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Stevens v. Cannon Beach, City of

ELR Citation: 24 ELR 20913
Nos. Nos. CC 90-2061 et al., 854 P.2d 449/317 Or. 131, (Or., 07/01/1993)

The court holds that the denial by an Oregon city and the Oregon Department of Parks and Recreation (Department) of oceanfront property owners' permit application to construct a seawall in the dry sand area of their property does not constitute an uncompensated taking under the Fifth Amendment to the U.S. Constitution, and that the Oregon Land Conservation and Development Commission's (Commission's) goal of limiting development on conditionally stable dry sand and the implementing city ordinances and Department regulations do not constitute a facial or as-applied taking of the owners' property. Applying the U.S. Supreme Court's decision in Lucas v. South Carolina Coastal Council, 22 ELR 21104 (1992), the court first holds that the Oregon Supreme Court's decision in Thornton v. Hay (1969), which applied the doctrine of custom to ocean shores, did not create new law. Thus, the doctrine of custom as applied to Oregon's dry sand areas is one of the restrictions that background principles of the state's law of property already place on land ownership and plaintiffs never had the property interests that they claim were taken by defendants' decision and regulations.

The court next holds that the Commission's goal of limiting residential, commercial, and industrial development on conditionally stable beaches, as codified in city ordinances and Department regulations, does not constitute a facial taking because the regulations allow certain economically viable uses of private beaches and dunes. The court declines to analyze the Department's denial of a permit to build a seawall as if it were a denial of a permit to construct a hotel or motel. Finally, the court holds that the seawall permit denial does not constitute a taking as applied because the property owners failed to comply with 10 of the city's 14 standards, failed to appeal the permit denial in order to address the city's objections based on the 14 standards, and cannot show that the permit would not have been granted had all the criteria been met.

Counsel for Petitioners
Garry P. McMurry
McMurry & Associates
One SW Columbia St., Ste. 435, Portland OR 97258
(503) 228-6515

Counsel for Respondents
Michael D. Reynolds, Ass't Attorney General
Attorney General's Office
100 Justice Bldg., Salem OR 97310
(503) 378-6002