40.240.190    General Guidelines (REPEALED)

The following uses may be permitted when allowed by the land use designation, subject to compliance with the appropriate scenic, cultural, natural and recreation resources guidelines (Sections 40.240.490 through 40.240.590):

A.    Land Divisions.

    Land Divisions within the Columbia River Gorge National Scenic Area may be allowed subject to the following:

1.    New land divisions are not allowed in the Special Management Area, unless the creation of a new parcel will facilitate land acquisition by the federal government to achieve the policies and guidelines of the Management Plan.

2.    New land divisions shall be permitted in the General Management Area if the following are met:

a.    Proposed land divisions comply with Chapter 40.510, and the procedural requirements of Chapters 40.520 and 40.540. Divisions of land resulting in four (4) or fewer lots shall be reviewed under the procedures of Section 40.540.030 and Section 40.510.020. Divisions of land resulting in five (5) or more lots shall be reviewed under the procedures of Section 40.540.040 and Section 40.510.030.

b.    Lots resulting from such proposed land divisions shall comply with all applicable provisions of this chapter, including minimum specified lot sizes and associated zoning maps.

3.    Unless otherwise specified, creation of a parcel, regardless of size, or any division of land except a lot line adjustment shall be subject to the guidelines in this chapter.

4.    At the time of creation of one (1) or more new parcels, consolidation of access shall be considered in order to reduce adverse effects on scenic, cultural, natural and recreation resources.

5.    Adjustment of the boundary between two (2) or more contiguous parcels that does not result in the creation of an additional parcel may be allowed if none of the parcels larger than the minimum parcel size before the adjustment becomes smaller than the specified minimum parcel size after the adjustment.

6.    In General Management Areas zoned Gorge Large-Scale or Small-Scale Agriculture, or Gorge Small Woodland, reconfiguration of lots provided through boundary line adjustments; provided, that lots eligible for reconfiguration meet the following:

a.    Lots eligible for such reconfiguration are smaller than the minimum lot size established for new lots in the applicable district. Lots which meet the minimum lot size standard may be eligible for adjustment through this process, but may not decrease below the established minimum size.

b.    Lots eligible for reconfiguration are determined to be legally created, have lawful access and be buildable.

c.    The number of lots created as a result of the reconfiguration shall not exceed the number of original lots reconfigured.

d.    Created lots shall have septic suitability approval and adequate potable water at the time of occupancy, subject to Section 40.370.020.

e.    Created lots shall be at least one (1) acre in size, with a minimum width of one hundred forty (140) feet.

f.    Each group of reconfigured lots shall not exceed eight (8) lots.

g.    The reconfiguration shall further a public interest of encouraging the protection of public lands, expand the amount of commercially viable resource land under single ownership, or reduce the amount of road and utility construction.

B.    Agricultural Buffer Zones. All new buildings shall comply with the following setbacks when proposed to be located on a parcel adjacent to lands zoned Gorge Large-Scale or Small-Scale Agriculture and which are currently used for or are suitable for agricultural use:

1.    Setback Guidelines.

Table 40.240.190-1. Type of Buffer (Feet from Property Line of Adjacent Agricultural Parcel)

Existing Type of Agriculture

Open or Fenced

Natural or Created Vegetation Barrier

8-Foot Berm or Terrain Barrier

Orchards

250'

100'

75'

Row crops/vegetables

300'

100'

75'

Livestock grazing, pasture, haying

100'

15'

20'

Grains

200'

75'

50'

Berries, vineyards

150'

50'

30'

Other

100'

50'

30'

2.    Earth berms may be used to satisfy, in part, the setback guidelines. Berms shall be a minimum of eight (8) feet in height, and contoured at three to one (3:1) slopes to look natural. Shrubs, trees and/or grasses shall be planted on the berm to control erosion and achieve a finished height of fifteen (15) feet.

