Columbia River Gorge National Scenic Area Case Law

Federal Court of Claims

• Broughton Lumber Co. v. United States, 30 Fed. Cl. 239 (1994).

  The National Scenic Act did not effect a Fifth Amendment taking of Broughton’s alleged right to apply an existing state-granted water right toward a future FERC hydroelectric power license. Given the significant obstacles posed by preexisting federal and state obligations, Broughton possessed no compensable expectancy in the use of its water right for hydroelectric generation.

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Oregon Supreme Court

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 346 Or 433, 213 P3d 1191 (2009).

  Court of Appeals’ decision upholding Management Plan Amendment authorizing commercial uses on historic properties affirmed. The challenged Plan Amendment did not violate the purposes and standards of the Scenic Area Act. The Scenic Area Act does not expressly prohibit commercial uses outside of the urban areas and commercial zones. The Commission properly gave due consideration to proposed alternatives.

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 346 Or 415, 212 P3d 1243 (2009).

  Gorge Commission order approving Multnomah County ordinance authorizing commercial uses on historic properties upheld. The Commission properly interpreted its Plan Amendment to require the County to authorize all of the specified uses both on properties listed on the National Register for Historic Places and on properties "eligible" for listing. The phrase "may be allowed" in the Plan Amendment is not ambiguous. It denotes discretion, unlike the phrase "shall be permitted." However, this does not mean that a county has discretion to omit uses that "may be allowed" from the County’s ordinance. Rather, absent a showing that omitting a use from an ordinance is more protective of resources, counties must list specified uses in their ordinances and then decide on a case by case basis whether to allow the uses.

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 346 Or 366, 213 P3d 1164 (2009).

  In facial challenges to Management Plan provisions, it is consistent with the statutory standards of review in ORS 196.115(3)(c) to (e) to also apply the judicial standard of review of whether the challenged provisions depart from a legal standard expressed or implied in the Scenic Area Act or contravene the Act or some other applicable statute.
  
  The Gorge Commission is entitled to Chevron deference in interpreting ambiguous provisions of the Scenic Area Act or filling in the gaps of the statute. However, post hoc rationalizations interpreting the Scenic Area Act offered for the first time on appeal by the Gorge Commission's counsel, when the agency itself has not articulated a position on the issue, are not entitled to deference.
  
  The Management Plan complies with the Scenic Area Act’s requirement to protect scenic resources from cumulative adverse effects. The Plan meets this mandate by requiring reviewing agencies to review potential cumulative effects in the context of each development application and prohibit uses and development that would contribute to adverse cumulative effects.
  
  The Management Plan does not comply with the Scenic Area Act’s requirement to protect natural and cultural resources from cumulative adverse effects.
  
  GMA Overall Scenic Policy #1 does not violate the Scenic Area Act. Under this policy, reviewing agencies must review proposed development and prevent adverse scenic impacts through a number of means, including modifications to siting, size, and other design features.
  
  The Commission must decide whether to protect geologic resources and whether to require avoidance of residential development in areas with geological hazards.
  
  The Commission did not violate the Scenic Area Act by authorizing fish processing operations and commercial events in specific land use designations, nor by allowing livestock grazing without review in most General Management Area land use designations.

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Washington Supreme Court

• *Skamania County v. Columbia River Gorge Comm’n, 144 Wn. 2d 30, 26 P.3d 241 (2001).

  Section 15(a)(1) of the Scenic Area Act does not give the Gorge Commission the authority to collaterally invalidate a final county land use decision after expiration of the appeal period.

• Schaefco, Inc. v. Columbia River Gorge Comm’n, 121 Wn. 2d 366, 849 P.2d 1225 (1993).

  Landowner’s appeal of a Gorge Commission decision denying development dismissed because appeal was not perfected in a timely manner. A motion for reconsideration is timely only when a party both files and serves the motion within ten days. Because Shaefco’s motion for reconsideration was not served on the Commission within ten days, the motion was untimely and the thirty-day deadline under RAP 5.2(a) for filing a notice of appeal was not extended. As a result, the subsequent notice of appeal was also untimely.

Oregon Court of Appeals

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 257 Or App 197, 305 P3d 156 (2013).

  Gorge Commission decision to approve the Columbia River Gorge Air Study and Strategy affirmed. The state agencies’ reliance on the existing federal Regional Haze Program as their approach for improving air quality in the Scenic Area was not inconsistent with the Management Plan and Scenic Area Act. The Strategy is a “regional air quality strategy” within the meaning of the Management Plan, and concrete targets for improvement are not required. Utilizing visibility impairment as a surrogate for other pollution concerns was a legally permissible approach.

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 248 Or App 301, 273 P3d 267 (2012).

