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The past 20 years of El Nino and La Nina storm cycles have transformed the ocean-to-land intersection across much of Oregon from a densely vegetated, forested beach to a dry, sandy beach that is closer to existing homes and the infrastructure that serves them. The solution for owners of 15 oceanfront lots near Rockaway Beach, as it is for most oceanfront lot owners, was to build an integrated revetment, known as a beachfront protective structure (BPS), for protection. Eleven of the 15 lots are developed with homes. Of the four remaining, two are located within an established subdivision with homes on either side and two abut in an undeveloped tract.

Adverse effects of a BPS include beach narrowing and accelerated beach erosion in other areas.聽 As such, all beachfront land is protected by local regulations that implement Statewide Planning Goal 18 (beaches and dunes). Development of a BPS is allowed under Goal 18 only 鈥渨here development existed on Jan. 1, 1977鈥� or subject to an exception and in compliance with certain criteria. Tillamook County approved the owners鈥� request, finding that the two properties located outside of the subdivision did not require an exception. An exception for the lots within the subdivision was granted, including, in the alternative, an exception for those within the tract, if it were required.

The Oregon Coast Alliance, Oregon Shores Conservation Coalition, Surfrider Foundation as well the Department of Land Conservation and Development (DLCD) all joined to challenge the county鈥檚 decision. The Oregon Land Use Board of Appeals鈥� (LUBA) resolution of this case, Oregon Coast Alliance v. Tillamook County, is not simply instructive for the few owners of oceanfront property but also informative of preemptive climate change efforts versus natural resource protection more broadly.

First, LUBA rejected the county鈥檚 finding that the vacant lots did not require a goal exception under a claim that they were 鈥渄eveloped鈥� before Jan. 1, 1977. Under Goal 18, 鈥渄evelopment鈥� includes either buildings or 鈥渓ots which are physically improved through construction of street and provision of utilities.鈥� The physical improvements required to avoid an exception included the 鈥減rovision of utilities to the lot鈥� as of Jan. 1, 1977, and not simply the feasibility of obtaining utility service in the future.

The exceptions process, which allows for non-application of a goal that otherwise must be applied, is set forth in Goal 2. Of the three types of exceptions, the 鈥渞easons鈥� exception 鈥� requiring the provision of reasons 鈥渨hy the state policy embodied in the applicable goals should not apply鈥� 鈥� is used most extensively. A 鈥渞easons鈥� exception acts like a political and social safety valve to deal with special cases known as the 鈥渃atch-all鈥� provision. Another recognized reason for an exception is 鈥渄emonstrated need.鈥�

The county鈥檚 approval was grounded under both the 鈥渃atch-all鈥� and 鈥渄emonstrated need鈥� reasons. The unique exception circumstances identified by the county included: 1, residential development on these lands complied with residential zoning designation and setback from the statutory vegetation line and 2, two manmade jetties that are so close together that storms create unique and unprecedented impact unlike anywhere else on the Oregon coast. DLCD argued and LUBA agreed that zoning regulation that allows development notwithstanding hazard risk is not a unique circumstance. Simply because the rule contemplates an exception for pre-1977 development does not establish that Goal 18 identifies areas that are safe for development or entitled to protection. Rather, only the distinctive erosion patterns could suffice.

Petitioners challenged the county鈥檚 finding that change in erosion patterns caused by two immense storms, coupled with the presence of two closely placed jetties, were unique circumstances. Rather, wave run-up and erosion of this type is no different than what is occurring anywhere on the Oregon coast. Finding the petitioners鈥� evidence too general to undermine the owners鈥� evidence of unique circumstances, the jetty locations created 鈥渉azard to human life and property鈥� 鈥� the purpose for Goal 18. LUBA affirmed the county鈥檚 approach with respect to those lots containing homes. However, the same hazardous impact rationale could not justify the protection on vacant lots and remand was necessary for further explanation of the 鈥渆xceptional鈥� circumstances justifying an exception.

The alternative to the 鈥渃atch-all鈥� exception 鈥� a 鈥渄emonstrated need鈥� exception 鈥� is available where it is necessary to serve other goals. In this case, the county identified Goals 7 (natural hazards), 10 (housing), 11 (public facilities and services), and 14 (urbanization), in addition to Goal 18, that would not be satisfied without this exception. First, LUBA explained that Goals 7 and 11 do not include any express mandate requiring installation of hazard mitigation measures for residences or public facilities. LUBA was similarly critical of the county鈥檚 finding that the loss of 15 dwelling units, or 5 percent of the needed housing supply, was in violation of Goals 10 and 14. Simply because certain planning decisions are 鈥渃onsistent with Goals 10 and 14鈥� does not also mean that the 鈥渓oss of the subject properties for residential use will result in failure to comply with Goals 10 and 14.鈥� Finally, LUBA acknowledged the competing objectives between the protection of property and the protection of beaches 鈥� most notably, 鈥淕oal 18 does not require that property be protected.鈥� Without some other goal-driven mandate, no 鈥渄emonstrated need鈥� exception was justified.

In summary, the only portion of the county鈥檚 decision that LUBA affirmed was the 鈥渃atch-all鈥� exception for the developed lots. Assuming the lack of risk to property and life on vacant lots cannot justify a Goal 18 exception for a BPS, it is unclear how installation of a BPS on a house-by-house basis, without including interspersed vacant lots, would function. Storms and their erosive effects do not respect property boundaries. Another lesson is that the need to identify exceptional circumstances for taking a reasons exception remains strong. Recent trends favoring housing or climate change mitigation efforts without some unique circumstances cannot outweigh the protection of natural resource goals identified by Goal 18 and presumably other natural resource goals as well.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.