Thirteen months after Brian and Jody Bea built their home overlooking the Columbia River between Oregon and Washington, the Columbia River Gorge National Scenic Commission not only decided they couldn’t live there, but also mandated that the house be physically moved, because it was too readily visible from areas in the Gorge.
The Commission came to its decision long after the Beas had obtained a building permit from the county and spent nearly $200,000 to build the home. They offered to spend even more to landscape the area with large trees that would make the home less visible from the other side of the river, to no avail.
“The Gorge Commission had every opportunity to raise any concerns before our house went up,” Jody Bea commented. “All the Gorge Commissioners would have had to do was say what changes were necessary, and we would never have included [the items of concern to the Commission] in the building permit. I don’t understand how they can now say this is wrong.”
Defending themselves against the Commission’s decision, the Beas have spent roughly $60,000 in legal fees over the past year.
They also have to make two monthly payments—a mortgage payment on the house in which they cannot live, plus rent for an apartment. Brian is working 75 hours a week at two jobs to pay for it all. “A government agency has no authority to come back months after a decision is made and undo it,” he said. “We feel like we are a bone caught between two dogs. It’s kind of hard to know what’s really going on. I had all the required permits and was building my dream home, and now all of a sudden I’m stopped dead, with a huge investment in an empty building and no home to live in.”
What gives the Commission the power to make such a decision after the local building permit was issued and the home nearly complete? In 1986, an act of Congress established the Columbia River Gorge National Scenic Area to be administered by a bi-state commission of Washington and Oregon. The Commission is required to have a Management Plan to regulate non-federal land within the Scenic Area.
One key part of the Management Plan is that residential development must not adversely affect the Scenic Area. The counties in each state each design a “land use ordinance” in compliance with the Management Plan. Skamania County, where the Beas live, had prepared its ordinance, which was submitted to the Commission, pronounced consistent with the standards, and approved.
According to a brief filed by the Pacific Legal Foundation, which is representing the Beas in this matter at no cost, the county ordinance requires an applicant to submit a “development review application” along with a map depicting the location of the home with enough detail for the planning director of the county to “evaluate its effects on scenic, cultural, natural, and recreation resources.” If the Planning Director determines that changes to the home owner’s are needed, the owner is to be notified within 14 days.
When a completed application is accepted, the county’s planning director issues a “Notice of Development Review” that is made available to all parties. A review process is begun and other involved agencies–including the Gorge Commission–are notified of the application. After the review period, a decision on the land owner’s plan is made by the planning director. All parties to the process are informed of his decision and their right to appeal it.
The permit review process approved by the Commission states that “the decision of the Director shall be final unless a notice of appeal is filed pursuant to Section 22.06.060 of this chapter.” If an appeal is filed it goes first to the county, but that body’s decision in the matter may later be appealed to the Gorge Commission. According to federal law, any appeal to the Gorge Commission must be filed within 30 days of the final order of the county.
In November 1996, the Beas launched the process by filing an application and site plan with Skamania County. During the review process, several recommendations were made for changes or alterations to the plan, such as requiring the Beas to plant some screening vegetation in front of the house. They accepted the requested changes, and a copy of the final approved report was sent to the Beas and the Gorge Commission in early 1997.
No party filed an appeal, and the decision became final on June 9, 1997. Thirteen months later, on July 27, 1998, the Gorge Commission notified Skamania County of an alleged violation. The Commission did not initially name the Beas as a party to the action. Nevertheless, the Gorge Commission ruled on January 25, 1999 to overturn the Skamania County planning director’s approval of their home and require the county to “adapt a new or revised decision.” Among other things, that would mean moving the home to a new site. The Commission has forbidden the Beas from living in the home while the case is being litigated.
The Commission’s principal reason for its decision is that the home is not “visually subordinate” to the landscape.
According to the Pacific Legal Foundation, the Commission has interpreted the law to give it unbridled authority to establish a management plan and enforce it—even several years after the fact. At issue, says the PLF, is “the absolutely critical need to establish certainty and finality in land use permits so that property owners can reasonably proceed under their constitutional rights to put their properties to productive use.” PLF says it will continue to “challenge the Commission’s outrageous assertion that it can at anytime require an approved home to be torn down, moved or rebuilt to conform to the Commission’s current wishes.”
In July 1999, a trial judge deferred to the Commission and its ruling with a four-page decision. The Pacific Legal Foundation is appealing directly to the Washington State Supreme Court, questioning the Gorge Commission’s jurisdiction in the matter. The Beas’ attorneys expect to have a court date later this fall but say final resolution may take another two years.