  Management Plan revisions affirmed in part, reversed in part, and remanded for reconsideration. Revisions to the Plan’s glossary definition of "natural resources" were reasonable, and the Commission did not abuse its discretion in adopting them. The Plan’s glossary definition of "natural resources" need not include all natural resources, even if other natural resources are protected by other provisions of the Plan. The Management Plan fails to comply with the Scenic Area Act’s mandate to prevent adverse effects, including cumulative adverse effects, to water resources (e.g., streams, ponds, wetlands, riparian areas). However, the Plan does properly prevent cumulative adverse effects to wildlife habitat and rare plants. Finally, the Plan provisions exempting proposed land divisions from the requirement to prepare a cultural resources reconnaissance survey may violate the Act’s requirement to prevent cumulative adverse effects to cultural resources.

• Petroff v. Williams, 240 Or App 201, 246 P.3d 39 (2010). 

  Trial court decision to grant a way of necessity across adjacent property reversed. The way of necessity established by the trial court would have gone through a buffer zone required by the scenic area rules for the protection of a site with potential historical significance. Consistent with the scenic area rules, a prior land division on the adjacent property had imposed a restrictive covenant that prohibited all ground disturbance within the identified area unless the cultural resource protection process is completed first, including the evaluation of the potential significance of the site by a qualified archaeologist, the involvement of the State Historic Preservation Office and Indian tribal governments, an assessment of potential adverse effects on any identified significant resources, the preparation of a mitigation plan to eliminate any adverse effects, and the prohibition of development activities if adverse effects could not be eliminated. Given this required process, which the county surveyor described as "daunting," it was entirely speculative whether petitioner would be able to comply with the scenic area rules and improve the route in question. Because the route was unsuitable in its present state for providing road access to petitioner's property, and because it was uncertain whether the route could ever be improved, it was unknown whether the route would ever be practicable. The trial court thus erred in granting the way of necessity.

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 236 Or App 479, 238 P3d 378 (2010), rev den, 349 Or 654, 249 P3d 542 (2011).

  Management Plan amendment authorizing recreation resort review use on lands designated commercial recreation upheld. Petitioners did not show that the Gorge Commission erred in concluding that there had been a significant change in circumstances to justify the Plan Amendment. Nor did petitioners show that the challenged Plan Amendment violated the purposes and standards of the Scenic Area Act. Finally, the Commission’s order approving the Plan Amendment did not make any legal determinations about whether there are any legally existing industrial uses at the Broughton Landing site.

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 218 Or App 261, 179 P3d 700 (2008), aff’d, 346 Or 415, 212 P3d 1243 (2009).

  Gorge Commission order approving Multnomah County ordinance authorizing commercial uses on historic properties upheld. Petitioners did not show that the Commission erred in concluding that the County’s preferred approach of limiting commercial uses to properties listed on the National Register of Historic Places was not more protective of resources than the Commission’s approach.

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 218 Or App 232, 179 P3d 706 (2008), aff’d, 346 Or 433, 213 P3d 1191 (2009).

  Management Plan Amendment authorizing commercial uses on historic properties upheld. Petitioners did not show that the Gorge Commission erred in concluding that there had been a significant change in circumstances to justify the Plan Amendment. Nor did petitioners show that the challenged Plan Amendment violated the purposes and standards of the Scenic Area Act. Although petitioners did not show that the Plan Amendment would adversely affect resources, petitioners may challenge individual land uses on that basis in the future on an as-applied basis. The Gorge Commission is not required to consider cumulative effects at the time it adopts a Plan Amendment, but adverse cumulative effects must be protected against at the time land use applications are reviewed. Finally, even if the Plan Amendment did not meet its stated goal of protecting historic resources, that would not necessarily mean that the Plan Amendment violates the Act.

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n 215 Or App 557, 171 P3d 942 (2007), aff’d in part and rev’d in part, 346 Or 366, 213 P3d 1164 (2009).

  The Commission did not violate the Scenic Area Act during its Management Plan review process by limiting its revisions to selected portions of the Plan. However, upon completion of plan review, any portion of the Plan may be challenged as inconsistent with the Act, including previously adopted provisions that were unchanged during plan review. Finally, provisions involving the Special Management Areas are subject to the authority of the United States Forest Service, and therefore challenges to such provisions cannot be brought in the state courts.
  
  Petitioners’ claims involving the scenic resources implementation handbook and the retention of tree cover were not ripe for review.
  
  The Commission did not violate the Act by deleting the requirement to site new development to minimize visibility, nor by extending the time period for new development to achieve visual subordinance from two years to five years.
  
  The Commission did not violate the Scenic Area Act by declining to expand the riparian buffers required by the Management Plan. The current buffers are not optional. The Management Plan provision that exempts portions of the Columbia River adjoining the urban areas from the riparian resource protection guidelines does not violate the Act.
  
  The provisions of the Management Plan involving the protection and enhancement of agricultural lands for agricultural uses do not violate the Scenic Area Act.
  
  The Commission did not violate the Scenic Area Act by allowing outright the replacement or expansion of existing culverts in Open Space land use designations.
  
  The Commission violated the Scenic Area Act by allowing the expansion of existing industrial uses in the General Management Area.

• *Columbia River Gorge Comm’n v. Hood River County, 210 Or App 689, 152 P3d 997, rev den, 342 Or 727, 160 P3d 992 (2007).

