At the core of Oregon’s coordinated land-use-planning law are 19 “statewide planning goals.” These goals set forth policy and directives that local governments must follow in crafting their planning ordinances and zoning code. To deviate from these mandates, a city or county must adopt—and the state approve—what is called a “goal exception.” These exceptions are allowed only in rare circumstances where the application of a goal requirement to particular property is impractical or undesirable.
In 1976, the state adopted the four coastal planning goals, including Goal 18, “Beaches and Dunes.” The overarching purposes of Goal 18 are to conserve and restore beaches, support appropriate beachfront development, and reduce risks from coastal hazards. To that end, Goal 18, Implementation Requirement (IR) 5, prohibits the construction of “beachfront protective structures” on oceanfront properties that were not developed at the time of Goal 18’s adoption.1 These banned structures include rock riprap, seawalls, and other types of revetments intended to protect properties from erosion, high waves, and other coastal hazards.
For more than 45 years, since the adoption of Goal 18 in 1976 until 2021, not a single Goal 18, IR 5, goal exception had been approved by a local government. But on September 15, 2021, the Lincoln County Board of Commissioners approved three applications for exceptions to Goal 18, IR 5, to allow for the construction of beachfront protective structures on multiple properties, including the WorldMark Gleneden Resort.
The applicants—including Miller Nash LLP on behalf of its client WorldMark, the Club—argued that an exception to the protective-structure prohibition was warranted for the properties because:
- More than 80 percent of the surrounding lots were already protected by riprap;
- Gleneden Beach had already been irreparably harmed by sand mining in the 1960s;
- The proposed structures would have no effect on the rate or extent of the degradation of Gleneden Beach;
- The unabated, increasing erosion of the properties’ bluffs posed a significant danger to persons and structures; and
- A loss of the resort and residential buildings would cause significant financial harm to the properties’ owners, the County, and the local economy.
Both the Lincoln County Planning Commission and Board of County Commissioners agreed with the applicants that in these circumstances a goal exception should be adopted. The County specifically approved what it referred to as a “reasons exception,” based on a finding that the continued imposition of Goal 18, IR 5, on the properties would not accomplish the goal’s conservation purpose, but instead cause unnecessary hazards and economic harm. The County’s findings and decision were not appealed to the Land Use Board of Appeals, and the goal exceptions became final on October 8, 2021.
According to expert economic analysis submitted by the applicants, the preservation of the WorldMark Gleneden Resort and residential properties—now made possible under the Goal 18, IR 5, exceptions—will prevent the loss of:
- Tourist/resident activity in an amount equal to 141,803 guest-days per year;
- $8.5 million in annual local tourism spending;
- $2.7 million in annual expenditures from the operation and maintenance of the properties;
- 190 total full- and part-time jobs;
- $6 million in total labor income; and
- $1.5 million in total state and local government taxes.
1 This prohibition restricts the use and preservation of private property and is thus subject to the constitutional limitation on the taking of private property for public purposes. Accordingly, the state did not apply the restriction to properties that were already partially developed when the prohibition was adopted. IR 5 states, in relevant part: “Permits for beachfront protective structures shall be issued only where development existed on January 1, 1977.”