3.    The planting of a continuous vegetative screen may be used to satisfy, in part, the setback guidelines. Trees shall be at least six (6) feet high when planted and reach an ultimate height of at least fifteen (15) feet. The vegetation screen shall be planted along the appropriate parcel line(s), and be continuous.

4.    The necessary berming and/or planting must be completed during the first phase of development and maintained in good condition.

5.    If several crops or crop rotation is involved in the adjacent operation, the greater setback shall apply.

6.    A variance to buffer setbacks may be granted upon a demonstration that the guidelines of Section 40.240.190(G) have been satisfied.

C.    Forest Buffers.

    The approval of new dwellings and accessory structures on or immediately adjacent to lands within a Forest zone in the General Management Area shall comply with the following guidelines:

1.    The dwelling and structures shall be sited on the parcel so that they will have the least impact on nearby or adjoining forest operations. Dwellings shall be set back at least two hundred (200) feet from adjacent parcels within the Forest zone. The responsible official may grant a variance to this setback under the provisions of Section 40.240.190(G), or upon a finding that objectives of Sections 40.240.190(C)(2), (C)(3) and (C)(4) cannot be met without such a variance, and that it is in the public interest to provide greater weight to those objectives rather than the setback.

2.    The amount of forest land used to site dwellings, structures, access roads, and service corridors shall be minimized. This can include locating new dwellings and structures as close to existing public roads as possible, thereby minimizing the length of access roads and utility corridors; or locating the dwelling, access road, and service corridors on portions of the parcel that are least or poorly suited for forestry. Areas may not be suitable for forestry because of existing non-forest uses, adjacent dwellings, or land productivity.

3.    Dwellings shall be located to minimize the risks associated with fire. Dwellings should be located on gentle slopes and in any case not on slopes which exceed forty (40) percent. Narrow canyons and draws should be avoided. Dwellings should be located to minimize the difficulty in gaining access to the structure in the case of fire. Dwellings should be located to make the access roads as short and flat as possible.

4.    Grouping proposed development closer to existing development on adjacent lands may be used to minimize impacts on nearby or adjacent forest operations.

D.    Temporary use hardship dwellings shall be permitted in the General Management Area on parcels containing a principal residential dwelling, subject to the following:

1.    The temporary placement of a mobile home in the General Management Area may be granted under the following circumstances:

a.    A family hardship exists where conditions relate to the necessary care for a member of the family occupying the principal dwelling and where medical conditions relate to the infirm or aged.

b.    The hardship dwelling shall use the same subsurface sewage disposal system and well used by the existing dwelling, or utilize existing public sewer and water systems. In all cases well and septic systems shall be used in a manner and location to minimize impacts to resource lands.

c.    The hardship dwelling is found to be consistent with the guidelines for protection of scenic, cultural, natural and recreation resources of Sections 40.240.490 through 40.240.590.

2.    A permit may be issued for a two (2) year period, subject to annual review for compliance with the provisions of this rule and any other conditions of approval.

3.    Upon expiration of the permit or cessation of the hardship, whichever comes first, the mobile home shall be removed within thirty (30) days.

4.    A new permit may be granted upon a finding that a family hardship continues to exist.

E.    Home Occupations.

    Type I and II home occupations may be established as specified in various land use designations consistent with provisions of Section 40.260.100, as well as the following:

1.    Parking not associated with residential use shall be screened so it is not visible from Key Viewing Areas.

2.    In the General Management Area, a bed and breakfast lodging establishment that is two (2) bedrooms or less is considered a home occupation and shall meet the guidelines of Sections 40.240.190(E) and (F).

3.    In the Special Management Area, a bed and breakfast lodging establishment that is two (2) bedrooms or less is considered a home occupation and shall meet the guidelines of Sections 40.240.190(E) and (F), except (F)(4).

4.    No more than five hundred (500) square feet of an accessory structure may be used for a home occupation.

5.    New structures shall not be constructed for the primary purpose of housing a home occupation.

6.    No retail sales may occur on the premises, except incidental sales at lodging establishments authorized in Section 40.240.190(E).

