Chapter 22.06
ADMINISTRATION
Sections:
22.06.010 Review and approval required.
22.06.040 Variances to buffers and setbacks—General management areas.
22.06.050 Variances—Special management areas.
22.06.080 Special management areas—Additional application and site plan information required.
22.06.105 Preapplication conference.
22.06.110 Acceptance of application—Notice of development review—Comment period.
22.06.120 Review by administrator; decision of administrator.
22.06.130 Appeal of administrative decision.
22.06.140 Expedited review process.
22.06.150 Expiration and extensions of development approvals—Changes in an approved action.
22.06.180 GMA tribal treaty rights provisions.
22.06.190 SMA treaty rights provisions.
22.06.010 Review and approval required.
No building, structure or parcel of land shall be used, and no building or structure shall be hereafter erected, altered or enlarged, including those proposed by local, state or federal agencies, in that portion of Skamania County lying within the Columbia River Gorge National Scenic Area in any manner that is inconsistent with the provisions of this title. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.020 Administrator.
The director of the Skamania County community development department or that person’s designee shall be the “administrator” of this title. The administrator is vested with the overall responsibility for administering this title and making administrative decisions and interpretations of the regulations herein. The administrator may consult with the Gorge Commission, Forest Service, and other counties in applying the provisions of this title. The administrator shall prepare and require the use of such forms as determined to be essential to the administration of this title. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.030 Applying new less-stringent regulations to development approved under prior National Scenic Area regulations.
A landowner may submit a land use application to alter conditions of approval for an existing use or structure approved under prior scenic area regulations (e.g., Columbia River Gorge National Scenic Area final interim provisions, original management plan), subject to the following standards:
A. The applicant shall apply for the same development that was reviewed in the original decision.
B. The development shall remain in its current location.
C. The agency that currently has jurisdiction over the applicant’s property shall review the application and send notice of the application to agencies and other parties entitled to receive notice under the current rules.
D. The agency shall review the entire development to ensure that it would fully comply with all the current provisions (i.e., land use, treaty rights, scenic resources, cultural resources, recreation resources and natural resources).
E. The agency shall issue a new decision that supersedes the original decision.
F. The new decision may remove or revise original conditions of approval or add new conditions of approval to ensure full compliance with all the current provisions. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.040 Variances to buffers and setbacks—General management areas.
A. When setbacks or buffers required in this title overlap or conflict, the setbacks or buffers may be varied upon a demonstration that:
1. A setback or buffer specified to protect one resource would cause the proposed use to fall within a setback or buffer established to protect another resource; and
2. Variation from the specified setbacks or buffer would, on balance, best achieve the protection of the affected resources.
B. All setbacks or buffers specified in the guidelines for protection of scenic, cultural, natural, recreation, agricultural, or forestry resources may be varied in order to allow a dwelling to be built on a parcel of land if:
1. The land use designation otherwise authorizes a dwelling on the tract;
2. No site exists on the tract (all contiguous parcels under the same ownership) on which a dwelling could be placed practicably in full compliance with the setback or buffer;
3. The variance from the specified setback or buffer is the minimum necessary to allow the dwelling; and
4. The variance shall not be used to permit an addition to a building, when the addition would be within the setback, except where the building is wholly within the setback, in which case, the addition may only be permitted on the portion of the building that does not encroach any further into the required setback.
C. Property line setbacks specified in Section 22.10.070 may be varied by the administrator during the development review process. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.050 Variances—Special management areas.
Property line setbacks may be varied by the administrator during the development review process. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.060 General management areas and special management areas—Application and site plan information required.
A. General Information Required for All Development Review Applications.
1. Development review applications shall include the following information:
a. An application form as provided by the administrator. The applicant shall provide the following information on the application form:
i. The applicant’s name, address, and telephone number;
ii. The property owner’s name, address, and telephone number (if different from the applicant’s);
iii. The section, quarter section, township, and range in which the proposed use or development would be located;
iv. The street address of the proposed use or development;
v. The tax parcel number(s) for the subject property;
vi. The size in acres of the parcel(s) involved;
vii. A description of the current land use(s) for the parcel(s) involved;
viii. A written description of the proposed use or development, including details on the height, exterior color(s), and construction materials of proposed structures;
ix. Signature of the applicant and property owner or other person or entity that holds an easement or other interest that authorizes them to develop the subject property, including a statement that authorizes the department reasonable access to the site in order to evaluate the application. The applicant must also provide either a signature from any easement holder or other party with an interest in the property that may limit the applicant’s right to development, or in the absence of a signature, provide proof that each such entity has received actual or constructive notice of the application.
b. A map of the project area. The map shall be drawn to scale and include a graphic scale bar. The scale of the map shall be large enough to allow the administrator to determine the location and extent of the proposed use or development and to evaluate its effects on scenic, cultural, natural and recreation resources. The map shall be prepared at a scale of one inch equals two hundred feet (1:2,400) or a scale providing greater detail. If a parcel is very large, the map does not need to show the entire parcel. Rather, it can show only those portions of the parcel affected by the proposed use. The map shall include the following elements:
i. North arrow;
ii. Map scale and graphic scale bar;
iii. Boundaries, dimensions, and size of the subject parcel;
iv. Significant terrain features or landforms;
v. Groupings and species of trees or other vegetation on the parcel;
vi. Landscaping details including the location and species of vegetation that would be removed or planted, and any irrigation provisions or other measures to ensure the survival of landscaping planted for screening purposes;
vii. Bodies of water and watercourses;
viii. Location and width of existing and proposed roads, driveways and trails;
ix. Location and size of existing and proposed structures;
x. Location of existing and proposed services, including wells or other water supplies, sewage disposal systems, power and telephone poles and lines, and outdoor lighting;
xi. Location and depth of all proposed grading and ditching.
