June 16, 2008

Will cities be allowed to expand in the gorge?
Gorge commission tackles ticklish topic

By RODGER NICHOLS
of The Dalles Chronicle

     Both sides in the long-term tug of war between economic development and preservation are gearing up for what promises to be a protracted struggle at the Columbia River Gorge Commission
     “It’s not going to be pretty,” Commission chair Jeff Condit said during the June 10 meeting, which was devoted to a work session exploring how and under what conditions any adjustments could be made to the boundaries of the 13 designated urban areas located within the Columbia River Gorge National Scenic Area.
     At least three cities — The Dalles, Hood River and Lyle —are planning to file formal requests to expand their urban area boundaries with the gorge commission, though neither has set an exact date.
     The 13 urban areas, some of which are unincorporated, are enclaves exempt from the land use restrictions in the Scenic Area. Any expansion of those boundaries would take land out of the Scenic Area and its restrictions.
     But those restrictions are also protections, argue preservationists, and to remove land from the Scenic Area is to violate the first purpose of the National Scenic Area Act, which is to protect and enhance the scenic, natural, cultural and recreational resources of the gorge.
     Proponents of expanding the urban areas argue that the second purpose of the act is to protect and support the economy of the gorge by encouraging growth in urban areas. If those areas aren’t allowed to grow, they say, it will choke off the growth the act is supposed to encourage.
     The Scenic Area Act does allow the gorge commission to make minor adjustments in the size of the boundaries that surround those urban areas.
     One of the key issues will be to determining the definition of the word “minor.” Major changes would require a new Act of Congress, a highly unlikely event.

PREVIOUS ATTEMPTS
     The gorge commission has received three previous requests by urban areas to change their boundaries.
     In 1989 the commission turned down a request to expand the Lyle urban boundary. The commission at the time said it wanted to adopt the Scenic Area      Management Plan before making any urban area boundary changes. That plan was adopted in 1991.
     In 1997, the commission approved minor boundary adjustments for Cascade Locks and Stevenson.
     “I think it’s fair to say the consensus of the commission at that time was that there were mapping errors that needed to be corrected,” said Gorge Commission Planning Director Brian Litt.

HOW IT WORKS
     The process for completing a boundary change faces a number of high hurdles.
     Under provisions of the Management Plan, commissioners could only approve a boundary change if it met all four of the following conditions:
     A. A demonstrable need exists to accommodate long-range urban population growth requirements or economic needs consistent with the Management Plan.
     B. Revision of Urban Area boundaries would be consistent with the purposes of the Scenic Area Act and the standards established in Section 6 of the Act.
     C. Revision of Urban Area boundaries would result in maximum efficiency of land uses within and on the fringe of existing Urban Areas.
     D. Revision of Urban Area boundaries would not result in the significant reduction of agricultural lands, forest lands, or open spaces.
     If the applicant is able to demonstrate, after a public hearing process, that their proposal qualifies on the four areas above, then it still faces a unique set of supermajority conditions.
     There are 12 voting commissioners, six from Oregon and six from Washington.
     To pass, a proposal must have the vote of at least two-thirds of the commissioners, Additionally, it must include a majority of the representatives from each state.
     As a practical matter, three commissioners could block passage on even a 9 to 3 vote, if all three who opposed came from the same state