  Oregon’s Ballot Measure 37 does not apply within the Columbia River Gorge National Scenic Area. The Columbia River Gorge Commission is a bistate entity rather than a state agency. The Columbia River Gorge Compact has the force of federal law. The Scenic Area Act’s implementing rules, including the Management Plan and county ordinances, are required by federal law and are thus not subject to Measure 37.

• *Murray v. State, 203 Or App 377, 124 P3d 1261 (2005), rev den, 340 Or 672, 136 P3d 742 (2006).

  Inverse condemnation claim dismissed. The plaintiffs had not pursued all available administrative remedies, and therefore the case was not ripe. Although the Gorge Commission had denied the plaintiffs’ application for a mining operation, the plaintiffs did not seek review of that denial, nor did they complete a cultural resources survey or file a new development application.
  
  In addition, although the plaintiffs had been enjoined from further ground-disturbing activities after bulldozing the property without a permit, the issuance of the injunction did not ripen the inverse condemnation claim. The injunction was necessary to prevent further unlawful actions by the plaintiffs, and did not foreclose the possibility of future lawful development activities on the property.

• Haigh v. Columbia River Gorge Comm’n, 142 Or App 550, 921 P2d 1350 (1996).

  Commission approval of an application for a mobile home and accessory structures upheld. The Commission properly determined through the "special review" process that alternative nonresidential uses would pose a greater threat to deer and elk winter range than the proposed use. Intervention status for opposing neighbor was proper.

• *Friends of the Columbia Gorge v. Columbia River Gorge Comm’n, 133 Or App 1, 889 P2d 1303 (1995).

  Commission approval of proposed facility for storing explosives on Forest land upheld. Installation of the facility is a permitted, non-forest use rather than a conversion of forest land to commercial use, and therefore does not violate the Final Interim Guidelines or section 6(d)(2) of the National Scenic Act.

• Murray v. Columbia River Gorge Comm’n, 133 Or App 461, 891 P2d 1380 (1995).

  The mining of aggregate and other material in the GMA is a "major development action" that requires review under section 10(c) of the Scenic Area Act. Major development actions are subject to Commission review in all land classifications in the National Scenic Area except urban areas. Landowner’s mining in the GMA without prior Commission approval was a willful violation of the Act.

• *J. Arlie Bryant, Inc. v. Columbia River Gorge Comm’n, 132 Or App 565, 889 P2d 383, rev den, 321 Or 47, 892 P2d 1024 (1995).

  Commission’s order directing five-year phase-out of petitioner’s quarry operation, a non-conforming use in the National Scenic Area, upheld. The five-year period was legitimately selected based on the Director’s findings and conclusions regarding a conflict between the quarry operation and the planned expansion of recreational resources in the area.

• *Murray v. Columbia River Gorge Comm’n, 125 Or App 444, 865 P2d 1319 (1993).

  Commission’s denial of application to build a road and subdivide an agricultural area upheld. Commission properly found that approval of the application would set a precedent resulting in adverse cumulative impacts of future parcelization, diversion of agricultural land to residential use, and adverse effects on scenic resources in the area. Because the record did not demonstrate that the applicant was left with no economically viable or beneficial use of the property, the denial was not an uncompensated taking.

• *Miller v. Columbia River Gorge Comm’n, 118 Or App 553, 848 P2d 629 (1993).

  Commission’s denial of application for a land division and new residence was a legitimate exercise of police power regulatory authority. The denial was not a scenic easement. Furthermore, because the applicants did not demonstrate that they had been deprived of all economically viable or substantial beneficial use of the property, the denial was not an unconstitutional taking.

• *Friends of the Columbia Gorge, Inc. v. Land Conservation & Dev. Comm’n, 85 Or App 249, 736 P2d 575 (1987).

  LCDC’s acknowledgement of the City of Hood River’s comprehensive plan to develop Wells Island was improper because the City’s Goal 5 resource inventory and its analysis of economic consequences were inadequate. The inventory’s exclusion of all but two relevant bird species on the island was unacceptable and the economic analysis failed to estimate how many people might use the facilities, the costs of establishing and maintaining the facilities, and how much revenue the facilities might generate.

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Washington Court of Appeals

• *Zimmerly v. Columbia River Gorge Comm'n, 26 Wn. App. 2d 265, 527 P.3d 84 (Div. II), review denied, 1 Wn.3d. 1028, 534 P.3d 793 (2023).

  Gorge Commission appellate decision involving county enforcement matter upheld. Washington courts, as a matter of Washington common law, review Gorge Commission decisions under the standards in Washington’s Administrative Procedure Act. On judicial review, Washington courts review Gorge Commission appellate decisions, rather than the underlying county decisions. 
  
  The Gorge Commission has appellate jurisdiction to review county decisions that implement or apply county National Scenic Area ordinances because such decisions relate to the implementation of the Scenic Area Act. County land use decisions (including enforcement decisions) that are subject to appellate review by the Gorge Commission pursuant to the Scenic Area Act are not exclusively appealable under Washington’s Land Use Petition Act.
  
