Decision Handed Down in Riprap Case

November 11, 2021

Last November, Oregon Shores appealed a decision by Tillamook County allowing a major shoreline armoring project to take place through an “exception” to statewide land use law.  Surfrider Foundation joined us in the appeal. The case has become notorious, not only because the county's action threatens our ability to protect our public beaches through land use regulation, but because the landowners plunged ahead and riprapped the shore, drastically altering it, while the decision was still under appeal. See here for more on this.

The Land Use Board of Appeals (LUBA) announced its decision Sept. 30. The results are mixed.  We could declare victory, as LUBA determined that the county's decision wasn't justified and "remanded" the case to the county (meaning that the county's approval of the riprap permit was flawed and would have to be reconsidered). As of now, the landowners who riprapped the shore do not have a valid permit for this. What is more, LUBA rejected most of the county's arguments for allowing the "exception." We can say that we won a battle.

However, LUBA ruled in favor of the county and the landowners on a key point: Despite rejecting all but one of the county's "catch-all" grounds for the exception, LUBA held that it would be possible to grant an exception due to "unique circumstances," those circumstances being erosion created by the existence of two century-old jetties and El Nino/La Nina events. 

The decision was remanded because the county applied it to vacant properties in the stretch that was armored, not just those with threatened structures. Given that the riprap revetment encloses all 15 properties that were part of the original proposal, and the landowners integrated the vacant properties in their argument for an exception, it will be interesting to see how Tillamook County attempts to redress this issue.

Nevertheless, a great deal of mischief could be done in the name of "unique circumstances," since there are specific causes of local erosion up and down the coast.  This could undermine the purpose of Goal 18, which protects beaches and dunes. We are currently weighing our legal options, while waiting to see whether the "respondents" (the landowners) and the county choose to appeal the remand, and assuming that the county will take up the issue again on reconsideration and seek to find a way to justify riprapping vacant lots that should not be eligible for shoreline armoring at all.

Some history: The county’s Board of Commissioners approved development of an 880-foot-long “beachfront protection structure” (a riprap revetment) on an active foredune in the Pine Beach area (north of Camp Magruder and south of Rockaway Beach).  Attorney Anu Sawkar of the non-profit Crag Law Center, our partner in the Coastal Law Project, represented us and Surfrider together in the case.  There was a long delay, as the county was very slow to provide the complete official record justifying its decision.  But the record was finally "settled," both sides filed their briefs, and on Aug. 23, LUBA heard oral arguments. 

We asserted that the property owners did not demonstrate that their properties are eligible for shoreline armoring under Goal 18 of Oregon’s land use planning laws, which protects beaches and dunes. Only properties developed by Jan. 1, 1977 are eligible. We won on this point--LUBA found that none of the properties was eligible for riprap without a special exception.The Tillamook County Board of Commissioners approved such an “exception” to the state requirement at the behest of the property owners.

Goal 18 exists to preserve our public beaches, and access up and down the shoreline.  It also protects the natural character of dunes and bluffs.  Riprap and other types of shoreline hardening damage the public beach, and can eventually lead to the loss of the beach and to blocking public access along the beach, as artificial riprap peninsulas constrict the beach at higher tides (and at progressively lower tides, as sea level rise advances). Goal 18 was established to provide clear notice to developers that shoreline armoring wouldn’t be allowed, so that the Oregon coast wouldn’t turn into a wall of riprap.  A riprap revetment or other form of shoreline hardening, projecting onto the public shoreline, is in effect a private taking of land belonging to the public, without compensation.  Allowing an ‘exception’ like this completely undermines the purpose of the law.

Oregon Shores and Surfrider contend that the Tillamook County commissioners wrongly determined that impacts from the project, including the loss of dune habitat and loss of beach access, would not negatively impact the public or the coastal ecosystem, despite evidence to the contrary. The beach that will be impacted by the project is an important recreational area, serving surfers, beachgoers and thousands of campers annually from adjacent Camp Magruder as well as the Barview Jetty Campground. “Unfortunately, the County chose to support the interests of a handful of property owners over a statewide policy that protects Oregon’s beaches and dunes for everyone”, says Charlie Plybon, Oregon Policy Manager for Surfrider Foundation.

LUBA’s ruling in favor of the county regarding “unique circumstances” raises concerns, since erosion due to El Nino/La Nina events or existing jetties is not particularly unique.

This appeal is an important test for the statewide goal exception process as it pertains to shoreline stabilization approvals. The applicant is essentially asking Oregon to make an exception to state law protecting public beaches to allow for the taking of public property to protect private property. Coastal property owners and developers all along the Oregon coast who developed their properties knowing that shoreline armoring would not be allowed on their property will be watching this case and will be eager to apply for their own Goal 18 exceptions should the County approval stand. 

While Goal 18 grandfathered in structures that existed when it was passed, it was intended to conserve the public trust in Oregon’s shoreline by prohibiting the spread of armored shorelines. The beachfront houses for which the exception is being sought were built on vulnerable lands, in full knowledge that they were not eligible for riprap.  

Oregon Shores has long argued that Oregon needs a statewide policy addressing sea level rise and its effects on the shoreline, rather than the current piecemeal approach. Beyond countering the threat to public beaches and Statewide Planning Goal 18 that the Pine Beach case presents, the appellants hope that the case may also be a catalyst for a more holistic approach at the state level.