BACKGROUND
     At the time the urban area boundaries were drawn in the National Scenic Area, Oregon had far more extensive land use laws than Washington. Oregon incorporated cities all had been required by the state to establish detailed urban growth boundaries, containing an estimated 20-year supply of buildable land. The gorge commission simply used those boundaries for their urban exempt areas.
     Washington cities did not have any such handy boundaries.
     Steven B. Andersen was Klickitat County Planner at the time. He told the commission he pushed for as large an area as possible.
     “We were afraid that they would never expand,” he said.
     That’s why the largest single exempt urban area in the gorge is around Dallesport
     Andersen’s memory was echoed by Mary Ann Duncan-Cole, who has been Stevenson’s city administrator since 1985.
     “We used a 50 to 75 year time frame,” she said, “which is a very significant difference from Oregon.”
     That led to the following comment from Gorge Commission Chair Condit:
“On the Oregon side the urban growth boundaries were established on a 20-year supply of land, and now we hear Mary Ann telling us that they [in Washington] were looking at 50 to 75 years, which explains why I see the ‘Welcome to Stevenson’ sign five miles before I get to town. So in one sense, if we look at it that way, we’re sort of punishing Oregon for having had a good planning system in 1986, which I hate. But on the other hand, we sort of have to play the hand that we’re dealt.”
     That cross-river inequity may have been intentional.
     Bowen Blair, Jr., who was the Executive Director of the Friends of the Gorge in the early days, submitted written comments to the commission, which included this statement:
     “The Act provided for exceptionally large urban boundaries for many Washington cities and towns with the intention that these boundaries would not likely need to be revised and could absorb anticipated population growth in the Gorge.”
     That seems to indicate that at least some of framers of the act intended that Oregon cities would be limited to the existing boundaries and any growth beyond that would be shifted to the large reserves provided on the Washington side.

NEXT STEPS
     Commissioners ultimately concluded there had been enough change in circumstances in the 22 years since the passage of the Scenic Act and enough ambiguity surrounding some of the issues, to write new rules clarifying requirements and procedures before a formal boundary change is received.
     Staff was directed to return with rulemaking proposals at the September meeting.
     Any proposals would require a hearing, likely in November, and would probably not be adopted before January at the earliest, planner Jennifer Kaden told the commission.

ISSUES
     Chair Condit, who is an Oregon land use lawyer specializing in urban growth boundary expansions, said there were three key issues to be addressed in the rulemaking:
     “At a minimum we have to talk about ‘minor’ and we have to talk about ‘maximum efficiency’, and we have to talk about priorities.”
     The ‘maximum efficiency’ of Condition C, he said, may require cities to look at expanding into adjacent urban areas, particularly in the case of The Dalles and Dallesport
     “I’m having a hard time conceptually saying that we could approve a significant amendment on one side of the river when right across the bridge, there are thousands of acres of vacant land,” Condit said.
     He also pointed out cities in Oregon may be in a bind because Oregon law requires them to expand urban growth boundaries in a certain order, and that set of priorities may be in conflict with the set of Scenic Area expansion priorities.
     “I don’t want a jurisdiction to go through the whole process and then come to us and find out they can’t go where under Oregon law they have to go,” he said.

WHAT’S MINOR
     Where the commission ultimately falls on that question is key to any proposals for change, since only minor changes would qualify for commission action.
     There were plenty of definitions offered,
     “I think most of us who worked on the legislation would agree that anything larger than two or three acres, for example, would not be considered ‘minor,’” Bowen Blair, Jr. submitted.
     But Commissioner Joyce Reinig of Hood River had a different take:
     “They wouldn’t have put in that we were allowed to make minor revisions, if they didn’t intend for us to make some revisions,” she said. “So as we talk about preservation here, we also shouldn’t be totally slamming the door shut.”

CHERRY STEM OPTION
     “I do think [minor] means small,” said Chair Condit, “And I don’t think it means cities can’t grow. I think it means they will be directed to grow in other ways, just not into the Scenic Area.”
     Condit suggested that even cities that are completely surrounded by the Scenic Area could potentially expand, through the use of what he called “cherry stem annexations,” which he said had a long tradition in Oregon law.
     He used the example of The Dalles, suggesting that the city could annex a road right-of-way from the edge of the urban growth boundary through the surrounding National Scenic Area boundary until it reached the outer edge of the NSA boundary. At that point, the city could expand into a second area, connected back to the main city by the “cherry stem” of the road.
     That’s the level of complexity, he suggested, that may be needed to balance the two purposes of the Scenic Act.