c. Elevation drawings, which shall show the appearance of proposed structures and shall include natural grade, finished grade, and the length, width, and height of each side of the structure as seen from a horizontal view. Elevation drawings shall be drawn to scale.
d. A grading plan shall be submitted for developments involving more than one hundred cubic yards of grading. Grading plans should be prepared by a professional engineer, engineering geologist, or professional land surveyor licensed in the state of Washington. The grading plan shall include the following elements:
i. A map of the site, prepared at a scale of one inch equals two hundred feet (1:2,400) or a scale providing greater detail, with contour intervals of at least five feet, including:
(A) Existing and proposed final grades;
(B) Location of all areas to be graded, with cut banks and fill slopes delineated;
(C) Estimated dimensions of graded areas.
ii. A narrative description (may be submitted on the grading plan site map and accompanying drawings) of the proposed grading activity, including:
(A) Its purpose;
(B) An estimate of the total volume of material to be moved;
(C) The height of all cut banks and fill slopes, including cross-sectional diagrams and road profiles;
(D) Provisions to be used for compactions, drainage, and stabilization of graded areas;
(E) A description of plant materials used to revegetate exposed slopes and banks, including the species, number, size and location of plants, and a description of irrigation provisions or other measures necessary to ensure the survival of plantings;
(F) A description of any other interim or permanent erosion control measures to be used.
e. A list of all key viewing areas from which the proposal would be visible.
f. If new buildings or structures may detract from the use and enjoyment of established recreation sites on adjacent parcels, an appropriate buffer shall be established between the building/structure and the parcel.
g. Any additional information the applicant feels will assist in evaluating the proposal, including, but not limited to, maps, drawings, and development plans. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.070 General management areas—Additional application and site plan information for specific developments, uses and sites.
Applications for the following uses or developments shall include the additional information required under other chapters of this title or as required by the administrator:
A. The production and/or development of mineral resources and expansion of existing quarries. See Section 22.12.070.
B. Vegetation management projects in public rights-of-way along scenic travel corridors. See Chapter 22.18.
C. All buildings, roads or mining and associated activities proposed on lands visible from key viewing areas. See Chapter 22.18.
D. Large-scale uses as defined in Chapter 22.22 shall include archaeological survey reports.
E. Proposed uses that would alter the exterior architectural appearance of buildings and structures that are fifty years old or older, or would compromise features of the surrounding area that are important in defining the historic or architectural character of buildings that are fifty years old or older. See Chapter 22.22.
F. New uses located in, or providing recreational access to, the Columbia River or its fish-bearing tributaries. See Chapters 22.20 and 22.24.
G. Any review use in a water resource zone. See Chapter 22.20.
H. Any review use within one thousand feet of a rare plant or priority habitat or wildlife site. See Chapter 22.20. Large scale uses shall also include field survey information.
I. Any review use within one thousand feet of a rare plant. See Chapter 22.20. Large-scale uses shall also include field survey information.
J. A single-family dwelling in conjunction with agricultural use on lands zoned large-scale agricultural. See Chapter 22.14.
K. A single-family dwelling not in conjunction with agricultural use on lands zoned large-scale agricultural. See Chapter 22.14.
L. A single-family dwelling for an agricultural operator’s relative. See Chapter 22.14.
M. A single-family dwelling on lands zoned small woodland. See Chapter 22.14.
N. A single-family dwelling for agricultural labor housing on lands zoned commercial forest, large woodland or small woodland. See Chapter 22.14.
O. Agricultural buildings. See Chapter 22.12. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.080 Special management areas—Additional application and site plan information required.
A. The information required in Section 22.06.060 shall be required for all development review applications for uses and developments within the special management areas.
B. In addition, development review applications for uses and developments within special management areas shall include site plans containing the following information:
1. Location of the following sites and areas:
a. Sites of sensitive wildlife and rare plant species. The county will provide this information to the applicant;
b. Location of water resource and wetland areas.
2. A description or illustration showing the mitigation measures to control soil erosion and stream sedimentation.
C. Basic Site Plan Review.
1. Site plans shall be submitted by the administrator to the Forest Service and appropriate state agencies. The site plan shall be reviewed by the Forest Service, in consultation with the appropriate state or federal agencies.
2. Site plans will be reviewed and approved by the administrator.
3. Review of the site plan shall consider the following:
a. Biology and habitat requirements of the flora or fauna of concern;
b. Historic, current and proposed uses in the vicinity of sensitive species, including cumulative effects;
c. Existing condition of the site and the surrounding habitat and the useful life of the site;
d. Physical characteristics of the subject parcel and vicinity, including topography, vegetation and soil and hydrological characteristics;
e. Minimum natural resource protection standards, including buffer zones;
f. Closure of forest practice roads necessary to protect natural resources;
g. Comments from state and federal agencies. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.090 Special management areas—Additional application information required for specific uses, developments and sites.