F.    Bed and Breakfast Inns.

    Bed and breakfast inns may be established as authorized in specified land use designations subject to Section 40.260.050, and the following:

1.    Guests may not occupy a facility for more than fourteen (14) consecutive days.

2.    One (1) non-animated, non-illuminated sign not exceeding four (4) square feet in area may be permitted on the structure or within the yard containing the structure.

3.    Parking areas shall be screened so as to not be visible from Key Viewing Areas.

4.    In the Special Management Area, bed and breakfast inns associated with residential use shall be allowed only in structures that are included in, or eligible for inclusion in, the National Register of Historic Places.

5.    A bed and breakfast inn may contain no more than five (5) rooms.

G.    Variances from Setbacks and Buffers within the General Management Area. Variances from setbacks and buffers within the General Management Area shall be reviewed under administrative variance criteria of Section 40.550.020, including variance requests in excess of twenty-five percent (25%), which shall be subject to a Type II review. The following criteria shall also apply:

1.    When setbacks or buffers for the protection of scenic, cultural, natural, recreation, agricultural or forestry resources, or non-resource uses, overlap or conflict, the setbacks or buffers may be varied upon a demonstration that:

a.    A setback or buffer to protect one (1) resource or use would cause the proposed use to fall within a setback or buffer to protect another resource; and

b.    Variation from the specified setbacks or buffers would, on balance, best achieve the protection of the affected resources and uses; provided, that resource buffers or setbacks shall prevail in the event of conflict with non-resource buffers or setbacks.

2.    A setback or buffer for protection of scenic, cultural, natural, recreation, agricultural or forestry resources, or non-resource uses, may be varied to allow a residence to be built on a parcel of land upon a demonstration that:

a.    The land use designation otherwise authorizes a residence on the tract;

b.    No site exists on the tract (all contiguous parcels under the same ownership) on which a residence could practicably be placed in full compliance with the setback or buffer;

c.    The variance from the specified setback or buffer is the minimum necessary to allow the residence.

3.    The responsible official may grant a variance to the setback and buffer requirements in Section 40.240.580, upon finding that the following conditions exist:

a.    The proposed project is a public use, resource-based recreation facility providing or supporting either recreational access to the Columbia River and its tributaries, or recreational opportunities associated with a Scenic Travel Corridor.

b.    All reasonable measures to redesign the proposed project to comply with required setbacks and buffers have been explored, and application of those setbacks and buffers would prohibit a viable recreation use of the site as proposed.

c.    Resource impacts have been mitigated to less than adverse levels through design provisions and mitigation measures.

d.    The variance is the minimum necessary to accommodate the use.

H.    Indian Tribal Treaty Rights and Consultation.

1.    Tribal Government Notice.

a.    New uses located in, or providing recreation river access to, the Columbia River or its fishbearing tributaries shall include the following supplemental information:

(1)    The site plan map shall show adjacent river areas at least one-half (1/2) 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.

(2)    The site plan text shall include an assessment of the potential effects that new uses may have on Indian treaty rights. The assessment shall:

(a)    Describe 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.

(b)    List tribal commercial fishing seasons in the project vicinity, as established by the four (4) treaty tribes.

(c)    List tribal ceremonial fishing seasons in the project vicinity.

(d)    Based on the above factors, assess the potential effects that the proposed uses may have on Indian treaty rights.

b.    Notices shall include a treaty rights protection plan if new uses may affect Indian treaty rights. The protection plan shall specify measures that will be used to avoid effects to Indian treaty 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.

c.    Indian tribal governments shall have twenty (20) calendar days from the date a notice is mailed to submit substantive written comments to the responsible official. Indian tribal governments must identify the treaty rights that exist in the project vicinity and explain how they would be affected or modified by the new uses.

