Kimbrell v. City of Lincoln City

Under LCC 14.47.020(D), the required setback from a coastal bluff must be determined before any excavation or grading activities associated with the construction of a single-family dwelling take place.

Petitioner appeals a city council decision approving a geological analysis and establishing the required setback for a single-family residence in an identified coastal high hazard area zoned Single Family Zone R-1-5. The dwelling is proposed to include a daylight basement and cantilevered deck, requiring 10 feet of excavation on the existing bluff prior to construction.

Under Lincoln City Code (LCC) 17.47.020(D), the footprint of any new structure or any horizontal addition requiring at least one footing in ocean bluff areas must be set back from the bluff a distance of at least 60 times the annual erosion rate (determined by the geological analysis) plus five feet. When performing the required geological analysis, intervenor’s expert proposed siting the dwelling based on the setback that would be required after the 10-foot excavation, which allowed it to be located closer to the ocean. When determining the location of the setback line from the bluff, the city determined there was nothing in the LCC that prohibits alteration of the bluff prior to establishing the applicable edge of the bluff.

In the first assignment of error, petitioner argues that the City erred in finding that the bluff edge could be determined by the post-excavation elevation. Sustaining the assignment of error, LUBA holds that to determine the bluff edge location based on the hypothetical excavation of the bluff for the purposes of the proposed project is inconsistent with the express language of LCC 17.47.020(D), which requires identification of the bluff edge by reviewing documents reflecting existing conditions. LUBA also concludes that the city’s interpretation is inconsistent with the broader context of the LCC because (1) LCC 17.47.020(A) identifies a limited list of exceptions from the setback requirement, not including the kind of excavation proposed by intervenor; (2) LCC 17.47.020(D), while allowing grading without a setback, does not support the conclusion that such grading may be severed from the construction of a dwelling for setback purposes; (3) LCC 17.47.020(B) requires that the geological analysis reflect “current conditions” and include materials which support the interpretation that the bluff edge must be determined based upon existing conditions; and (4) LCC 17.47.020(D) only allows the city to determine the bluff edge based on the geological analysis if it is unable to do so on its own. The city’s decision is REMANDED.