NARRATIVE STATEMENT March 18, 2021

Applications for Goal 18 Exception and Amendment to Comprehensive Plan

Submitted by:

Miller Nash Graham & Dunn LLP Vial Fotheringham, LLP Dennis L. Bartoldus, Attorney at Law

I. INTRODUCTION AND FACTUAL BACKGROUND

This narrative is submitted in support of three applications to Lincoln County (the "County") for amendments to its comprehensive plan in order to adopt exceptions to Statewide Planning Goal 18 ("Goal 18"), Implementation Requirement 5, to allow for the construction of protective structures on three sites on Gleneden/Lincoln Beach1 (the "Applications").2 These protective structures are necessary to prevent the imminent loss of an 80-unit resort, 26 condominium homes (along with critical utility infrastructure for 54 more units), and four single- family homes due to the rapid erosion of shoreline bluffs under the buildings.

This narrative and its supporting technical reports provide the legal analyses and evidentiary basis demonstrating that each of the Applications satisfy the applicable approval criteria, as set forth in the Oregon Statewide Planning Goals (the "Goals"), state statutes and administrative rules, the Lincoln County Zoning Code ("LCZC" or the "Code"), and the Lincoln County Comprehensive Plan (the "Plan"). Based on this narrative, the expert reports submitted herewith,3 and the other supporting documents, we respectfully request that the County approve the Applications.

A. Overview of the applicants and properties.

The Applications are being submitted on behalf of WorldMark, the Club; the SeaRidge Condominium Association; and the owners of the four adjacent single-family homes identified below (collectively, the "Applicants"). The properties at issue in the Applications are the WorldMark Gleneden Resort (the "Resort"), the SeaRidge Condominiums ("SeaRidge"), and the four adjacent single-family homes at 4755, 4805, 4815, and 4825 Lincoln Avenue (the "Lincoln Avenue Homes") (collectively, the "Properties").

1 In scientific literature, including in the attached expert studies, Gleneden Beach and Lincoln Beach are generally referred to collectively as Gleneden Beach. Accordingly, this narrative does so as well. 2 The applicants request that the Applications be reviewed together as permitted in OAR 660-004-0020(3) because the "reasons and circumstances" justifying the Goal 18 exceptions for each area are primarily the same. To that end, for efficiency purposes, the applicants file this single narrative in support of all three Applications. The applicants, however, have filed three separate applications so that each area may, if necessary, be supplemented and considered on its own merits. 3 All expert reports are provided in Appendix A.

- 1 - 4810-3813-6798.11 The Resort is one of the larger employers in the County. It is composed of 80 time-share units, with many on-site amenities, including swimming pools, hot tubs, tennis and basketball courts, fitness center, arcade, playground, beach access, and more. It is bordered by residential homes to the north and the Gleneden Beach State Wayside to the south. The Resort sits on approximately 430 feet of Pacific Ocean shoreline.

SeaRidge consists of 80 privately owned condominium homes in 14 separate buildings. SeaRidge is located in southern Gleneden Beach, less than a mile north of Fogarty Creek State Recreation Area. SeaRidge's shore frontage is approximately 600 feet.

The four adjacent Lincoln Avenue Homes are located between the Resort and SeaRidge. These oceanfront residences have been owned since the early 1990s by the Desylvia family, Kain family, Grant family, and Tanabe family. The collective shorefront of the Lincoln Avenue Homes is around 250 feet.

The Properties are located within an approximately 1.7-mile stretch of Gleneden Beach and are each zoned Residential R-1, with a Coastal Shoreland overlay:

All the oceanfront structures on the Properties were built decades ago. The SeaRidge buildings were constructed between 1985 and 1987. The development and construction of the Resort occurred during the years 1993 to 1996. For the Lincoln Avenue Homes, three were built in the early 1990s and one in 2002, with an average age of 25 years.

B. The Properties' oceanfront structures are in imminent danger of collapse due to extensive and rapid erosion.

The homes and other oceanfront structures on the Properties are in imminent danger of collapse because of the rapid erosion to the Properties' beachfront bluffs. As seen in the photos below, the immediate threat to both property and persons is self-evident:

- 2 - 4810-3813-6798.11 WORLDMARK RESORT

- 3 - 4810-3813-6798.11 SEARIDGE

- 4 - 4810-3813-6798.11 LINCOLN AVENUE HOMES

- 5 - 4810-3813-6798.11

The erosion of the Properties' shoreline bluffs is also readily apparent in satellite imagery:

WorldMark Resort4 Lincoln Avenue Homes5

4 https://www.google.com/maps/@44.8773628,-124.0377286,470a,35y,3.25t/data=!3m1!1e3. 5 https://www.google.com/maps/@44.8586975,-124.0440058,397a,35y,3.25t/data=!3m1!1e3.

- 6 - 4810-3813-6798.11 SeaRidge Condominiums6

The Properties' shoreline erosion and corresponding landslide risk have been documented by the State of Oregon Department of Geology and Mineral Industries ("DOGAMI") in its state hazards database. The beachfront of all three Properties is designated in DOGAMI's hazard mapping system7 as having a landslide designation of "High – Landsliding Likely," and erosion designations of "High Hazard Zone" and "Very High (Active) Hazard Zone":

DOGAMI – Hazard Designations

WorldMark Resort WorldMark Resort

6 https://www.google.com/maps/@44.8525122,-124.0456501,469a,35y,3.25t/data=!3m1!1e3. 7 https://gis.dogami.oregon.gov/maps/hazvu/.

- 7 - 4810-3813-6798.11 SeaRidge Condominiums SeaRidge Condominiums

Lincoln Avenue Homes Lincoln Avenue Homes

As outlined in the technical reports by coastal engineering expert Dr. Vladimir Shepsis of Mott MacDonald, submitted with this narrative,8 little to no distance remains between the Properties' oceanfront structures and the quickly receding shoreline bluffs.9 These narrow

8 Technical Memorandum, WorldMark Resort, Gleneden Beach, Geotechnical Reports Supporting Goal 18 Exception Application, Mott MacDonald, September 18, 2020 ("Mott MacDonald WorldMark Rep."); Technical Memorandum, SeaRidge Condominiums, Gleneden Beach, OR, Geotechnical Reports Supporting Goal 18 Exception Application, Mott MacDonald, January 25, 2021 ("Mott MacDonald SeaRidge Rep."); Technical Memorandum, Individual Oceanfront Homes, Gleneden Beach, OR, Geotechnical Reports Supporting Goal 18 Exception Application, Mott MacDonald, February 1, 2021 ("Mott MacDonald Lincoln Ave. Homes Rep."). 9 At the Resort, the distance from the steep bluff to the north lodging building is less than 30 feet; from the bluff to the pool is less than 20 feet; and there are only a few feet separating the Resort's oceanfront walkway from the sheer face of the 50-foot-high bluff. (See Mott MacDonald WorldMark Rep., at 5.) For SeaRidge, the distance from the oceanfront condominium buildings' foundations to the edge of the bluff was measured to be as little as 40 feet. (See Mott MacDonald SeaRidge Rep., at 5.) The distance from oceanfront bluff to the four Lincoln Avenue Homes is even less, with the foundation of the northern house already exposed. (Mott MacDonald Lincoln Ave. Homes Rep., at 2.)

- 8 - 4810-3813-6798.11 buffers provide no protection to the Properties' oceanfront structures because the rapid erosion is unpredictable and volatile.

Further, the erosion has been accelerating. As outlined by Dr. Shepsis, at around the time the Properties were developed, "the rate of erosion for this region of the Oregon coast was estimated at approximately 2 inches per year, on average[.]"10 The Properties, however, have experienced significantly more erosion since that time. Dr. Shepsis found that the retreat of the bluffs for both the Resort and the Lincoln Avenue Homes has been more than one foot per year since the early 2000s—more than six times the historical average estimated in 1991.11 And this rate is expected to stay the same or even increase. For example, Dr. Shepsis predicts that without a protective structure, the erosion of the Resort's shoreline bluff will continue or accelerate until it retreats a distance of 200 feet or more (swallowing the entire Resort).12

Accordingly, Dr. Shepsis concludes that the oceanfront structures on the Properties are in imminent danger and threatened by a high probability of total failure in the near future.13

C. The rapid erosion of the Properties' shorefront bluffs is the result of unforeseen natural forces and man-induced changes, compounded by uniquely vulnerable characteristics present on this stretch of beach.

As outlined below, the rapid rate of erosion of the Properties' shoreline bluffs has been predominantly caused by the increasing effects of climate change and the proliferation of protective structures along the entire length of Gleneden Beach. The impact of these changes has been exacerbated by the fragile nature of this beach.

1. Gleneden Beach is uniquely susceptible to rapid erosion and extreme erosion events.

As discussed in the Engineering Geologic Investigation report prepared by J. Douglas Gless of H.G. Schlicker & Associates,14 Gleneden Beach generally consists of bluff- backed beaches that are composed of Quaternary Marine terrace deposits locally overlain by colluvium, alluvium, beach sand, and fill soil, which are "highly susceptible to erosion[.]"15 Past research has also found that historical sand mining at the mouth of Schoolhouse Creek may have disrupted the natural balance of sand and led to a deficit of approximately one-half to three- quarters of the new sand supply.16

10 Mott MacDonald WorldMark Rep., at 2, citing Paul Komar and Shuter-Ming Shih. 1991. Sea-cliff erosion along the Oregon Coast, Coastal Sediment 91, 1558-70, ACSE. 11 Mott MacDonald WorldMark Rep., at 5; Mott MacDonald Lincoln Ave. Homes Rep., at 5. 12 Mott MacDonald WorldMark Rep., at 5. 13 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 2. 14 Engineering Geologic Investigation For Goal 18 Exception; Gleneden Beach and Lincoln Beach From Tax Lot 3200, Map 08-11-28CB North to Tax Lot 311, Map 08-11-09DA Lincoln County, Oregon (Jan. 6, 2021) (the "HGSA Geotechnical Report"). 15 HGSA Geotechnical Rep., at 3 (referencing Geologic Mapping by Priest and Allan in 2004). 16 HGSA Geotechnical Rep., at 4.

- 9 - 4810-3813-6798.11 Mr. Gless explains in his report that this beach has been increasingly studied in response to severe erosion events on Siletz Spit. These studies "have progressed from an in- depth examination of the physical processes that contribute to erosion to recognizing the effects that development and tectonic and climatic influences have on accelerating and exacerbating the physical processes."17 The ultimate conclusion of this research and HGSA's own observations is that "[e]rosion of the shoreline along Gleneden Beach is unique to this beach and highly variable due to the natural conditions at the site."18

The HGSA report outlines how this uniquely fragile beach has been disproportionately impacted by erosion resulting from the effects of climate change and the proliferation of shorefront protective structures, which are discussed below.

2. Increased storm activity, wave energy, and other results of climate change.

The extensive erosion of the Properties' uniquely susceptible bluffs has been caused in large part by the consequences of climate change that have extensively grown over the past few decades—after the Properties' oceanfront buildings were constructed. These changes include greater storm activity, substantial growth of wave intensity, ocean acidification, more frequent El Niño systems, etc. The existence of these changes and their significant impact on coastal erosion has been widely documented in governmental reports and scientific studies.19

For example, an overview and analysis of contemporary research was compiled in 2010 in the report titled "Impacts of Climate Change on Oregon's Coasts and Estuaries" (the "2010 Climate Impact Report"),20 which was a chapter in the "Oregon Climate Assessment Report" funded by the U.S. Environmental Protection Agency (the "Climate Assessment Report").21 The report was based on the collaboration of 11 experts from universities and multiple state and federal agencies. In regard to the emerging storm and weather patterns, the authors found that:

• On the Oregon coast, there is a "long-term trend [of] increasing storm intensities and the heights of the waves they generate." (Climate Assessment Rep., at 209.)

• "[E]xtreme waves generated by the strongest storms are increasing at appreciably higher rates than are the 'winter' averages." (Climate Assessment Rep., at 224.)

• That Oregon's winter storms and the generation of extreme waves "have been the dominant factor responsible for episodes of erosion and flooding along this coast." (Climate Assessment Rep., at 223.)

17 HGSA Geotechnical Rep., at 14. 18 HGSA Geotechnical Rep., at 20. 19 All studies and reports referenced below are provided in Appendix B. 20 Peter Ruggiero et al., Impacts of Climate Change on Oregon's Coasts and Estuaries (2010). 21 Washington, DC, EPA/600/R-10/184, 2011.

- 10 - 4810-3813-6798.11 • The measurements of Oregon coast waves by NOAA buoys deployed in the mid- 1970s show that the height of waves "have been increasing over the decades" (Climate Assessment Rep., at 223.)

• That the increasing El Niño weather patterns cause elevated water levels to "reach the shore-front properties, the toe of sea cliffs or foredunes backing the beach, resulting in significantly more erosion than occurs during normal (non-El Niño) winters." (Climate Assessment Rep., at 221.)

• The 1997-98 El Niño was unique in that "it was followed by the winter of 1998-99 during which there was a series of unusually severe storms and extreme waves, including that in early March 1999 which generated the 14- to 15-meter significant wave heights, the highest in recent decades. These two years of consecutive impacts were characterized as having been a "'one two-punch' that was responsible for extensive continued erosion." (Climate Assessment Rep., at 229.)

The report found, unsurprisingly, that overwhelming evidence pointed to growing impacts from climate change, including "rising sea levels, increased occurrences of severe storms, rising air and water temperatures, and ocean acidification" that would continue to increase the rate of erosion on the Oregon coast. (Climate Assessment Rep., at 213.)

Similarly, in a 2008 study,22 Dr. Peter Ruggiero of Oregon State University concluded that the "decadal-scale increases in storm intensity (wave height)" combined with more frequent El Niño events and future sea-level rise could increase erosion and flood frequency by as much as a factor of ten on the Oregon coast.

These types of findings and forecasts have been consistently echoed by subsequent research and officially adopted in the state's planning documents. The most in-depth analysis by the state is set forth in the 2020 Oregon Natural Hazards Mitigation Plan23 (the "Mitigation Plan"), which was prepared by the Oregon Department of Land Conservation and Development ("DLCD"). The Mitigation Plan states:

"Sea levels and wave heights are the primary climate-related drivers that influence rates of coastal erosion. Recent research indicates that sea levels along Oregon's coast are rising and that significant wave heights off the Oregon coast are increasing. Rising sea levels and increasing wave heights are both expected to increase coastal erosion and coastal flooding. Increased coastal erosion can lead to loss of natural buffering functions of beaches, tidal wetlands, and dunes, and will likely increase damage to private property and infrastructure situated on coastal shorelands." (Mitigation Plan, at 14.)

22 Peter Ruggiero, Impacts of Climate Change on Coastal Erosion and Flood Probability in the US Pacific Northwest, (2008). 23 https://www.oregon.gov/lcd/NH/Documents/Approved_2020ORNHMP_02_ExecSum.pdf.

- 11 - 4810-3813-6798.11 The Mitigation Plan outlined the substantial increase in storm waves over the past few decades. The Mitigation Plan explained that "[p]revious analyses of extreme waves for the Oregon coast estimated the '100-year' (1%) storm wave to be around 33 feet[, but i]n response to a series of large wave events that occurred during the latter half of the 1990s, the wave climate was subsequently re-examined and an updated projection of the 1% storm wave height * * * is now estimated to reach approximately 47 to 52 feet * * *." (Mitigation Plan, at 474.)24 Thus, less than ten years after most of the Properties' oceanfront buildings were constructed, the estimate of severe storm-wave height was increased more than 57 percent. This was unforeseeable and will have devastating impacts on this section of Lincoln County shorefront without protective action.

Likewise, the Third Oregon Climate Assessment Report (the "Third Assessment Rep."),25 published in January 2017, states that wave heights and extreme wave events have increased over the past several decades and are "largely responsible for recent increases in coastal flooding and erosion." (Third Assessment Rep., at 33.) For use in its own operational planning, the Oregon Department of Transportation concluded in its 2014 Climate Change Vulnerability Assessment and Adaptation Options Study (the "Adaptation Study")26 that "[s]torm intensity and wave heights have also been increasing over the last several decades, leaving coastal areas vulnerable to flooding and erosion," and that "coastal erosion and flood hazards will almost certainly increase with rising sea levels." (Adaptation Study, at 48.)

Finally, in the recently released draft "2020 Climate Change Adaptation Framework" (the "Draft Adaptation Framework"),27 DLCD (in collaboration with 24 other state agencies) determined that going forward, the "[i]ncidence of stormy weather is likely to increase along the coast, causing flooding from storm surge, coastal erosion, landslides, and severe wind events[,]" and that this damage will be exacerbated by the rising sea levels. (Draft Adaptation Framework, at 5.)

These points are echoed by the Applicants' own engineering consultants, as it relates to the Properties. Dr. Shepsis states in his reports that "progressive, long-term erosion is exacerbated by climate change and sea level rise, which gradually allow ocean waves to propagate closer to the shoreline and enable direct wave impact on the bluff."28

As clearly established above, the significant impact of climate change on coastal erosion, and knowledge thereof, has dramatically increased since the early to mid-1990s, when the Properties were built. Based on 2021 knowledge, it is also nearly certain that these effects will continue to grow, causing even greater and more volatile erosion of the Properties' coastal bluffs.

24 https://www.oregon.gov/lcd/NH/Documents/Approved_2020ORNHMP_07_RA1.pdf. 25 https://www.oregon.gov/lcd/CL/Documents/3rdOregonClimateAssessmentReport_OCCRI_2017_compressed.pdf. 26 https://www.oregon.gov/odot/Programs/TDD%20Documents/Climate-Change-Vulnerability-Assessment- Adaptation-Options-Study.pdf 27 https://www.oregon.gov/lcd/CL/Documents/CLIMATE_CHANGE_ADAPTATION_FRAMEWORK_08-12- 2020.pdf 28 Mott MacDonald SeaRidge Rep., at 4; Mott MacDonald Lincoln Ave. Homes Rep., at 5.

