Chapman Point Homeowners Ass'n v. City of Cannon Beach

• Decision Date: 02 March 2021
• Docket Number: LUBA No. 2020-044,LUBA No. 2020-043
• Parties: CHAPMAN POINT HOMEOWNERS ASSOCIATION and BREAKERS POINT HOMEOWNERS ASSOCIATION, Petitioners, v. CITY OF CANNON BEACH, Respondent, and OREGON COAST ALLIANCE, Intervenor-Respondent.
• Court: Oregon Land Use Board of Appeals

CHAPMAN POINT HOMEOWNERS ASSOCIATIONand BREAKERS POINT HOMEOWNERS ASSOCIATION, Petitioners, v. CITY OF CANNON BEACH, Respondent,andOREGON COAST ALLIANCE, Intervenor-Respondent.

LUBA No. 2020-043

LUBA No. 2020-044

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

March 2, 2021

FINAL OPINION AND ORDER

Appeal from City of Cannon Beach.

Timothy V. Ramis and Allison J. Reynolds filed the joint petition for review and joint reply briefs. Also on the brief were Jordan Ramis PC and Stoel Rives LLP. James D. Howsley argued on behalf of petitioner Breakers Point Homeowners Association.

William K. Kabeiseman filed a response brief and argued on behalf of respondent. Also on the brief was Bateman Seidel Miner Blomgren Chellis & Gram, P.C.

Sean Malone filed a response brief and argued on behalf of intervenor-respondent.

ZAMUDIO, Board Member; RUDD, Board Chair; RYAN, Board Member, participated in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.Opinion by Zamudio.

NATURE OF THE DECISION

Petitioners challenge city council ordinances amending the city's comprehensive plan and municipal code to update and implement the city's Foredune Management Plan (collectively, 2020 FMP).

BACKGROUND

The ordinances that implement the challenged 2020 FMP are post-acknowledgement plan amendments and, therefore, are subject to compliance with applicable statewide planning goals. Of particular relevance is Statewide Planning Goal 18 (Beaches and Dunes), which is:

"To conserve, protect, where appropriate develop, and where appropriate restore the resources and benefits of coastal beach and dune areas; and

"To reduce the hazard to human life and property from natural or man-induced actions associated with these areas.

"Coastal comprehensive plans and implementing actions shall provide for diverse and appropriate use of beach and dune areas consistent with their ecological, recreational, aesthetic, water resource, and economic values, and consistent with the natural limitations of beaches, dunes, and dune vegetation for development."

Under Goal 18, local governments are required to inventory beach and dune areas and "describe the stability, movement, groundwater resource, hazards and values of the beach and dune areas in sufficient detail to establish a sound basis for planning and management." Based on those inventories, a localgovernment must establish policies and uses for beach and dune areas consistent with Goal 18.

The Statewide Planning Goals and Guidelines provide the following definitions of "dune" and "active foredune":

"DUNE. A hill or ridge of sand built up by the wind along sandy coasts.

"* * * * *

"FOREDUNE, ACTIVE. An unstable barrier ridge of sand paralleling the beach and subject to wind erosion, water erosion, and growth from new sand deposits. Active foredunes may include areas with beach grass, and occur in sand spits and at river mouths as well as elsewhere." (Boldface in original.)

A city may allow grading or sand movement to maintain views or to protect structures from sand inundation if the city adopts a foredune grading management plan for an area within an acknowledged urban growth boundary. However, Goal 18 does not require a city to allow such grading. Goal 18, Implementation Requirement 7.¹ Dune grading generally involves using a bulldozer to move dunesand seaward and deposit the sand along the seaward face of the foredune. Weather, waves, and wind move the exposed, seaward sand. Record 48.

Goal 18, Guideline H, provides:

"Plans which allow foredune grading should be based on clear consideration of the fragility and ever-changing nature of the foredune and its importance for protection from flooding and erosion. Foredune grading needs to be planned for on an area-wide basis because the geologic processes of flooding, erosion, sand movement, wind patterns, and littoral drift affect entire stretches of shoreline. Dune grading cannot be carried out effectively on a lot-by-lot basis because of these areawide processes and the off-site effects of changes to the dunes."

Under the former FMP, the foredunes in the city were divided into several foredune "management units." Record 44. The former FMP allowed grading to (1) protect structures from sand inundation, (2) maintain beach access, and (3) preserve residential ocean views (grading for views). Record 44-45.

