SKAMANIA CTY. v. Columbia River Gorge Com'n
| Decision Date | 28 June 2001 |
| Docket Number | No. 68602-5.,68602-5. |
| Citation | 144 Wash.2d 30,26 P.3d 241 |
| Parties | SKAMANIA COUNTY, Appellant, v. COLUMBIA RIVER GORGE COMMISSION, Respondent, and Friends of the Columbia Gorge, Respondent-Intervenor. Brian Bea and Jody Bea, husband and wife, Appellants, v. Columbia River Gorge Commission, Respondent. |
| Court | Washington Supreme Court |
Bradley Andersen, Skamania County Prosecutor, Stevenson, Hillis, Clark, Martin & Peterson, Jerome Louis Hillis, Lynne Michele Cohee, Amy C. Williams-Derry, Seattle, Groen, Stephens & Klinghe, John Maurice Groen, Bellevue, Pacific Legal Foundation, Timothy M. Harris, Bellevue, for appellant.
Oregon Attorney General's Office, Michael D. Reynolds, Salem, Jonathan Aurel Gurish, Asst. Attorney General, Olympia, Bart A. Brush, Portland, Reeves, Kahn & Eder, Gary K. Kahn, Portland, for respondent.
Francis Diskin, U.S. Attorney, Seattle, Katrina Campbell Pflaumer, U.S. Attorney, Seattle, amicus curiae, on behalf of United States of America.
Jeffrey Murdock Eustis, Seattle, Greg Overstreet, Olympia, Patrick W. Henry, Portland, Sandra N. Duffy, Portland, amicus curiae.
More than a year after Skamania County approved Brian and Jody Bea's application to build a residence and accessory structures on their property in the Columbia River Gorge National Scenic Area (Scenic Area), the Columbia River Gorge Commission (Gorge Commission) determined that the County's decision to approve their application ran counter to the Columbia River Gorge National Scenic Area Act (Act), the Gorge Commission's "Management Plan" for the Scenic Area, and Skamania County's Scenic Area Ordinance (Ordinance). Consequently, it commenced an "enforcement action" against the County seeking to compel the County to nullify its decision and issue a new decision requiring siting of the residence and other structures at an alternate site. Following a "contested case" hearing before the Gorge Commission, the Commission concluded that the County's decision approving the Beas' application violated the Act, the Management Plan, and the Ordinance, and it directed the County to: (1) order the Beas to stop construction on the site; (2) invalidate its earlier decision approving the Beas' application; and (3) issue a new decision that would comply with the Act, the Management Plan, and the Ordinance by, among other things, requiring location of the Beas' residence and other buildings at alternative sites on the parcel. Skamania County and the Beas subsequently appealed the Commission's findings of fact, conclusions of law, and order to the Skamania County Superior Court. That court affirmed the Gorge Commission. We, thereafter, granted a petition by the Beas and Skamania County to directly review the superior court's decision. The principal issue before us is whether the Gorge Commission had the authority to invalidate the County's land use decision, notwithstanding its failure to appeal the County's decision. We agree with Skamania County and the Beas that the Gorge Commission's action was without authority of law and, therefore, reverse the superior court.
In 1986, Congress passed the Columbia River Gorge National Scenic Area Act. 16 U.S.C. §§ 544-544p. The Act established the Columbia River Gorge National Scenic Area in a portion of Washington and Oregon.1 It authorized the two states to enter into a compact incorporating the Act and creating the Columbia River Gorge Commission for the purpose of administering the Act.2 Washington and Oregon thereafter negotiated such a compact and, in 1987, the legislature of each state ratified the Columbia River Gorge Compact.
The Act required the Gorge Commission to establish a "Management Plan" for the Scenic Area, which the Commission is to use in administering nonfederal lands within the area. The Act also required each of the six counties within the Scenic Area to adopt a local land use ordinance, which was to be consistent with the Management Plan and subject to the Gorge Commission's review and approval.3 In 1993, Skamania County dutifully adopted its Ordinance and the Gorge Commission reviewed and approved it.
The Ordinance requires applicants for land uses within the Scenic Area to submit their applications to the County's Department of Planning and Community Development (Department). When an application is filed, notice of the application must be given by the Department to all "interested parties,"4 the Gorge Commission, the Forest Service, owners of property within 500 feet of the subject parcel, Indian Tribes listed in the Skamania County Code (SCC), and any other person or entity who has requested notice or whom the director has determined should receive notice of the particular application. The notice must include the name of the applicant, the location of the subject property, a brief description of the proposed action, the date by which the Department director will make a preliminary decision, and a statement that the Department will receive written comments concerning the application for 21 days from the date that the notice is mailed. Following the comment period, the Department director must issue a decision with findings of fact and conclusions of law. The director may impose any conditions that he or she determines are necessary to ensure that the development complies with the Ordinance. The director then mails a copy of the decision, which includes notice of the right to appeal, to the applicant and all "interested persons." SCC 22.06.050(C)(3).
Under the Ordinance, the director's decision becomes "final" unless it is appealed by an applicant or "interested party" to the Skamania County Board of Adjustment within 20 days of the date the decision is rendered. If an appeal is filed, the Board of Adjustment considers the director's decision de novo and, after a hearing and presentation of evidence, issues written findings of fact, conclusions of law, and an order. After the Board of Adjustment issues its decision, there can be a further appeal to the Gorge Commission. That appeal is heard on the record submitted by the Board of Adjustment.
The Ordinance does not expressly set out a time limit for appeals from the Board of Adjustment to the Gorge Commission. The Act does, however, provide that "[a]ny person or entity adversely affected by any final action or order of a county" may appeal such action or order within 30 days by filing with the Gorge Commission "a written petition requesting that such action or order be modified, terminated, or set aside." 16 U.S.C. § 544m(a)(2); see also OR. ADMIN. R. (Columbia River Gorge Commission Rules) (hereinafter Gorge Commission Rules) XXX-XXX-XXXX through -0050.
In November 1996, Brian and Jody Bea applied to Skamania County to build a one-story house, a barn, and a shop on 40 acres of property they owned within the Scenic Area. According to the application, the structures were to be situated on a bluff overlooking the Columbia River. Following receipt of the Beas' application, the County gave notice to the Gorge Commission, an organization called "Friends of the Columbia Gorge" (Friends), and others5 that it was reviewing the application. Following the comment period, in which both Friends and the Gorge Commission made comments, the director approved the Beas' application. The director's decision, which was entered on May 19, 1997, was subject to 33 conditions that were primarily related to a requirement in both the Management Plan and the Ordinance that every new development in the Scenic Area be "visually subordinate to its setting as seen from key viewing areas." SCC 22.10.020(B)(1).
The director's decision was sent to the Gorge Commission and Friends. It set forth the procedure for appealing the decision and specified that the decision would become "final" unless a written notice of appeal to the Board of Adjustment was filed within 20 days. Clerk's Papers (CP) at 116. The decision was not appealed within that 20-day time period and, consequently, no proceeding before the Board of Adjustment has ever taken place. Neither was the decision appealed to the Gorge Commission under § 544m(a)(2) of the Act within 30 days after it became "final."
The Beas thereafter began construction of their residence and adjacent buildings. During construction, the Beas allegedly violated several of the conditions that had been established by the director. The County also concedes that it was somewhat lax in enforcing the conditions established by the director.6 The County eventually discovered that the house was being built 10 feet north (away from the river) of where it was to be located pursuant to the Beas' application. The County took no action, however, because it concluded that the slight change in location was insignificant.
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