- 12 - 4810-3813-6798.11 3. Proliferation of protective structures on Gleneden Beach.

The rapid and accelerating erosion of the Properties' bluffs has also been caused in large part by the proliferation of protective beachfront structures on Gleneden Beach (as approved by the state and the County), which has greatly deteriorated a littoral stretch of beach already particularly susceptible to bluff erosion.

The extent of the proliferation of these protective structures on Gleneden Beach is set forth in the report prepared by Mr. Gless. Mr. Gless explains in his report that Gleneden Beach "has the longest stretch and highest density of shorefront protective structures along the Oregon coast."29 He found that of the 268 tax lots identified in the Goal 18 Eligibility Inventory,30 212 (approximately 80 percent) are identified as being protected by a shoreline structure.31 Further, of the approximately 16,800 feet of shoreline on Gleneden Beach, Mr. Gless determined that around 12,440 feet was protected by a shoreline structure— approximately 75 percent of the coastline. Id.

The Applicants' own review of the data from the Goal 18 Eligibility Inventory and analysis by EVREN Northwest and Turnstone Environmental Consultants in their Critical Area Assessment report32 indicates that the stretch of beach closer to the Properties has an even higher density of protective structures. The images below, taken from the Oregon Coastal Atlas, Ocean Shores Data Viewer, show that over 90 percent of the lots near the Properties are protected from erosion with riprap, revetments, and similar structures (shown as the purple line in the first image below). Further, almost all other lots on this stretch of Gleneden Beach have been designated in the unofficial Goal 18 Eligibility Inventory as being eligible for the construction of new protective structures (shown as the green lots in the second image below).

29 HGSA Geotechnical Rep., at 3. 30 The Goal 18 Eligibility Inventory created by the OCMP has not been reviewed for accuracy or formally adopted by Lincoln County, and is not determinative of a property's actual eligibility under Goal 18 to construct beachfront protective structures. The Applicants dispute the accuracy of the inventory and reserve the right to contest whether the Properties are ineligible. Our references to the "eligible" and "ineligible" designations in the state's inventory is not an agreement of the accuracy of these labels. 31 HGSA Geotechnical Rep., at 2, citing "Goal 18 Eligibility Inventory by the Oregon Coastal Management Program (2015) and shown on the Oregon Coastal Atlas Ocean Shores Viewer (OSV) webpage (accessed December 2020)." 32 Final Report: Critical Area Assessment for WorldMark Gleneden Resort, EVREN Northwest, Inc., and Turnstone Environmental Consultants, Inc. (Dec. 2020) (the "Critical Area Assessment"), at 4.

- 13 - 4810-3813-6798.11 Existing Protective Structures33

Properties Eligible in County Inventory

As shown in the images from the Goal 18 inventory above, the Properties are a few of the last remaining lots on this stretch Gleneden Beach that do not have existing protective structures.34 In fact, there appears to be less than five other improved properties on this stretch of Gleneden Beach that do not already have beachfront protective structures, and are currently not designated as eligible for protection to construct a new structure under the state's unofficial Goal 18 inventory (and these five other properties do not appear to be threatened by an erosion event at this time.) And even along the entire stretch of Gleneden Beach, Mr. Gless determined that only 15 tax lots are currently unprotected and identified as Goal 18 ineligible for a shoreline protective structure on the informal inventory.35

33 Images taken from the Oregon Coastal Atlas, Ocean Shores Data Viewer. Available at https://www.coastalatlas.net/index.php/tools/planners/67-ocean-shores-viewer. 34 The Oregon Coastal Atlas's designation of SeaRidge as a protected property is misleading. SeaRidge's curtain drain, which was installed in February 2000 pursuant to a permit is classified by the Atlas as a protective structure, but it offers only spatially limited and insufficient protection against the erosive forces threatening the property. Additional details about the curtain drain are included in SeaRidge's Supplemental Narrative Statement. 35 HGSA Geotechnical Rep., at 2 (stating that only 57 lots are designated as ineligible, but 42 of those lots are identified as already being protected with a shoreline protective structure).

- 14 - 4810-3813-6798.11 As explained by Mr. Gless in the HGSA Geotechnical Report, the proliferation of shoreline protective structures on Gleneden Beach is causing and will continue to cause significant harm to the few properties left unprotected. Mr. Gless explains that "[t]he proliferation of shoreline protective structures to protect Goal 18 eligible properties has resulted in starving Gleneden Beach of sediment and increasing erosion at unprotected sites[,]" and that this proliferation of protective structures has "endangered" the ineligible lots.36 In fact, Mr. Gless states that "at the time of our site visit, all unprotected portions of the beach had either recently experienced or were susceptible to severe and rapid erosion."37 These points were echoed by Dr. Shepsis in his geotechnical reports.38

In addition to the harm caused by the general proliferation of protective structures, Dr. Shepsis found that specific protective structures adjacent to the Properties were likely also causing direct, local erosion of the Properties' shoreline bluffs. For example, Dr. Shepsis found that the two large riprap structures to the north and south of the Resort (built/expanded after its development) have created a localized littoral cell in front of the Resort shoreline that propagates waves directly to the exposed Resort bluffs, scouring away the bluff's toe materials. This unnatural embayment is clearly shown in the satellite imagery provided by Dr. Shepsis:39

Dr. Shepsis concludes that these coastal processes caused by the north and south riprap structures have likely "contributed to the severe erosion and bluff retreat observed during recent decades[,]" which he estimates to be 30 feet over the years 1994 to 2019, illustrated by satellite imagery provided in his report:40

36 HGSA Geotechnical Rep., at 20. 37 HGSA Geotechnical Rep., at 10. 38 Mott MacDonald SeaRidge Rep., at 4 ("The alteration of longshore drift and reduction in sediment supply are a direct result of the loss of sediment feeder bluffs and the obstruction of longshore sediment transport by coastal protection structures (revetments, seawalls, other) within the Gleneden - Lincoln Beach littoral system.") 39 Mott MacDonald WorldMark Rep., at 4; Figure 4: "WorldMark Resort shoreline, two structures (north and south revetments) are shown on imaginary aerial photograph taken in February 2020[.]" 40 Mott MacDonald WorldMark Rep., at 3; Figure 3: "Aerial photographs of WorldMark Resort coastline area; 1994 (left), 2019 (right)[.]"

- 15 - 4810-3813-6798.11

Although there was insufficient data for Dr. Shepsis to make a conclusive determination, his report for the Lincoln Avenue Homes acknowledges that the more severe retreat of the northern end of their shoreline bluff could be caused by the adjacent riprap structure.41

It is important to note that the acceleration of erosion caused by the proliferation of protective structures on Gleneden Beach was not foreseeable at the time the Properties were developed. First, the detrimental effect of the extensive armoring was not yet fully understood at

41 Mott MacDonald Lincoln Ave. Homes Rep., at 5; Figure 3. Armor rock revetment at north end of project site; Figure 6. Higher erosion rate and resulting setback of shoreline position that apparently occurred sometime during fall-winter 2015-2016.

- 16 - 4810-3813-6798.11 that time. As stated in the HGSA Geotechnical Report by Mr. Gless, the appreciation of this dynamic has grown along with the understanding of the impacts of climate change:

"As the scientific communities' understanding of the effects of global climate change on erosion along Gleneden Beach has grown, so has the acknowledgment that prior shoreline management strategies are inadequate to mitigate the more severe erosion we are beginning to observe and will intensify in the future. Komar (2004) observed that the "proliferation of shoreprotection structures ... is of concern in that cliff erosion of Pleistocene terrace sands represent the primary, and sometimes the sole source of new sand to the beach, a source that is cut off by the structures.""42

Of equal importance, many of the protective structures causing the rapid erosion of the Properties' shoreline bluffs were not constructed until after the development of the Properties. As discussed in the HGSA Geotechnical Report, third-party research of governmental approvals indicates that more than 60 structures have been approved since the early 1990s until today.43 Further, the County and state continue to exacerbate the harm to the Properties by continuing to approve new riprap structures near the Properties. Most recently, on July 30, 2020, the Oregon Parks & Recreation Department (the "OPRD") approved an application to construct a 250-foot-long riprap structure in front of the homes at 7035, 7045, 7065, and 7075 Neptune Avenue, less four-tenths of a mile from the Resort.44 This project will fill the second-to-last remaining gap of protective structures on the long stretch of Gleneden Beach from the Salishan Resort to the Resort.

D. Immediate need for riprap shoreline protective structures.

As shown above, and emphasized by Dr. Shepsis in his geotechnical reports, the oceanfront structures on the Properties face an imminent threat of total failure (i.e., sliding into the ocean) from the rapid erosion of the Properties' shoreline bluffs.45 Further, this risk is growing rapidly. As explained by Mr. Gless, "[s]evere erosion of the shoreline fronting the Goal 18 ineligible sites will continue and increase the already hazardous conditions if not protected with shoreline protective structures."46

Based on his investigations of the Properties, Dr. Shepsis recommends that each of their bluffs be protected by armor rock revetments (i.e., riprap protective structures).47 He explains that "[t]here is a high probability that if properly designed and constructed, the armor rock revetment would be a long-term solution to mitigate shoreline erosion and seismic hazards," which is necessary to protect the Properties' oceanfront buildings. Id. Further, Dr. Shepsis

42 HGSA Geotechnical Rep., at 19. 43 HGSA Geotechnical Rep., at 9. 44 https://www.oregon.gov/oprd/PRP/Documents/PRP_OS-PERMIT_FINDINGS-2926-Manning.corrected.pdf. 45 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 2. 46 HGSA Geotechnical Rep., at 10. 47 Mott MacDonald WorldMark Rep., at 7; Mott MacDonald SeaRidge Rep., at 7; Mott MacDonald Lincoln Ave. Homes Rep., at 7.

- 17 - 4810-3813-6798.11 explains that the recommended protective structures are designed and will be constructed to avoid adverse impacts to adjacent properties.48

Based on his extensive analysis, Dr. Shepsis concludes in his report that the current wave height and energy (almost certain to increase) and other contributing forces of erosion (tide elevations, beach variability, littoral drift, bluff composition, etc.) eliminate other protective measures as viable alternatives.49 Likewise, Mr. Gless concludes that exceptions to Goal 18 to construct beachfront protective structures are necessary and warranted for the Properties.50

E. Economic impact from the destruction of the Properties' Homes and Resort Buildings.

If the Applications are not approved, the inevitable destruction of the Properties oceanfront homes and Resort buildings will result in significant economic harm, not only to the Applicants, but also to the County and local economy.

First, the value of the threatened structures is immense. According to county tax records, the total fair market value of the threatened Properties is $23,677,470, which breaks downs as follows: Resort, $7,193,110; SeaRidge, $12,166,04051; and Lincoln Avenue Homes, $4,318,320.52 Actual fair market value is probably higher than these assessed estimates.

If the Properties are destroyed, the County and public will suffer immediate harm from the reduction of the County's tax revenue. According to County records, the Properties were assessed $296,687 in property taxes for 2020.53 This number, however, does not account for the loss of local business income/entities and the consequential decrease in value of the related properties following the destruction of the 80 time-share units, 26 to 80 condominium homes, and four single-family residences. According to the economic impact analysis conducted by economists Edward C. Waters, Ph.D., and Hans D. Radtke, Ph.D., the County's tax revenue would be reduced by another $430,700.54

In addition to a steep reduction in tax revenue, the local economy will also be harmed by a loss of business income and employment opportunities. Drs. Waters and Radtke

48 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 49 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 6-7. 50 HGSA Geotechnical Rep., at 21 ("Based on HGSA's more than 40 years of experience and observations, and the overwhelming evidence presented in the geologic literature, an exception to Implementation Requirement 5 of Goal 18 should be made for Gleneden Beach, from Fishing Rock to Siletz Spit, to allow all properties to construct shoreline protective structures as necessary. This would benefit and help protect lots that are ineligible for oceanfront protection and lots that are eligible for protection or already protected.") 51 This number does not include the potential loss, and at a minimum, reduction in value of the other 56 units at SeaRidge. 52 The county tax records are provided in Appendix C. 53 If the other 56 SeaRidge units are included, the total tax revenue lost is over $550,000. Econ. Analysis Rep. at 8. 54 Edward C. Waters Ph.D. et al., Report on estimated economic contribution of the Wyndham/Worldmark Resort, SeaRidge Condominiums and other selected beachfront properties in Lincoln County Oregon (Feb. 1, 2021) (the "Economic Impact Report"), at 13.

- 18 - 4810-3813-6798.11 determined that following the destruction of the Properties, the local economy will lose the following:55

• Tourist/resident activity in an amount equal to 46,538 room-nights per year, and a corresponding 141,803 guest-days per year; • $8.5 million in local spending by these foregone visitors and residents; • $2.7 million in local expenditures per year for the operation and maintenance of the Properties; • 190 total full- and part-time jobs; • $6 million in total labor income (wages, salaries, and proprietors' income); and • $1.5 million in total state and local government taxes.

It should be noted that relative to county totals, the employment losses are substantial, equal to 0.5 percent of the County's labor income and 0.7 percent of the total jobs in the County in 2018.56 The impact to the local families who work at the Properties would be devastating.

F. The proposed protective structures will not impact natural resources or recreational uses of the adjacent beach.

Simply filling in three of the last gaps of the protective structures lining Gleneden Beach to prevent further rapid erosion of beach bluffs/cliffs will clearly not impact natural resources or recreational use of the beach.

To the first point, the Critical Area Assessment prepared for this project57 unsurprisingly determined that "[t]he surrounding habitat is low-quality due to the highly developed nature of Gleneden Beach with high recreational use and approximately 90-percent of the shoreline is currently riprapped."58

During a field survey of the Resort area, the Critical Area Assessment found that there are no rare plants or wildlife in the terrace habitat, bluff, or swash zone on the subject property; the site is not located within, nor is it connected to, any estuarine resources; there are no historic properties or cultural/archeological resources nearby; there is no suitable nesting or foraging habitat for endangered or threatened wildlife on or adjacent to the subject property; there is no sign of geologic interests or fossil beds at the site; and the proposed revetments are not expected to impact air or water quality.59 Further, the installation of the protective structures will preserve the bluff's vegetated terrace.60 In short, the findings in the Critical Area

55 Economic Impact Rep., at 1 & 6. 56 Economic Impact Rep., at 11. 57 "This Assessment was prepared in conformance with Oregon's Statewide Planning Goals and Guidelines, Goal 18: Beaches and Dunes (OAR 660-015-0010(3)) to evaluate potential impacts to the human and natural environment." Critical Area Assessment, at 3. 58 Critical Area Assessment, at 4. 59 Critical Area Assessment, at 4-8. 60 Critical Area Assessment, at 8.

- 19 - 4810-3813-6798.11 Assessment demonstrate that the proposed protective structures will not negatively impact the very limited natural resources near the Resort area.

Further, the proposed revetment will actually protect and improve natural and aesthetic resources through the preservation of the bluff terrace vegetation61 and the installation of native sand with new vegetation on top of the riprap structures.62

There is also no recreational use of the proposed riprap area to be disturbed. As can clearly be seen in the photos above and below, the beach areas beneath the rapidly eroding bluffs are dangerous and should not be visited by the public at all.

In fact, the installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and public from falling materials—and soon falling structures. Needless to say, building material falling onto the beach would undermine environmental goals.

II. OVERVIEW AND HISTORY OF APPLICABLE LAW

A. History of the Goals and rules for exceptions.

In 1973, the Oregon Legislature passed legislation (SB 100) that created a coordinated, statewide land use planning system,—the Oregon Land Conservation and Development Commission ("LCDC")—to oversee this new integrated planning regime, and mandated that LCDC draft and adopt new "statewide planning goals" that would guide land use planning throughout the state and be implemented by every local jurisdiction. Once promulgated by LCDC, every city and county was required to adopt land use comprehensive plans and zoning regulations that were consistent with the new Goals. ORS 197.250 (requiring compliance within one year of goal adoption).

The legislature and LCDC recognized, however, that there would be instances where compliance with a planning goal is not desirable because of conflict between Goals or the unique characteristics of a particular property or area. Thus, the state planning rules and laws

61 Critical Area Assessment, at 8. 62 The recommended structure described in the Mott MacDonald WorldMark Report provides for a covering of native sand and grass vegetation on top. Mott MacDonald WorldMark Rep., at 6.

- 20 - 4810-3813-6798.11 have always included a section providing for "exceptions" to the Goals, excusing application of a policy or restriction to specific properties or situations. (Goal 2, pt II.)

As first passed in 1974, the criteria for an exception were quite general.63 In 1983, the Oregon legislature passed ORS 197.732, directing LCDC to adopt specific guidance on the qualifications for an exception.64 Those rules are codified in OAR 660-004-0020 and 0022, as discussed further below.

B. Goal 18: History and current legal/implementation problems.

In 1976, LCDC adopted the four coastal planning goals,65 including Goal 18 "Beaches and Dunes." The text of Goal 18 is:

"To conserve, protect, where appropriate develop, and where appropriate restore the resources and benefits of coastal beach and dune areas; and

"To reduce the hazard to human life and property from natural or man-induced actions associated with these areas."

To advance these policies, LCDC adopted seven implementation requirements for comprehensive plans in coastal areas. One of these requirements sought to limit construction of "beachfront protective structures." LCDC recognized, however, that these structures are built on private land,66 and the state's ability to diminish private property rights without compensation is limited. Accordingly, LCDC attempted to stay within the bounds of these constitutional limitations—or at least lessen the chances of a legal challenge—by "grandfathering in" properties that were already improved or part of an existing subdivision as of the first day of the month and year following adoption of the goal.67 Accordingly, Implementation Requirement 5 of Goal 18 states:

"Permits for beachfront protective structures shall be issued only where development existed on January 1, 1977. Local comprehensive plans shall identify areas where development existed on January 1, 1977. For the purposes of this requirement and Implementation Requirement 7 "development" means houses, commercial and industrial buildings, and vacant subdivision lots which are physically improved through construction of streets and provision of utilities to the lot and includes areas where an exception to (2) above has been approved."

