Cultural Resources – Local Land Use Regulation
Summer 2008
Ellen Hawes Grover1
Outlook, Oregon State Bar Environmental & Natural
Resources Section
Introduction
Local land use regulation of cultural resources is
most often within the purview of Statewide Planning Goal 5
(Natural Resources, Scenic and Historic Areas, and Open
Spaces).2 Goal 5 has been called by some “the
kitchen sink”—meaning any resource that no one knew
quite what to do with went under the purview of Goal 5. Indeed,
Goal 5 attempts to deal with a very diverse set of resources
(e.g., riparian areas, fish habitat, wildlife habitat, scenic
rivers and sites, natural areas, and cultural and historic
resources) and does so through, primarily, procedural/planning
means. The result of local planning procedures and requirements
can impose mandatory obligations on a land use applicant that
may impact its ability to get permits and/or could result in
local land use enforcement, in addition to state and federal
enforcement of cultural resource protection standards.
Cultural Resources Defined
Taken alone, cultural and historic resources can
include a very diverse set of resources. For example, the
cultural resource managers of the Confederated Tribes of the
Warm Springs Reservation of Oregon (“CTWS”)
consider cultural resources to include prehistorical,
historical and traditional sites, both below and above ground.
These can include (among many others) buried lithic scatters or
human remains, pioneer or native trails, ceremonial sites,
traditional food hunting, gathering or fishing sites and
resources, and pioneer or native settlements. At bottom,
cultural and historic resources deal with human societies. The
Statewide Planning Goals define “historic
resources” as “those districts, sites, buildings,
structures, and artifacts which have a relationship to events
or conditions of the human past.”3 The definition is
sufficiently broad to identify that Goal 5’s management
direction related to wildlife and fish habitat, riparian
corridors, scenic waterways, open space and natural areas also
in large respects includes cultural and historic resource
management.
For example, Goal 5 provides a tool, in addition to other federal and state authorities, through which tribes may participate and provide expertise to help preserve their unique culture, history and traditions and also to help protect their ability to exercise reserved federal rights. Designated wildlife habitat, for example in Jefferson County, helps to protect necessary habitat and forage needed to sustain culturally significant deer herds that migrate across tribal, federal, state, county, and private ownerships and jurisdictions. Without this tool, these herds would quickly diminish and it would be difficult for the CTWS to exercise any reserved treaty rights on federal lands (or on the reservation) to hunt these species.
Goal 5 Direct Treatment of Historic Resources
The more mainstream conception of “cultural
resources” management is Goal 5’s direct treatment
of it. Goal 5 and its implementing regulations require local
jurisdictions to inventory “cultural areas” and
encourage them to maintain current inventories of
“historic resources.”4 “Cultural areas”
is not defined, but it appears to be a subset of the fairly
broadly defined “historic resources.”5
Local Designation of Significant Historic Resources
Local governments are required to
“designate”—formally adopt as a land use
regulation—“significant” historic
resources.6 The determination of significance is to
be guided largely by the National Register Criteria for
Evaluation (meaning resources that are eligible to be listed on
the National Register) and any locally developed
criteria.7 The National Register Criteria for Evaluation
are worded purposefully in a manner to provide for a wide
diversity of resources. Local designation is entirely voluntary
on the part of the land owner.8 A land owner may opt out of
initial designation or request removal from the designation.9
Jurisdictions are also encouraged to adopt historic
preservation regulations regarding the demolition, removal, or
major exterior alteration of all locally
“designated” resources in that jurisdiction.10 It
is encouraged for these regulations to be consistent with
Department of Interior’s Standards and Guidelines for
Archeology and Historic Preservation.11 These standards provide
guidance for organizing into a logical sequence, preservation
information pertaining to the identification, evaluation,
registration and treatment of historic properties, and set
priorities for accomplishing preservation activities.
Protection of Historic Resources of Statewide
Significance
A mandatory obligation is for local jurisdictions to
“protect” all historic resources of
“statewide” significance through local historic
protection regulations regardless of whether they are
“designated” in local regulations.12 These are
resources that are actually listed—rather than just
eligible to be listed—in the National Register of
Historic Places or within national historic districts under the
National Historic Preservation Act. Actual designation under
these federal lists is also largely voluntary.