Applications for the following uses or developments shall include the additional information set forth in other chapters of this title or as required by the administrator:
A. A single-family dwelling in the forest, agriculture, and public recreation zones. See Chapter 22.16.
B. Forest practices in forest, agriculture, and public recreation zones. See Chapter 22.16.
C. Any new use or development on lands zoned open space. See Section 22.16.040.
D. Farm labor housing on lands zoned agriculture, forest, or public recreation. See Chapter 22.16.
E. Agricultural buildings. See Chapter 22.16. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.100 Additional application information required for quarries and exploration, development, and production of mineral resources.
A. Expansion of existing quarries and exploration, development (extraction and excavation), and production of mineral resources proposed on sites more than four miles from the nearest key viewing areas from which it is visible may be allowed upon a demonstration that:
1. The site plan requirements for such proposals pursuant to this chapter have been met.
2. The area to be mined and the area to be used for primary processing, equipment storage, stockpiling, etc., associated with the use would be visually subordinate as visible from any key viewing areas.
3. A reclamation plan to restore the site to a natural appearance that blends with and emulates distinctive characteristics of the designated landscape setting to the maximum extent practicable has been approved. At minimum, the reclamation plan shall comply with subsections (E) and (F) of this section.
4. A written report on a determination of visual subordinance has been completed, with findings addressing the extent of visibility of proposed mining activities from key viewing areas, including:
a. A list of key viewing areas from which exposed mining surfaces (and associated facilities/activities) would be visible.
b. An estimate of the surface area of exposed mining surfaces that would be visible from those key viewing areas.
c. The distance from those key viewing areas and the linear distance along those key viewing areas from which proposed mining surfaces are visible.
d. The slope and aspect of mining surfaces relative to those portions of key viewing areas from which they are visible.
e. The degree to which potentially visible mining surfaces are screened from key viewing areas by existing vegetation, including winter screening considerations.
f. The degree to which potentially visible mining surfaces would be screened by new plantings, berms, etc., and appropriate time frames to achieve such results, including winter screening considerations.
B. Unless addressed by subsection (A) of this section, exploration, development (extraction and excavation), and production of mineral resources may be allowed upon a demonstration that:
1. The site plan requirements for such proposals pursuant to this chapter have been met.
2. The area to be mined and the area used for primary processing, equipment storage, stockpiling, etc., associated with the use would be fully screened from any key viewing area.
3. A reclamation plan to restore the area to a natural appearance that blends with and emulates surrounding landforms to the maximum extent practicable has been approved. At minimum, the reclamation plan shall comply with subsections (E) and (F) of this section.
C. An interim time period to achieve compliance with visual subordinance requirements for expansion of existing quarries and development of new quarries located more than four miles from the nearest key viewing area from which it is visible shall be established before approval. The interim time period shall be based on site-specific topographic and visual conditions, but shall not exceed three years beyond the date of approval.
D. An interim time period to achieve compliance with full screening requirements for new quarries located less than four miles from the nearest key viewing area from which it is visible shall be established before approval. The interim time period shall be based on site-specific topographic and visual conditions, but shall not exceed one year beyond the date of approval. Quarrying activity occurring before achieving compliance with full screening requirements shall be limited to activities necessary to provide such screening (creation of berms, etc.).
E. For all exploration, development (extraction and excavation), production of mineral resources and expansion of existing quarries, a reclamation plan is required to restore the site to a natural appearance that blends with and emulates distinctive characteristics inherent to its landscape setting to the maximum extent practicable. At a minimum, such reclamation plans shall include:
1. A map of the site, at a scale of one inch equals two hundred feet (1:2,400) or a scale providing greater detail, with ten-foot contour intervals or less, showing premining existing grades and post-mining final grades; locations of topsoil stockpiles for eventual reclamation use; location of catch basins or similar drainage and erosion control features employed for the duration of the use; and the location of storage, processing, and equipment areas employed for the duration of the use.
2. Cross-sectional drawings of the site showing premining and post-mining grades.
3. Descriptions of the proposed use, in terms of estimated quantity and type of material removed, estimated duration of the use, processing activities, etc.
4. Description of drainage/erosion control features to be employed for the duration of the use.
5. A landscaping plan providing for revegetation consistent with the vegetation patterns of the subject landscape setting, indicating the species, number, size, and location of plantings for the final reclaimed grade, as well as a description of irrigation provisions or other measures necessary to ensure the survival of plantings.
6. If the site is visible from key viewing areas, the applicant shall also submit perspective drawings of the proposed mining areas as visible from applicable key viewing areas.
F. All reclamation plans for new quarries or expansion of existing quarries shall be sent to the appropriate state reclamation permitting agency for review and comment. The reviewing agency may request technical assistance from state agencies on reclamation plans for proposed mining not within the state agency’s jurisdiction. The state agency shall have thirty calendar days from the date a reclamation plan is mailed to submit written comments on the proposal. State agency comments shall address the following:
1. Whether the proposed mining is subject to state reclamation permit requirements;
2. If subject to state jurisdiction, whether an application has been received for a state reclamation permit and, if so, the current status of the application; and
3. For uses subject to state jurisdiction, any issues or concerns regarding consistency with state reclamation requirements, or any suggested modifications to comply with state reclamation requirements. (Ord. 2021-05 (Att. A), 12-14-21)
22.06.105 Preapplication conference.
An applicant may request a preapplication conference prior to submitting an application for a development review. The purposes of the conference shall be to acquaint the applicant with the substantive and procedural requirements of this title, to discuss the principal elements of the proposed action and to identify opportunities and constraints associated with the proposed action. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part). Formerly 22.06.100)
22.06.110 Acceptance of application—Notice of development review—Comment period.
A. Complete Application Required Prior to Review by Department.
1. Prior to initiating any use or development which requires review and approval by the county, a development review application shall be completed pursuant to this section.