  Following the enactment of the Scenic Area Act and before the adoption of each county’s Scenic Area ordinance, the Act required the Gorge Commission to review preexisting mining operations to ensure consistency with the Act and the Final Interim Guidelines. Here, the underlying county code enforcement action, which in part involved whether the subject mine no longer had authorization to conduct mining activities under the Scenic Area rules, necessarily required consideration of a prior land use decision issued by the Gorge Commission’s executive director in 1993 that had previously approved mining activities on the property. Both Clark County and the Gorge Commission were authorized to construe and enforce the terms of that 1993 decision and the laws in effect at the time of its issuance.
  
  Under the terms of the 1993 land use decision and the Final Interim Guidelines, mining operations that were discontinued for more than one year required new land use approvals before mining could resume. Here, the surface mine was largely dormant for a twenty-year period beginning in 1997. The Gorge Commission correctly determined that the evidence in the record established that the mine had been inactive and discontinued far longer than the one-year discontinuance period, and correctly concluded that the 1993 decision had been voided as a result and that any future mining on the property would require new land use approvals.
  
  The Gorge Commission did not violate the appearance of fairness doctrine by not disclosing to the mining companies, before the Commission reached its final decision, the existence of a joint defense agreement with the other parties regarding the jurisdiction portion of the case. The companies had initiated the litigation that led to the defense agreement, thereby creating the alignment between the Commission and the other parties. Furthermore, the defense agreement was between the parties’ attorneys, and not with the Gorge Commissioners themselves. Finally, the mining companies’ appearance of fairness claims were untimely raised.  

• *Friends of the Columbia Gorge, Inc. v. Wash. State Forest Practices Appeals Bd., 129 Wn. App. 35, 118 P.3d 354 (Div. II 2005).

  The DNR properly granted a forest practices permit for a proposal to convert 30 acres of land in a Special Management Area from forest use to new agricultural use. The Management Plan rules in effect at the time the application was filed allowed this type of conversion without review for protection of scenic resources. State law incorporates the Management Plan’s conversion provisions.

• *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 126 Wn. App. 363, 108 P.3d 134 (Div. III 2005).

  The Gorge Commission’s decision to approve a 36-acre expansion of the Stevenson Urban Area was supported by substantial evidence. The 36 acres had been within the city limits since before the passage of the Scenic Area Act and the expansion would benefit Skamania Lodge, the County’s largest private sector employer.

• Skamania County v. Woodall, 104 Wn. App. 525, 16 P.3d 701 (Div. II 2001), review denied, 144 Wn.2d 1021, 34 P.3d 1232 (2001), cert. denied, 535 U.S. 980, 122 S. Ct. 1549, 152 L. Ed. 2d 399 (2002).

  If the National Scenic Act or Management Plan does not provide a solution to resolve a land use dispute, state common law must be applied. The Management Plan dictates that the right to a nonconforming use terminates when the use is discontinued for more than one year, but does not define "discontinued." Under Washington common law, if a nonconforming use has been abandoned for the specified time period, a rebuttable presumption arises that the landowner intended to abandon the use, but the landowner can overcome the presumption with evidence that there was no intent to abandon. The case must be remanded for a determination of whether the record shows that the landowners did not intend to abandon.

• Tucker v. Columbia River Gorge Comm’n, 73 Wn. App. 74, 867 P.2d 686 (Div. II 1994).

  The Gorge Commission was allowed to administer the Final Interim Guidelines adopted by the Forest Service without adopting its own regulations. The Commission’s denial of landowner’s application to subdivide his property was not arbitrary or capricious. The Commission properly determined that the proposed subdivision would "adversely affect" the resources of the National Scenic Area because of its potential cumulative effects.

• Klickitat County v. State, 71 Wn. App. 760, 862 P.2d 629 (Div. III 1993).

  The state courts do not have subject matter jurisdiction over claims for declaratory and injunctive relief against the Gorge Commission unless the claims allege a violation of the Scenic Area Act. The Act does not grant the states plenary jurisdiction over all types of suits against the Commission. The Act and Management Plan are federally mandated, and therefore do not constitute state programs for purposes of a Washington statute that prohibits the state from shifting the costs of state programs to the counties. Finally, because the Commission is a creature of federal rather than state law, the state cannot be liable for any costs associated with any inverse condemnation action brought against a county as a result of a county scenic area ordinance.

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Columbia River Gorge Commission

• *Norway Green, LLC v. Clark County, CRGC Nos. COA-C-22-01 & COA-C-22-02 (May 1, 2023), aff’d sub nom. Norway Green, LLC v. Columbia River Gorge Comm’n, No. 23-2-01222-06 (Clark Cnty. Super. Ct. Apr. 17, 2024). 

  County hearing examiner’s decision to deny application for a non-farm dwelling upheld. The subject parcel was ineligible for a non-farm dwelling. 
  
