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Pine Beach Riprap Approval Stands
We have a regrettable update to the story of our long battle over the massive riprap revetment installed at Pine Beach in Tillamook County. The county, responding to our partially successful earlier appeal, issued new findings on May 22. Attorneys for both Oregon Shores and Surfrider, our co-appellants, have studied the county’s claims and advise us that, however much we may deplore the decision, there is essentially no chance that the Land Use Board of Appeals would find in our favor again—the county has jumped through the necessary hoops. Sadly, there does not appear to be anything further we can do to oppose a development that, even if technically allowable, undermines Oregon’s land use protections for our public beaches.
The case is notorious because the landowners went ahead and installed the wall of riprap even though the county’s initial approval was being appealed by Oregon Shores and Surfrider to the Land Use Board of Appeals (LUBA). The decision was indeed “remanded” back to the county, on the grounds that there was insufficient justification for an exception to Goal 18 of the statewide land use planning goals, which prohibits shoreline armoring of lots that were undeveloped by 1977.
At a public hearing on March 14, the Tillamook commissioners again granted approval for the riprap, directing the county staff to come up with new “findings” that would justify their decision. We awaited the county’s official findings, to see how they would address the lack of justification LUBA found the first time around. Now that we have seen them, it appears that the county justified its reasoning in a manner that LUBA, which defers to local jurisdictions on matters of judgment where there isn’t a clear violation of land use law, would accept. An appeal would be fruitless, and simply waste time and resources better directed elsewhere.
To fill in some history: In late 2021, Oregon Shores, represented by the Crag Law Center and joined by Surfrider, appealed the decision by Tillamook County allowing a major shoreline armoring project to take place through an “exception” to statewide land use law. See here for more on this.
The Land Use Board of Appeals (LUBA) announced its decision Sept. 30 of last year. The results were 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). This meant that the landowners who riprapped the shore did not have a valid permit for this. What is more, LUBA rejected most of the county’s arguments for allowing the “exception.” We could say legitimately enough 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. The recent county decision answered the remand by approving the project again, despite testimony from Oregon Shores and neighbors opposed to the project. 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, which we continue to consider dead wrong. However, in the new findings Tillamook County uses language that will technically pass muster with LUBA.
There is a potentially alarming precedent being set here. 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 assert 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 the first time around–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 contended 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. Given the hole that Tillamook County found in the land use protections for our beaches, we will turn our sites toward more fundamental reform.