63 Davis v. City of Bandon, 19 Or LUBA 327, 335-36, 1990 WL 1087502, at *6, n.7 (1990), noting that "prior to amendments adopted following 1983 legislation concerning goal exceptions, were much more general," which were (a) Why these other uses should be provided for; "(b) What alternative locations within the area could be used for the proposed uses; "(c) What are the long term environmental, economic, social and energy consequences to the locality, the region or the state from not applying the goal or permitting the alternative use; "(d) A finding that the proposed uses will be compatible with other adjacent uses." 64 This law and subsequent amendment to Goal 2 also removed the requirement that the exception criteria be proven by "compelling" reasons and facts. 65 Goal 16 (estuarine resources), Goal 17 (coastal shorelands), Goal 18 (beaches and dunes), and Goal 19 (ocean resources), together comprising Oregon's Coastal Management Plan. 66 The Oregon Beach Bill imposes only an easement for public access. 67 The four coastal planning goals were adopted by LCDC on December 18, 1976.

- 21 - 4810-3813-6798.11 As now recognized by DLCD (the agency/administrative arm of LCDC) and other public entities, this approach suffers from both practical and legal problems. The implementation issues include the inability to properly balance between private and public interests in allowing new structures (e.g., properties surrounded by protective structures running across entire stretches of beachfront, yet the owners thereof unable to "fill in the gap" when facing a total loss of property), inconsistency between Goal 18's policies in favor of coastal development and an absolute prohibition on subsequent preservation of that development,68 arbitrary distinction between parcels and lots, zero flexibility for responding to unpredicted and unforeseeable erosion caused by climate change (e.g., unprecedented weather/storm patterns and sea conditions), and a potential unconstitutional taking of private property rights as the regulation forces the loss of land and structures while taking for public use previously private land.

The criteria used for determining which properties are eligible for shoreline protection under Goal 18 lack a constitutionally defensible rational basis. This is because there is no difference between the expenditures and infrastructure that serve a partitioned lot, as opposed to a subdivided lot. Additionally, an owner may have spent significant sums preparing a property for development but may be denied protection because a lot was not technically created by the filing of a plat map as of January 1, 1977. Further, the United States Supreme Court has repeatedly held that the lack of prior development, or even purchase of a property after the adoption of a regulation, does not negate an unconstitutional taking claim.

The constitutional problems with the Goal 18 prohibitions adopted in 1977 were further exacerbated by the subsequent significant change in state law when ORS 390 was amended in 1990 to establish a new and moving state jurisdictional line, the Statutory Vegetation Line. This new and complete change supplanted the original intent of the Beach Bill and its initial amendments which established a Statutory Zone Line on the dry sand beach, eastward of which developers and local municipalities could develop and permit development without state approval. When the dynamic new standard was implemented by the State Parks Department (which took over for the Oregon Department of State Lands), the new implementing rules established a standard discerning where the "line of vegetation" along the base of the beach dune occurs along the Oregon Coast, and that new and dynamic line would be the state line of jurisdiction. Properties that had properly set development back from the previous Statutory Zone Line and had taken into account foreseeable oceanfront erosion rates were thrust into an unforeseeable set of circumstances. Their previously permissible development, which was properly permitted eastward of the original Statutory Zone Line, purportedly now violates state law despite taking into account Goal 18 in the first place prior to 1990.

It has been recognized that these issues could support lawsuits by homeowners based on violations of their constitutional rights, including (1) governmental physical taking without just compensation, (2) deprivation of substantive and procedural due process, and

68 And in fact, the Applicants' exception requests arise, in part, from the dichotomy of Goal 18's qualified allowance of development of coastal beach areas and its general restriction on beachfront protective structures for development occurring post-January 1, 1977. As discussed below, at the time they were developed, none of the Properties were threatened by short- or long-term erosion, and by the fact of their permitted development, the Properties necessarily satisfied the policies underlying Goal 18. Changing ecological and environmental conditions, including climate change and impacts from nearby and subsequently approved revetments, which were unforeseeable, have since driven the now-urgent need for protective structures.

- 22 - 4810-3813-6798.11 (3) denial of equal protection under the law. Thus, a local government that allows private structures to be destroyed through coastal erosion could be ordered to pay millions of dollars in compensation to the injured property owner. And even if successful in defeating some claims, the city/county will still be forced to expend substantial sums of taxpayer money and dedicate significant public-employee time defending against the lawsuit, which could likely be brought in federal court, a more expensive and less deferential forum.69

The constitutional claim for a taking is particularly strong when denial of the right to construct a protective structure results in the loss of existing structures, rather than just a limit on future use of the property, such as the case in Stevens v. City of Cannon Beach, 317 Or 131, 148, 854 P2d 449 (1993) (denial of permit to build seawall in order to construct new motel). A restriction on a proposed use is reviewed under the more lenient "regulatory taking" framework, while a government using its powers to compel an owner to submit to the physical occupation or destruction of a property is likely a per se taking. This is especially true when the destruction has been caused in part by government action, such as permitting protective structures near the land at issue. Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419, 427-28, 102 S Ct 3164, 73 L Ed 2d 868 (1982) ("A unanimous Court stated [in Pumpelly v. Green Bay Co., 80 US 166, 20 L Ed 557 (1871)], without qualification, that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution."").

Fortunately, the Goal exception process was created as a release valve to avoid these types of legal difficulties for local governments and instead enable reasonable solutions under appropriate circumstances, like those documented here.

C. In 2019, DLCD's Goal 18 Focus Group recommended that local governments use Goal 18 exceptions to consider the legal and practical issues with Implementation Requirement 5.

In response to the issues above, DLCD convened a focus group of experts and interested parties to evaluate and address a few of these Goal 18 flaws. DLCD states on its website that it "convened a focus group of relevant interest groups, local government staff, and state agencies to review the equity and consistency of the application of Statewide Planning Goal 18: Beaches and Dunes, Implementation Requirement #5."70 The group met a total of six times throughout 2019.

The Focus Group prepared a final report, dated September 30, 2019 (the "Final Report"), addressing four topics identified by DLCD. The Final Report states that it did not address "Oregon's core policy of prohibiting shoreline armoring for new development" because it would "require a major policy discussion involving an extensive group of stakeholders and the public" and would "encompass revisiting the basic premise of the 1977 limit on shoreline armoring: the primacy of public over private interests in protecting Oregon's beaches."

69 Knick v. Twp. of Scott, Pennsylvania, 139 S Ct 2162, 2172, 204 L Ed 2d 558 (2019) (allowing a property owner to seek compensation for a taking under the Fifth Amendment without first exhausting state remedies). 70 https://www.oregon.gov/lcd/OCMP/Pages/Goal-18-Focus-Group.aspx (DLCD webpage explaining the purpose and findings of the 2019 focus group).

- 23 - 4810-3813-6798.11 Nevertheless, the Final Report includes key observations that are helpful in the review of the Applications.

First, the Final Report echoes the official government reports and research outlined above, and states that the need for shoreline armoring has increased and will continue to do so because the "impacts of climate change and sea level rise (SLR) will bring increased erosion, flooding, and storminess, which can impact both private and public development and infrastructure." (Final Report, at 23.)

The Focus Group also opined that several aspects of the Goal 18 prohibition were problematic because of its narrow, absolute, and arbitrary nature; for instance, categorically excluding public infrastructure and developed parcels, even though they are indistinguishable from lots in regard to the underlying purposes of the policy.71 Further, the Final Report found that the inconsistent allowance of protective structures has resulted in "isolated ineligible parcels [that] are scattered in between eligible properties in otherwise developed segments of the shoreline," which "can make permitting and effective armoring difficult due to the resultant edge effects of isolated structures." (Final Report, at 15.)

The Final Report found that many of these problems could be remedied by local governments adopting exceptions to Goal 18 and recommended this approach as an immediate solution, stating that:

• This process has been "underutilized." (Final Report, at 11.)

• It "already exists and would require no changes to rules or the goal." Id.

• "Any entity can pursue this option now." Id.

• Although this option does not appear to have yet been used for Goal 18, implementation requirement five, "there is no evidence that the process doesn't work." (Final Report, at 18.)

• It "[a]llows geographic specificity to a particular area, which may help with creating findings." Id.; and

• Local governments "can do batch exceptions (more than one parcel at a time)." Id.

Thus, in approving the Applications' requests for a Goal 18 exception, the County would be employing a process recently endorsed in 2019 by DLCD and other interested parties in the Focus Group.

71 "Also, in the developed segments of shoreline where these physically improved parcels exist, there is no functional, policy-based distinction between parcels and subdivision lots." (Final Report, at 15.)

- 24 - 4810-3813-6798.11 III. LAND USE REQUESTS AND OVERVIEW OF APPROVAL CRITERIA

There are two primary permits needed for placement of a new beachfront protective structure. At the state level, the OPRD has primary authority over the construction of any improvement on the state's ocean shores. ORS 390.605. OPRD approval of a new protective structure, however, requires a showing that the proposed improvements "are in compliance with the local comprehensive plan and zoning ordinances" and that the structure is either allowed under Goal 18 or the subject of an exception. OAR 736-020-0060.

Thus, the local government is typically the first body to review and approve the construction of a protective structure on its ocean shores. Like the OPRD regulations, the County's Plan permits protective structures only if eligible under Goal 18, because the property was "developed" prior to January 1, 1977, or is subject to a Goal exception.

In apparent reliance on the unofficial Goal 18 Eligibility Inventory prepared by the Oregon Coastal Management Program (the "OCMP"), County staff has communicated to the Applicants that the Properties were not developed before January 1, 1977, and thus currently appear ineligible to construct protective structures under Goal 18 and the Plan.72 Accordingly, the Applications seek County adoption of Goal 18 exceptions for the Properties, which is implemented through amendments to the County's Plan as described below. This is the appropriate type of application to address this issue.

A. Approval of Goal 18 exceptions.

The Applications first request a "reasons exception" to Goal 18 in order to address the inequitable and legally infirm prohibition on the Applicants' rights to protect their Properties. This exception will allow the Applicants to proceed with further process at both the state and local levels to receive approval for the construction of riprap structures necessary to prevent the imminent loss of their homes and resort buildings.

The criteria for a Goal 18 reasons exception are straightforward and clearly satisfied here. Goal 2 provides that an exception is allowed if (1) there are reasons that "justify why the state policy embodied in the applicable goals should not apply," (2) other areas cannot accommodate the proposed use, (3) the use will not result in significant environmental, economic, social and energy consequences compared to other areas that would also require a Goal exception, and (4) the proposed uses are or can be rendered comparable with adjacent uses. Goal 18, pt II(c)(1). These criteria are repeated in ORS 197.732, and refined/supplemented by LCDC regulations in OAR 660-004-0020 and 0022. The Applications' satisfaction of each criterion is set forth below.

72 It is not clear whether the County's reliance on the Goal 18 Eligibility Inventory created by the OCMP is permissible because it has not been adopted as part of the County's Plan nor incorporated into the County's inventory supporting the Plan. This is important because it means that the County has not held public meetings or otherwise allowed the public an opportunity to participate in and comment on the County's use of the database in determining what properties are eligible for construction of protective structures, or provide evidence. Further, neither the state nor the County has allowed property owners adversely affected by the OCMP's eligibility designations an opportunity to challenge the agency's unilateral determinations.

- 25 - 4810-3813-6798.11 B. Comprehensive plan amendment.

To take effect, a Goal exception must be adopted as an amendment to a local government's comprehensive plan. Accordingly, each of the Applicants also request an amendment to the Plan adding the approved Goal 18 exceptions thereto.73

Pursuant to LCZC § 1.1235, these types of quasi-judicial amendments are allowed if there is a need for the change, the amendment is consistent with the County's Plan and Code, and the amendment complies with the Goals. LCZC § 1.1235. Compliance with the Goals in amending a comprehensive plan is also mandated by Oregon statute. ORS 197.175(2)(a). This narrative demonstrates the Applications' compliance with these criteria.

IV. GOAL 18 EXCEPTION – SATISFACTION OF CRITERIA

Part II of Goal 2 provides that:

"A local government may adopt an exception to a goal when: *** (c) The following standards are met:

"(1) Reasons justify why the state policy embodied in the applicable goals should not apply;

"(2) Areas which do not require a new exception cannot reasonably accommodate the use;

"(3) The long-term environmental, economic, social and energy consequences resulting from the use of the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site; and

"(4) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts."

ORS 197.732 sets forth identical standards for when a "reasons" exception is allowed. The statute also requires LCDC to "adopt rules establishing * * * [u]nder what circumstances particular reasons may or may not be used to justify an exception under" these standards. ORS 197.732(3)(b).

LCDC has done so in OAR 660-004-0020 and 0022. Accordingly, these regulations contain the applicable state criteria for the Applicants' requests for a Goal 18 exception. As set forth below, these standards are clearly satisfied by the circumstances here.

73 The Applicants request that the County adopt the language and supporting documentation from this narrative and supporting documents to incorporate the requested Goal 18 exceptions into the County's Plan. The resolution adopting the proposed amendments must include findings of fact and the reasonable basis for those findings, which these applications provide.

- 26 - 4810-3813-6798.11 A. OAR 660-004-0020. "Goal 2, Part II(c), Exception Requirements"

OAR 660-004-0020(2) states that "[t]he four standards in Goal 2 Part II(c) required to be addressed when taking an exception to a goal are described in subsections (a) through (d) of this section, including general requirements applicable to each of the factors[.]" Each of these criteria are addressed individually in the following subsections:

1. "Reasons justify why the state policy embodied in the applicable goals should not apply." The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations, including the amount of land for the use being planned and why the use requires a location on resource land." OAR 660-004- 0020(2)(a).

Goal 18's text and directive to local governments can be summarized as setting forth two primary policies: (1) to balance the development, conservation, restoration, and other uses of beach/dune resources taking into consideration the character of the relevant area, and (2) to reduce coastal hazards to human life and property.74

The overarching reason the County should grant the Applicants' requests for an exception to Implementation Requirement 5 (prohibiting the construction of beachfront protective structures on "ineligible" properties) is because its imposition on the Properties clearly undermines these two main objectives of Goal 18. In such a case, the minor implementation subpart should give way to the actual text and intent of the Goal.

It is obvious that allowing the Applicants to save their imminently threatened homes and resort buildings by placing riprap on a beach that has little natural resources and is already lined with such protective structures accomplishes both (1) a proper balancing of economic and natural resources in the use of coastal land, and (2) the elimination of a major hazard to human life and property.

This overarching point is supported and accompanied by the many other detailed reasons why the Applicants' requests for exceptions to Requirement 5 should be granted. These reasons include:

74 Goal 18 is "[t]o conserve, protect, where appropriate develop, and where appropriate restore the resources and benefits of coastal beach and dune areas; and to reduce the hazard to human life and property from natural or man- induced actions associated with these areas." OAR 660-015-0010(3). To achieve these policies, Goal 18 states that local governments should "provide for diverse and appropriate use of beach and dune areas consistent with their ecological, recreational, aesthetic, water resource, and economic values, and consistent with the natural limitations of beaches, dunes, and dune vegetation for development." Id. Thus, it is clear that the policies advanced by Goal 18 are not categorically opposed to development on properties adjacent to coastal beach areas. Indeed, Requirement 5 of Goal 18 even specifies how to design oceanfront protective measures to mitigate their impacts. The language used in Goal 18 promotes the development of those resource areas "where appropriate." Appropriateness requires a consideration of a coastal area's "ecological, recreational, aesthetic, water resource, and economic values" so long as any development is "consistent with the natural limitations of beaches, dunes, and dune vegetation." Id.

- 27 - 4810-3813-6798.11 • The homes and other oceanfront structures on the Properties are in imminent danger and threatened by a high probability of total failure in the near future because of the rapid and unpredictable erosion of their shoreline bluffs.75

• The rapid erosion of the Properties' bluffs is more than six times76 the estimated rate of erosion at the time the buildings were constructed in the early 1990s,77 and the intensity, rate, and volatility of the erosion is only likely to increase.78

• The risk is exacerbated by the (now recognized) high risk of earthquake activity on the Oregon coast because "even a small seismic event may result in catastrophic failure of all structures."79

• The endangerment of the Properties and the structures thereon also poses an imminent threat to human life.

• Gleneden Beach is already extensively lined with protective structures:

o It "has the longest stretch and highest density of shorefront protective structures along the Oregon coast."80

o Ninety percent of the lots along the stretch of beach near the Properties have protective structures.81

o Eighty percent of all lots on Gleneden Beach are already protected by beachfront revetments.82

o Seventy-five percent of Gleneden Beach is already lined with protective structures.83

• The proliferation of protective structures—all approved by the County and the state—is greatly contributing to the rapid erosion of the Properties' bluffs.84

75 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep,. at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 2. 76 Mott MacDonald WorldMark Rep., at 5; Mott MacDonald Lincoln Ave. Homes Rep., at 5. 77 Mott MacDonald WorldMark Rep., at 2, citing Paul Komar and Shuter-Ming Shih. 1991. Sea-cliff erosion along the Oregon Coast, Coastal Sediment 91, 1558-70, ACSE. 78 Mott MacDonald WorldMark Rep., at 5. 79 Mott MacDonald WorldMark Rep., at 6. 80 HGSA Geotechnical Rep., at 3. 81 Critical Area Assessment, at 4; map of "Existing Protective Structures" from Goal 18 Eligibility Inventory, § I.C.2, above. 82 HGSA Geotechnical Rep., at 2 83 Id. 84 HGSA Geotechnical Rep., at 20.