  Under the applicable procedural requirements of the Clark County Code, the land use applicant remains the applicant in a de novo appeal to the county hearing examiner, even if the appeal was filed by another party. Furthermore, in such an appeal the applicant retains the burden of proving by substantial evidence compliance with applicable approval standards.
  
  Applications for non-farm dwellings must demonstrate that the parcel is predominantly unsuitable for agriculture. Analysis of this requirement is not limited to considering the relative acreages of the current uses of a parcel, but rather must also include a number of other factors, including in interpreting and determining both predominance and suitability. 
  
  The current predominant use of a parcel for one type of use, such as commercial forestry, does not necessarily mean the parcel is predominantly unsuitable for another type of use, such as agricultural use. Here, the subject parcel was predominantly used for forest management at the time of the application, but the parcel was also concurrently predominantly suitable for both forest use and agricultural use. The Scenic Area Act does not prioritize the preservation of forest uses over agricultural uses. 
  
  There is no priority or hierarchy of considerations among the review criteria for non-farm dwellings, and no requirement for a suitability analysis to begin with any particular factor. One of these criteria requires the decision maker to evaluate the capability of the subject parcel to be utilized for agriculture in conjunction with other agricultural operations in the area. This criterion applies, even if the application is determined on other grounds to have not demonstrated that the parcel is predominantly unsuitable for agriculture. The hearing examiner's decision denying the proposed dwelling was consistent with the intent of the Gorge Commission in preserving agricultural land for agricultural use and ensuring that agricultural land is not converted to residential use, as embodied in the Agricultural Land goals, objectives, policies, and guidelines of the Management Plan.
  
  State laws do not necessarily apply when interpreting National Scenic Area standards. Here, the Scenic Area rules, not state law, provided the applicable definition of “agricultural use.” For a proposed non-farm dwelling, the decision maker must analyze the parcel’s suitability for all types of uses listed in the Scenic Area definition of “agricultural use,” including beekeeping, growing Christmas trees, and “any other agricultural or horticultural use.”
  
  Denial of this land use application did not effect an unconstitutional taking. The County’s decision did not compel the applicant to harvest the timber on its property, to convert the property from forest land to agricultural land, or to do anything or refrain from doing anything. The decision neither required the applicant to give up any portion of its property, nor did it require any monetary payment in exchange for approval of the application. The decision merely concluded that the application did not demonstrate compliance with the approval criteria. 

• *In re Fowler, CRGC No. C19-0004 (modified) (Mar. 9, 2020).

  Executive Director’s modified decision approving a proposed replacement dwelling upheld. Executive Director’s findings of fact and conclusions of law adopted. 

• *Akers v. Clark County, CRGC Nos. COA-C-18-01 & COA-C-18-02 (Oct. 16, 2019), aff'd sub nom. Zimmerly v. Columbia River Gorge Comm’n, No. 19-2-03321-06 (Clark Cnty. Super. Ct. Oct. 14, 2021), aff’d, 26 Wn. App. 2d 265, 527 P.3d 84 (Div. II 2023), review denied, 1 Wn.3d. 1028, 534 P.3d 793 (2023).

  County hearing examiner’s enforcement decision involving unpermitted gravel mining in the National Scenic Area reversed in part and affirmed in part. 
  
  The Gorge Commission has jurisdiction to hear appeals of county code enforcement decisions that relate to the implementation of the Scenic Area Act.
  
  Appellants were adversely affected by the hearing examiner's decision, and therefore had standing to appeal the decision to the Commission. An appellant can be adversely affected by a county decision without having been a party to the decision, and regardless of whether the county decision maker was required to consider the appellant's interests. Here, there was sufficient evidence that appellants were adversely affected to give them standing, including evidence of physical impacts from mining, as well as extensive communications documenting appellants' attempts to participate in Hearing Examiner's proceeding.
  
  It was arbitrary and capricious for the hearing examiner to review and interpret portions of a prior Gorge Commission land use decision that had previously authorized mining on the property, while refusing to consider other portions of the same decision. That prior decision, which had been issued under prior Gorge Commission rules and the Final Interim Guidelines, was voided under its own terms after the mining was discontinued for one continuous year. 
  
  In determining whether a mining operation in the National Scenic Area has been discontinued, both the general rules for discontinuance of all uses and structures, as well as the mining-specific rules, apply. Here, the hearing examiner erroneously declared mining on this property to be a legally existing use under the mining-specific rules, and also erred in failing to apply the general rules, under which the mining had also been discontinued.
  
  Decision also affirmed in part because it was not arbitrary and capricious to exclude Friends and others from participating in the County’s enforcement appeal proceedings. The term “party” in Clark County’s enforcement code is ambiguous, and restricting participation in the proceedings below to the mining companies and the county planning director was a permissible interpretation of the law.

• *In re Fowler, CRGC No. C19-0004 (Sept. 5, 2019).