2. Within twenty days of receipt of an application, the administrator shall review the application for completeness and adequacy and shall advise the applicant, in writing, either that:
a. The application is complete as submitted; or
b. The application is incomplete as submitted and what specific additional information is required before the application can be accepted as complete.
3. Within twenty days of receipt of supplemental information, the administrator shall review the information to determine if the application is complete.
4. No application shall be accepted as complete until all documented omissions and deficiencies have been corrected by the applicant.
5. Development review application forms shall be available at department offices.
6. Completed application forms and a nonrefundable application fee as established by the board of county commissioners, shall be submitted to the department.
B. Prohibited Uses Not Processed. No application for a proposed use which is explicitly prohibited by this title shall be accepted. The following process shall be followed upon receipt of such an application containing such a prohibited use:
1. The application shall be returned to the applicant.
2. A letter, signed by the administrator, stating that the proposed use is prohibited and citing the section of this title which explicitly prohibits the proposed use, shall be sent to the applicant.
3. Issuance of this letter shall not prohibit the applicant from appealing the decision pursuant to Section 22.06.130.
C. Notice of Development Review.
1. The administrator shall issue notice of a proposed development review. The notice shall provide the following information:
a. The name of the applicant;
b. The location of the subject property as set out in the application;
c. A brief description of the proposed action;
d. The deadline for filing comments on the proposed action.
2. The notice shall state that the application and supporting documents are available for inspection at department offices during normal business hours.
3. The notice shall be mailed to the following:
a. Owners of property within five hundred feet of the subject parcel;
b. The Forest Service;
c. The Gorge Commission;
d. The Columbia River treaty tribes;
e. Other persons who have requested notice of a particular application or class of application;
f. Other state and federal agencies, as determined by the administrator on a case-by-case basis, consistent with the provisions of this title.
4. The notice to the tribal governments shall request comments, recommendations, or concerns relating to the protection of treaty rights, including rights to access, hunt, fish, and gather, include a site plan, and include any supplemental information and a proposed treaty rights protection plan that the applicant has prepared to demonstrate protection of treaty rights.
D. Comment Period. Except for tribal governments, all persons receiving notice of a development review application shall have twenty days from the date upon which the notice of a development review is mailed to them by the department within which to submit written comments to the administrator. Tribal governments shall have thirty days to submit comments. If after thirty days the administrator has not received comments from a tribal government, the administrator shall make an additional attempt by email or telephone to contact the tribal government and provide an additional ten-day comment period. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.120 Review by administrator—Decision of administrator.
A. Review Period. After the conclusion of any required comment periods, the administrator shall either:
1. Render a decision on the application if the cultural and natural resource protection processes have concluded; or
2. Advise the applicant, in writing, of any further review processes required under this title for the protection of cultural or natural resources.
B. Review Process. In reaching a decision on a development review application, the administrator shall:
1. Consult with the applicant and such agencies as the administrator deems appropriate.
2. Consider the information submitted by the applicant and all other relevant information available.
3. Consider all comments submitted within the comment period.
C. Administrator’s Review Decision.
1. The administrator shall issue a decision on the application, including findings of fact and conclusions, and may impose such conditions as determined necessary to ensure consistency with the provisions of this title.
2. Conditions attached to approval of uses shall be recorded in the county auditor’s records to ensure notice of the conditions to successors in interest.
3. The administrator shall mail a copy of the decision to the applicant, the Gorge Commission, Forest Service, applicable tribal, state, and local agencies, and all parties of record. The decision shall include notice of the right to appeal, as set forth in Section 22.06.130.
4. The decision of the administrator shall be final unless a notice of appeal is filed pursuant to Section 22.06.130. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.130 Appeal of administrative decision.
A. Notice of Appeal.
1. Parties of record may appeal any decision of the administrator within twenty days after the date upon which the decision is rendered. Appeal shall be made to the hearing examiner and shall be commenced with the filing of a notice of appeal at the department.
2. Notice of appeal forms shall be available at the department offices.
3. The notice of appeal shall be mailed to all parties of record as shown in the certificate of mailing of the administrative decision.
4. The notice of appeal shall at a minimum contain the following:
a. The name of the person filing the notice;
b. The date upon which the administrator’s decision became final;
c. A concise description of the decision to be reviewed;
d. The name and address of each of the following:
i. The applicant, if other than the person filing the notice;
ii. All parties of record as shown in department records (certificate of mailing).
e. Proof of service upon all persons required to be named in the notice. Proof of service may be evidenced by a certificate of mailing from the appellant. Certificate of mailing forms shall be available at department offices.
f. The following statement:
i. “Failure to raise an issue before the close of the public record in sufficient detail to afford the County and all parties an opportunity to respond may preclude appeal on that issue to the Hearing Examiner.”
5. A filing fee and deposit for costs may be charged by the county, as shall be determined by the board of county commissioners from time to time.
B. Notice of Hearing.
1. Notice of Hearing. The administrator shall mail notice of a hearing on appeal before the hearing examiner to all parties of record. Notice shall be mailed not less than ten days prior to the hearing date. Notice shall also be published in a newspaper of general circulation in the county not less than ten days prior to the date of hearing.