- 28 - 4810-3813-6798.11 • The erosion of the Properties due to the proliferation of protective structures on the beach will continue to grow because only a total of 15 lots are not currently protected and designated as ineligible to construct a new revetment.85

• Climate change has substantially increased storm and wave activities and other erosion causes since the Properties were developed, posing an imminent, growing, and unpredictable threat of harm to persons and structures.86

• There are very few natural resources on Gleneden Beach to "conserve" because of its low-quality natural habitat.87 An environmental field survey of the Resort area found there were no rare plants or wildlife, no estuarine resources, no historic properties or cultural/archeological resources nearby, no suitable nesting or foraging habitat for endangered or threatened wildlife, and no sign of geologic interests or fossil beds at the site.88

• The Critical Area Assessment also concluded that the proposed protective structures will not impact the air or water quality.89

• The proposed revetment will actually conserve/improve natural resources through the preservation of the bluff terrace vegetation90 and the installation of native sand with new vegetation on top of the riprap structures.91

• The proposed protective structures will also not impact the public's use of the beach because the proposed riprap area there has no recreational value. As shown in the photos above, the beach areas beneath the rapidly eroding bluffs are extremely dangerous and should not be visited by the public at all. Thus, the installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and public from falling materials—and soon falling structures.

• The filling in of the small revetment gaps along Gleneden Beach will not have any impact on the recreational use, appearance, or natural resources of the beach, but will significantly reduce imminent threat to persons and buildings on the Properties.

85 HGSA Geotechnical Rep., at 2. 86"Impacts of Climate Change on Oregon's Coasts and Estuaries," Washington, DC, EPA/600/R-10/184, 2011; 2020 Oregon Natural Hazards Mitigation Plan; Third Oregon Climate Assessment Report (2017); Draft Oregon Climate Change Adaptation Framework (2020). 87 Critical Area Assessment, at 4. 88 Critical Area Assessment, at 4-8. 89 Critical Area Assessment, at 7 (finding that there was no reason to expect that the proposed riprap structures would impact air or water resources). 90 Critical Area Assessment, at 8. 91 The recommended structure described in the Mott MacDonald WorldMark Report provides for a covering of native sand and grass vegetation on top. (Mott MacDonald WorldMark Rep., at 6.)

- 29 - 4810-3813-6798.11 • The recommended protective structures are designed and will be constructed to avoid adverse impacts to adjacent properties.92

• Unlike the few natural resources—none of which will be harmed by the proposed structures—the threatened existing development is immense.

• The development imminently threatened includes:

o A large resort with 80 time-share units and many on-site amenities (swimming pools, hot tub, etc.);

o 26 oceanfront condominium homes, along with critical infrastructure for 54 more units, the loss of which could render them uninhabitable; and

o Four oceanfront single-family residences and accessory structures. • The total value of the development that will certainly be lost without the approval of a Goal 18 exception is at least $23,000,000.93

• The destruction of this development will have a significant impact on the County and local economy, including the loss of: 94

o Tourist/resident activity in an amount equal to 46,538 room-nights per year, and a corresponding 141,803 guest-days per year;

o $8.5 million in local spending by these foregone visitors and residents;

o $2.7 million in local expenditures per year for the operation and maintenance of the Properties;

o 190 total full- and part-time jobs;

o $6 million in total labor income (wages, salaries, and proprietors' income); and

o $1.5 million in total state and local government taxes. • Imposing the substantial loss of development despite the lack of any meaningful benefit to the natural resources or other countervailing justification is unconstitutional (and could result in a takings lawsuit against the County and state for more than $23,000,000).

92 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 93 Tax records with fair market value estimates are provided in Appendix C. This number does not include the other 56 non-oceanfront condominium homes at SeaRidge. 94 Economic Impact Rep., at 1 & 6.

- 30 - 4810-3813-6798.11 In short, it is overwhelmingly clear that for the Properties and in these circumstances, Implementation Requirement 5 will actually undermine the text and objectives of Goal 18. Allowing far more than 100 homes/lodging units to be destroyed in order preserve three small gaps in the revetments lining Gleneden Beach simply cannot be justified, and in no way accomplishes a proper balancing of development with resource conservation nor a reduction in hazards as required by Goal 18. Accordingly, the Applications should be approved.

In addition, as discussed in depth in the sections concerning OAR 660-004-0022 and the Goals below, allowing the destruction of the Resort and 30 homes violates several policies in other Goals, including Goal 7 (Natural Hazards), Goal 8 (Recreational Needs), Goal 9 (Economic Development), and Goal 10 (Housing).

Further, in response to the specific information required by the last sentence in OAR 660-004-0020(2)(a), the proposed protective structures can obviously only be placed on the resource land at issue in order to protect the homes and other buildings on the Properties from collapse. The amount of land proposed in the Applications for the Goal 18 exception areas is set forth in the maps and site plans contained in Appendix D.

As required by this regulation, this narrative and supporting documents provides the "the facts and assumptions" to be used by the County "as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations * * *." To that end, the Applicants request that the County adopt the analysis in this narrative, the expert reports in Appendix A, the academic studies and state plans in Appendix B, the county property records in Appendix C, the property/site maps in Appendix D, and all other documents submitted now or in the future in support of the Applications as the bases for approval of the requested Goal exceptions.

2. "Areas that do not require a new exception cannot reasonably accommodate the use." The exception must meet the following requirements * * *" OAR 660-004-0020(2)(b).

Section 2(b) contains three subsections. A response is provided for each.

a. "The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use that do not require a new exception. The area for which the exception is taken shall be identified[.]" OAR 660-004- 0020(2)(b)(A).

The proposed Goal exception is for construction of three protective structures that will protect the already-existing homes and resort buildings on the Properties. Obviously, the protective structures could not be built elsewhere to protect the Properties at issue.95 The images

95 The existence and location of the buildings themselves are not at issue in the Application—only their inevitable destruction if the Application is not granted. But even if the location of the buildings was at issue, the homes and the Resort on the six properties are committed and location-specific. It would not be possible to relocate them to a new area that does not require an exception. Further, causing the destruction of the buildings on the Properties, whether in the form of mandating the inevitable collapse of the homes and resort building by blocking the necessary

- 31 - 4810-3813-6798.11 above and the attached site plans identify where the exceptions will be taken. The Applications satisfy this criterion.

b. "To show why the particular site is justified, it is necessary to discuss why other areas that do not require a new exception cannot reasonably accommodate the proposed use. Economic factors may be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under this test the following questions shall be addressed: (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including increasing the density of uses on nonresource land? If not, why not? (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to nonresource uses not allowed by the applicable Goal, including resource land in existing unincorporated communities, or by increasing the density of uses on committed lands? If not, why not? (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? (iv) Can the proposed use be reasonably accommodated without the provision of a proposed public facility or service? If not, why not?" OAR 660-004-0020(2)(b)(B).

The purpose of the requested exception—protection of the homes and resort buildings on the Properties—can obviously only be accomplished by protective structures on the beachfront of the Properties. See Columbia Riverkeeper v. Columbia Cty., 297 Or App 628, 645 n.5 (2019) ("The 'proposed use' is the use specified in the reasons exception, and the suitability of land as an alternative depends upon whether it can satisfy that specified land use need." (emphasis added)). The placement of the protective structures on other lands will not avoid the severe economic consequences of allowing the houses, condominium, and resort buildings to collapse by denying the owners the right to protect the Properties. Thus, the construction of the structures cannot "reasonably be accommodated on nonresource land that would not require an exception," and cannot be built on land that is "already irrevocably committed to nonresource uses," or "inside an urban growth boundary." It is clear, however, that the protective structures will not require the provision of a new public facility or service.

protection measure or by mandatory relocation, would very likely constitute a taking of private property without compensation in violation of the Oregon and United States constitutions. Cf., e.g., Litz v. Maryland Dep't of Env't, 446 Md. 254, 268–73 (2016) (collecting decisions where "unalloyed allegations of government inaction alone may suffice to plead" a takings claim); cf. also id. at 265–66 ("[The takings provision of the Maryland Constitution] has been determined to 'have the same meaning and effect in reference to an exaction of property, and that the decisions of the Supreme Court on the Fourteenth Amendment are practically direct authorities.'" (quoting Bureau of Mines of Maryland v. George's Creek Coal & Land Co., 272 Md. 143, 156 (1974) (footnote omitted))).

- 32 - 4810-3813-6798.11 The Applications and supporting materials demonstrate that these particular sites—some of the only lots not already protected by riprap—are justified and that no reasonable alternative exists. Accordingly, this criterion is satisfied.

c. "The "alternative areas" standard in paragraph B may be met by a broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government adopting an exception need assess only whether those similar types of areas in the vicinity could not reasonably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception unless another party to the local proceeding describes specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described, with facts to support the assertion that the sites are more reasonable, by another party during the local exceptions proceeding." OAR 660-004-0020(2)(b)(C).

The response to this criterion only requires analysis of the existing Properties' locations because the proposed structures cannot be built in any other location for protection of the homes and Resort; there are simply no other sites that could "more reasonably accommodate the proposed use." Accordingly, a general recognition of the lack of alternatives is sufficient, and the County, in considering this request for an exception, need not conduct a "site-specific comparison." See Columbia Riverkeeper, 297 Or App at 645.

3. "The long-term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site." The exception shall describe: the characteristics of each alternative area considered by the jurisdiction in which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include but are not limited to a description of: the facts used to determine which resource land is least productive, the ability to sustain resource uses near the proposed

- 33 - 4810-3813-6798.11 use, and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts to be addressed include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts." OAR 660-004-0020(2)(c).

The satisfaction of this criterion is identical to the preceding section: the protective structures must be placed on the Properties to protect the imminently threatened buildings thereon. There is no other land—requiring a Goal exception or not—that could be used for the placement of the proposed protective structures to protect the Properties' buildings.

Even if the proposed structures could be placed elsewhere, the Properties are uniquely appropriate for an exception to Goal 18's selective prohibition on riprap and other revetments. First, Gleneden Beach is already extensively lined with protective structures. As set forth in the HGSA Geotechnical Report, Gleneden Beach "has the longest stretch and highest density of shorefront protective structures along the Oregon coast."96 Eighty percent of all lots have97 and 75 percent of the Gleneden Beach shoreline already has protective structures.98

As a result, Gleneden Beach has a "low-quality natural habitat" with no meaningful natural resources to conserve.99 An environmental field survey of the Resort area found that there were no rare plants or wildlife, no estuarine resources, no historic properties or cultural/archeological resources nearby, no suitable nesting or foraging habitat for endangered or threatened wildlife, and no sign of geologic interests or fossil beds at the site.100 In addition, the environmental assessment found that the proposed protective structures will not impact the air or water quality.101 Further, in specific response to these administrative regulations, the Critical Area Assessment states that "[d]ue to significant erosion control development of the neighboring properties, the construction of a revetment / riprap structure on site is not expected to be more significantly adverse than if it were constructed in an area of similar circumstance[,]" and "[t]he presence and quality of natural resources are not greater on the subject property compared to other oceanfront areas. Placing protective shoreline structures at the WorldMark Gleneden Beach site would not significantly change the aquatic life and habitat of Gleneden Beach."102

Further, the rapid erosion of the Properties' bluffs has dramatically increased since the construction of the buildings thereon,103 more than six times the rate calculated in the early 1990s,104 which has primarily been caused by the unforeseen consequences of ongoing climate

96 HGSA Geotechnical Rep., at 3. 97 HGSA Geotechnical Rep., at 2 98 Id. 99 Critical Area Assessment, at 4. 100 Critical Area Assessment, at 4-8. 101 Critical Area Assessment, at 7 (finding that there was no reason to expect that the proposed riprap structures would impact air or water resources). 102 Mott MacDonald WorldMark Rep., at 8. 103 Mott MacDonald WorldMark Rep., at 5; Mott MacDonald Lincoln Ave. Homes Rep., at 5. 104 Mott MacDonald WorldMark Rep., at 2, citing Paul Komar and Shuter-Ming Shih. 1991. Sea-cliff erosion along the Oregon Coast, Coastal Sediment 91, 1558-70, ACSE.

- 34 - 4810-3813-6798.11 change105 and the proliferation of protective structures on most other properties at Gleneden Beach.106 This erosion poses an imminent threat to both persons and the buildings on the Properties,107 and a "catastrophic failure" of the homes and other structures could be triggered by "even a small seismic event."108

The loss of the threatened homes and resort buildings will cause immense economic harm to the Applicants and the local community. The buildings at risk of total loss include a large resort with 80 time-share units and many on-site amenities, 26 oceanfront condominium homes, and four oceanfront single-family residences, with a total value of at least $23,000,000.109 If these developments are destroyed, the County will lose significant tourist activity (equal to 46,538 room-nights per year and a corresponding 141,803 guest-days per year), $11 million in local business revenue from the operation of the Properties and spending by the Properties' visitors and residents, 190 total full- and part-time jobs, $6 million in total labor income (wages, salaries, and proprietors' income), and $1.5 million in total state and local government taxes.110

It should also be noted that even if an alternative location could be found for the sake of a comparison to the Properties, it would require the relocation of the Resort, SeaRidge, and the Lincoln Avenue Homes, which is clearly not economically viable or even possible. Thus, any "relocation" of the Resort, SeaRidge, and the homes would in effect be the destruction of the existing buildings and construction of new structures elsewhere. Not only would this be an enormous waste of resources, but it would require suitable land that does not appear to exist.

And even if the buildings could somehow be transported to some other suitable location without destruction of the structures, these other sites would provide no benefit over the current Properties. Given the amount of space currently occupied on the Properties, an urban growth boundary expansion would be necessary to accommodate the uses elsewhere. Further, the beaches surrounding these alternative sites would likely have far less armoring and thus have a greater natural resource value. The oceanfront characteristics of the Properties, existence within the urban growth boundary, access to existing infrastructure, and proximity to complementary uses does not exist elsewhere.

Accordingly, it is clear that alternative locations do not exist, and even if one did, the long-term environmental, economic, social, and energy consequences would all strongly support the use of the Properties for the proposed beachfront protective structures. This criterion is met.

105"Impacts of Climate Change on Oregon's Coasts and Estuaries," Washington, DC, EPA/600/R-10/184, 2011; 2020 Oregon Natural Hazards Mitigation Plan; Third Oregon Climate Assessment Report (2017); Draft Oregon Climate Change Adaptation Framework (2020). 106 HGSA Geotechnical Rep., at 20. 107 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 2. 108 Mott MacDonald WorldMark Rep., at 6. 109 Tax records with fair market value estimates are provided in Appendix C. This number does not include the other 56 non-oceanfront condominium homes at SeaRidge. 110 Economic Impact Rep., at 1 & 6.

- 35 - 4810-3813-6798.11 4. ""The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts." The exception shall describe how the proposed use will be rendered compatible with adjacent land uses. The exception shall demonstrate that the proposed use is situated in such a manner as to be compatible with surrounding natural resources and resource management or production practices. "Compatible" is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses." OAR 660-004-0020(2)(d).

The proposed protective structures would have little to no impact on surrounding properties, aside from providing them additional protection. In fact, it is the protective structures on these other properties that are exacerbating the erosion threatening the Properties, and thus necessitating the Applications.

The proposed protective structures are unmistakably compatible with the surrounding properties and the proliferation of such structures on Gleneden Beach in general. Further, as discussed in the property-specific geotechnical reports, the protective measures are designed to avoid all potential negative impacts on surrounding properties.111

In addition, the protective structures will not interfere and are entirely compatible with the use and appearance of the adjacent beach. First, the protection of the Properties' bluffs will not negatively impact the public's use of the beach. The beach area near the Properties' failing bluffs is extremely dangerous and not suitable for recreation below the cliffs. The installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and persons thereon from falling materials. Also, the proposed revetment will improve, or at least maintain, the aesthetic appeal of the bluff area through the preservation of the bluff terrace vegetation112 and the installation of native sand with new vegetation on top of the riprap structures.113

Finally, as detailed in the Critical Area Assessment, the proposed protective structures are fully compatible with and will have no impact on the limited natural resources on Gleneden Beach.114 The riprap structures will not negatively impact wildlife habitat, cultural resources, air and water quality, or any other natural resource.115

In fact, the structures will protect abutting properties from erosion eating around neighboring revetments. This criterion is met.

111 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 112 Critical Area Assessment, at 8. 113 The recommended structure described in the Mott MacDonald WorldMark Report on page 6 provides for a covering of native sand and grass vegetation on top. 114 Critical Area Assessment, at 4-8. 115 Critical Area Assessment, at 4-8.

- 36 - 4810-3813-6798.11 B. OAR 660-004-0022. "Reasons Necessary to Justify an Exception Under Goal 2, Part II(c)."

OAR 660-004-0022 states an "exception under Goal 2, Part II(c) may be taken for any use not allowed by the applicable goal" and further identifies "[t]he types of reasons that may or may not be used to justify certain types of uses not allowed on resource lands[,]" such as coastal beach areas subject to Goal 18. The regulation provides specific guidance for certain situations, none of which apply here. Rather, the part of this regulation pertinent for review of the Applications is the catchall in section 1. It states:

"(1) For uses not specifically provided for in this division, or in OAR 660- 011-0060, 660-012-0070, 660-014-0030 or 660-014-0040, the reasons shall justify why the state policy embodied in the applicable goals should not apply. Such reasons include but are not limited to the following:

"(a) 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 either

"(A) A resource upon which the proposed use or activity is dependent can be reasonably obtained only at the proposed exception site and the use or activity requires a location near the resource. An exception based on this paragraph must include an analysis of the market area to be served by the proposed use or activity. That analysis must demonstrate that the proposed exception site is the only one within that market area at which the resource depended upon can reasonably be obtained; or

"(B) The proposed use or activity has special features or qualities that necessitate its location on or near the proposed exception site."

The "demonstrated need" for the requested Goal exception is to avert the imminent loss of the Lincoln Avenue Homes, 26 condominium homes, and a large resort which are being imperiled by erosion of the Properties' beachfront and bluffs. This demonstrated need advances and thus is based on several Goals, including Goal 7 (Natural Hazards), Goal 8 (Recreational Needs), Goal 9 (Economic Development), Goal 10 (Housing), and even Goal 18 itself.

