Friends of Columbia Gorge v. Columbia River

179 P.3d 700

218 Or. App. 261

FRIENDS OF the COLUMBIA GORGE, INC., Collyn Baldwin, Claudia Curran, Beverly Klock, Clair Klock, Eric Lichtenthaler, Phil Pizanelli, Dixie Stevens, Kimberlee Thorsell, Peter Thorsell, Brian Winter and Cynthia Winter, Petitioners, v. COLUMBIA RIVER GORGE COMMISSION, Respondent.

No. OA0601.

No. A133281.

Court of Appeals of Oregon.

Argued and Submitted December 6, 2007.

Decided February 27, 2008.

Gary K. Kahn, Portland, argued the cause for petitioners. With him on the briefs was Reeves, Kahn & Hennessy.

Jeffrey B. Litwak argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and CARSON, Senior Judge.

LANDAU, P.J.

The Columbia River Gorge Commission adopted an amendment to the management plan for the Columbia River Gorge National Scenic Area. The amendment increased the range of permissible uses of historic properties in the Scenic Area to create economic incentives for the rehabilitation and maintenance of those properties. It applies to all properties that are either listed or eligible for listing on the National Register of Historic Places. Multnomah County adopted an ordinance intended to implement the plan amendment. The county ordinance, however, applies only to properties that are actually listed on the National Register. The commission rejected the county's ordinance because it concluded that the ordinance did not adequately protect the cultural resources of the Scenic Area, which include historic properties. Petitioners, a conservation organization and a number of Scenic Area residents, seek judicial review of that decision, arguing that the county's ordinance better complies with the requirements of federal law. We affirm.

We begin by setting forth the relevant provisions of the applicable federal law, the Columbia River Gorge National Scenic Area Act, 16 U.S.C. §§ 544-544p. The Act directs the Columbia River Gorge Commission, a regional agency established by the Act, to adopt a management plan for the Scenic Area to implement the standards and purposes of the Act. 16 U.S.C. § 544d(c), (d). The purposes of the Act are two-fold:

"(1) to establish a national scenic area to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge; and

"(2) to protect and support the economy of the Columbia River Gorge area by encouraging growth to occur in existing urban areas and by allowing future economic development in a manner that is consistent with paragraph (1)."

16 U.S.C. § 544a. As part of its charge to implement the Act, the commission is required to

"designate areas in the scenic area outside special management areas used or suitable for commercial development Provided, That such designation shall encourage, but not require, commercial development to take place in urban areas and shall take into account the physical characteristics of the areas in question and their geographic proximity to transportation, commercial, and industrial facilities and other amenities[.]"

16 U.S.C. § 544d(b)(5). The management plan must also include a provision to "require that commercial development outside urban areas take place without adversely affecting the scenic, cultural, recreation, or natural resources of the scenic area." 16 U.S.C. § 544d(d)(7). "Adversely affecting" is defined as "a reasonable likelihood of more than moderate adverse consequences" for the protected Scenic Area resources. 16 U.S.C. § 544(a). Adverse effects are also defined within the context and intensity of a proposed action, the relationship between a proposed action and other similar actions that are individually insignificant but that may have cumulatively significant impacts, and the mitigation measures that will be implemented as part of a proposed action. 16 U.S.C. § 544(a).

Under the Act, the six Scenic Area counties receive incentives to adopt local ordinances that implement the provisions of the management plan. See 16 U.S.C. § 544i(c)(4) (providing as a condition of making economic development grants that the county have in effect consistent land use ordinances). 16 U.S.C. § 544e(b)(1) provides, in part:

"Within sixty days of initial receipt of the management plan, each county shall submit to the Commission a letter stating that it proposes to adopt a land use ordinance consistent with the management plan."

The Act requires the commission to approve the counties' local ordinances unless the commission determines that they are inconsistent with the management plan or the Act. 16 U.S.C. § 544e(b)(3)(A).