2. The record of the administrative decision on appeal shall include the following:
a. The administrator’s decision, including findings of fact and conclusions.
b. All evidence, exhibits, maps, documents or other written materials included as part of the record during the course of the administrator’s review.
c. The notice of appeal form and any attachments.
d. Any additional written reports as administrator deems pertinent.
3. The administrator shall, within sixty days after service of the notice of appeal:
a. Transmit to the hearing examiner, the appellant and the applicant (if different than the appellant) a copy of the record on appeal; provided, that the administrator may retain any large maps or documents, which are difficult to duplicate until the date of the hearing.
b. Copies of the record on appeal, excluding large maps and other documents which are difficult to duplicate, shall be made available to the public at the office of the department of planning and community development during normal business hours.
c. The public may also request that the administrator provide them with a copy of the record on appeal. The administrator may charge for copies of the record on appeal. Charges shall be sufficient to cover the costs of duplication and postage and shall be established by the board of county commissioners from time to time.
C. Hearing of Appeal.
1. The hearing before the hearing examiner shall be an open record hearing but shall include the record submitted by the administrator.
2. The hearing shall be conducted in the following order:
a. The appellant shall present his/her evidence.
b. The administrator shall present his/her evidence.
c. Members of the public in attendance at the hearing shall be allowed to comment upon the appeal (in favor or against the appeal).
d. The administrator may present closing arguments.
e. The appellant may present rebuttal evidence and closing arguments, limited to specific issues previously raised.
f. The hearing examiner may set time limits for presentation/comments from the appellant, administrator, and members of the public, if stated at the beginning of the appeal hearing.
3. The hearing examiner may reverse, affirm, or modify all or in part, the decision of the administrator, so long as the decision of the hearing examiner is consistent with the regulations and requirements of this title.
4. Any exhibits admitted by the hearing examiner during the hearing shall be marked to identify the party offering the exhibit. The exhibits shall be preserved by the hearing examiner as part of its record, and shall remain with the department of planning and community development at the end of the hearing.
D. Final Order of the Hearing Examiner. A decision by the hearing examiner on an appeal of an administrative decision shall be final and conclusive, unless a subsequent appeal is filed within the time frame provided in the Columbia River Gorge Commission’s Rules on Appeals from Counties. The hearing examiner shall, in making a final order, include in the written record of the case the findings of fact upon which the action is based. The written final order shall be signed by the hearing examiner.
E. Appeals from Decisions of the Hearing Examiner.
1. Any parties of record may appeal a final order of the hearing examiner to the Gorge Commission. Appeal shall be made as set out in applicable rules and regulations promulgated from time to time by the Gorge Commission.
2. Appeals to the Gorge Commission shall be heard on the record submitted by the hearing examiner. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2007-02 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.140 Expedited review process.
A. Resource Protection Compliance Provisions.
1. Proposed developments reviewed using the expedited review process shall comply with the following resource protection provisions:
a. Scenic.
i. In the general management area, the scenic resource protection provisions shall not apply to woven-wire fences for agricultural use that would enclose eighty acres or less.
ii. Except signs, the colors of structures topographically visible from key viewing areas shall be dark earth-tones found at the specific site or the surrounding landscape. The specific approved colors shall be included as a condition of approval. This provision shall not apply to additions that are smaller in total square footage than the existing building, which may be the same color as the existing building.
iii. Except signs, structures topographically visible from key viewing areas shall use low or nonreflective building materials, including roofing, gutters, vents, and chimneys.
iv. Any exterior lighting shall be sited, limited in intensity, hooded, and shielded in a manner that prevents lights from being highly visible from key viewing areas and from noticeably contrasting with the surrounding landscape setting, except for road lighting necessary for safety purposes. Shielding and hooding materials shall be composed of nonreflective, opaque materials.
v. Signs shall comply with the applicable sign provisions in Section 22.12.080 for GMA and Section 22.12.090 for SMA.
vi. Structures within one-half mile of a key viewing area and topographically visible from the key viewing area shall be sited, screened and/or designed to achieve the applicable scenic standard (e.g., visual subordinance, not visually evident).
b. Cultural.
i. The expedited development review process shall only be used to review proposed development that does not require an archaeological survey or historic survey. The cultural resources policies in Section 22.22.020 shall be used to determine if an archaeological and/or historic survey is required for a proposed development.
ii. The provisions in Sections 22.22.060 and 22.22.070 that protect cultural resources and human remains discovered during construction shall be applied as conditions of approval for all development approved under the expedited development review process.
c. Recreation. The development shall not detract from the use and enjoyment of established recreation sites on adjacent parcels.
d. Natural.
i. Water Resource (Wetlands, Streams, Ponds, Lakes, and Riparian Areas). The development is outside water resources and their buffer zones. This provision shall not apply to lot line adjustments or development located inside road, utility, or railroad rights-of-way or easements that have been previously disturbed and regularly maintained.
ii. Sensitive Wildlife and Rare Plants.
(A) The development meets one of the following:
(1) The development is at least one thousand feet from known priority habitats or sensitive wildlife sites (excluding sensitive aquatic species and deer and elk winter range) and known rare plants; or
(2) The development does not disturb the ground or is inside road, utility or railroad rights-of-way or easements or other areas that have been previously disturbed and regularly maintained; or
(3) For sensitive wildlife, the development is within one thousand feet of known priority habitats or sensitive wildlife sites (excluding sensitive aquatic species and deer and elk winter range), but an appropriate federal or state wildlife agency determines:
(a) The priority habitat or sensitive wildlife site is not active; or
(b) The proposed development would not compromise the integrity of the priority habitat or site or occur during the time of the year when wildlife species are sensitive to disturbance.