Goal 7's objective is "[t]o protect people and property from natural hazards," which includes coastal erosion. The proposed riprap would protect both the people visiting the Resort, SeaRidge, the Lincoln Avenue Homes, and Gleneden Beach, as well as the properties of the Applicants, from a potentially catastrophic erosion event that appears to be increasingly likely due to the heightened erosion events seen in the 2019-2020 storm season. Further, the Properties' rapidly eroding steep cliffs and bluffs generate unmitigated—and without the requested exception, legally unmitigable—hazards to the general public using the beaches below. The climate change studies and reports outlined above, and the report from Dr. Shepsis, more than document the growing hazard to the Properties.

The purpose of Goal 8 is "[t]o satisfy the recreational needs of the citizens of the state and visitors and, where appropriate, to provide for the siting of necessary recreational

- 37 - 4810-3813-6798.11 facilities including destination resorts." As discussed earlier in this narrative, the Resort provides for the recreational needs of Oregon citizens and out-of-state visitors. This is a key part of the County's economy, as identified in the Plan. The purpose of the Applications is to protect the Resort, so that it may continue to be open as a resort providing for the recreational needs of many, as well as SeaRidge and the Lincoln Avenue Homes, from coastal erosion.

The Applications also show a "demonstrated need" based on Goal 9, which seeks "[t]o provide adequate opportunities throughout the state for a variety of economic activities vital to the health, welfare, and prosperity of Oregon's citizens." As noted earlier, the loss of the threatened homes and resort buildings will cause immense economic harm to the Applicants and the local economy. The buildings at risk of total loss include a large resort with 80 time-share units and many on-site amenities, 26 oceanfront condominium homes, and four oceanfront single-family residences, with a total assessed value of at least $23,000,000.116 If these developments are destroyed, the County will lose significant tourist activity (equal to 46,538 room-nights per year and a corresponding 141,803 guest-days per year), $11 million in local business revenue from the operation of the Properties and spending by the Properties' visitors and residents, 190 total full- and part-time jobs, $6 million in total labor income (wages, salaries, and proprietors' income), and $1.5 million in total state and local government taxes.117

Goal 10 is "to provide for the housing needs of citizens of the state." As with most of Oregon, the County has a housing shortage, as depicted in Figures 9, 10, and 11 of the County's 2019 Housing Strategy Plan. SeaRidge and the Lincoln Avenue Homes contribute 30 homes to the local housing supply that will be destroyed if those Applications are not approved. Further, another 54 homes at SeaRidge will be at least temporarily uninhabitable if the bluffs fail. Allowing the unnecessary loss of these 30 to 84 homes would further constrain the already deficient supply of homes in the County.

Finally, the second policy of Goal 18 is "[t]o reduce the hazard to human life and property from natural or man-induced actions associated with these areas." As described above, the erosion threatening the Properties is caused by increasing storms (natural) and the heavy armoring of Gleneden Beach (man-induced), and this hazard could be "reduced"—in fact, altogether avoided—by approval of the Goal exception.

In addition to the demonstrated need, OAR 660-004-0022 requires a showing that either (1) the proposed use or activity is dependent on a resource that can only reasonably be obtained at the proposed exception site, or (2) "[t]he proposed use or activity has special features or qualities that necessitate its location on or near the proposed exception site." For the Applications, the second criterion is plainly satisfied. The Applications seek protective structures to prevent potentially catastrophic erosion that threatens life and valuable buildings on the Properties, and to be effective, these proposed structures can only be placed on the Properties' beachfront. Therefore, the "proposed use or activity has special features or qualities that necessitate its location on or near the proposed exception site."

116 Tax records with fair market value estimates are provided in Appendix C. This number does not include the other 56 non-oceanfront condominium homes at SeaRidge. 117 Economic Impact Rep., at 1 & 6.

- 38 - 4810-3813-6798.11 The requested Goal exception necessary to construct the urgently needed protective structures easily satisfies all criteria under state law and administrative rules. Accordingly, the Applications should be approved. This is responsible county planning.

V. COMPREHENSIVE PLAN AMENDMENT—SATISFACTION OF CRITERIA

All Goal exceptions must be incorporated into the local government's comprehensive plan. ORS 197.732(1)(b); Goal 2 pt II; OAR 660-004-0000 & 0015. Accordingly, the Applicants request that the Plan be amended to incorporate the requested Goal 18 exception. Applicable criteria for this requested quasi-judicial amendment are contained in the Code, the Plan, and state law, which mandates compliance with the Goals. The Applications' clear satisfaction of each is set forth below:

A. The Code:

1. "1.1235 Quasi-Judicial Amendments A quasi-judicial amendment to the Comprehensive Plan and Zoning Maps may be authorized provided that the proposal satisfies all applicable requirements of this Chapter and also provided that the applicant, in a quasi-judicial hearing, demonstrates that the change is in accord with the Comprehensive Plan goals and policies or the Statewide Planning Goals and that: (1) There has been a substantial change in the character of the area since zoning was adopted and which warrants changing the zone; (2) Zoning previously adopted for the area was in error; or (3) There is a public need for the change being sought."

LCZC § 1.1225 provides that quasi-judicial amendments may be requested by a property owner (or agent thereof), which shall be reviewed under LCZC § 1.1235. This provision requires an amendment to be justified by one of three circumstances, and comport with the goals and policies of both the Plan and Goals. The Applications' compliance with the relevant Plan provisions and Goals is demonstrated in the sections below.

In regard to the three alternative conditions permitting a Plan amendment, both the first and the third are satisfied by the Applications.

For the first option, there have been several substantial changes since the adoption of the Plan in 1988.118 See Plan, § 1.0105(4). The most important change is that the rate of erosion of the Properties' bluffs has greatly increased. As discussed above, the historical rate of erosion for Gleneden Beach was approximately two inches per year.119 At the time of the Plan adoption in 1988, the rate of erosion for Gleneden Beach shoreline bluffs was two inches per

118 1988 o.274 §1] 119 Mott MacDonald WorldMark Rep., at 2, citing Paul Komar and Shuter-Ming Shih. 1991. Sea-cliff erosion along the Oregon Coast, Coastal Sediment 91, 1558-70, ACSE.

- 39 - 4810-3813-6798.11 year.120 Over approximately the next ten or more years—after the Properties were developed— the rate of erosion accelerated by a factor of six, to more than one foot per year.121

Further, the Properties are now subject to much more destructive storms and wave energy due to climate change, in addition to many other climate-related factors increasing erosion and damage to the Properties. For example, as discussed above, the 2010 Climate Impact Report by Dr. Ruggiero found that there is a "long-term trend [of] increasing storm intensities and the heights of the waves they generate[,]" and that overwhelming evidence demonstrated growing impacts from climate change, including "rising sea levels, increased occurrences of severe storms, rising air and water temperatures, and ocean acidification" that would continue to increase the rate of erosion on the Oregon coast. (2010 Climate Impact Report, at 209 and 213.) Likewise, the 2020 Oregon Natural Hazards Mitigation Plan,122 reviewed recent studies and concluded that while "[p]revious analyses of extreme waves for the Oregon coast estimated the '100-year' (1%) storm wave to be around 33 feet," more recent data from the late 1990s has demonstrated "that the current 1% storm wave height * * * is now estimated to reach approximately 47 to 52 feet"—an increase of more than 57 percent from the time the Plan was adopted and the Properties developed. (Oregon Nat. Hazards Mitigation Plan at 474.)123 As discussed in Section I.C.2 above, and as set forth in Appendix B, there are many more contemporary studies and state plans documenting that the climate-change factors affecting this beach have been emerging since the 1990s and are having a highly significant impact on coastal erosion.

In addition, the proliferation of protective structures on Gleneden Beach, and their collective impact on unprotected properties, has grown substantially since the Plan was adopted. As discussed in the HGSA Geotechnical Report, third-party research of governmental approvals indicates that more than 60 structures have been approved since the early 1990s to today,124 including structures adjacent to the Properties that were erected since the Plan was adopted and the Properties developed. This number of permits, however, does not likely capture the expansion and/or reinforcement of structures already in existence. Further, an understanding of the impact of protective structures on unprotected properties has only emerged since the adoption of the Plan designating the Properties as not subject to an exception and thus ineligible for protective structures.125

In addition to these major changes, Section IV.A.1 sets forth the numerous other reasons why a Goal exception is warranted, all of which did not exist or were not known until after the Plan was adopted and the Properties developed. Climate change, proliferation of

120 Mott MacDonald WorldMark Rep., at 2, citing Paul Komar and Shuter-Ming Shih. 1991. Sea-cliff erosion along the Oregon Coast, Coastal Sediment 91, 1558-70, ACSE. 121 Mott MacDonald WorldMark Rep., at 5; Mott MacDonald Lincoln Ave. Homes Rep., at 5. 122 https://www.oregon.gov/lcd/NH/Documents/Approved_2020ORNHMP_02_ExecSum.pdf. 123 https://www.oregon.gov/lcd/NH/Documents/Approved_2020ORNHMP_07_RA1.pdf. 124 HGSA Geotechnical Rep., at 9. 125 HGSA Geotechnical Rep., at 19 ("Komar (2004) observed that the 'proliferation of shore protection structures is of concern in that cliff erosion of Pleistocene terrace sands represent the primary, and sometimes the sole source of new sand to the beach, a source that is cut off by the structures.'")

- 40 - 4810-3813-6798.11 protective structures, and all the other reasons justifying a Goal exception also individually and certainly collectively satisfy the first alternative grounds for a Plan amendment.

Perhaps even more clearly, the third alternative ground for a Plan amendment is met because there is a substantial public need for the Goal exception. There are 30 homes and a large resort complex that are threatened by imminent loss if the Plan is not amended to adopt the requested Goal 18 exception. The loss of these threatened homes and resort buildings will cause immense economic harm to the County, not to mention the owners who would lose their homes and workers who would lose their jobs. The buildings at risk of total loss include a large resort with 80 time-share units and many on-site amenities, 26 oceanfront condominium homes, and four oceanfront single-family residences, with a total value of at least $23,000,000.126 If these developments are destroyed, the County will lose significant tourist activity (equal to 46,538 room-nights per year and a corresponding 141,803 guest-days per year), $11 million in local business revenue from the operation of the Properties and spending by the Properties' visitors and residents, 190 total full- and part-time jobs, $6 million in total labor income (wages, salaries, and proprietors' income), and $1.5 million in total state and local government taxes.127 Families would be financially wiped out.

Further, the rapid erosion has created an extreme danger to human life, both on the Properties and on the adjacent beach. In addition to the volatile and unpredictable sudden erosion that will be caused by severe storms and extreme waves in the near future, "even a small seismic event may result in catastrophic failure of all structures."128 Granting the Applicants' request for a Goal exception and corresponding Plan amendment would close to eliminate this danger, thus addressing a substantial public need.

Accordingly, both of these alternative grounds for a Plan amendment as set forth in LCZC § 1.1235 are met.

2. LCZC § 1.1381 Coastal Shorelands (CS) Overlay Zone *** (4) Procedure Applicants requesting approval for land use actions within the areas subject to the provisions of the C-S zone shall submit, along with any application, a detailed site plan and/or written statement demonstrating how the proposed activities will conform to each of the applicable standards contained in the C-S zone. Planning Division or Planning Commission review of such applications shall proceed in accordance with the applicable provisions of this chapter. ***

All of the Properties have a Coastal Shorelands Overlay zoning, but it is unclear if those regulations apply to this Application because it only seeks a Goal exception and Plan amendment to allow the request of protective structures in subsequent permitting processes.

126 Tax records with fair market value estimates are provided in Appendix C. This number does not include the other 56 non-oceanfront condominium homes at SeaRidge. 127 Economic Impact Rep., at 1 & 6. 128 Mott MacDonald WorldMark Rep., at 6.

- 41 - 4810-3813-6798.11 Nevertheless, it is clear that the applicable standards for shoreland stabilization within the overly zone are satisfied.

In compliance with the procedural requirements for the Coastal Shorelands overlay, the images above, the attached site plans, and this written statement "demonstrate[e] how the proposed activities will conform to each of the applicable standards contained in the C-S zone."

3. LCZC § 1.1381(5)(f) Shoreland Stabilization: (A) Shoreline stabilization procedures shall be confined to those areas where: (i) Active erosion is occurring which threatens existing uses or structures; or (ii) New development or redevelopment of water dependent or water related uses requires protection for maintaining the integrity of upland structures or facilities. (B) The following, in order, are the preferred methods of shoreline stabilization: (i) Vegetative or other non-structural. (ii) Vegetated rip rap. (iii) Unvegetated rip rap. (iv) Bulkheads or sea walls. Structural shoreline stabilization methods shall be permitted only where a higher priority method is not feasible. (C) Materials to be used must be clean and of a non-erodible quality that will allow long-term stability and minimize maintenance. Materials which could create water quality problems or which will rapidly deteriorate are not permitted. *** (E) Shoreline stabilization structures shall be designed and located so as to minimize impacts on aquatic life and habitat, circulation and flushing characteristics, and patterns of erosion and accretion.

Like the section above, it is not clear if this section applies to the Applications, because they only seek Goal exceptions and corresponding Plan amendments to allow the Applicants to move forward with further applications and process requesting a permit for the construction of protective structures. These subsequent stages will address the specific design features of the proposed riprap structures.

Nevertheless, if this code section applies, the criteria are clearly satisfied. As set forth above and in the geotechnical reports submitted herewith, subsection A(i) is met because the oceanfront structures on the Properties face an imminent threat of total failure (i.e., sliding into the ocean) from the rapid erosion of the Properties' shoreline bluffs.129 Further, this risk is growing. As explained by Mr. Gless, "Severe erosion of the shoreline fronting the Goal 18

129 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 2.

- 42 - 4810-3813-6798.11 ineligible sites will continue and increase the already hazardous conditions if not protected with shoreline protective structures."130

Subsection B is also satisfied because the proposed protective structures are vegetated riprap, and it has been conclusively determined that vegetative or other nonstructural solutions are not viable solutions. As explained by Dr. Shepsis, the current wave height and energy (almost certain to increase) and other contributing forces of erosion (tide elevations, beach variability, littoral drift, bluff composition, etc.) bar the implementation of nonstructural protective measures.131 Likewise, Mr. Gless concludes that exceptions to Goal 18 to construct beachfront protective structures are necessary and warranted for the Properties.132

Subsection C is met because the proposed riprap structures will be constructed to the highest standards with materials that are clean and of a non-erodible quality that will allow long-term stability and minimize maintenance.133 The proposed structures are designed to avoid adverse impacts to adjacent properties.134

Finally, Subsection E is satisfied because the proposed structures have been designed and will be placed to not have an impact on natural resources, such as rare plants or wildlife, estuarine resources, nearby historic properties or cultural/archeological resources, nesting or foraging habitat for endangered or threatened wildlife, or geologic interests or fossil beds at the site.135 The proposed protective structures will also not harm air or water quality.136

To the extent they apply, all of the criteria in this section are met.

B. The Plan.

Both state law and the Code require that comprehensive plan amendments be consistent with the unamended portions of the Plan. See ORS 197.175(2)(a); LCZC § 1.1235. As set forth below, all relevant provisions of the Plan are satisfied by the Applications.

130 HGSA Geotechnical Rep., at 10. 131 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 6-7. 132 HGSA Geotechnical Rep., at 21 (""Based on HGSA's more than 40 years of experience and observations, and the overwhelming evidence presented in the geologic literature, an exception to Implementation Requirement 5 of Goal 18 should be made for Gleneden Beach, from Fishing Rock to Siletz Spit, to allow all properties to construct shoreline protective structures as necessary. This would benefit and help protect lots that are ineligible for oceanfront protection and lots that are eligible for protection or already protected.") 133 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 134 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 135 Critical Area Assessment, at 4-8. 136 Critical Area Assessment, at 7 (finding that there was no reason to expect that the proposed riprap structures would impact air or water resources).

- 43 - 4810-3813-6798.11 1. Plan § 1.0050 Natural Hazards Goals: "Natural hazard goals: (1) To identify and evaluate areas where natural hazards are known or suspected to exist. (2) To protect life and property from natural disasters and hazards. (3) To provide appropriate safeguards for land uses in areas of natural hazards."

The Applications advance this Plan provision. It identifies and evaluates the natural hazard of the quickly eroding bluffs on the Properties, which are endangering both life and property. The goal of the Applications is to allow for the construction of protective structures that will eliminate this threat, as well as create safeguards for the existing land use on the Properties. Further, the proposed structures themselves are designed to be safe for both the public and the environment.

2. Plan § 1.0090 Coastal Shoreland Goals: Coastal shoreland goals: (1) To identify coastal shore lands. (2) To identify appropriate uses in coastal shorelands. (3) To recognize the value of coastal shore lands for protection and maintenance of water quality, fish and wildlife habitat, water dependent uses, economic resources, and recreation and aesthetics.

Plan § 1.00050(7) recognizes the unique role that coastal shorelands play to the vital tourism base of the County: "Many of the principal economic activities in Lincoln County are directly dependent on sound management of shore land areas. Tourism flourishes in the County almost solely because of the appeal of the ocean, the beaches and the estuaries." The Plan calls for a balanced approach in protecting coastal properties from erosion.

As a result, the Plan's coastal shoreland goals and policies recognize the need to protect important coastal commercial operations and housing supply from unchecked erosion. See Plan, §§ 1.0090 & 1.0095. The County's third coastal shoreland goal in Plan § 1.0090 is "[t]o recognize the value of coastal shore lands for protection and maintenance of water quality, fish and wildlife habitat, water dependent uses, economic resources, and recreation and aesthetics." This goal recognizes the inherent need to balance multiple interests on these coastal properties.