In 2016, the city began the process of updating its FMP. The city contracted with Dr. Jonathan Allan of the Oregon Department of Geology and Mineral Industries. In 2018, Allan produced a report titled Beach and Shoreline Dynamics in the Cannon Beach Littoral Cell: Implications for Dune Management (the Allan Report).² In 2017 and 2018, the planning commission held a number of work sessions and public hearings on the FMP update process. Record 17. On November 20, 2018, the planning commission recommended that the city council adopt the updated FMP and the Allan Report as appendices to the Cannon Beach Comprehensive Plan (CBCP), as well as amendments to the CBCP and the Cannon Beach Municipal Code (CBMC) to implement the updated FMP. Record82. The city council held five public hearings in 2019 and 2020 and, on April 6, 2020, approved the 2020 FMP.

The Allan Report explains the city's motivation to update its FMP:

"In response to considerable sand buildup north of Ecola Creek, the City of Cannon Beach initiated a process to evaluate their existing dune management plan on the basis of updated scientific information on physical processes and coastal geomorphology occurring along the Cannon Beach littoral cell. The overarching objective is to use the updated information to help establish new guidelines for the relocation of excess sand that periodically builds up along the coastline. This sand buildup within the dune is presently affecting the views of local residents, while sand blowing inland has become a nuisance, migrating where it has begun to inundate buildings and properties." Record 1013.

The city found:

"The City Council chose to look beyond the 'management unit' system that had broken down the City's beaches into smaller management unit areas and, instead, approach the entire Cannon Beach Littoral Cell as a single management area that works as one dynamic system." Record 12.

Importantly for these appeals, the 2020 FMP significantly limits dune grading, eliminates grading for views, and does not recognize any "vested" or "grandfathered" right to grade, including grading for views. Record 44. The 2020 FMP allows three types of grading: remedial, preservation, and emergency/access. "'Remedial grading' refers to the clearing of sand necessary to maintain the function of a structure * * * or any public facility, utility or infrastructure." Record 45. Remedial grading requires an approved administrative development permit. Preservation grading allows repairs of duneerosion and maintenance of facilities, including public beach accesses. Preservation grading requires an approved conditional use permit (CUP), prohibits removing sand from the beach-foredune system, and limits grading under each CUP to an annual cumulative volume that does not exceed 2,500 cubic yards. Record 29-30.

Emergency/access grading allows for dune grading when "structures, facilities, utilities, public Rights of Way, or infrastructure is inundated or access compromised." Record 47. In those instances, a public or private entity may move the sand and apply for the required development permit after the emergency situation is mitigated. Id.

The 2020 FMP requires that areas disturbed by grading or other sand removal be planted with beach grass. The 2020 FMP identifies three beach grass species. European beach grass (EBG) is a non-native species that was first introduced to the west coast in the late 1800s as a sand stabilizer. Oregon beach grass (OBG) is native to the Pacific Northwest and American beach grass (ABG) is non-native from the East Coast. Record 48 n 7. EBG outcompetes native beach plants. "As a result, the Oregon and Washington coastlines are now largely lacking intact native foredune plant communities." Record 830. EBG is currently prevalent throughout the dunes in the city, and has been for decades. EBG has a dense, vertical growth form that has a high rate of sand capture that results in tall and narrow dunes. In contrast, OBG and ABG have less dense, horizontal growthforms that result in less sand capture and the formation of shorter and wider dunes. Record 49.

The Allan Report recommended not using EBG to stabilize dunes because the higher dunes that result from EBG affect ocean views from shorefront homes. Record 1014. The city chose not to follow that recommendation and explained in the 2020 FMP that OBG has a lower transplant survival rate than EBG and dies back in the winter. Record 50. Revegetation projects aim for a very high transplant survival rate of approximately 98%. Thus, the 2020 FMP allows replanting with a combination of EBG, ABG, and OBG, or another revegetation plan approved by the planning commission. Record 30.

Petitioners are two homeowners associations for residences within the city's Northside area, which is the area of the city north of Ecola Creek. Ecola Creek moves north and then curves west and south into an estuary that meets the ocean. Les Shirley Park is a public park situated along the north bank of Ecola Creek and adjacent to Northside residential areas. The Northside area includes Chapman Point, which the CBCP recognizes "as an important scenic and natural area of Cannon Beach." CBCP Northside Policy 2.

Petitioners wish to maintain the historical practice of grading for views and depositing sand removed from the dunes along the north bank of Ecola Creek. As explained further below, petitioners' challenge to the 2020 FMP reduces to an argument that the city should have allowed grading for views as a foredune management practice in the 2020 FMP. Petitioners argue that the 2020 FMP willresult...