrial landowners that they avoid, minimize and mitigate requirements would essentially prohibit new or re-development in some valuable industrial areas, Metro changed direction toward inclusion of the more voluntary approach. However, local jurisdictions are still free to implement the Model Ordinance or impose regulations even more restrictive than Metro's, and some observers believe that for example, the City of Portland will do just that.
Some significant questions remain about how and when "Nature in Neighborhoods" will be implemented. Most notably, Metro itself has delayed final adoption of the plan until this fall, to wait until the Oregon legislature had completed any amendments to Measure 37.
Measure 37 requires the governments to either compensate landowners for lower property values caused by land use decisions, or to waive the offending land use restriction. This summer, Metro will mail Measure 37 notices to landowners potentially affected by Nature in the Neighborhoods, which is likely to attract more attention to the plan that it has heretofore received.
Additional information on Metro's proposal can be found on its website at http://www.metro-region.org/pssp.cfm?ProgServID=122.
You can go to the following website, plug in the property in question and see the regulations Metro believes applies to development on the property:
http://www.metro-region.org/article.cfm?ArticleID=8385
If you need guidance or have further questions on how Nature in Neighborhoods may affect your property or development plans, please contact Mark Stermitz (503.499.4461), John Junkin (503.499.4613) or Chip Lazenby (503.499.4488).