(4) For rare plants, the development is within one thousand feet of known rare plants, but the Washington Natural Heritage Program or a person with recognized expertise in botany or plant ecology hired by the applicant has determined that the development would be at least two hundred feet from the rare plants.
(5) Development eligible for expedited review shall be exempt from the field surveys for sensitive wildlife or rare plants.
2. Proposed development reviewed using the expedited review process shall comply with the following treaty rights guidelines:
a. Proposed development shall not affect or modify any treaty or other rights of any Indian tribe.
b. The expedited development review process shall cease, and the proposed development shall be reviewed using the full development review process if a tribal government submits substantive written comments during the comment period that identify the treaty rights that exist in the project vicinity and explain how they would be affected or modified by the proposed development.
c. Except as provided in subsection (A)(2)(b) of this section, the GMA and SMA treaty rights provisions in Sections 22.06.180 and 22.06.190 shall not apply to proposed developments reviewed under the expedited review process.
B. Review Process.
1. Applications. Applications for uses eligible for expedited review shall include the information required for review uses listed in Section 22.06.060 for GMA and Section 22.06.080 for SMA. An application shall be reviewed to determine if it is complete and if the proposed use qualifies for expedited review in accordance with the provisions of Section 22.10.050. Depending on whether or not the proposed use qualifies for expedited review, the application shall be reviewed according to one of the following procedures:
a. If the proposed use qualifies for expedited review, the application shall be reviewed in accordance with the provisions of this section.
b. If the proposed use does not qualify for expedited review, the application shall be reviewed in accordance with the provisions of Section 22.06.120.
2. Comment Period.
a. The administrator shall send a copy of all applications for developments to be reviewed under the expedited review process to the four Columbia River treaty tribes, the Gorge Commission, and the Forest Service as a notice of expedited development review.
b. The administrator shall allow the tribal governments, the Gorge Commission, and the Forest Service ten days from the date the notice is sent to submit written comments on the proposed development.
c. Comments received from a tribal government at any time during the expedited review process shall be considered, to ensure that the proposed development or use does not affect or modify the treaty or other rights of that tribe.
3. Notice of Decision and Opportunity to Appeal.
a. The administrator shall prepare a written decision for all development reviewed under the expedited review process, including findings of fact and conclusions, and may impose such conditions as determined necessary to ensure consistency with the provisions of this title.
b. The administrator shall send a notice of decision for all decisions issued under the expedited review process to the tribal governments, the Gorge Commission, the Forest Service, landowners within five hundred feet of the perimeter of the subject parcel, and any person that has requested a notice of decision.
c. Any person shall be allowed to appeal a decision issued under the expedited review process, within the timelines set forth in Section 22.06.130. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.150 Expiration and extensions of development approvals—Changes in an approved action.
A. Expiration of Approvals.
1. The decision of the administrator shall become void when:
a. The development action is not undertaken within two years of the date of the decision; or
b. The development action, once undertaken, is discontinued for any reason for one year or more; or
c. The decision is finally determined by a court or other appellate body of competent jurisdiction to result in an unconstitutional taking of private property.
2. Notice Not Required. Expiration of any land use approval issued pursuant to this title shall be automatic. Failure to give notice of expiration shall not affect the expiration of a land use approval.
3. Land Use Approvals without Structures. Any land use approval issued pursuant to this title for a use or development that does not include a structure shall expire two years after the date the land use approval was granted unless the use or development was established according to all specifications and conditions of approval in the land use approval. For land divisions, “established” means the final deed or plat has been recorded with the county auditor.
4. Land Use Approvals with Structures. Any land use approval issued pursuant to this title for a use or development that includes a structure shall expire as follows:
a. When construction has not commenced within two years of the date the land use approval was granted; or
b. When the structure has not been completed within two years of the date of commencement of construction.
5. Commencement of Construction. As used in subsection (A)(4)(a) of this section, commencement of construction shall mean actual construction of the foundation or frame of the approved structure. For utilities and developments without a frame or foundation, commencement of construction shall mean actual construction of support structures for an approved above ground utility or development or actual excavation of trenches for an approved underground utility or development. For roads, commencement of construction shall mean actual grading of the roadway.
6. Completion of Structure. As used in subsection (A)(4)(b) of this section, completion of the structure shall mean:
a. Completion of the exterior surface(s) of the structure; and
b. Compliance with all conditions of approval in the land use approval.
B. Extensions of Development Approvals. A request for extension of the time frames in subsection (A)(3), (A)(4)(a) or (b), shall be submitted in writing before the applicable expiration date.
1. A reviewing agency may grant one twelve-month extension to the validity of a land use approval if it determines that events beyond the control of the applicant prevented commencement of the use or development (subsection (A)(3) of this section) or commencement of construction (subsection (A)(4)(a) of this section) within the original two-year time frame.
2. An agency may also grant one twelve-month extension if it determines that events beyond the control of the applicant prevented completion of the structure (subsection (A)(4)(b) of this section) within the original two-year time frame.
3. A request for extension shall state the reason why events beyond the control of the applicant warrant an extension.
4. Approval or denial of a request for extension shall be considered an administrative decision.
C. Vested Rights. The laws of the states of Oregon and Washington concerning vested rights shall not apply in the National Scenic Area. A person has a vested right for as long as the land use approval does not expire, pursuant to subsection (A) of this section.