The Act provides for judicial review of commission decisions and actions. Among other things, it provides that the state courts of the states of Oregon and Washington have jurisdiction to review any final order or action of the commission relating to the implementation of the Act. 16 U.S.C. § 544m(b)(6)(C).

With that statutory framework in mind, we turn to the facts giving rise to the dispute in this case. The commission adopted a management plan for the Scenic Area in 1991, and, after a three-year "plan review," adopted a revised management plan in 2004. Several provisions of the management plan are relevant to the issue in this case. The management plan permits a county to adopt ordinances that "vary from the policies and guidelines in the Management Plan as long as the ordinances provide greater protection for the scenic, cultural, natural, and recreation resources of the Scenic Area" than the management plan itself provides. Although it is one of the protected resources under the Act, the Act does not define the term "cultural resources." However, in the management plan, the commission defines a "cultural resource" as "[e]vidence of human occupation or activity that is important in the history, architecture, archaeology or culture of a community or region * * * includ[ing] * * * [h]istoric buildings and structures * * * that are at least 50 years old." The management plan also provides that significant cultural resources are those that are, among other things, "included in, or eligible for inclusion in, the National Register of Historic Places."

On December 13, 2005, the commission approved an amendment to the management plan that authorized a wider range of uses of historic properties than were previously allowed. The portion of the plan amendment relating to adaptive uses provides, in part:

"1. Properties in all GMA [general management area] land use designations except Open Space and Agriculture-Special with buildings included on the National Register of Historic Places shall be permitted to be open for public viewing, interpretive displays, and an associated gift shop * * *.

"2. Properties in all GMA land use designations except Open Space and Agriculture-Special with buildings included on the National Register of Historic Places, and which were former restaurants and/or inns shall be permitted to re-establish these former uses * * *.

"3. Properties in all GMA land use designations except Open Space and Agriculture-Special with buildings included on the National Register of Historic Places shall be permitted to hold commercial events * * *.

"4. The following additional review uses may be allowed in all GMA land use designations except Open Space and Agriculture-Special on a property with a building either on or eligible for the National Register for Historic Places and that was 50 years old or older as of January 1, 2006 * * *.¹

"* * * * *

"5. For the purposes of the guidelines in this section, the term `historic buildings' refers to buildings either on or eligible for the National Register of Historic Places. * * *"

(Emphases added.)

As required by the Act for a plan amendment to take effect, the Secretary of Agriculture concurred on January 23, 2006. Four days later, the commission transmitted the plan amendment to the six Scenic Area counties, including Multnomah County. On May 4, 2006, after a series of public workshops, a work session, and public hearings, the county adopted an ordinance that mirrors the first three sections of the commission's plan amendment.

However, in a departure from the fourth section of the plan amendment, the county's ordinance provides, in part:

"The following uses may be allowed as established in each zone on a property with a building included on the National Register of Historic Places and that was 50 years old or older as of January 1, 2006 * * *."

(Emphasis added.) The ordinance also provides "replacement" wording, mirroring section four of the plan amendment, to take effect immediately in the event that the commission rejected its "preferred" wording.

On June 28, 2006, the commission rejected the county's ordinance on the ground that it is inconsistent with the management plan. In its final order, the commission explained that, although a county ordinance may deviate from the provisions in the management plan to provide greater protection of Scenic Area resources, in this case, the county's ordinance provides less protection. The commission reasoned that, because the ordinance limits one of its provisions to historic properties listed on the National Register, and excludes historic properties that are merely list-eligible, it is less protective than the newly amended management plan with regard to cultural resources—in particular, historic properties.

In rejecting the county's "preferred" wording, the commission acknowledged that, ordinarily, an ordinance that further restricts uses would be more protective of protected resources. However, the commission noted, "development of historically significant buildings with adaptive uses that generate income * * * provides greater protection of the buildings than just limiting the range of land uses." After rejecting the county's preferred wording, it approved the county's replacement wording as consistent with the management plan.

On judicial review of that...