As discussed at length above, and based on the expert reports submitted herewith, protection of the 30 homes and large resort clearly outweighs the placement of three more protective structures on a beach that is already almost entirely lined with riprap. The loss of these threatened homes and resort buildings will cause immense economic harm. The buildings at risk of total loss include a large resort with 80 time-share units and many on-site amenities, 26 oceanfront condominium homes, and four oceanfront single-family residences, with a total value of at least $23,000,000.137 If these developments are destroyed, the County will lose significant tourist activity (equal to 46,538 room-nights per year and a corresponding 141,803 guest-days per year), $11 million in local business revenue from the operation of the Properties and spending by the Properties' visitors and residents, 190 total full- and part-time jobs, $6 million in

137 Tax records with fair market value estimates are provided in Appendix C. This number does not include the other 56 non-oceanfront condominium homes at SeaRidge.

- 44 - 4810-3813-6798.11 total labor income (wages, salaries, and proprietors' income), and $1.5 million in total state and local government taxes.138

Conversely, there are very few natural resources on Gleneden Beach to "conserve" because of its low-quality natural habitat.139 An environmental field survey of the Resort area found that there were no rare plants or wildlife, no estuarine resources, no nearby historic properties or cultural/archeological resources, no suitable nesting or foraging habitat for endangered or threatened wildlife, and no sign of geologic interests or fossil beds at the site.140 The proposed protective structures will also not impact the air or water quality.141

Finally, the protective structures will not interfere and are entirely compatible with the use and appearance of the adjacent beach. The beach area near the Properties' failing bluffs is extremely dangerous and not suitable for recreation below the cliffs. The installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and persons thereon from falling materials. Also, the proposed revetment will improve, or at least maintain, the aesthetic appeal of the bluff area through the preservation of the bluff terrace vegetation142 and the installation of native sand with new vegetation on top of the riprap structures.143

Accordingly, this Plan provision is satisfied and advanced by the Applications.

3. Plan § 1.0100 Beaches and Dunes Goals: "Beaches and dunes goals: (1) To protect, conserve and, where appropriate, restore, the beaches and dunes of Lincoln County. (2) To ensure that development will be designed to minimize adverse environmental effects. (3) To ensure that development will be adequately protected from any geological hazards, wind erosion, undercutting, ocean flooding and storm waves."

The proposed structures necessitating the Goal exceptions and Plan amendments are designed to conserve and protect the beaches and dunes of the County, as well as have little to no environmental impact. Further, as discussed several times in this narrative, the entire point of the Applications is to protect development from "geological hazards, wind erosion, undercutting, ocean flooding and storm waves[,]" which have grown in intensity over the last few decades. Accordingly, this provision is satisfied and advanced by the Applications.

138 Economic Impact Rep., at 1 & 6. 139 Critical Area Assessment, at 4. 140 Critical Area Assessment, at 4-8. 141 Critical Area Assessment, at 7 (finding that there was no reason to expect that the proposed riprap structures would impact air or water resources). 142 Critical Area Assessment, at 8. 143 The recommended structure described in the Mott MacDonald WorldMark Report on page 6 provides for a covering of native sand and grass vegetation on top.

- 45 - 4810-3813-6798.11 4. Plan § 1.0105 Beaches and Dunes Policies

The relevant sections of this Plan provision are discussed individually in the following sections:

a. Plan § 1.0105(1): "Lincoln County shall base land use decisions in beach and dune areas, other than older stabilized dunes, on specific findings which shall include the following: (a) The type of use proposed and the adverse effects it might have on the site and adjacent areas; (b) Temporary and permanent stabilization programs and the planned maintenance of new and existing vegetation; (c) Methods for protecting the surrounding area from any adverse effects of the development; and (d) Hazards to life, public and private property, and the natural environment which may be caused by the proposed use."

The analysis in this narrative, expert reports, and other materials filed herewith provide all findings necessary to support the County's approval of the Applications.

These documents set forth the proposed use and circumstances necessitating the approval thereof, i.e., beachfront protective structures to avoid the imminent total failure (i.e., sliding into the ocean) of the Properties due to the rapid erosion of the Properties' shoreline bluffs.144

In regard to subsection (b), the entire point of the requested Goal exceptions and corresponding Plan amendments is to establish a new stabilization structure/program, which has been designed to require little maintenance. Dr. Shepsis explains in his reports that "[t]here is a high probability that if properly designed and constructed, the armor rock revetment would be a long-term solution to mitigate shoreline erosion and seismic hazards." 145

Similarly, for subsection (c) and protection of the surrounding area, the proposed riprap has been designed and will be constructed to avoid adverse impacts to adjacent properties.146 The protective structures will also not have an adverse effect on the adjacent beach. First, the protection of the Properties' bluffs will not negatively impact the public's use of the beach. The beach area near the Properties' failing bluffs is extremely dangerous and not suitable for recreation below the cliffs. The installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and persons thereon from falling materials. Also, the proposed revetment will improve, or at least maintain, the aesthetic appeal

144 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 2. 145 Mott MacDonald WorldMark Rep., at 7; Mott MacDonald SeaRidge Rep., at 7; Mott MacDonald Lincoln Ave. Homes Rep., at 7. 146 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9.

- 46 - 4810-3813-6798.11 of the bluff area through the preservation of the bluff terrace vegetation147 and the installation of native sand with new vegetation on top of the riprap structures.148

Finally, subsection (d) is clearly satisfied because the Applications are intended to eliminate an imminent threat to property and persons, and the structures will not have any negative impact on the natural environment.149

Accordingly, the Applicants request that the County adopt the analysis in this narrative, the expert reports in Appendix A, the academic studies and state plans in Appendix B, the county property records in Appendix C, the property/site maps in Appendix D, and all other documents submitted now or in the future in support of the Applications as the bases for approval of the requested Goal exceptions, which clearly satisfy this Plan section.

b. Plan § 1.0105(2): "Lincoln County shall recognize the authority of the Division of State Lands and the Oregon Department of Transportation to regulate the placement of beach front protective structures, such as bulkheads, sea walls, rip-rap and similar protective structures. The above agencies' findings for such permits shall address and comply with Lincoln County Beach and Dune Policies 3 and 4 below, and shall address the following: (a) Hazards, as well as benefits, to life, public and private property, and the natural environment which may be caused by the proposed use; and (b) Temporary and permanent sand stabilization programs and the planned maintenance of new and existing vegetation; and (c) Methods and techniques designed to minimize adverse impacts on the site and surrounding area; and (d) The necessity for beach front protective structures."

As stated in Section II of this narrative, this is the first application process required for construction of the proposed protective structures, and it will be immediately followed by a permit application to the OPRD. Pursuant to state statute and administrative rules, all of the findings required by this provision will be addressed in the OPRD's decision. As set forth in the comprehensive analysis above, each of the OPRD's findings will be in favor of allowing the proposed protective structures.

147 Critical Area Assessment, at 8. 148 The recommended structure described in the Mott MacDonald WorldMark Report on page 6 provides for a covering of native sand and grass vegetation on top.) 149 Critical Area Assessment, at 4-8.

- 47 - 4810-3813-6798.11 c. Plan § 1.0105(3): "Beachfront protective structures will be designed to minimize impacts on the beach on either side of the beach zone line and on beach erosion and accretion patterns."

Dr. Shepsis explains in his geotechnical report that the proposed protective structures are designed to avoid adverse impacts on adjacent properties.150 Further, the goal of the protective structures is to reduce beach and bluff erosion. This criterion is satisfied.

d. Plan § 1.0105(4): "Beachfront protective structures may be permitted only where development existed on January 1, 1977, unless an exception to Statewide Planning Goal 18, implementation requirement 5, has been adopted as part of the comprehensive plan."

The Applications request an exception to Goal 18, Implementation Requirement 5, to satisfy this provision now and in future applications to construct the proposed structures. Accordingly, the County's approval of the exception will satisfy this provision.

e. Plan § 1.0105(5): "Lincoln County shall rely on the State Parks and Recreation Division to regulate beach sand removal."

The OPRD will regulate any sand removal on the subject Properties as part of its subsequent process.

f. Plan § 1.0105(6): "Lincoln County may allow sand removal from the dune system upon a finding that the resulting natural processes of the dune form will not adversely affect property on or off the site."

No sand removal is proposed from the dune system for the construction of the protective structures. If it became necessary or appropriate, it will not adversely affect property on or off the Properties as documented in the reports by Dr. Shepsis.

150 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9.

- 48 - 4810-3813-6798.11 g. Plan § 1.0105(7): "Lincoln County shall cooperate with the State Parks and Recreation Division to ensure that construction of access to beach areas observes sound conservation practices and to protect existing public easements through beach and dune areas."

The proposed protective structures underlying the Applications do not involve the construction of new beach access and do not interfere with any easement providing beach access.151

h. Plan § 1.0105(11): "Lincoln County shall encourage the stabilization of those active dunes that pose threat to public or private property."

Approval of the Plan amendments will allow riprapping at the Properties to allow stabilization of the shorelands, thus satisfying this requirement.

i. Plan § 1.0105(12): "Lincoln County shall cooperate with the Oregon State Department of Fish and Wildlife to protect significant wildlife habitat in beach and dune areas as identified in the Lincoln County Plan Inventory and designated on Plan and Zone maps."

As set forth in the Critical Area Assessment, an environmental field survey of the Resort area found there were no rare plants or wildlife, no estuarine resources, no nearby historic properties or cultural/archeological resources, no suitable nesting or foraging habitat for endangered or threatened wildlife, and no sign of geologic interests or fossil beds at the site.152 Nevertheless, the Applicants will coordinate with and seek approval from the Oregon Department of Fish and Wildlife as necessary under state or local rules.

j. Plan § 1.0105(13): "Prior to development, Lincoln County shall require an approved revegetation and sand stabilization plan that is to be followed during and after development."

A revegetation plan shall be submitted with the Applications to the County to build the structures after approval from the OPRD.

151 As discussed in the supplemental narrative for the single-family residences, there is a narrow public easement between the Grant and Tanabe properties. This easement, however, has been used for surface drainage off Lincoln Avenue—contributing to the erosion at issue—and not beach access. 152 Critical Area Assessment, at 4-8.

- 49 - 4810-3813-6798.11 k. Plan § 1.0105(14): "Except for beach front protective structures regulated by state permitting agencies, Lincoln County shall establish development standards consistent with the recommendations of the RNKI Environmental Hazard Inventory and Department of Geology and Mineral Industries Bulletin 81."

The Applications are for beachfront protective structures, and thus, this requirement does not apply.

l. Plan § 1.0105(20): "Lincoln County shall review all proposed actions which may result in the alteration of any beach or any active or conditionally stable dune form in the following manner: (a) Ocean front lots: Site specific geotechnical analysis by qualified registered professional geologist or engineering geologist except when the only known or suspected hazard is coastal recession and minor slope sloughing which can be compensated for with adequate setbacks as set out in Environmental Hazard Inventory, RNKR, 1977. (b) Sand areas: Except for beach front protective structures which are regulated by state permitting agencies, a detailed geotechnical analysis shall be required for active or conditionally stable dune forms and for areas of high ground water."

In satisfaction of subsection (a), the Applications are supported by four reports with site-specific geotechnical analysis. For purposes of subsection (b), the Applications concern beachfront protective structures, which are regulated by state permitting agencies. Nevertheless, detailed geotechnical analysis has been provided in support of these Applications.

m. Plan § 1.0105(21): "Construction and alteration in beach and dune areas shall be designed and located so as to minimize vegetation removal and exposure of stable and conditionally stable areas to erosion."

The proposed protective structures will not result in vegetation removal, but will actually preserve existing terrace vegetation,153 and the proposed revetment includes the planting of new native vegetation over the riprap structures.154 Further, the entire purpose of the structures is to stabilize areas of erosion on the Properties. This criterion is satisfied by the Applications.

153 Critical Area Assessment, at 8. 154 The recommended structure described in the Mott MacDonald WorldMark Report on page 6 provides for a covering of native sand and grass vegetation on top.

- 50 - 4810-3813-6798.11 5. Plan § 1.0120 Ocean Resource Goals Ocean resource goals: (1) To understand the impacts and relationships of ocean activities to ocean resources. (2) To ensure proper management and protection of ocean resources.

The design of the protective structures at the heart of the Applications is to protect ocean resources. This criterion is satisfied.

6. Plan § 1.0125 Ocean Resource Policies "(1) Lincoln County shall work with all local, state and federal agencies which have planning permit or review authority over coastal land and water. (2) Lincoln County may review proposals to determine impacts of outer continental shelf oil, gas, mineral or other fisheries development. (3) Lincoln County shall work with state and federal agencies for development of ocean resources. (4) Lincoln County shall work to minimize on-shore impacts of offshore development where possible."

Only the first subsection in this provision is relevant to the Applications. As explained in Section II of this narrative, approval of the Applications will be followed by a request to the OPRD for a permit to allow construction of the protective structures. This process will require the County to work with the OPRD and communicate the proposed structure's compliance with the Code and Plan.

7. Plan § 1.0130 Economic Goals "(1) To establish an economic planning process in the county. "(2) To support and encourage the expansion of existing industrial and commercial activities in appropriate locations. "(3) To support and encourage the creation of new industrial and commercial activities in appropriate locations. "(4) To recognize the environmental and developmental constraints in expansion of industrial, commercial, and residential activities. "(5) To improve the average wage in the county. "(6) To improve the quality of employment opportunities in Lincoln County."

The Applications significantly advance the economic goals contained in this provision. If the Applications are not approved, the primary Resort buildings and facilities will inevitably be lost to rapidly advancing bluff erosion. The loss of the threatened homes and resort buildings will cause immense economic harm. The buildings at risk of total loss include a large resort with 80 time-share units and many on-site amenities, 26 oceanfront condominium homes, and four oceanfront single-family residences, with a total value of at least $23,000,000.155 If these developments are destroyed, the County will lose significant tourist activity (equal to 46,538 room-nights per year and a corresponding 141,803 guest-days per year), $11 million in

155 Tax records with fair market value estimates are provided in Appendix C. This number does not include the other 56 non-oceanfront condominium homes at SeaRidge.

- 51 - 4810-3813-6798.11 local business revenue from the operation of the Properties and spending by the Properties' visitors and residents, 190 total full- and part-time jobs, $6 million in total labor income (wages, salaries, and proprietors' income), and $1.5 million in total state and local government taxes.156

Further, potential environmental concerns have been evaluated and deemed to not exist. As detailed in the Critical Area Assessment, an environmental field survey of the Resort area found that there were no rare plants or wildlife, no estuarine resources, no nearby historic properties or cultural/archeological resources, no suitable nesting or foraging habitat for endangered or threatened wildlife, and no sign of geologic interests or fossil beds at the site.157 The proposed protective structures will also not impact the air or water quality.158

It is clear that the Applications significantly advance this provision by protecting existing development that is critical to the local economy, including employment opportunities.

8. Plan § 1.0135 Economic Policies "(1) Lincoln County shall designate suitable lands for the creation and expansion of industrial and commercial activities. *** "(7) Lincoln County shall encourage labor intensive commercial and industry. *** "(10) When conflicting land uses are proposed, the alternatives shall be evaluated based upon economic, social, energy, and environmental costs and benefits."

For the same reasons, the Applications also advance the economic policies implementing the County's economic goals. The Applications ask the County to preserve one of the largest resorts in its jurisdiction, which provides employment opportunities and generates significant tourism to support other businesses in the area, as well as 30 homes—with a total value of more than $23,000,000. This land is clearly suitable for the commercial activities on the Properties because the development already exists.

Approving the Applications also supports local employment. The buildings provide lodging for substantial economic activity by residents and tourists (equal to 46,538 room-nights per year and a corresponding 141,803 guest-days per year), which generates a total of $11 million in local business revenue from the operation of the Properties and spending by the Properties' visitors and residents, thus creating 190 total full- and part-time jobs, and $6 million in total labor income (wages, salaries, and proprietors' income).159

As set forth at length in section V.B.2. above, concerning Plan § 1.0090 (Coastal Shoreland Goals), the Applications provide a robust evaluation of the economic, social, energy, and environmental costs and benefits. This analysis conclusively demonstrates that preservation

156 Economic Impact Rep., at 1 & 6. 157 Critical Area Assessment, at 4-8. 158 Critical Area Assessment, at 7 (finding that there was no reason to expect that the proposed riprap structures would impact air or water resources). 159 Economic Impact Rep., at 1 & 6.

- 52 - 4810-3813-6798.11 of the $23,000,000 of existing development and the economic benefits above far outweigh the preservation of small gaps in the existing revetments lining Gleneden Beach—which will not impact natural resources or recreational uses. Accordingly, this provision is clearly satisfied.

9. Plan § 1.0160 Housing Goals Housing goals: (1) To assist in providing housing. (2) To provide opportunities for a variety of housing choices, including low and moderate income housing to meet the needs, desires, and financial capabilities of all Lincoln County residents. (3) To make housing more efficient.

Extreme erosion is threatening the total loss of four single-family homes, 80 time- share units, and 26 condominium units. Loss of these homes and units will not only decrease the housing supply in this area, but consequently drive up the prices of the reduced supply of homes, including low- and moderate-income options. The approval of the Applications advances this Plan provision.

10. Plan § 1.0170 Recreation Goals Recreational goals: (1) To provide for recreation facilities for both residents and visitors in Lincoln County. (2) To maintain the region as a tourist recreation area.

The Resort is one of the largest lodging facilities in the County, providing an estimated 27,740 room-nights per year, and 83,220 guest-days per year in the local community.160 These tourists are estimated to contribute $4,993,200 in spending in the local economy. The loss of this large facility would clearly undermine this Plan goal. Thus, the Applications satisfy and advance this provision.

11. Plan § 1.0175 Recreation Policies *** "(6) Proposed oceanfront developments shall dedicate areas for public beach accesses in low bank areas consistent with county standards. *** "(9) Lincoln County shall diversify recreation opportunities within the County and shall include opportunities and facilities for the physically handicapped where appropriate. *** "(15) Lincoln County shall encourage outdoor recreation activities which are compatible with the primary land uses."