D. Changes or Alterations to an Approved Action. Any change or alteration to a development action approved by the county under this title shall be processed as a new action; provided, that the administrator may approve minor changes or alterations deemed consistent with the provisions of this title and the findings and conclusions on the original application. The approval of minor changes shall be known as a letter amendment and shall be considered an administrative action only requiring an appeal period of twenty days from the decision. The change itself, not the original decision, would be subject to appeal. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.160 Existing uses.
A. Right to Continue Existing Use and Structures. Except to the extent specifically set forth below, any existing use or structure may continue so long as it is used in substantially the same manner and for the same purpose.
B. Replacement of Existing Structures Not Damaged or Destroyed by Disaster. Except as provided in subsection (C) of this section, an existing structure may be replaced if a complete land use application for a replacement structure is submitted to the department within one year of the date the use of the original structure was discontinued. The replacement structure shall comply with the following standards:
1. The replacement structure shall have the same use as the original structure.
2. The replacement structure may have a different size or location than the original structure. An existing manufactured home may be replaced with a framed residence and an existing framed residence may be replaced with a manufactured home.
3. The replacement structure shall be subject to the scenic, cultural, recreation and natural resources provisions; the treaty rights provisions; and the land use designations provisions involving agricultural buffer zones, approval criteria for fire protection, and approval criteria for siting of dwellings on forest land.
4. The original structure shall be considered discontinued if a complete land use application for a replacement structure is not submitted within the one-year time frame.
C. Replacement of Existing Structures Damaged or Destroyed by Disaster. An existing structure damaged or destroyed by fire, flood, landslide or other similar disaster may be replaced if a complete land use application for a replacement structure is submitted to the department within two years of the date the original structure was damaged or destroyed. The replacement structure shall comply with the following standards:
1. The replacement structure shall have the same use as the original structure. An existing manufactured home may be replaced with a framed residence and an existing framed residence may be replaced with a mobile home.
2. The replacement structure shall be in the same location as the original structure. An exception may be granted, and the replacement structure may be sited in a different location if all the following conditions exist:
a. A registered civil engineer, registered geologist, or other qualified and licensed professional hired by the applicant demonstrates the disaster made the original building site physically unsuitable for reconstruction.
b. The new building site is no more visible from key viewing areas than the original building site. An exception may be granted if a registered civil engineer, registered geologist, or other qualified and licensed professional hired by the applicant demonstrates the subject parcel lacks alternative building sites physically suitable for construction that are no more visible from key viewing areas than the original building site.
c. The new building site complies with the cultural resources, natural resources, and treaty rights provisions.
3. The replacement structure shall be the same size and height as the original structure, provided:
a. The footprint of the replacement structure may be up to ten percent larger than the footprint of the original structure. The footprint of a structure includes any covered decks and porches, attached garages, and breezeways that share a wall with the structure.
b. The height of the replacement structure shall not exceed the height of the original structure unless a minor increase is required to comply with standards in the current jurisdictional building code. “Height” is generally defined as the greatest vertical distance between the lowest finished grade adjoining any exterior wall and the highest point of the roof.
c. The replacement structure may have a smaller footprint or lesser height than the original structure.
4. The replacement structure shall only be subject to the following scenic resources standards:
a. The replacement structure shall comply with the scenic resources provisions regarding color and reflectivity. These provisions shall be applied to achieve the applicable scenic standard (visually subordinate or not visually evident) to the maximum extent practicable.
b. Decks, verandas, balconies and other open portions of the original structure shall not be rebuilt as enclosed (walls and roof) portions of the replacement structure.
c. The replacement structure shall comply with the scenic resources provisions regarding landscaping.
5. In the GMA, the scenic resource provisions regarding landscaping shall be applied to achieve the applicable scenic standard (visually subordinate) to the maximum extent practicable.
6. In the SMA, the scenic resource provisions regarding landscaping shall be applied to achieve the applicable scenic standard (visually subordinate or not visually evident) to the maximum extent practicable, provided:
a. Use of plant species appropriate for the area and minimum sizes of new trees needed to achieve the standard (based on average growth rates expected for the recommended species) are required. Examples of native specific are identified in the Scenic Resources Implementation Handbook as appropriate to the area.
b. The height of any new trees shall not be required to exceed five feet.
c. The time frame for achieving the applicable scenic standard (visually subordinate or not visually evident) shall be ten years.
7. The replacement structure shall be subject to subsections (B)(1), (2), and (3) of this section if it would not comply with subsections (C)(2) and (3) of this section.
8. The original structure shall be considered discontinued if a complete land use application for a replacement structure is not submitted within the two-year time frame.
D. Discontinuance of Existing Uses and Structures. Except as provided in subsections (B) and (C) of this section, any use or structure that is discontinued for one year or more shall not be considered an existing use or structure. Proof of intent to abandon is not required to determine that an existing use or use of an existing structure has been discontinued.
1. Multiple Uses. An existing use or structure with more than one legally established use may discontinue one of the uses without discontinuing the others.
2. Change in Use. An existing use or structure shall become discontinued if the use or use of the structure changes.
E. Discontinued Uses and Structures. Reestablishment or replacement of any use or structure that has been discontinued shall be subject to all applicable provisions in Title 22, including, but not limited to, provisions for land use designations and scenic, cultural, recreation and natural resources.
