Friends of Columbia Gorge v. Columbia River
| Decision Date | 27 February 2008 |
| Docket Number | No. PA0502.,No. A131299.,PA0502.,A131299. |
| Citation | 179 P.3d 706,218 Or. App. 232 |
| Parties | 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. |
| Court | Oregon Court of Appeals |
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.
The Columbia River Gorge Commission amended its management plan for the Columbia River Gorge National Scenic Area to allow certain commercial uses on historic properties throughout the Scenic Area. Petitioners seek judicial review of that decision, arguing that the plan amendment is invalid. We affirm.
We begin with an overview of the governing legal framework and the facts leading to this review. Unless otherwise indicated, the facts that we describe are not in dispute.
The Columbia River Gorge National Scenic Area Act, 16 U.S.C. §§ 544-544p, established the Columbia River Gorge National Scenic Area in 1986. The Act has two stated purposes: (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 the first purpose. 16 U.S.C. § 544a.
The Act authorized the states of Oregon and Washington to enter into an interstate agreement to establish a regional agency, the Columbia River Gorge Commission, to carry out the responsibilities of the Act. 16 U.S.C. § 544c(a)(1)(A). The Act required the commission to adopt a management plan for the Scenic Area within three years of the Act's taking effect. 16 U.S.C. § 544d(c). The Act also provides that, "[n]o sooner than five years after adoption of the management plan, but at least every ten years, the Commission shall review the management plan to determine whether it should be revised." 16 U.S.C. § 544d(g).
The Act also provides that the commission may amend the management plan outside of the "usual" revision cycle:
16 U.S.C. § 544d(h) (emphasis added). The commission adopted an administrative rule setting forth additional requirements for amending the plan, which provides, in part:
OAR 350-050-0030 (Nov. 15, 1999) (emphasis added).
In 1991, the commission adopted a management plan for the Scenic Area. Although "cultural resources" are protected under the Act, the term is not defined in the Act. The commission, however, defined the term in its management plan 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."
In 2001, as required by the Act, the commission began a process to revise the management plan. During its plan review, the commission considered further refining the plan's provisions relating to historic properties. Due to budget constraints, the commission deferred taking any action with regard to that issue, noting that it could be raised as an amendment to the plan. The commission issued the revised management plan in 2004. Shortly after that, Friends of the Columbia Gorge, Inc., joined by a number of other petitioners, challenged the validity of the revised management plan. In Friends of Columbia Gorge v. Columbia River Gorge, 215 Or.App. 557, 559, 605-06, 171 P.3d 942 (2007) (Friends of Columbia Gorge I), we upheld the validity of the revised management plan in most of the challenged respects, but remanded for the commission to reconsider the portion of the revised plan that concerns expansion of industrial uses in the general management areas (GMAs) of the Scenic Area that are subject to the Act.
In the meantime, in 2005, the owner of the Viewpoint Inn, a historic property in the Scenic Area that had closed some 40 years earlier, proposed an amendment to the management plan that would allow him to reopen the inn and restaurant. The property is listed on the National Register of Historic Places. The applicant's proposed amendment would allow historic properties in the Scenic Area that were listed on the National Register before November 17, 1986, to operate commercially if that was the property's historic use. The purpose of the proposal was to allow the Viewpoint Inn to generate enough revenue to support its restoration by allowing "adaptive reuse" of the historic property.
As proposed, the plan amendment would apply only to the Viewpoint Inn. The commission, however, decided to address the broader issue raised by the proposal—that is how well the management plan supports the protection and enhancement of historic properties.
The commission staff began by gathering information from various sources about current and allowable uses of historic properties under the current management plan provisions and by compiling information regarding the extent to which those provisions have protected and enhanced the Scenic Area's historic properties. The commission staff hired a historic preservation expert, Donovan & Associates, to complete a survey of historic properties in the Scenic Area. The survey included an examination of nearly 800 properties located in the Scenic Area to determine whether there existed properties that were eligible or potentially eligible for listing on the National Register but were not currently protected. In brief, the survey reported that, of those 800 properties, 18 were eligible for listing, 36 were potentially eligible for listing, and 179 others might also be eligible, depending on additional information that was not currently available. The commission staff consulted with the United States Forest Service, the states of Oregon and Washington, Scenic Area counties, Scenic Area tribal governments, the National Trust for Historic Preservation and other agencies with expertise in historic preservation, and jurisdictions outside the Scenic Area administering successful historic preservation programs. The commission staff also solicited public testimony.
In response to that information, the commission staff recommended modifications to the management plan amendment originally proposed by the owner of the Viewpoint Inn to address what it considered to be the broader problem of underprotection of cultural resources, such as historic properties, in the Scenic Area. In brief, the commission staff found that the current management plan did not adequately protect those resources because current regulations concerning the use of such properties are so restrictive as to make rehabilitation and maintenance of those properties economically infeasible. Commission staff found that other jurisdictions had more successfully promoted restoration and maintenance of historic properties by adopting a policy of "adaptive uses" and "preservation incentives."
Accordingly, the commission staff recommended a new cultural resources policy for the management plan: "Provide incentives to protect and enhance historically significant buildings by allowing uses of such buildings that are compatible with their historic character and that provide public appreciation and enjoyment of them as cultural resources." The substantive provisions of the staff's recommendation broaden the initial proposal by allowing certain commercial uses of historic properties throughout the Scenic Area. Those provisions include, in part:
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