Rockaway Riprap Case Bounces Back from Court
The hearing that will be held in Rockaway on Wednesday, Sept. 5, on property owner Tai Dang’s effort to riprap his threatened house, is the latest round in a long battle that has taken place over several years. The joint hearing by the city council and planning commission takes place at 6 p.m. in the council chamber of the Rockaway Beach City Hall (276 S. Hwy 101). Both the integrity of Rockaway’s comprehensive plan and protection for the public shoreline are at stake.
The case has a long, convoluted history stretching back several years. Developer Tai Dang built his structure very close to the edge. He intended it as a short-term vacation rental—a “party house,” according to unhappy neighbors—and wanted the maximum proximity to the beach. His location clearly violated the city’s beach setback ordinance. The city refused to authorize shoreline armoring because the house’s location violated its land use plan. He also sought a permit from State Parks, which turned him down on the basis of the city’s decision.
Oregon Shores opposed the application before both the city and State Parks. When both denied the permit, Oregon Shores supported the city and state through Mr. Dang’s appeals to the courts, which were unsuccessful.
Now, after an hiatus, he is back before the city, asking that the city withdraw its decision that his house does not qualify for riprap. In the interim, erosion has approached the foundations of the house. There is no question that the structure is severely threatened; the question is whether a developer can in effect play chicken with the authorities, building in a foolish location in violation of all setback provisions and then daring them to allow the vulnerable structure to collapse.
Some background: The request for a riprap permit is for a two-story, 3,300-square-foot home at 211 S. 6th St., just south of Saltair Creek. The home serves as a vacation rental. Tai Dang, the owner, sought permission to construct a 14-feet-tall-by-81-feet-long riprap wall along a dune in front of his lot, claiming that the shoreline at the border of his lot has been eroding at a rate of three feet per year for the past two decades. (Note that this means, by his own testimony, that he was well aware of the erosion risks when he built the house, built in 2008.)
State Parks (the Oregon Parks and Recreation Department), which manages Oregon’s public shoreline, is charged with issuing permits based on its own regulations and on consistency with statewide planning goals. Goal 18 of Oregon’s land use planning laws requires that to qualify for shoreline protection, a property must have been developed before 1977 (although there is provision for emergency permits when more recent structures are threatened). State Parks defines “developed” as meaning that utilities were extended to the street where a parcel is located by that year; opponents of riprap proposals are often surprised to find that lots that were vacant until recently nevertheless qualify for riprap under this interpretation.
The house in question was built long after 1977, but might have qualified as being on a developed lot. However, Oregon Shores requested a hearing on the original application, the City of Rockaway Beach retracted its initial determination that the project was consistent with its comprehensive plan and zoning ordinance. While the threat to the house from erosion is real, if the house was constructed in a location that violated the city’s plan, it would not qualify for protection. When built, the house was to be located behind the city’s Ocean Setback Line, which would have qualified it as conforming with Rockaway’s Goal 18 “exception area.” It now appears, according to the city’s administrative decision, that the house was built much closer to the edge than the smaller structure it was to replace. Erosion would not currently be a threat if it had been built on the location the city thought it was approving. This is the matter that the applicant unsuccessfully appealed before, and is now appealing again.
No one questions that erosion threatens the house, but Oregon Shores members and other opponents argue that the public shouldn’t lose part of its beach to protect a structure that should not have been built in that location. Moreover, neighbors are concerned that an armored shoreline in front of this lot will deflect waves and cause erosion on neighboring properties (including a public beach access) and possibly further up Saltair Creek. Evidently these arguments prevailed, although the State Parks decision against allowing shoreline armoring, http://www.oregon.gov/oprd/RULES/docs/BA-697-15_Tai_Dang-Decision.pdf, does not specify the reasons. Testimony against the application at the OPRD hearing two years ago by knowledgeable local residents was solidly factual and credible, and might have been sufficient to persuade OPRD to deny the proposal even without the city’s decision that the property didn’t qualify.
We celebrated a series of victories in this case, but anticipated correctly that Tai Dang would appeal (although he took a surprisingly long time to do so). Should the Rockaway planning commission and city council deny his appeal again, it is likely that he will appeal back to the courts, just as it is certain that Oregon Shores and other opponents will appeal should the commission find in his favor. Should he eventually prevail on the question of whether the property is eligible for riprap under the city’s plan, he could then appeal to OPRD for a reversal of their decision. Oregon Shores will continue to work to protect this stretch of shoreline from armoring, and to preserve the integrity of Goal 18.