Metolius Protection Act Gets Tested

Erik Kancler

Editor's note: Today, we welcome Erik Kancler to the roster of BlueOregon contributors. Erik is the executive director of Central Oregon LandWatch. He's previously worked as a climate scientist, private land use consultant, cartographer, and professional journalist. You can see some of his previous work at Mother Jones magazine. Welcome, Erik!

One year ago today, Governor Ted Kulongoski signed the Metolius Protection Act of 2009 (HB 3298) into law, finalizing a multi-year process to prevent inappropriate development in the Metolius area and ultimately designating over 400 square miles of land as Oregon’s first-ever Area of Critical Statewide Concern.

One week ago, the first real attempt to challenge the act emerged with a proposal for 15 units of “fishing accommodations” on the Metolius arm of Lake Billy Chinook that not only runs afoul of the legislatively approved management plan for the Metolius, but amounts to a perverse interpretation of land use statutes that would pose new threats for significant rivers throughout the state.

The proposal is for a 15-unit subdivision of privately-owned single family detached homes up to 1,600 square feet in size.

The issue in regards to the Metolius is that the area’s management plan prohibits the approval of developments with greater than 10 residences. Do the single-family dwellings in the proposed development count as residences? If not, then the limitations of the ACSC would be substantially weaker than intended and the potential for new development opportunities in the Metolius area may re-emerge.

The statewide issue is that thus far, “fishing accommodations” (which are a conditional use allowed in forest zones within 1/4 miles of Class 1 waters) have been understood to be a single “guest rooms” to be used “for sleeping purposes”. To our knowledge, no one’s ever attempted to call privately-owned detached dwellings with kitchens, bathrooms, etc. “guest rooms.”

If allowed to stand, such a precedent could ultimately lead to hundreds, perhaps thousands of new residences along the Metolius and other Class 1 rivers throughout the state such as the Umpqua, the McKenzie, the John Day, or the Illinois.

There are other problems related to this particular site and proposal as well, such as the lack of permits for existing cabins, 8 camp trailers, 11 docks, 5 decks, retaining walls, and myriad other uses. Under terms that have been discussed, all would become legal should the application be approved. (Comments from Central Oregon LandWatch and Friends of the Metolius to the Jefferson County Planning Commission are posted online here if you want more detail.

I’ve been amazed before at the “creativity” that developers or would-be developers have demonstrated in interpreting land use laws to their favor. But this is pretty bad. I’ve been amazed at the lengths that local elected officials will go through to stay out of the way of landowners or to actively facilitate developments that seem to clearly disregard the letter and intent of the law, the public interest, or the concerns of neighbors. Should Jefferson County ultimately approve this development, it would be among the worst cases of “accommodation” I’ve seen yet.

To approve of such a development – in the Metolius ACSC of all places – a mere year after the law was put in place, would amount to a pretty provocative move and a statement that essentially the county either has no intent of respecting the letter of the law or every intent to bend the rules as far as it can in an applicant’s favor as “test cases” come up. It would also be a clear indication that the fate of the Metolius is far from sealed and that advocates have a lot of work ahead of them to make sure the Metolius stays protected.

While the county planning staff has recommended the project’s approval – with the stipulation that cabins be limited to 850 square feet and not constructed in riparian areas – no action has yet been taken by the planning commission which can approve or deny the project. So there’s still time for them to do the right thing. It would certainly be nice to be on the same side this time around and move on to more pressing land use and economic issues in Jefferson County such as the responsible development of alternative energy, or addressing the needs of its agricultural community, or finding ways to bring much needed economic development to downtown Madras.

By Erik Kancler July 15, 2010