In addition to the general recreation goals, the Applications advance several of the Plan's specific recreation policies. The Resort provides access to the beach at the northern end of its property. This access has been compromised, however, by the erosion at issue in the

160 Economic Impact Rep., at 6.

- 53 - 4810-3813-6798.11 Applications. This loss of access means that the public visiting the Resort must use the adjacent state park's public access. The beach access from SeaRidge and the Lincoln Avenue Homes has also been compromised by the rapid erosion.

The Resort also provides a range of amenities that offers diverse recreation opportunities, and its modern facilities provide the highest level of accommodations and service for physically handicapped visitors.

Finally, the beach area near the Properties' failing bluffs is extremely dangerous and not suitable for recreation below the cliffs. The installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and persons thereon from falling materials. Also, the proposed revetment will improve, or at least maintain, the aesthetic appeal of the bluff area through the preservation of the bluff terrace vegetation161 and the installation of native sand with new vegetation on top of the riprap structures.162 This provision is satisfied.

C. Oregon Statewide Planning Goals.

Under ORS 197.175(2)(A), comprehensive plan amendments must comply with the Goals. This is generally interpreted to mean compliance with the Goals implicated in the amendment. Doty v. Jackson Cty., 34 Or LUBA 287, 305 (1998).163 For the Goals unrelated to the amendment, compliance with an acknowledged comprehensive plan is deemed to be compliance with the Goals.

Nevertheless, as set forth below, the Applications comply with the substance of all applicable Goals.

Goal 1: Citizen Involvement. To develop a citizen involvement program that insures the opportunity for citizens to be involved in all phases of the planning process.

Goal 1 requires local governments to adopt and administer programs to ensure the opportunity for citizens to be involved in all phases of the planning process. The County has already adopted such a program under the Plan, which has been acknowledged by LCDC. See LCZC §§ 1.1250, 1.1252, & 1.1255:

"Actions involving the consideration of exceptions to the Statewide Planning Goals shall be subject to the notice and hearing requirements of Code 1.1250 and 1.1255. The required notice of public hearing shall specifically note the exceptions to be considered and shall summarize the issues in an understandable

161 Critical Area Assessment, at 8. 162 The recommended structure described in the Mott MacDonald WorldMark Report on page 6 provides for a covering of native sand and grass vegetation on top. 163 LUBA stated, "Where a local government's amendment of its plan potentially affects the plan's compliance with a Statewide Planning Goal, the local government is required to find and explain why (1) the proposed action does not implicate the goal; (2) the proposed action complies with the goal; or (3) the land subject to the proposed action meets the standards for goal exception." ODOT v. City of Newport, 23 Or LUBA 408, 414-15 (1992) (emphasis added).

- 54 - 4810-3813-6798.11 manner." Code 1.1252 ("Notice of Exception to Statewide Planning Goals"). Code 1.1250 sets forth the requirements for notice of a public hearing, which include providing notice to the owner of any property that will be rezoned or otherwise changed under the comprehensive plan amendment, and if the hearing is quasi-judicial then notice must also be sent to property owners within a certain distance from the subject property. Furthermore, the notice must explain the nature of the hearing and provide the date, time, and location of the hearing. Code 1.1250. Notice is required to be mailed 10 days before a legislative hearing and 20 days before a quasi-judicial hearing. Id. For quasi-judicial hearings, the notice must also include substantive information including the applicable criteria. Id. Under Oregon's post-acknowledgement plan amendment procedures, the County must also provide notice to the Department of Land Conservation and Development ("DLCD")." ORS 197.610.

LCZC § 1.1255 sets forth the procedural requirements for a quasi-judicial public hearing, which Section 1.1252 states are also applicable to an action involving the consideration of a Goal exception. Under Section 1.1255, a staff report detailing the nature of the request and applicable criteria shall be provided to the hearings body and made available to the public at least seven days before the hearing. Furthermore, all application materials will be provided to the hearings body and made available to the public. LCZC § 1.1255. There will also be a prehearing statement at the commencement of the hearing by the hearings body or staff to those in attendance, providing information on hearing statements or evidence and the applicable substantive criteria. Id. Finally, there will be a presentation of testimony by staff, the applicant, and other interested parties. Id. If an attendant of the hearing requests it, the hearings body may keep the record open for additional submissions or continue the hearing. Id.

These procedures provide ample opportunity for citizen involvement in all phases of an application. In following these post-acknowledgement plan amendment notice and hearing procedures as required by the County and state, the County has ensured that applications are reviewed in a manner that is consistent with Goal 1. See Wade v. Lane Cty., 20 Or LUBA 369, 376 (Goal 1 is satisfied as long as the local government follows its acknowledged citizen involvement program).

Goal 2: Land Use Planning. To establish a land use planning process and policy framework as a basis for all decisions and actions related to use of land and to assure an adequate factual base for such decisions and actions.

Goal 2 requires establishing a land use planning process and policy framework as a basis for all land use decisions and requires an adequate factual base for all land use decisions. In the present case, the provisions of the Code, the Plan, the Oregon Administrative Rules, and the Oregon Revised Statutes establish the land use planning process and policy framework for considering the Applications. Plan § 1.0105 is the provision that sets forth beach and dunes policies. Plan § 1.0105(1) provides the findings on which land use decisions in beach and dune areas must be based, including an analysis for the adverse effects of the proposed action, an analysis of reasonable alternatives, methods for protecting the surrounding area from effects of the development, and an analysis of the hazards to life, the natural environment, and public and private property. LCZC §§ 1.1225-1.1240 also sets forth the process and findings required for an

- 55 - 4810-3813-6798.11 amendment to the Plan, including that the amendment is consistent with the Plan goals and policies and that there is a need for the requested change. Furthermore, OAR 660-015-0010(3) provides guidelines and requirements for making a fact-based Goal 18 land use decision, and OAR 660-004-0020(2) and OAR 660-004-0022 provide the standards for a reasons exception to Goal 18. See also generally ORS ch 197.

The Applications, this narrative, the expert reports, and all other supporting documents clearly address the applicable land use planning process and policy framework in detail, and demonstrate that the Applications satisfy all applicable approval criteria. This framework and the attached application materials create an adequate factual base for the County's decision.

Goal 2 also requires that the County coordinate its review and decision on the Applications with appropriate government agencies. As discussed under Goal 1, in its review of the Applications, the County must provide notice and an opportunity to comment on affected government agencies, including DLCD. See ORS 197.610.

The Applications comply with the land use planning process framework established in the Code, the Oregon Revised Statutes, and the Oregon Administrative Rules, and is consistent with Goal 2.

Goal 3: Agricultural Lands. To preserve and maintain agricultural lands.

Goal 3 relates to agricultural lands. The Properties at issue in the Applications are zoned R-1 (Residential) and do not include any agricultural lands. Approval of the Applications will not impact any agricultural lands. Therefore, Goal 3 is not applicable to the Applications.

Goal 4: Forest Lands. To conserve forest lands by maintaining the forest land base and to protect the state's forest economy by making possible economically efficient forest practices that assure the continuous growing and harvesting of forest tree species as the leading use on forest land consistent with sound management of soil, air, water, and fish and wildlife resources and to provide for recreational opportunities and agriculture.

Goal 4 protects forest lands. The Properties at issue in the Applications are zoned R-1 (Residential) and do not include any forest lands. Therefore, Goal 4 is not applicable to the Applications.

Goal 5: Natural Resources, Scenic and Historic Areas, and Open Spaces. To protect resources and conserve scenic and historic areas and open spaces.

Goal 5 protects certain types of inventoried resources. Plan § 1.0115 (Open Spaces, Scenic and Historic Areas Policies) states that:

"(1) Lincoln County shall inventory the location, quality and quantity of the following types of significant sites: (a) Land needed or desirable for open space; (b) Mineral and aggregate resources; (c) Energy sources; (d) Fish and wildlife areas and habitats; (e) Ecologically and scientifically significant natural areas;

- 56 - 4810-3813-6798.11 (f) Outstanding scenic views and sites; (g) Water areas, wetlands, watersheds and ground water resources; (h) Wilderness areas; (i) Historic areas, sites, structures and objects; (j) Cultural areas; (k) Potential and approved Oregon recreation trails; and (l) Potential and approved federal wild and scenic waterways and state scenic waterways."

The County's Goal 5 inventory of significant sites was reviewed, and no inventoried Goal 5 resources appear on the Properties. Further, an environmental field survey of the Resort area found there were no rare plants or wildlife, no estuarine resources, no nearby historic properties or cultural/archeological resources, no suitable nesting or foraging habitat for endangered or threatened wildlife, and no sign of geologic interests or fossil beds at the site.164

Accordingly, the Applications will not affect any Goal 5 inventoried resources and are entirely consistent with Goal 5.

Goal 6: Air, Water and Land Resources Quality. To maintain and improve the quality of the air, water and land resources of the state.

Goal 6 requires comprehensive plans to follow multiple guidelines to conserve the quality of air, water, and land resources in the state. The Goal exception proposed by the Applications does not relate to the Plan's implementation of these guidelines.

Further, the Applications have no negative effects on air, water, and land resources in the County as contemplated under this Goal. The Properties are already developed, and no change in use is proposed. The design and construction method for the protective structures will protect these resources. The protective measures will not significantly affect any abutting resources, in large part because the bluff and oceanfront areas in this littoral area has already been heavily armored on neighboring properties. The Critical Area Assessment confirmed that there are very few natural resources on Gleneden Beach to "conserve" because of its low-quality natural habitat.165 An environmental field survey of the Resort area found that there were no rare plants or wildlife, no estuarine resources, no nearby historic properties or cultural/archeological resources, no suitable nesting or foraging habitat for endangered or threatened wildlife, and no sign of geologic interests or fossil beds at the site.166 The proposed protective structures will also not impact the air or water quality.167

In fact, the proposed structures would significantly advance the objectives of Goal 6. Adopting the requested exception would arrest a potential environmental hazard that would otherwise result from further erosion at the Properties. The rapid erosion of the Resort's steep cliffs has generated a serious risk to the public on the adjacent beach, and any sudden collapse of SeaRidge's bluffs could cause a deposit of raw sewage onto the beach and into the ocean. The existing curtain drain was an attempt to eliminate this threat to the septic system (and

164 Critical Area Assessment, at 4-8. 165 Critical Area Assessment, at 4. 166 Critical Area Assessment, at 4-8. 167 Critical Area Assessment, at 7 (finding that there was no reason to expect that the proposed riprap structures would impact air or water resources).

- 57 - 4810-3813-6798.11 resulting environmental harm), and it worked for a time. It is, however, no longer sufficient to prevent erosion of the bluff.

Most importantly, to satisfy this goal at this stage of the permitting process, the County is only required to find that it is reasonable to expect that federal and state environmental standards will be met in the future when permits for the beachfront protective measures installation are sought. See Nicita v. City of Oregon City, 74 Or LUBA 176 (2016). Because the Application demonstrates that the proposed protective structures do satisfy the criteria for all other permit requirements, and because the Applicants will obtain all necessary permits from DLCD, the OPRD, and other governing bodies prior to construction of the structures, the Applications comply with Goal 6.

Goal 7: Areas subject to natural hazards. To protect people and property from natural hazards.

The purpose of Goal 7 is to "protect people and property." This Goal identifies "coastal erosion" as one of the natural hazards the County should protect against. Goal 7(A)(2). The Goal requires local governments to evaluate the risk to people and property based on the "frequency, severity and location of the hazard[,]" and "the effects of the hazard on existing and future development[.]" Goal 7(1)(a)-(b).

Approval of the Applications would clearly advance this Goal. As shown above, and emphasized by Dr. Shepsis in his geotechnical reports, the oceanfront structures on the Properties face an imminent threat of total failure (i.e., sliding into the ocean) from the rapid erosion of the Properties' shoreline bluffs.168 Further, this risk is growing. As explained by Mr. Gless, "Severe erosion of the shoreline fronting the Goal 18 ineligible sites will continue and increase the already hazardous conditions if not protected with shoreline protective structures."169

Further, the erosion has been accelerating. As outlined by Dr. Shepsis, "the rate of erosion for this region of the Oregon coast was estimated [in 1991] at approximately 2 inches per year, on average[.]"170 The Properties, however, have experienced and are experiencing significantly more erosion of their shorefront bluffs since they were constructed around the time this estimate was calculated. Dr. Shepsis found that the retreat of both the Resort's and the Lincoln Avenue Homes' bluffs has been more than one foot per year since the early 2000s— more than six times the historical average estimated in 1991.171 And this rate is expected to stay the same or even increase. For example, Dr. Shepsis predicts that without a protective structure, the erosion of the Resort's shoreline bluff will continue or accelerate until it retreats a distance of 200 feet or more (thus swallowing the entire Resort complex).172

168 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 2. 169 HGSA Geotechnical Rep., at 10. 170 Mott MacDonald WorldMark Rep., at 2, citing Paul Komar and Shuter-Ming Shih. 1991. Sea-cliff erosion along the Oregon Coast, Coastal Sediment 91, 1558-70, ACSE. 171 Mott MacDonald WorldMark Rep., at 5; Mott MacDonald Lincoln Ave. Homes Rep., at 5. 172 Mott MacDonald WorldMark Rep., at 5.

- 58 - 4810-3813-6798.11 In addition to the risk posed by the rapid and unpredictable erosion, "even a small seismic event may result in catastrophic failure of all structures."173

Here, the location of the coastal erosion threatening the homes and Resort on the Properties presents substantial and imminent danger to both persons and property. The hazard is also growing in frequency and severity due to increases in storm and wave activity, as well as the past and ongoing construction of riprap protection on the site surrounding the Properties. As documented throughout this narrative and attached economic reports, the effect of this hazard on the 30 homes and the Resort will be catastrophic. Thus, Goal 7 strongly calls for the County to approve the Applications.

Goal 7 also requires local governments to identify and plan for natural hazard areas and coordinate their natural hazard plans and programs with state agencies. The Lincoln County Natural Hazard Mitigation Plan (the "NHMP") and Environmental Hazard Inventory of Coastal Lincoln County provides considerations for natural hazards areas during the land use planning process. In particular, the NHMP specifically addresses coastal erosion as "a chronic hazard affecting the entire Lincoln County Coast," and specifically notes that Gleneden Beach is particularly susceptible to erosion, among other areas. NHMP, at CE-2 & CE-4. Further, as the NHMP notes, the Lincoln County land use regulations address development on lands subject to ocean erosion. Through the NHMP, Environmental Hazard Inventory, and the Code, the County has identified and planned for natural hazard areas, including coastal erosion areas. Furthermore, the NHMP, Environmental Hazard Inventory, and the Code all use the natural hazard plans and programs of state agencies as a guide, and provide for coordination with state agencies through opportunities to comment on any actions affecting natural hazard areas.

At its core, the Applications seeks to protect people and property from the natural hazards presented by likely catastrophic erosion and seismic events at the Properties. This Goal is not only satisfied, but significantly advanced by the Applications.

Goal 8: Recreational needs. To satisfy the recreational needs of the citizens of the state and visitors and, where appropriate, to provide for the siting of necessary recreational facilities including destination resorts.

Goal 8 unmistakably supports approval of the Applications. Goal 8 mandates that local governments adopt plans, codes, and otherwise take actions to provide for the recreational needs of citizens and tourists—including through the "siting of necessary recreational facilities including destination resorts." For the Applications, the siting of a new recreational facility is not required—only the small act of allowing a protective structure to prevent the imminent loss of one of the premiere resorts in the County. Allowing the destruction of the Resort by refusing the allowance of a protective structure on a beach already 75 percent armored would clearly contravene this Goal.

Further, the Recreation Planning component of Goal 8 requires local governments to meet recreational needs "in coordination with private enterprise." (Subsection 1.) This component encourages the County to work with the Resort in its provision of recreational

173 Mott MacDonald WorldMark Rep., at 6.

- 59 - 4810-3813-6798.11 opportunities to the area. Allowing the Resort, which is one of the largest tourist destinations in the County, to be destroyed rather than granting a clearly warranted Goal exception would appear to violate this policy.

Finally, approval of the Applications would also protect the recreational resources of the beach below the eroding bluff. The destruction of the buildings on the Properties through erosion will impact the land under the bluff through falling land and structures. The Applications seek to protect recreational needs for Oregon citizens and visitors, and therefore comply with Goal 8.

Goal 9: Economic Development. To provide adequate opportunities throughout the state for a variety of economic activities vital to the health, welfare, and prosperity of Oregon's citizens.

Goal 9 calls for local jurisdictions to provide for economic opportunity. Allowing the destruction of the Properties clearly violates this Goal.

As set forth in the Economic Impact Analysis and discussed at length in this narrative, loss of the threatened homes and resort buildings will cause immense economic harm to the Applicants and the local community. The buildings at risk of total loss include a large resort with 80 time-share units and many on-site amenities, 26 oceanfront condominium homes, and four oceanfront single-family residences, with a total value of at least $23,000,000.174 If these developments are destroyed, the County will lose significant tourist activity (equal to 46,538 room-nights per year and a corresponding 141,803 guest-days per year), $11 million in local business revenue from the operation of the Properties and spending by the Properties' visitors and residents, 190 total full- and part-time jobs, $6 million in total labor income (wages, salaries, and proprietors' income), and $1.5 million in total state and local government taxes.175

Further, the Resort, as well as the renting of the SeaRidge units and Lincoln Avenue Homes, provide important economic opportunities to Oregon consumers, i.e., its guests. As the state population grows exponentially, the supply of lodging available on the Oregon coast has not and will likely not keep pace. This not only has made lodging unavailable for would-be guests on times of heavy demand, but has also driven prices higher at all times, thus decreasing opportunity for lower-income consumers to take advantage of the unique activities provided by the Oregon coast and local businesses thereon.