  Executive Director's approval of a proposed replacement dwelling remanded to the Director for further evaluation of whether the dwelling at various potential building sites would comply with a scenic resource protection guideline prohibiting proposed development from protruding above the line of any bluff, cliff, or skyline as seen from key viewing areas. Remanded with instructions to Commission staff and all parties to consider all options and try to find a compliant location and design.

• *GLW Ventures, LLC v. Skamania County, CRGC Nos. COA-S-13-02 & COA-S-13-03 (May 13, 2014), aff’d, No. 14-2-00071-7 (Skamania Cnty. Super. Ct. Dec. 17, 2015).

  Skamania County decision denying a proposed boundary line adjustment upheld in part and remanded in part.
  
  Skamania County’s National Scenic Area ordinance authorized participants in a County appeal hearing to raise new issues before the close of the public record, so long as each issue was raised in “sufficient detail to afford the County and all parties an opportunity to respond to the issue.” The U.S. Forest Service properly raised issues in the County appeal pursuant to this authority.
  
  Skamania County correctly concluded that the 80-acre minimum parcel size in the Scenic Area ordinance applied to, and prohibited, the proposed boundary line adjustment, which would have reduced a 96.06-acre parcel below the 80-acre minimum. An exception in the ordinance that allowed parcels to be reduced below the minimum size under certain circumstances did not apply here. On the issue of parcel size, the County’s zoning ordinance was more restrictive and controlled over a federal conservation easement that potentially allowed the ownership of the property to be broken into two specific tracts. Skamania County’s decision did not repeal, abrogate, or violate the federal conservation easement. Finally, Skamania County’s decision did not effect an unconstitutional taking of property.
  
  The term “property owner” in Skamania County’s Scenic Area ordinance is ambiguous. In this case, the Forest Service was a property owner because it owned a conservation easement worth nearly two-thirds of the appraised value of the property. Under the County’s Scenic Area ordinance, the land use application was not complete and could not be processed unless and until the Forest Service signed or consented to the application.
   

• *Easton v. Wasco County, CRGC No. COA-W-12-01 (Feb. 14, 2013).

  The parties filed a stipulated motion for a voluntary remand that met all the requirements of Commission Rule 360-60-220(2). The Gorge Commission granted the motion and remanded the appeal to the County for a new decision.

• *Drach v. Skamania County, CRGC No. COA-S-10-01 (Aug. 24, 2010).

  The Gorge Commission did not have jurisdiction to review a Skamania County resolution addressing land use consistency for a proposed commercial wind energy facility that was under review by the Washington Energy Facility Site Evaluation Council (EFSEC). The County’s resolution was not a final action. Questions of law and fact about whether the project would require road construction within the National Scenic Area should be raised to EFSEC.

• *Darcy v. Multnomah County, CRGC No. COA-M-06-04 (June 29, 2007), aff’d, 222 Or App 330, 194 P3d 193 (2008).

  County determination that a commercial horse boarding operation and a single-family dwelling were not legally existing uses upheld. The burden is always on the landowner to obtain all relevant land use approvals. Because the landowners in this appeal failed to obtain the required community services permit for the horse boarding operation and the required land use decision for the dwelling, neither use was lawfully established.

• Bacus v. Skamania County, CRGC No. COA-S-04-01 (Aug. 10, 2004), appeal dismissed, No. 09-2-00190-3 (Skamania Cnty. Super. Ct. Jan. 25, 2018).

  When a de novo hearing is held, the parties may submit new evidence, and the applicant retains the burden to demonstrate that the application is consistent with the applicable standards. Here, although the Skamania County Board of Adjustment committed procedural errors during its de novo hearing, the appellants’ substantial rights were not prejudiced. In addition, decision makers are required to ensure that applications are complete before providing notice of an opportunity to comment. Here, although the application was technically incomplete at the time of the notice, Skamania County reasonably believed that it was complete, and the application was made complete prior to the County’s final decision. Thus, no procedural error was committed.
  
  When reviewing an application for a residence, decision makers must evaluate whether the subject lot was legally created. Creation through a prior governmental approval results in a presumption that the lot was legally created.
  
  In addition, when proposed development is located within 1000 feet of a sensitive wildlife site, the application must be reviewed by the state fish and wildlife agency. Here, informal review satisfied this requirement. The Columbia River constitutes a sensitive wildlife site because it is used by several legally protected species. Finally, highway demolition spoils containing asphalt do not meet the definition of "fill" and may not be used for site development.

• *Friends of the Columbia Gorge v. Multnomah County ("Heuker") CRGC No. COA-M-02-01 (July 9, 2002), recons den (Sep. 17, 2002), rev dismissed (Or. Ct App. June 30, 2004).

  In-kind replacement structures must be made visually subordinate to the maximum extent practicable through the use of proper colors, reflectivity levels, and landscaping. The emergency/disaster response rules do not apply to in-kind replacement dwellings proposed to replace dwellings destroyed by fire.

• Bacus v. Skamania County, CRGC No. COA-S-01-04 (June 19, 2002).

