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Gorge Commission Ruling Dealt Setback

Trial court overturns rejection of Skamania County NSA ordinance

On July 8, Clark County Superior Court Judge Diane Woolard overturned an April 16, 2001 decision by the Columbia River Gorge Commission to reject a Skamania County land-use ordinance.

Finding that the Gorge commission's decision was "arbitrary and capricious," Judge Woolard vacated the decision and determined that the county's ordinance was valid.

On Dec. 18, 2000, Skamania County adopted an ordinance to amend its short plat and subdivision rules to clarify whether it would recognize lots that were created prior to 1937. Often referred to as "ancient subdivisions," these lots were created before the passage of the more modern land-use regulations.

Because it believed the county's amendment could affect land-use within the Columbia River Gorge National Scenic Area, the Gorge commission decided it needed to review the county's ordinance to determine whether it was consistent with the Gorge Act.

Under the Gorge Act, the Gorge commission has 90 days to make a determination as to whether a county's ordinance is or is not consistent with the federal law. If the commission takes no action, or fails to find the county's ordinance as "inconsistent," within 90 days, then the ordinance is deemed approved and therefore valid.

In this case, the Gorge commission conducted a public hearing seven days before the 90-day deadline. After conducting the hearing, the Gorge commission voted 6 to 5 to reject the ordinance as "inconsistent," because:

"(1) the impacts of the ordinance amendment in other counties in the National Scenic Area are not known; and (2) the scope of the amendment in Skamania County is also unclear."

The county appealed the Gorge commission's decision to the Skamania County Superior Court arguing that the Gorge commission failed to comply with the Act's procedural or substantive requirements. In particular, the county argued that not knowing the effects of the proposed amendment was not the equivalent of finding the ordinance as "inconsistent."

In her July 8, 2002 opinion, Judge Woolard agreed. She determined that the Gorge commission failed to find the county's ordinance as "inconsistent." Consequently, she vacated the Gorge commission's decision and found, as a "collateral result," that the county's ordinance was therefore valid and in effect.

Skamania County Prosecuting Attorney Bradley W. Andersen, who represented the county on appeal, commented that this decision reinforces congressional intent that counties play a significant role in the proper administration of the Gorge act.

"I realize that the Gorge commission was attempting to proceed cautiously in its review of the county's ordinance, but the law entitles the county to have its ordinance approved within 90 days unless the Gorge commission specifically finds that it is inconsistent with the Gorge Act."

The Gorge commission and the Intervenor Friends of the Columbia River Gorge could appeal Judge Woolard's decision.

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