Oregon Coast Alliance v. Tillamook County

Under OAR 660-004-0022(1), a local government it may approve a “reasons” exception upon demonstration that the subject site has specific, unique considerations that require the exception to meet a need under Goals 3 through 19.

Petitioners appealed the County’s approval of a post-acknowledgement plan amendment (PAPA) for construction of beachfront protective structures (BPS) on Applicants’ properties. Applicants sought to construct a BPS along the line of properties including both developed and vacant lots, and the PAPA sought an exception to Goal 18, Implementation Requirement (IR) 5, which restricts the construction of BPS on lots not developed by January 1, 1977. The County found that the properties were developed by January 1, 1977, and, in the alternative, that reasons justified approval of the application if the properties were later found to have not been developed by that date. On appeal to LUBA, Petitioners made several assignments of error. LUBA primarily focused on Petitioners’ claim that the County improperly found there were sufficient reasons to approve an exception under the “catch-all” provision of OAR 660-004-0022(1).

ORS 197.732(2)(c) provides that a local government may approve exceptions to Statewide Planning Goals if the proposed use meets certain standards. Under OAR 660-004-0022(1), a “reasons” exception to a Goal, not otherwise provided for in other sections, can be approved where there is “a demonstrated need for the proposed use or activity based on one or more of the requirements of Goals 3 to 19[] and . . . (b) the proposed use or activity has special features or qualities that necessitate its location on or near the proposed exception site.” As a “catch-all” providing standards for reasons exceptions outside goal-specific rules, Oregon Shores Conservation Coalition v. Coos County, __ Or. LUBA __, __ (LUBA No. 2020-002, May 4, 2021) (slip op at 23), OAR 660-004-0022(1) allows for a “demonstrated need” as one reason to justify an exception but others not mentioned may be used. Morgan v. Douglas County, 42 Or. LUBA 46, 52 (2002).

LUBA agreed with Petitioners that the County erred in finding that the approval of the subject properties for residential development and a risk of loss of property value were alone sufficient reasons to justify an exception. LUBA reasoned that the properties’ characteristics were not sufficiently unique, and, under IR 5, the property owners were on notice that BPS were not allowed on their lots under Goal 18, and that, contrary to the County’s conclusions, Goal 18 did not identify any locations that were appropriate for development and thus entitled to protection.

On the other hand, LUBA found the County’s justifications for an exception as to just the residential properties—changes in erosion patterns resulting from extreme weather events and two unusually close jetties—sufficient under the “catch-all” provision, OAR 660-004-0022(1), because Goal 18’s overarching purpose included reducing hazards to human life and property. LUBA noted, however, that these reasons did not apply to the vacant lots included in the application, and the County did not include any findings as to how the vacant lots also required BPS. LUBA concluded remand was necessary for the County to adopt findings as to the vacant lots.

Remanded.