I attended the Coast Conference in Newport last weekend, which brought together local citizens, scientists, policy-makers, and advocates to consider what is probably the most significant issue shaping the coast today: climate change. Two of the presentations provided me with a particularly telling perspective.  A presentation by historian William Robbins of OSU provided a look back at how logging practices, and particularly industrial-scale logging, literally changed the landscape and the watersheds of Oregon’s coast.  This history provided a background to understanding how human activities directly impact our coastal communities,both natural and social.  Building on that background, climate change ecologist Dr. Allen Solomon presented realistic projections of how climate change, including sea level rise and storm surge, will further alter the shape of the coast as we know it.  The more indirect effects of climate change are likely to be just as powerful in re-shaping the natural and social communities of the coast as the direct human activities of industrial logging.  How we respond to these changes will be critical to the future of the coast.

During my three years at Crag, working with Oregon Shores has been the cornerstone of the Coastal Law Project.  From challenging proposals for river-side residential development on land zoned for recreation, gravel mining in South Coast rivers, and destination resorts and golf courses in important habitat locations, to collaborating with fishermen, local governments, and state agencies on marine reserves and territorial sea mapping, to providing local citizen groups with the tools they need to start proactively planning for the effects of climate change in their communities, Oregon Shores tackles the issues threatening the long-term health of coastal communities and ecosystems.  The Oregonian ran a story last week to bring attention to the achievements of Oregon Shores during the past 40 years, and I feel privileged to provide support to Oregon Shores as it moves into its next 40 years, always looking forward to protect the future of Oregon’s coast.

During a trip to the south coast last fall, where I was presenting a series of land use workshops in partnership with Oregon Shores Conservation Coalition, I had the rare opportunity to visit the Crook Point Unit of the Oregon Islands National Wildlife Refuge.  Located on the coastal headland just south of the Pistol River, 12 miles south of Gold Beach, the Refuge is closed to the public.  I was only allowed to enter as the accompanied guest of David Ledig, the South Coast Unit Refuge Manager for the U.S. Fish and Wildlife Service.

The reason for our visit was to see and better understand the concerns of the Fish and Wildlife Service with a large destination resort proposed for a neighboring parcel of land.  The destination resort would include two golf courses, 175 units of lodging, spa, clubhouse and restaurant, among other things.  As we hiked down to the beach at the Refuge and looked out at Mack Arch Rock, the wind blowing across the sand, our footprints the only sign of human activity, I felt I had been carried back in time–back to a time before beachfront condos, curios shops, golf courses and rip rap.  We might as well have been on the edge of the world.  Dave regaled us with stories of the bird and mammal denizens of the Refuge, including black bear, known to come all the way down to the beach at the Refuge, an event unheard of in more developed sections of the coast.

My visit revived my resolve to work harder to protect these remaining pockets of wild coast, and re-energized me for the work I knew lay ahead.  Happily, my work paid off last week when the Land Use Board of Appeals rejected Curry County’s approval of plans for the destination resort.  The work is not finished, but I will hold the images of my visit that day in my mind as a reminder of the reasons why I love this job.

Harbor Seals at Crook Point. Photo by David Ledig USFWS

A proposed large-scale destination resort on a remote and wild section of the Oregon coast in Curry County will not move forward without further review by the local land use authority.  In a decision issued Friday, the Land Use Board of Appeals found that the county had made errors in approving the tentative master plan for the destination resort.

The property is adjacent to the Crook Point Unit of the Oregon Islands National Wildlife Refuge and the Pacific Ocean, and sandwiched between two state parks: Pistol River State Park to the north and Boardman State Park to the south.  The site contains steep slopes and landslide areas as well as several creeks and wetland areas.  This area, north of Brookings in the southernmost section of the Oregon coastline, is so isolated that black bears have been seen on the beach at the wildlife refuge–a rarity given the extensive human development of the coastal areas.

The proposed project was no small affair – an 18-hole golf course, golf practice facilities, a 9-hole junior golf course, 175 overnight guest rooms, a golf lodge with restaurant, spa lodge, recreation center, and equestrian center.  Cabins would be built atop the sea cliff overlooking the ocean, and golf cart paths would wind their way throughout the property, crossing several wetlands and streams.

The project attracted plenty of attention locally, gaining support for the number of jobs promised and concern over impacts to the adjacent wildlife refuge.  In particular, Oregon Shores Conservation Coalition, Oregon Coast Alliance, and Kalmiopsis Audubon Society members worried that the development would attract trespassers, human and animal alike, to the wildlife refuge.  Home to huge colonies of nesting seabirds, the refuge and its denizens are particularly at risk to predators like racoons, which can easily raid the ground nests of birds like Storm Petrels and Tufted Puffins.

