Chapman Point Homeowners Association v. City of Cannon Beach

Under the city’s former Foredune Management Plan (FMP), dune grading was allowed to protect structures from sand inundation, maintain beach access, and preserve residential ocean views. The city council amended its FMP to prohibit grading for views. The amended FMP continued to allow grading to maintain access and protect structures from inundation. This appeal followed.

Under Statewide Planning Goal 18 (Beaches and Dunes), Implementation Requirement 1, local governments must base decisions in beach and dune areas on findings addressing the adverse effects of the proposed “use” or “development” and measures to protect the surrounding area from those effects. Petitioners argued that the city council’s findings failed to address those items with respect to the prohibition on grading for views. Because prohibiting grading for views is neither a “use” nor “development,” LUBA concluded that additional findings were not required. In addition, while Goal 18, Guideline H, provides that comprehensive plans should address sand “deposition which could adversely affect surrounding properties,” because the guidelines accompanying the goals are advisory only and do not contain mandatory approval criteria, that provision provided no basis for reversal or remand.

Statewide Planning Goal 17 (Coastal Shorelands) is, in part, to “reduce * * * adverse effects upon * * * wildlife habitat.” The amended FMP continued to allow the planting of European Beach Grass (EBG) to stabilize dunes. Because EBG is an invasive species which can create a monoculture that is unsuitable habitat, petitioners argued that the amended FMP violated Goal 17. Because EBG had existed in the city for 70 years and was already allowed and prevalent in the city’s dunes, LUBA concluded that the amended FMP would not itself create a monoculture and that Goal 17 therefore provided no basis for reversal or remand.

Under Cannon Beach Municipal Code (CBMC) 17.42.060(A)(8), which implements Goal 18, Guideline E, certain developments are required to provide public beach access. Petitioners, who were homeowners associations, were required to provide such beach accesses. Under Cannon Beach Comprehensive Plan (CBCP) Recreation, Open Space, Natural, Visual, and Historic Resource Policy 1, the city is required to “promote a recreation system for all age and interest groups.” The amended FMP required a conditional use permit (CUP) for grading to preserve beach access, and it allowed only 2,500 cubic yards of grading per CUP per year. Because maintaining their beach accesses required “tens of thousands of cubic yards” of grading per year, petitioners argued that the amended FMP was inconsistent with CBMC 17.42.060(A)(8) and CBCP Resource Policy 1. Because the entire area of the beach near petitioners’ developments accreted 15,000 cubic yards of sand each year, because each beach access was a small fraction of that area, because the amended FMP allowed 2,500 cubic yards of grading per year per beach access, and because petitioners cited no evidence to support the assertion that they would require more grading than that, LUBA concluded that petitioners did not demonstrate any inconsistency.

Historically, sand that was graded from dunes to maintain views was deposited along a creek within the city, creating a relatively level path from a city park to the beach. Petitioner argued that the amended FMP also violated CBCP Resource Policy 1 because, without grading for views, sand would no longer be deposited along the path and the path would erode away. Because the amended FMP did not prohibit the deposition of sand along the creek but, rather, prohibited the obtainment of such sand from grading for views, LUBA rejected that argument.

Under CBCP Hazards Policy 1, the city must “make reasonable efforts to protect life and property from natural disasters and hazards.” Because prohibiting grading for views allowed the city’s dunes to function in a “natural seasonally-cyclical manner,” the city council concluded that CBCP Hazards Policy 1 was satisfied. Because the presence of EBG had led to the continuous accretion of sand in certain parts of the city, and because the amended FMP continued to allow the planting of EBG to stabilize dunes, petitioners argued that the city council’s conclusion that the amended FMP would allow the city’s dunes to function in a “natural seasonally-cyclical manner” was not supported by an adequate factual base under Statewide Planning Goal 2 (Land Use Planning)—that is, substantial evidence. Because a scientific report in the record explained that wind and waves build dunes up in the summer and that stormier weather erodes them away in the winter, and that prohibiting dune grading would enable the dunes to better withstand winter storms and protect landward development from wave run-up and overtopping, LUBA concluded that the city council’s conclusion that the amended FMP was consistent with CBCP Hazards Policy 1 was supported by an adequate factual base.

Under Goal 18, Implementation Requirement 7(b), foredunes may not be graded lower than 4 feet above the 100-year flood elevation calculated by the Federal Emergency Management Agency (FEMA). To account for climate change, the amended FMP added 1 foot to this minimum after-grading height. Petitioners argued that, because that “FEMA Plus 5” standard was adequate to protect backshore property and infrastructure, the city should have allowed petitioners to grade for views above that height. Because nothing requires local governments to allow grading for views at all, LUBA concluded that petitioners’ argument provided no basis for reversal or remand.

Under CBCP Northside Policy 2, “Chapman Point is recognized as an important scenic and natural area of Cannon Beach.” The city council found that prohibiting grading for views would protect Chapman Point as a scenic and natural area. Because EBG is invasive and creates steeper, taller, and “unnatural” dunes compared to native beach grasses, and because the amended FMP continues to allow the planting of EBG to stabilize dunes, petitioners argued that the city’s conclusion that CBCP Northside Policy 2 was met was not supported by an adequate factual base. The city council interpreted “natural” to refer to the dune system in its current form, including EBG. Because that interpretation was not inconsistent with the express language of the term “natural,” LUBA affirmed it under ORS 197.829(1) and Siporen v. City of Medford. In addition, because the city council received testimony regarding the adverse impacts of dune grading on the scenic character of Chapman Point, LUBA concluded that the amended FMP was consistent with CBCP Northside Policy 2.

Under CBCP Economy Policy 3, the city’s economic development strategy focuses on the “protection and enhancement” of the “attractiveness” of its residential areas. Because prohibiting grading for views would result in lost ocean views and declining property values in residential areas, petitioners argued that the amended FMP did not comply with CBCP Economy Policy 3. The city council interpreted the phrase “the City’s economy” to include all economic interests, including tourism as well as residential property values. Because that interpretation was not inconsistent with the express language or underlying purpose of CBCP Economy Policy 3, LUBA affirmed it under ORS 197.829(1) and Siporen. The city found that graded dunes were unsightly, which negatively impacted tourism, and that dune grading exposed sand to wind carry, negatively impacting adjacent homeowners. LUBA concluded that those findings were supported by substantial evidence and that the city was entitled to balance impacts on tourism and adjacent homeowners against impacts on property values due to lost ocean views in order to conclude that the amended FMP complied with CBCP Economy Policy 3. Petitioners also argued that the erosion of sand from some parts of the city due to the accretion of sand in other parts due to EBG negatively impacted the attractiveness of the eroded parts. However, because the scientific report in the record indicated that there would be no net sand transport over the long-term, LUBA again concluded that the city council’s conclusion was supported by substantial evidence. The city’s decision was AFFIRMED.