  Skamania County’s approval of a proposed road was improper because the applicant’s site map did not identify the precise location of the road, the applicant had not submitted a required grading plan prior to the decision, and the record did not demonstrate that the applicant had a legal interest in the land on which the road would be built. As a result, the decision was not based on substantial evidence and the findings were insufficient to support the decision. Scenic area decisions must be based on complete and accurate application materials and a complete review of the materials. Review cannot be deferred through conditions of approval.

• *Irish v. Skamania County, CRGC No. COA-S-01-07 (May 8, 2002).

  Skamania County improperly concluded that the dwellings in a proposed cluster development were clustered. The dwellings were nearly one-quarter mile apart on opposite ends of the parcel. Further, existing dwellings on adjacent parcels may not be used to effectuate a cluster. Finally, the County’s decision was flawed because the County merely relied on the applicant’s review of his own application rather than conducting an independent review.

• *Messmer v. Multnomah County, CRGC No. COA-M-01-06 (Mar. 19, 2002).

  Appeal dismissed because petitioners failed to timely file their request for review.

• *Johnson v. Multnomah County, CRGC No. COA-M-01-02 (Nov. 5, 2001), rev dismissed (Or. Ct. App. Aug. 15, 2003).

  Appeal dismissed for lack of jurisdiction. A change in Multnomah County’s scenic area ordinance deprived petitioner from the opportunity for a de novo hearing before the County. As a result, there was no final County action or order that could be heard by the Commission. In addition, because the Commission had no jurisdiction to hear the appeal, it also did not have any authority to order the County to hold a de novo hearing.

• *Friends of the Columbia Gorge v. Skamania County ("Eagle Ridge"), CRGC No. COA-S-99-01 (June 22, 2001).

  A decision maker cannot make a decision as to whether a proposed land use complies with a scenic area ordinance without a complete application. A decision based on an incomplete application is not based on substantial evidence and deprives the public of the opportunity to review and comment on the proposal. Finally, a decision maker cannot defer the submission of required application materials through conditions of approval.

• *Murray v. Executive Director, CRGC No. C98-0010-K-G-11 (May 30, 2001).

  Appeal dismissed as moot. Petitioners had sold the subject property and no longer had any legal interest in the property or any authority to act as agents for the new property owner. In addition, the new property owner had not indicated any interest in continuing the appeal.

• *Haigh v. Wasco County, CRGC No. COA-W-00-01 (Apr. 16, 2001), aff’d, 182 Or App 292, 49 P3d 851 (2002).

  Residential building site approved by County complied with the "minimize visibility" standard. There was no marked difference in visibility between the approved site and the least visible site. In addition, the least visible site was unbuildable because the septic field apparently could not be built within an existing easement for a power line. On the other hand, the alleged $10,000 increase in costs to build at the least visible site was an improper basis for determining unbuildability. Evidence regarding buildability must be well-documented with the testimony of competent professionals and must include an analysis explaining why alternative means of ensuring compliance would not be reasonable.

• Castle v. Executive Director, CRGC No.C99-0017-K-G-11 (Feb. 16, 2001).

  Because proposed building site for replacement dwelling was approximately ten feet east of the existing dwelling and on a different footprint, replacement dwelling was not an "in-kind" replacement. However, the replacement dwelling complied with the "minimize visibility" standard even though it would not be sited on the least visible portion of the property. Because less visible alternative sites would not allow the landowner to oversee the ongoing operations of her established viable commercial farming operation, the less visible sites were not practicable. Finally, failure by the Executive Director to issue a decision within 72 days does not result in automatic approval of the application.

• *Friends of the Columbia Gorge v. Skamania County ("Huett"), CRGC No. COA-S-00-02 (Dec. 20, 2000).

  County decision approving boundary line adjustments between three tracts of land reversed. The County’s finding that the three tracts each met the one-acre minimum lot size was not supported by substantial evidence. In addition, because the three tracts were remnants of a 1904 "ancient subdivision" that had never been recognized under modern zoning standards, the tracts did not constitute legally separate and buildable lots. The Scenic Area Act and Management Plan do not allow for recognition of ancient subdivisions. Finally, Washington’s Growth Management Act does not apply within the National Scenic Area and could not be used to legitimize the ancient subdivision.

• *Friends of the Columbia Gorge v. Skamania County ("L’Hommedieu"), CRGC No. COA-S-00-04 (Oct. 16, 2000), aff’d, No. 00-2-00157-8 (Skamania Cnty. Super. Ct. Feb. 7, 2002).

  County decision approving new residence upheld. Although approved building site was not the least visible, it nevertheless complied with the "minimize visibility" standard because the least visible site was a "wet" area and therefore would be impracticable.

• *Heany v. Executive Director, CRGC No. C99-0002-K-S-11 (Feb. 22, 2000).

  Executive Director properly denied a proposed 2400-square-foot, 34-foot-tall accessory building. The proposed building would not have been incidental and subordinate to the main use of the property because the building was too large and would have been used to store farm machinery and materials for a construction business. There can only be one "main use" per property, and the main use of this property was residential.