Finally, the first planning guideline in this Goal is that major commercial developments should be located where there is a comparative advantage for the commercial activity, which is defined as the area that provides for the most efficient use of resources relevant to other areas. There could not be a clearer example of efficient use of resources then preserving an already-existing multi-million-dollar resort and over 30 homes that have full-time or part-time residents, or could be rented—especially when preservation would come at no additional cost for

174 Tax records with fair market value estimates are provided in Appendix C. This number does not include the other 56 non-oceanfront condominium homes at SeaRidge. 175 Economic Impact Rep., at 1 & 6.

- 60 - 4810-3813-6798.11 the County or impact on public resources. This "principle determinant" strongly supports approving the Applications.

Accordingly, Goal 9 strongly supports approval of the Applications.

Goal 10: Housing. To provide for the housing needs of citizens of the state.

Goal 10 and its implementing rules require each local government to inventory the supply of buildable residential lands and units and to ensure that supply of housing meets local needs. As with most of Oregon, the County has a housing shortage as depicted in Figures 9, 10, and 11 of the County's 2019 Housing Strategy Plan. The Applications seek to preserve 30 homes in the local housing supply. Further, the presence of the Resort encourages the use of homes in the area as permanent residences rather than as short-term rentals. Thus, denying the Applications and allowing SeaRidge, the four single-family homes, and the Resort to be unnecessarily lost to erosion would further constrain an already-deficient supply of homes in the County.

To address this shortage, and otherwise provide for needed housing, Goal 10 states that decisions on housing developments should be expedited, ordinances should be used to increase population densities, and that additional methods and devices should be used, including building code revisions and use of zoning and land use controls. Here, little action is required to preserve 30 homes and encourage use of other homes as permanent residences, simply allowing three protective structures on a beach already lined with riprap.

Accordingly, it is clear that the Applications are consistent with and supported by Goal 10.

Goal 11: Public Facilities and Services. To plan and develop a timely, orderly and efficient arrangement of public facilities and services to serve as a framework for urban and rural development.

Goal 11 does not apply to the Applications because the Applications do not request changes to existing or require additional public facilities and services as a framework for development. The Properties are all within an urban growth boundary and are already connected to public facilities and services.

Goal 12: Transportation. To provide and encourage a safe, convenient and economic transportation system.

Goal 12 does not apply to the Applications because the Applications do not involve or affect the safety, convenience, or economics of transportation systems because no changes or additions to roads or other transportation systems are proposed.

Goal 13: Energy Conservation. To conserve energy.

Goal 13 directs local governments to manage land use to maximize the conservation of all forms of energy. The Applications seek to avoid the unnecessary loss of 30 homes and a large resort complex. Approval of the Applications would advance this Goal to

- 61 - 4810-3813-6798.11 conserve energy by eliminating a future need for destruction or cleanup of multiple large structures from the beach. Further, the energy that would be necessary to replace these structures vastly exceeds the energy necessary to protect them. The Applications comply with Goal 13.

Goal 14: Urbanization. To provide for an orderly and efficient transition from rural to urban land use, to accommodate urban population and urban employment inside urban growth boundaries, to ensure efficient use of land, and to provide for livable communities.

Goal 14 does not apply to the Applications because they do not involve urban development on rural land or expansion of urban services outside an urban growth boundary.

Goal 15: Willamette River Greenway. To protect, conserve, enhance and maintain the natural, scenic, historical, agricultural, economic and recreational qualities of lands along the Willamette River as the Willamette River Greenway.

Goal 15 does not apply to the Applications because they concern land in Lincoln County and will not impact the Willamette River or the Willamette River Greenway.

Goal 16: Estuarine Resources. To recognize and protect the unique environmental, economic, and social values of each estuary and associated wetlands; and to protect, maintain, where appropriate develop, and where appropriate restore the long-term environmental, economic, and social values, diversity and benefits of Oregon's estuaries.

Goal 16 does not apply to the Applications because the Goal applies only to estuaries.176 The Properties are clearly not located in an estuary or within an Estuarine Management Unit.177 Further, a field survey of the Resort area confirmed that that no estuarine resources were present.178 Rather, the location of the Properties is governed by other ocean goals, which are satisfied as discussed below.

176 See Oregon Shores Cons. Coalition v. Coos Cty., 49 Or LUBA 1 (2005) (comprehensive plan policy that applies only to estuarine areas governed by Goal 16 does not apply to proposed development within a zone that includes only property governed by another ocean goal). 177 "'Estuary' means a body of water semi-enclosed by land, connected with the open ocean, and within which salt water is usually diluted by freshwater derived from land. The estuary includes estuarine water, tidelands, tidal marshes, and submerged lands." OAR 660-017-0005(6). As documented in the attached Environmental Impact Report, the six subject properties along Gleneden Beach are not located in a County-designated Estuarine Management Unit, defined as "estuarine areas below the head of tide and include[ing] estuarine waters, tidelands and submerged lands up to the Mean Higher High Water (MHHW) and tidal marshes inland to the line of non- aquatic vegetation." Plan § 1.0190(12). [Note: confirm no estuary, to avoid need for potential estuary riprap exception.] 178 Critical Area Assessment, at 4-8.

- 62 - 4810-3813-6798.11 Goal 17: Coastal Shorelands. To conserve, protect, where appropriate, develop and where appropriate restore the resources and benefits of all coastal shorelands, recognizing their value for protection and maintenance of water quality, fish and wildlife habitat, water-dependent uses, economic resources and recreation and aesthetics. The management of these shoreland areas shall be compatible with the characteristics of the adjacent coastal waters; and to reduce the hazard to human life and property, and the adverse effects upon water quality and fish and wildlife habitat, resulting from the use and enjoyment of Oregon's coastal shorelands.

A key aspect of Goal 17 is to "reduce the hazard to human life and property," which clearly is the intention of the Applications. As shown in this narrative and emphasized by Dr. Shepsis in his geotechnical reports, the oceanfront structures on the Properties face an imminent threat of total failure (i.e., sliding into the ocean) from the rapid erosion of the Properties' shoreline bluffs.179 Further, this risk is growing. As explained by Mr. Gless, "Severe erosion of the shoreline fronting the Goal 18 ineligible sites will continue and increase the already hazardous conditions if not protected with shoreline protective structures."180

Although the implementation policies in Goal 17 primarily concern certain types of natural areas near the Oregon shores (e.g., estuaries, coastal lakes, marshes, floodplains, etc.), the term "coastal shorelands" is defined to include all lands "contiguous with the ocean * * *." (Goal 17, Identification of Coastal Shorelands.) Further, Implementation Requirement 5 addresses coastal erosion and states that "non-structural solutions to problems of erosion and flooding shall be preferred to structural solutions[,]" but where necessary, protective structures "shall be designed to minimize adverse impacts on water currents, erosion, and accretion patterns."

As discussed in the Mott MacDonald reports, the Applicants have tried nonstructural solutions, which have failed. Dr. Shepsis also determined in this geotechnical analysis that the current wave height and energy (almost certain to increase) and other contributing forces of erosion (tide elevations, beach variability, littoral drift, bluff composition, etc.) eliminate the possibility of alternative, nonstructural protective measures.181 Likewise, Mr. Gless concludes that exceptions to Goal 18 to construct beachfront protective structures are necessary and warranted for the Properties.182

The proposed riprap structures will be constructed to the highest standards with materials that are clean and of a non-erodible quality that will allow long-term stability and

179 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 2. 180 HGSA Geotechnical Rep., at 10. 181 Mott MacDonald WorldMark Rep., at 6; Mott MacDonald SeaRidge Rep., at 6; Mott MacDonald Lincoln Ave. Homes Rep., at 6-7. 182 HGSA Geotechnical Rep., at 21 (""Based on HGSA's more than 40 years of experience and observations, and the overwhelming evidence presented in the geologic literature, an exception to Implementation Requirement 5 of Goal 18 should be made for Gleneden Beach, from Fishing Rock to Siletz Spit, to allow all properties to construct shoreline protective structures as necessary. This would benefit and help protect lots that are ineligible for oceanfront protection and lots that are eligible for protection or already protected.")

- 63 - 4810-3813-6798.11 minimize maintenance.183 The proposed structures are designed to avoid adverse impacts to adjacent properties.184 Further, the proposed structures have been designed and will be placed to not have an impact on natural resources, such as rare plants or wildlife, estuarine resources, nearby historic properties or cultural/archeological resources, nesting or foraging habitat for endangered or threatened wildlife, or geologic interests or fossil beds at the site.185 The proposed protective structures will also not harm air or water quality.186

Therefore, the proposed installation of riprap would create a minimal change (if any change at all) to the pattern of erosion and accretion at Gleneden Beach. The materials, design, and installation techniques are all specified to minimize any negative impacts, as called for under Goal 17.

Further, the Applications meet Goal 17's policy to protect and maintain water quality, fish and wildlife habitat, water-dependent uses, economic resources and recreation, and aesthetics. The Critical Area Assessment finds that "[t]he surrounding habitat is low-quality due to the highly developed nature of Gleneden Beach with high recreational use and approximately 90-percent of the shoreline is currently riprapped."187 A field survey of the Resort area found that there are no rare plants or wildlife in the terrace habitat, bluff, or swash zone on the subject property; the site is not located within, nor is it connected to, any estuarine resources; there are no nearby historic properties or cultural/archeological resources; there is no suitable nesting or foraging habitat for endangered or threatened wildlife on or adjacent to the subject property; there is no sign of geologic interests or fossil beds at the site; and the proposed revetments are not expected to impact air or water quality.188

Finally, the protective structures will not interfere and are entirely compatible with the use and appearance of the adjacent beach. The beach area near the Properties' failing bluffs is extremely dangerous and not suitable for recreation below the cliffs. The installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and persons thereon from falling materials. Also, the proposed revetment will improve, or at least maintain, the aesthetic appeal of the bluff area through the preservation of the bluff terrace vegetation189 and the installation of native sand with new vegetation on top of the riprap structures.190

The Application complies with Goal 17.

183 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 184 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 185 Critical Area Assessment, at 4-8. 186 Critical Area Assessment, at 7 (finding that there was no reason to expect that the proposed riprap structures would impact air or water resources). 187 Critical Area Assessment, at 4. 188 Critical Area Assessment, at 4-8. 189 Critical Area Assessment, at 8. 190 The recommended structure described in the Mott MacDonald WorldMark Report on page 6 provides for a covering of native sand and grass vegetation on top.

- 64 - 4810-3813-6798.11 Goal 18: Beaches and Dunes. To conserve, protect, where appropriate develop, and where appropriate restore the resources and benefits of coastal beach and dune areas; and to reduce the hazard to human life and property from natural or man-induced actions associated with these areas.

In addition to the primary Goal 18 policies discussed at length in this narrative in the Goal exception sections, there are three implementation requirements in Goal 18 that are potentially relevant to the Applications. Obviously, at the heart of the Applications is a request for an exception to Implementation Requirement 5, which prohibits protective structures on land that was not "developed" prior to 1977. As set forth in Section IV above, the request for an exception to this requirement is warranted for the Properties.

In addition, Implementation Requirement 5 states that "review of all shore and beachfront protective structures shall provide that: (a) visual impacts are minimized; (b) necessary access to the beach is maintained; (c) negative impacts on adjacent property are minimized; and (d) long-term or recurring costs to the public are avoided." It is not entirely clear whether this provision applies to the Applications, because they only seek a Goal exception and Plan amendment that would allow for subsequent applications to the County and the OPRD to construct the protective structures.

Regardless, the criteria are satisfied by the Applications. The proposed riprap structures will be constructed to the highest standards with materials that are clean and of a non- erodible quality that will allow long-term stability and minimize maintenance.191 The proposed structures are designed to avoid adverse impacts to adjacent properties.192 Further, the proposed structures have been designed and will be placed to not have an impact on natural resources, such as rare plants or wildlife, estuarine resources, nearby historic properties or cultural/archeological resources, nesting or foraging habitat for endangered or threatened wildlife, or geologic interests or fossil beds at the site.193 The proposed protective structures will also not harm air or water quality.194

Likewise, the protective structures will not interfere and are entirely compatible with the use and appearance of the adjacent beach. The beach area near the Properties' failing bluffs is extremely dangerous and not suitable for recreation below the cliffs. The installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and persons thereon from falling materials. Also, the proposed revetment will improve, or at least maintain, the aesthetic appeal of the bluff area through the preservation of the bluff terrace vegetation195 and the installation of native sand with new vegetation on top of the riprap

191 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 192 Mott MacDonald WorldMark Rep., at 9; Mott MacDonald SeaRidge Rep., at 9; Mott MacDonald Lincoln Ave. Homes Rep., at 9. 193 Critical Area Assessment, at 4-8. 194 Critical Area Assessment, at 7 (finding that there was no reason to expect that the proposed riprap structures would impact air or water resources). 195 Critical Area Assessment, at 8.

- 65 - 4810-3813-6798.11 structures.196 Also, because the vast majority of the surrounding properties are already riprapped, adding protective measures for the Properties would not create a visual impact at all.

Finally, there would be no long-term or recurring costs to the public because the structures will be paid for entirely by the owners of the Properties.

Implementation Requirement 1 provides that "[l]ocal governments and state and federal agencies shall base decisions on plans, ordinances and land use actions in beach and dune areas, other than older stabilized dunes, on specific findings that shall include at least:

"(a) The type of use proposed and the adverse effects it might have on the site and adjacent areas;

"(b) Temporary and permanent stabilization programs and the planned maintenance of new and existing vegetation;

"(c) Methods for protecting the surrounding area from any adverse effects of the development; and

"(d) Hazards to life, public and private property, and the natural environmental which may be caused by the proposed use."

These criteria have already been addressed in Section V.B.4 concerning Plan § 1.0105 (Beaches and Dunes Policies). As set forth therein, the criteria are satisfied.

Finally, Implementation Requirement 3 mandates that the County shall regulate "actions in beach and dune areas to minimize the resulting erosion." The Applications will directly advance this requirement because they seek to mitigate the erosion caused by surrounding "shore structures which modify current or wave patterns leading to beach erosion." Also, the proposed structures themselves will not cause erosion because of their placement on a stretch of beach that is already almost entirely lined with riprap and because of their specific design.

Thus, except for Implementation Requirement 5, for which an exception is sought, the Applications comply with all relevant criteria in Goal 18.

Goal 19: Ocean Resources. To conserve marine resources and ecological functions for the purpose of providing long-term ecological, economic, and social value and benefits to future generations.

Goal 19 provides policies and protections for "Ocean Stewardship Areas." Under Goal 19, "[t]he State of Oregon has interests in the conservation of ocean resources in an Ocean Stewardship Area, an ocean area where natural phenomena and human uses can affect uses and resources of Oregon's territorial sea. The Ocean Stewardship Area includes the state's territorial sea, the continental margin seaward to the toe of the continental slope, and adjacent ocean areas."

196 The recommended structure described in the Mott MacDonald WorldMark Report on page 6 provides for a covering of native sand and grass vegetation on top.

- 66 - 4810-3813-6798.11 OAR 660-015-0010(4); see also Plan § 1.0120-1.0125. The proposed protective measures would not affect any Ocean Stewardship Area, and therefore Goal 19 does not apply to the Applications.

VI. CONCLUSION

The homes and other oceanfront structures on the Properties are in imminent danger of collapse because of the rapid and accelerating erosion of the Properties' beachfront bluffs. The rate of erosion of the bluffs since the Plan was adopted and the Properties were developed has increased by a factor of six, and has become more volatile and unpredictable, creating an extremely dangerous situation for both persons and property.

This rapid increase in erosion of the Properties' bluffs has been primarily caused by the consequences of climate change (storm frequency and strength, wave energy/height, ocean acidification, etc.) and the continuing proliferation of protective structures across Gleneden Beach—now covering more than 75 percent of the shoreline. These dynamics and circumstances were not in existence, and certainly not fully known, at the time the Plan was adopted and the Properties were developed.

If the Applicants are not able to fill in the revetment gaps in front of their Properties, 30 homes and a large resort complex with 80 time-share units will be lost in the very near future. Even in the absence of loss of human life, these catastrophic losses will result in the destruction of development worth at least $23,000,000. The local economy will also be significantly harmed as the loss of the Resort and residences will cause the loss of significant tourist activity (equal to 46,538 room-nights per year and a corresponding 141,803 guest-days per year), $11 million in local business revenue from the operation of the Properties and spending by the Properties' visitors and residents, 190 total full- and part-time jobs, $6 million in total labor income (wages, salaries, and proprietors' income), and $1.5 million in total state and local government taxes. The homes and jobs of local families would be needlessly lost.

Conversely, filling in the gaps of revetment at the Properties will cause no harm to natural resources or the recreational use of the beach. An environmental survey determined that the area has a low-quality natural habitat with no rare plants or wildlife, no estuarine resources, no nearby historic properties or cultural/archeological resources, no suitable nesting or foraging habitat for endangered or threatened wildlife, and no sign of geologic interests or fossil beds at the site. The environmental analysis also determined that the proposed protective structures will also not impact the air or water quality. Further, the protective structures will not interfere and are entirely compatible with the use and appearance of the adjacent beach. The beach area near the Properties' failing bluffs is extremely dangerous and not suitable for recreation below the cliffs. The installation of the structures will actually improve recreation near the sites by protecting the adjacent beach and persons thereon from falling materials.

In these circumstances, granting an exception to Goal 18's selective prohibition on protective structures is not only appropriate, but is in fact the only reasonable choice. These types of situations are exactly why the Goals have always had an exception mechanism—to avoid a patently undesirable, unfair, and likely unconstitutional outcome resulting from the application of a policy to a particular area or instance. This is also why DLCD's 2019 Goal 18

- 67 - 4810-3813-6798.11 Focus Group recommended that local governments take Goal exceptions to this particular selective prohibition on protective structures. Accordingly, the Applicants respectfully request that the County take the unremarkable step of adopting a Goal 18 exception for the Properties and approving the Applications.

Given the immediacy of the hazards documented above, we respectfully request that the County approve the Applications without delay.

- 68 - 4810-3813-6798.11