Carver v. Washington County

In a multi-phase development, to enforce conditioning construction of earlier phases on satisfying conditions applicable to later phases, a challenger must cite a code requirement or other legal standard as the risk of not completing a multi-phase development is always present.

Cedar Park subdivision was proposed on land containing the Cedar Mill Creek Significant Natural Resource (SNR) and a separate wetland. A county hearings officer approved three proposals: to impact about half of the natural resources areas with mitigation conditions including on-site preservation and purchase of off-site credits, to reduce the width of Melody Lane for Phase 2 provided approval of a Critical Services Exception, and to create a private street. On appeal, Carver first argued that the approval of Melody Lane should have the same conditional approval for Phase 1 as well as Phase 2. LUBA noted that the risk of not completing a multi-phase project always exists, so a challenger must cite a code requirement or other legal standard to require independent approval of phases or conditioning construction of earlier phases on satisfying conditions applicable to later phases. Carver next argued that the hearings officer failed to consider Community Development Code (CDC) 422.3.5. LUBA disagreed, finding that the SNR was not a “Significant Natural Area” for purposes of code applicability. Carver argued that the hearings officer erred in concluding that the wetland was not a “Riparian Corridor” under CDC 422.3.3A. The Board disagreed, finding that the wetland’s separation did not satisfy the code definition of “Riparian Corridor” as “adjacent to a water area.” Carver last challenged the approval of the private street, but LUBA upheld the hearings officer’s determination that the street was not needed to access “other properties in the area,” or alternatively that the private street was allowable because “topographic constraints make construction of a public street impractical” and constructing a public street to connect to 119th NW Avenue would violate collector street intersection spacing requirements. AFFIRMED.