2.    Tribal Government Consultation.

a.    When substantive written comments are submitted to a responsible official in a timely manner, the project applicant shall offer to meet with the responsible official and the Indian tribal government that submitted comments within ten (10) calendar days. The ten (10) day consultation period may be extended upon agreement between the project applicant and the Indian tribal government. Consultation meetings should provide an opportunity for the project application and tribal representatives to identify potential conflicts and explore options to eliminate them. The project applicant must demonstrate that the proposed use would not affect or modify treaty or other rights of any Indian tribe.

b.    Any substantive comments, recommendations, or concerns expressed by Indian tribal governments during the consultation meeting shall be recorded and addressed by the project applicant in a treaty rights protection plan. The protection plan shall include measures to avoid effects to treaty and other rights of any Indian tribe.

c.    The responsible official shall submit all protection plans to the Indian tribal governments. Indian tribal governments shall have thirty (30) calendar days from the date a protection plan is mailed to submit written comments to the responsible official.

3.    Conclusion of the Treaty Rights Protection Process.

a.    The responsible official shall decide whether the proposed uses would affect or modify any treaty or other rights of any Indian tribe. The final decision shall integrate findings of fact that address any substantive comments, recommendations, or concerns expressed by Indian tribal governments. If the final decision contradicts the comments, recommendations, or concerns of Indian tribal governments, the responsible official must justify how it reached an opposing conclusion.

b.    The treaty rights protection process may conclude if the responsible official determines that the proposed uses would not affect or modify treaty or other fights of any Indian tribe. Uses that would affect or modify such rights shall be prohibited.

c.    A finding by the responsible official 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 these guidelines, in no way shall be interpreted as a waiver by the Indian tribe of a claim that such uses adversely affect or modify treaty or other tribal rights.

I.    For new development and uses in the Special Management Area, the U.S. Forest Service shall determine effects on treaty rights and shall notify the responsible official of the determination.

J.    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.

K.    Section 8(o) of the National Scenic Act (16 USC 544f(o)) and the Special Rules policies 1 and 2 of the Scenic Area Management Plan, plan II-86, are hereby incorporated by reference. In the event of a redesignation under these provisions by the U.S. Forest Service, Clark County shall administratively review development applications on impacted lands according to the redesignation and effective date specified by the U.S. Forest Service. Clark County may subsequently amend this chapter to bring associated comprehensive plan and zoning map designations into conformity with such redesignations.

L.    Docks.

1.    New private docks and boathouses serving only one (1) family and one (1) property shall be limited to a maximum of one hundred twenty (120) square feet in size.

2.    New private docks and boathouses serving more than one (1) family and property shall be limited to a maximum of two hundred (200) square feet in size.

3.    Public docks open and available for public use shall be allowed.

M.    Emergency/Disaster Event.

    Actions taken in response to an emergency/disaster event (as defined in Section 40.240.060) are allowed in all GMA and SMA land use designations, subject to compliance with the appropriate scenic, cultural, natural and recreation resource guidelines, the notification requirements of Section 40.240.150, the post emergency disaster response; development review process and the following general requirements:

1.    Following emergency/disaster response actions, best management practices (BMPs) to prevent sedimentation and provide erosion control shall be utilized whenever disaster response actions necessitate vegetation removal, excavation, and or grading. BMPs may include but are not limited to: use of straw bales, slash windrows, filter fabric fences, sandbags, straw cover, jut netting, etc.

2.    Structures or development installed or erected for a temporary use (e.g., sandbags, check dams, plastic sheeting, chain link fences, debris walls, etc.) shall be removed within one (1) year following an emergency event. If it can be demonstrated that the continued use of these devices is necessary to protect life, property, public services or the environment, an extension of no more than two (2) years may be granted.

3.    New exploration, development and production of mineral resources, used for commercial, private or public works projects shall not be conducted as an emergency/disaster response activity.

4.    No spoils resulting from grading or excavation activities shall be deliberately deposited into a wetland, stream, pond, lake or riparian area as part of an emergency/disaster response action. The only exception is for the construction of a fire line during a wildfire, where avoiding the aquatic area or its buffer zone has been considered and determined to not be possible without further jeopardizing life or property.