• Clark v. Skamania County, CRGC No.COA-S-99-04 (Feb. 22, 2000).

  County condition of approval requiring a single-family dwelling to be sited at a different location than applicant’s proposed site upheld. The approved site would better meet the requirements for siting dwellings on forest land because it would be closer to the main road, thus minimizing overall disturbance to the parcel and minimizing the amount of forest land used to site dwellings, structures, access roads, and service corridors.

• *Murray v. Wasco County, CRGC No. COA-W-98-03 (Oct. 5, 1999).

  County approval of proposal to lay a fiber optic cable affirmed. The decision was supported by substantial evidence and was not clearly erroneous or arbitrary and capricious. The County did not make any enforcement errors; the record showed that the applicant ceased its unpermitted operations once it learned that a permit was required and then fully complied with the permit process.

• *Friends of the Columbia Gorge, Inc. v. Skamania County ("Carell"), CRGC No. COA-S-96-03 (June 2, 1998).

  County approval of proposed cluster development reversed. The county road crossing the property was owned in fee simple by the County rather than the applicant and therefore could not be counted toward the property’s total acreage. The property was only 38.12 acres, which did not meet the 40-acre minimum lot size. In addition, the County erred in processing the application as a simple land division. In evaluating a cluster development application, the decision maker must compare the impacts of the proposed cluster with the impacts from conventional parcel-by-parcel development. This comparison must evaluate siting opportunities with respect to all of the factors in the ordinance (visibility, landscape features, landscape setting, cultural resources, consolidation of development, natural resources, and resource management). The County also failed to ensure permanent protection for at least 75% of the property. Finally, the County erred in not requiring a cultural resource reconnaissance survey prior to approval.

• *Friends of the Columbia Gorge v. Skamania County ("Spiegl"), CRGC No. COA-S-96-02 (July 24, 1997).

  County approval of proposed cluster development reversed and remanded. The County erred in processing the application as a simple land division and in failing to scrutinize resource impacts prior to approval.

• Windle v. Doherty, CRGC No. C96-0009-H-G-11 (Dec. 10, 1996).

  Although a single-family residence could be allowed on the subject property, the Executive Director’s findings regarding the siting and size of the approved dwelling were insufficient to support the decision, and the decision was not supported by substantial evidence in the whole record. The Executive Director did not properly evaluate the following factors: siting of the residence in relation to the existing trees on the property, protection of the rural character of the rural residential land use designation, a determination of the exact size of the dwelling, and compatibility with existing development in the vicinity. Remanded for further review.

• *Friends of the Columbia Gorge v. Skamania County ("Mills"), CRGC No. COA-S-95-02 (June 27, 1996).

  County decision approving a farm dwelling and accessory building reversed. The subject 20-acre parcel was one of eleven contiguous tracts all owned by the same property owner. The proposal must be analyzed in light of the entire 335-acre "subject farm or ranch." A residence already existed on the subject farm, and the criteria did not permit approval of an additional dwelling.

• *Friends of the Columbia Gorge, Inc. v. Skamania County ("Nature Friends Northwest"), CRGC No. COA-S-95-01 (Nov. 16, 1995).

  County decision approving a "clubhouse" reversed because a clubhouse is not an allowed use in the underlying land use designation. If the Scenic Area rules do not allow a use outright or though review, it is not permitted. In addition, the clubhouse can not be allowed as a "learning or research facility," because its primary purpose would be recreational or social.

• Haigh v. Doherty, CRGC No. C94-0041-W-G-11 (Apr. 12, 1995), aff’d sub nom. Haigh v. Columbia River Gorge Comm’n, 142 Or App 550, 921 P2d 1350 (1996).

  Although a mobile home could be allowed on the subject property, the Executive Director’s findings with regard to the required agricultural buffer were insufficient to support the decision and the decision was not supported by substantial evidence in the whole record. Remanded for further review.

• Sexton v. Doherty, CRGC No. C94-0068-K-G-11 (Mar. 16, 1995).

  Executive Director’s approval of a proposed single-family dwelling, detached garage, and septic tank upheld. Executive Director’s findings of fact and conclusions of law adopted.

• *Kuhlman v. Skamania County, CRGC No. COA-S-94-01 (Mar. 14, 1995).

  County’s denial of request to build a residence on a 10-acre parcel in an SMA upheld. Section 6(d)(5) of the Scenic Area Act prohibits major development actions in SMAs, and the subject action qualifies as a major development action under section 2(j)(4).
  
  The Kuhlmans did not meet the requirements for invoking the special review process. They had not described how the scenic area rules impact the use of their property, nor had they explained why the requested use must be allowed to provide economic or beneficial use of the property.

• *In re Eagle I Wind Partners, Inc. (Apr. 18, 1994).

  Commission upheld Executive Director’s decision to deny acceptance of application to place 33 wind turbine modulars. The proposed facility would produce electric power for commercial purposes, and therefore constituted a prohibited industrial use.

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*Friends of the Columbia Gorge was a party.

This page was last updated on October 18, 2024 by Nathan Baker.