After Curry County approved the plan for development, Crag filed an appeal with the Land Use Board of Appeals (LUBA) on behalf of Oregon Shores.  Crag Staff Attorney Courtney Johnson argued that the county could not approve the development without first reviewing a geologic hazard assessment of the property and proposed development as required by the county’s own ordinances.  Without the geologic hazard assessment, which would provide an analysis of the risks from the many existing landslides on the property and the suitability of the site for development, the county could not conclude that the development could be completed safely without risk to human life and property and adverse impact to adjacent lands.  Crag also argued that the county erred in concluding that the proposed development was not situated on coastal shorelands–thereby avoiding application of more stringent development review.  The county ignored its own map showing the coastal shorelands boundary and narrowly interpreted its code, in conflict with Statewide Land Use Goal 17, by excluding areas of geologic instability from the coastal shorelands boundary.  Finally, we argued that the county failed to follow its own code in ensuring that adverse impacts to nearby lands like the wildlife refuge be avoided first, and minimized only if avoidance is not possible.  The county relied only on measures to minimize impacts and never considered measures to avoid impacts all together.

LUBA agreed with Crag’s arguments, sustaining all three assignments of error and sending the decision back to the county to be corrected with further information and review as required by the local ordinance.  The applicant will be required to prepare a geologic hazard assessment in order to properly identify coastal shorelands on the property, and the county must consider whether the development proposal can be revised to avoid impacts to nearby lands including the wildlife refuge.  Eventually, this project may still move forward, but for now this section of the Oregon coast will remain wild.

Crag attorneys Chris Winter and Courtney Johnson worked with Columbia Riverkeeper’s Brett VandenHeuvel to defend LUBA’s decision before the Court of Appeals.  At issue in the appeal were requirements in the Clatsop County Comprehensive Plan that limit development at the project location to “small to medium sized water-dependent industrial development” and policies that require protection of certain natural resources including endangered species and traditional fishing grounds.

In approving the land use application, the County limited its review of the scale of the development to include only the land-based facility itself – excluding any dredging, docking areas and pipelines associated with the facility.  By doing so, the County ensured that the proposal would not exceed the threshold of “small or medium-sized.”  On review, LUBA determined that the County’s own definition of “development” specifically includes any construction or excavation and therefore concluded that the County erred in failing to consider the entire construction project’s scale.  The Court of Appeals agreed with LUBA, finding that the County’s definition “plainly includes land disturbed as part of the construction of structures and land that is excavated by dredging.”

When the County approved the land use application, it also determined that mitigation efforts included in the project would protect natural resources including endangered species and traditional fishing grounds.  Rather than requiring the proposal to avoid or prevent harm to those resources, the County found that efforts to minimize adverse impacts were sufficient to protect the resource.  On review, LUBA determined that the meaning of the word “protect” requires that those resources be saved or shielded from anything more than de minimus damaging impacts.  LUBA  held that the County’s reliance on mitigation measures was insufficient.  Again, the Court of Appeals agreed.  After reviewing the definition of “protect” and the context of the phrase, the Court concluded that “‘Protect,’ in this context, means more than minimizing the adverse impacts of conflicting development through mitigation.  It means inhibiting development that causes significant adverse impacts on the protected resource.”

In September, the Oregon Department of Land Conservation and Development denied certification for the project under the Coastal Zone Management Act.  This is a required certification, and the Department’s denial of the permit added yet another blow to any recovery of this project.  Although two other LNG terminal proposals in Oregon remain viable, it appears more and more certain that opponents can rest assured the Bradwood Landing project is gone for good.

See the article in the Daily Astorian.

See the  Blog post on EcoTrope.

In Yamhill County, a number of property owners with claims under former Measure 37 had sought to go ahead with their large developments despite the passage of Measure 49.  The county granted these requests without considering the negative impacts of these developments on neighboring property owners.  These large development projects threatened rural land, the livability of these communities and the viability of local groundwater supplies.  The Friends of Yamhill County worked with neighbors, including farmers, vineyard owners and winemakers, to challenge four separate development proposals.

In 2008, the Yamhill County circuit court upheld the county’s decisions and the neighbors appealed the decisions. In the appeal, the neighbors pointed out that the landowners had not even started the large developments before Measure 49 passed. The owners had spent money on lawyers and consultants, but very little if any development had actually been done on the ground and the amounts the owners expended were a fraction of the total costs of these subdivisions.

While Yamhill County concluded the small amounts of monies spent on preparatory work were sizeable enough to allow the development to continue, the Oregon Court of Appeals rejected these arguments and reversed the trial court.  Now, instead of large subdivisions sprouting up on prime farmland and threatening water supplies, the owners will be able to pursue modest developments of up to three homes allowed under Measure 49.