“Protect” means only that the local jurisdiction
must review applications for demolition, removal or major
exterior alteration of a historic resource.13
Authorization for Historic Resource Programs
At bottom, the mandatory Goal 5 regulatory obligations
are fairly minimal; however, Goal 5 provides authorization for
adoption of comprehensive historic preservation planning
programs. These can focus regulations on the preservation of
specific designated resources. Another approach is to adopt
ordinances whose provisions are triggered by proposed uses
within high probability areas for archeological resources
(i.e., those below ground) that may not yet be designated.
Although Goal 5 considers both above- and below-ground
designated resources together as historic resources, many
jurisdictions address above-ground resources and belowground
resources in separate code provisions. That is, in part,
because many archeological resources are not yet discovered or
designated and because there are non-Goal 5-oriented state and
federal provisions that can be codified into local law
that deal with archeological resources.
For example, the City of Hood River, Jefferson County, Multnomah County and the City of Portland have Historic Preservation/Historic Resource overlay zones that focus on protecting “designated” resources through various review, mitigation and design methods. These are clear Goal 5 ordinances, and the majority of the resources designated are aboveground.
The City of Portland, Multnomah County and Hood River County have recognized that the Columbia River area was traditionally and still is used by Native Americans for subsistence, ceremonial, religious, commercial and cultural purposes. There is, therefore, a threat that ground disturbing activities may adversely impact significant archeological historic resources. Multnomah County and Hood River County have adopted local provisions that pertain to those portions of the counties that are within the Columbia River National Scenic Area and that are required under the Columbia River Gorge National Scenic Act. These require, among other things, coordination with interested Indian tribes, historic and/or reconnaissance surveys, and avoidance and/or mitigation of impacts.14 These code provisions also include protocols when archeological resources are discovered after construction has begun.15 The City of Portland’s Columbia South Shore Plan District contains similar provisions.16 All of these programs, too, appear to be Goal 5 programs, since OAR 660-023-0200(3) and (7) provide for the creation of programs to manage and/or protect historic resources, whether the historic resources are designated in the local plan or not.
In addition to the stated purposes of the archeological resource-focused ordinances, a benefit of these provisions is to assist land owners or developers from violating state law which prohibits the excavation, injury, destruction, or alteration of archeological sites or objects unless authorized by a state permit under ORS 390.235.17 For example, while Jefferson County has opted not to identify high probability areas and require pre-disturbance surveys, it has codified some of these state prohibitions/requirements into local law.18 Because the provision is not tied to an identified resource site or district, it is unclear whether this would be considered a Goal 5 program (compare OAR 660-023-0050(1) (for each resource site, local governments shall adopt comprehensive plan provisions and land use regulations) with OAR 660-023-0200(2) (addressing the need for local governments to enact local provisions in order to provide new or amended programs regarding historic resources, which need not be specifically designated or identified in advance)). Violation of local ordinance provisions can include enjoining further action, local damage assessments, or removal of development among others.19
In summary, all of the above local code provision examples appear to be Goal 5 programs. Accordingly, to the extent a practitioner seeks to modify or propose cultural resource regulations, one must carefully review the Goal 5 rule to determine the process required for any such amendment. Under fairly recent case law, it appears that most such modifications will be exempt from conducting the rather significant requirement to conduct an Environmental, Social, Economic, and Energy (ESEE) analysis.20 In any event, however, all of the above local code provisions also may impact the scope and nature of the land use entitlement sought through a land use permit and they provide yet another avenue for enforcement action on the local level for any violations of the same.
Endnotes
1 Ellen is a partner with Karnopp Petersen LLP.
She represents the Confederated Tribes of
the Warm Springs Reservation of Oregon
on energy, natural resource and land use
matters.
2 OAR 660-015-0000(5).
3 Oregon Statewide Planning Goals &
Guidelines, Definitions; see also OAR 660-
023-0200(1)(c).
4 OAR 660-015-0000(5); OAR 660-023-0200.
5 Id.
6 OAR 660-023-0200(5).
7 OAR 660-023-0200(4).
8 OAR 660-023-0200(5).
9 OAR 660-023-0200(6).
10 OAR 660-023-0200(7).
11 Id.
12 OAR 660-023-0200(8).
13 OAR 660-023-0200(1)(d),(e).
14 See Multnomah County Code, Chapter
38.7045 and .7050; Hood River County
Zoning Ordinance Article 75, Section 540.
15 Id.
16 See Portland City Code, Chapter 33.515.
17 See ORS 358.905 et seq.
18 See Jefferson County Zoning Ordinance
(“JCZO”), Section 429.
19 See e.g., JCZO, Section 1002.
20 NWDA v. City of Portland, 50 Or LUBA 310
(2005); OAR 660-023-0200(7).