New River Gorge GMP Update; Lawsuit Challenges Proposed Land Development, WV

National Park Service (NPS) continues its General Management Plan (GMP) process for West Virginias New River Gorge National River. The GMP is the foundation for decision making in the park for the next fifteen to twenty years. The purpose of the GMP is to ensure that the park has a clearly defined management direction for resource conservation and visitor use that will affect climbing and camping opportunities. While many climbing specific issues were dealt with in a recent climbing management plan (http://www.nps.gov/archive/neri/cmp/index.htm), this GMP could override any decisions in the climbing plan as well as provide for trails and much needed camping for climbers.

In November the NPS held a series of public meetings that were attended by representatives from the New River Alliance of Climbers www.newriverclimbing.net/, the National Parks Conservation Association, and the Plateau Action Network who is challenging a local zoning decision to allow a luxury home development on the rim of the gorge that would significantly alter the unique viewshed forever. For more information or to get involved in the GMP process at the New River Gorge, see http://parkplanning.nps.gov/projectHome.cfm?parkID=259&projectId=11040.

The controversial housing proposal planned for the rim of the New River Gorge has seen a number of recent legal developments. The Plateau Action Network (PAN) is a coalition of local interests including the New River Alliance of Climbers. From the beginning PAN supported a reasonable version of the development proposal that did not impact the world class view of the Gorge. PAN believes that a high a quality residential development adjacent to the New River Gorge can proceed in a way that also protects the valuable resources of the park including the distinctive viewshed. The NPS agrees with this position, expressing significant concern that this development should be planned in a way that enhances the local economy but doesnt diminish the asset that keeps people coming back to the region. See www.hintonnews.net/state/060605-shns-nrg.html or listen to a recent NPR story at www.npr.org/templates/story/story.php?storyId=5498888 to get more background. The boating community has also been concerned with this potential change to the scenery at the New River Gorge http://www.americanwhitewater.org/archive/article/1281/.

Although developers tell the public that no houses would be visible from any ground level point in the park, a sophisticated, computer generated viewshed analysis produced by the NPS shows that nearly 80 home sites would be visible along the rim of the gorge. In addition, the countys decision whether to allow this development proposal will likely set a president for at least two other development proposals which could amount to as many as 1,800 new homes. Consideration of these long term effects is the substance of PANs legal appeals which challenge the decision of a local zoning officer who ruled that the local development code contained no provisions to consider viewshed despite clear language which states that outstanding views may be taken into account in zoning decisions. The zoning officer also declared that the public would have to pay the developer if any building plans were prohibited by the county, even though existing state law contradicts this position. Accordingly, last summer PAN joined forces with other organizations including the National Parks and Conservation Association (NPCA) and brought an unsuccessful appeal to a zoning board despite an admission of oversight in interpreting the development code state compensation requirements for county zoning rejections. Nonetheless, the county zoning board affirmed the decision to approve the development proposal.

Legal gyrations continued into the fall when PAN and NPCA considered an appeal the Circuit Court of Fayette County in their continuing quest to preserve the New River Gorge viewshed. Hoping to prevent this public appeal, the developer threatened to sue PAN (and some of its individual members) for tortuous interference, a legal action that some believe to be a SLAPP suit (Strategic Lawsuit Against Public Participation). SLAPP suits can cause a chilling affect on the right of individuals to participate in the public process. To win this tortuous interference lawsuit, the developer would have to show that PAN was acting with malice; most SLAPPs are ultimately unsuccessful, but nonetheless they are often threatened because they can intimidate potential plaintiffs into withdrawing their otherwise constitutional right to petition the government for redress of grievances.

In late October PAN agreed to withdraw its appeal after the Fayette County Commission unanimously approved a resolution that responded to many of PANs concerns about how the county considers future development along the New River Gorge. The resolution indicates the need to work closely with public land managers to ensure that developments moving forward protect our public lands, are compatible with park values, and reinforces the need to protect scenic views that lure thousands of visitors annually to New River Gorge. Furthermore, the resolution also recognized the need to follow the states process for public engagement in planning decisions for development surrounding the New. It's not too late for the [land development company] to be good neighbors, and remove these controversial lots from the parks viewshed, said Joy Oakes, Senior Regional Director of the National Parks Conservation Association. The ball is in their court. For more information on this increasingly complicated legal process that could affect the experiences of climbers at the New River Gorge, see www.plateauactionnetwork.org/.