Ilsa Perse from the Friends of Yamhill County stated: “While many people pursued modest claims under Measure 37, others pursued large developments that threatened farms, forests and water supplies.  Neighboring owners have property rights, too.  This ruling safeguards their interests as well. The court recognized the rights of neighbors while allowing owners to move forward with developments that meet the requirements of Measure 49.”

Measure 37 proponents insisted that its purpose was to allow rural landowners to build a few houses for their family.  In reality, Measure 37 resulted in over 6,800 claims.  More than half of those were for large subdivisions on valuable farm and forest lands.  When Oregonians realized the impact on local agriculture and water supplies, they passed Measure 49 to reign in the worst abuses and provide modest development options instead.  Measure 49 provided up to 3 houses per parcel without proof of financial loss, or more if the owner proved an actual financial loss. Measure 37 had not required any actual proof of loss.

David Adelsheim, President of Adelsheim Vineyard, stated: “Oregon winegrowers know the importance of preserving prime agricultural land. Oregon’s land use laws are the reason our industry exists today.  Without the establishment of Exclusive Farm Use zoning and Oregon’s comprehensive land use system, the hillsides our industry needs to produce the best grapes would have been dotted with housing developments instead of rows of Pinot noir vines.  No visitor would want to come to a Wine Country filled with rural subdivisions. We need to be able to count on the same protections going forward to insure that Oregon wines continue to flourish.”

In 2008, the Oregon wine industry had a $1.4 billion economic impact on the state, and the industry has continued to grow, even during the current recession.  Today’s court decision protects the industry from the development pressures encouraged by Measure 37. Ralph Bloemers, a staff attorney with the Crag Law Center, stated: “Many people sought to take advantage of Measure 37 and develop large residential subdivisions, commercial developments and gravel mines. These proposals threatened neighboring property rights, water supplies and undermined the efforts of people with more reasonable goals. This decision protects neighboring property owners and preserves Oregon’s valuable agricultural capabilities.”

For more information:

Read the complete decision:  Oregon Court of Appeals Decision – Friends of Yamhill County

Oregonian Story:  Controversial Yamhill County Measure 37 Claim

Oregonian Story:  Yamhill Cases Hinge on Vested Rights

Hinesight Blog:  Measure 49 Vested Rights Cases Reach Court of Appeals

Wines and Vines: Oregon’s Vineyards Protected from Developers

McMinnville News Register – Court Overturns Local Subdivision Ruling

In 2004, a majority of Oregonians voted for ballot initiative Measure 37 only to later discover that the measure threatened to unravel Oregon’s land use system. The measure permitted landowners to file claims demanding that all land use regulations be removed from their land while their neighbors were still subject to these laws. Neighboring farmers and rural landowners faced an onslaught of proposals from developers and logging companies seeking to convert Oregon’s farm and forest land into residential subdivisions, gravel pits and commercial developments. Over 7,500 claims were filed in the State of Oregon. In Hood River County alone, over one-quarter of all the farmland was threatened with rampant development.

Soon after the passage of Measure 37, the Crag Law Center was asked to help local landowners and citizen groups throughout Oregon to stop the worst abuses. We responded by providing a combination of quality legal support, education, outreach and advocacy to people seeking to protect their quality of life. We halted over 200 of the largest claims by filing challenges to the implementation of the law. Since 2004, we have worked for free or at a significantly reduced rate for local citizens to hold the line and protect Oregon’s natural resource lands.

We are currently working to defend the rugged headlands on the Oregon Coast, wine country in Yamhill County and important farmland in Clackamas, Marion, Linn, Josephine, Jackson and Polk Counties. On behalf of local citizens, we are working to make sure that developers are not able to game the system and continue with their plans under former Measure 37.

Our staff and volunteers are also working on a book that will capture the lessons that Oregonians have learned from its experiment with Measure 37 from a diverse range of perspectives.

Consider supporting us because we work with local people and citizens groups to protect the farmlands, forestlands and water supplies that you as Oregonians enjoy.

The Crag Law Center is a 501(c)(3) non-profit charitable organization and your support is tax deductible as allowed by law.

Five years after Measure 37 became law and two years after the voters passed Measure 49 to reign in the worst abuses of Measure, Crag is still working with local citizens, neighboring landowners and watchdog groups throughout the state to clean up the mess that Measure 37 created and to ensure that farmland, forestland and groundwater supplies are protected.

We are handling a number of legal actions in both state and federal court.  To allow us to continue this important work, we ask that you consider making a special donation to support our work this year by sending us a check or by making a donation online through our secure giving service.