F. Changes to Existing Uses and Structures. Except as otherwise provided, any change to an existing use or modification to the exterior of an existing structure shall be subject to review and approval pursuant to this title.
G. Existing Industrial Uses in the GMA. Existing industrial uses may expand as necessary for successful operation on the dedicated site. Expansion beyond the dedicated site shall be prohibited. Existing industrial uses may convert to less intensive uses. For this section, a less intensive use is a commercial, recreation, or residential use with fewer adverse effects upon scenic, cultural, natural, and recreation resources.
H. Existing Commercial and Multifamily Uses in the GMA. Existing commercial and multifamily residential uses may expand as necessary for successful operation on the dedicated site, subject to compliance with all applicable provisions of Chapters 22.18 through 22.32. Expansion beyond the dedicated site shall be prohibited.
I. Solid waste disposal sites or sanitary landfills are prohibited in special management areas.
J. In the SMA, uses involving the exploration, development or production of sand, gravel or crushed rock may continue if both of the following conditions exist:
1. The sand, gravel or crushed rock is used for construction or maintenance of roads used to manage or harvest forest products in the special management areas; and
2. A determination by the Forest Service finds that the use does not adversely affect the scenic, cultural, natural or recreation resources. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.180 GMA tribal treaty rights provisions.
A. Tribal Notice and Comment Period.
1. The administrator shall send a notice to the four Columbia River treaty tribes tribal governments for all new review uses, pursuant to Section 22.06.110(C).
2. Applications for proposed new review uses and development located in, providing recreation river access to, or on parcels that adjoin the Columbia River or its fishbearing tributaries shall include the following supplemental information:
a. The site plan map shall show adjacent river areas at least one-half mile upstream and downstream from the project site, the locations at which river access is planned, and the locations of all tribal fishing sites known to the project applicant;
b. A description of the type of river access and uses proposed, estimated period when the development would be used, and anticipated levels of use (people, boats, and other uses) during peak-use periods; and
c. Proposed treaty rights protection measures that will be used to avoid effects to Indian treaty or other rights. These measures may include reducing the size and modifying the location or design of the proposed uses, seasonal closures, stringent on-site monitoring, information signs, and highly visible buoys or other markers delineating fishing net locations.
3. At the same time that the administrator sends notice of the proposed development, they shall offer to meet with or consult with the tribal governments prior to making a decision on the proposed development. Offers to meet or consult with a tribal government shall include phone calls and electronic communication to tribal government chairs, chief administrative officers, and natural and cultural resource staff. The administrator shall make more than one attempt to contact a tribal government.
4. Tribal governments shall have thirty calendar days from the date a notice is mailed to request that the administrator consult with the tribal government regarding potential effects or modifications to treaty or other rights of the tribe.
B. Tribal Consultation.
1. All substantive comments, recommendations, or concerns expressed by tribal governments during the consultation meeting shall be summarized in the administrative decision, subject to the following confidentiality standards:
a. The administrator shall keep confidential and may not disclose to any person or party who is not the applicant and the applicant’s representative the tribal government’s comments, recommendations, and concerns, and notes of the consultation and other information related to protection of treaty rights, unless the tribal government expressly authorizes disclosure.
b. The confidential information shall be submitted to the Gorge Commission for review in the event of an appeal, and shall remain confidential and not subject to disclosure to any person or party other than the applicant, the applicant’s representative, the appeal parties and their representatives, and the necessary Gorge Commission staff and Gorge Commission members, unless the tribal government expressly authorizes further disclosure.
2. Any time periods specified in this title shall stop when a tribal government requests consultation and shall not start again until the administrator meets with all tribal governments that requested consultation and the administrator receives all additional information and actions from the project applicant necessary to avoid effects to treaty rights to the satisfaction of the tribal governments that requested consultation.
3. A tribal government’s choice to consult with the administrator shall, in no way, be interpreted as a waiver of the tribe’s sovereign immunity or waiver of any claim that the proposed use affects or modifies a treaty right or other tribal rights.
4. All substantive comments, recommendations, or concerns expressed by tribal governments during the consultation meeting shall be resolved by the administrator or project applicant through revisions to the project application, conditions of approval, and, if necessary, in a treaty rights protection plan. The protection plan shall include measures to avoid effects or modifications to treaty and other rights of any Indian tribe.
C. Conclusion of Treaty Rights Protection Process.
1. The administrative decision shall integrate findings of fact that address their effort to meet with or consult with the tribal governments and any revisions and treaty rights protection plan resolving the tribal governments’ comments, recommendations, or concerns.
2. The treaty rights protection process may conclude if the administrator determines that the proposed uses would not affect or modify treaty or other rights of any Indian tribe. Uses that would affect or modify such rights shall be prohibited.
3. A finding by the administrator that the proposed uses would not affect or modify treaty or other rights, or a failure of an Indian tribe to comment or consult on the proposed uses as provided in this title, in no way shall be interpreted as a waiver by the Indian tribe of a claim that such uses affect or modify treaty or other tribal rights. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))
22.06.190 SMA treaty rights provisions.
For new development and uses in the special management area, the Forest Service shall determine effects on treaty rights and shall notify the administrator of the determination. (Ord. 2021-05 (Att. A), 12-14-21; Ord. 2018-04 (Exh. A), 4-17-18; Ord. 2008-06 (part): Ord. 2006-11 (part): Ord. 2005-07 (part))