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Rockaway Beach riprap saga continues; $1.8M lawsuit filed

January 2018 storm damage to the house. File photo

A federal lawsuit has been filed regarding a Rockaway Beach vacation rental home around which years of debate has centered. Adding to the legal back-and-forth, a circuit court judge recently weighed in on repairs to the home’s deck.

Hillsboro resident Tai Dang owns a home on the northwest corner of South Pacific Avenue and South Sixth Street in Rockaway. Dang accused the City of Rockaway Beach of taking property without justification, inverse condemnation, negligence and discrimination, according to District of Oregon court documents.

The court documents, which were filed in August of 2018, allege the City of Rockaway Beach discriminated against Dang by denying his request to build a protective rubble wall (riprap) that would defend the 3,300 square foot house against erosion. The lawsuit also claims the City prevented the repair of a deck that was damaged during a January 2018 storm.

The lawsuit outlines four claims against the City of Rockaway Beach. The first claim, taking property without just compensation, alleges that the entire investment in the home and property would be lost without riprap. The claim asserts that blocking the riprap construction is a form of occupancy, essentially taking Dang’s property for public use without compensation, a violation of his Fifth Amendment rights.

The second claim, inverse condemnation, alleges that blocking the installment of riprap will lead to the home’s collapse into the Pacific Ocean. The third claim, negligence, accuses the City of placing material around where South Sixth Street meets the beach in such a way that it caused erosion to Dang’s property.

Each of the first three claims ask for damages of no less than $1,800,000 to be awarded by trial, the value of the home. The home is used as a short-term vacation rental that produces around $8,500 in monthly revenue.

The fourth claim against the City of Rockaway Beach is discrimination. Dang alleges that the City’s actions were motivated by “racial and ethnical animus against one or more plaintiffs.” He claims the City has approved riprap permits for “all white applicants.”

A Rockaway Beach house’s future teeters on the owner finding a way to legally stop the wave erosion which has nearly claimed it.

Dang is asking the court to award him the market value of his property and damages for lost rent, lost property value, and discrimination as well as attorney fees and costs. Currently, both sides are waiting for the court to rule on a dismissal motion from the City of Rockaway Beach. The case could be dismissed, the court could ask for an amended complaint, or the motion could be denied, leading to a trial date.

Dang acquired the property for $375,000 in 2008 and had the home built. According to the court documents, riprap was not placed on the property during initial development because an engineer advised waiting until it appeared necessary. In 2014, dune erosion threatened the home’s foundation, leading Dang to apply for a permit to place riprap.

In January of 2015, the City of Rockaway approved Dang’s application for an Ocean Shore Permit from the Oregon Parks and Recreation Department (ORPD). However, in April of that year, the City reversed its decision, telling ORPD that Dang’s home was not built to meet the City’s requirements.

Dang continued to fight at the state level, but by December of 2016 it appeared he had exhausted the possibilities. The original request for a 14 foot high by 80 foot long riprap wall drew strong opposition from local residents who fought against the revetment at numerous lengthy public hearings because of the way they said it would impact their property.

On Jan.18 of 2018, stormy weather, wind and high tides combined to cause major structural damage to the northwest corner of the building. Ocean waves swept away the remaining sand that was shielding the building and eroded the structural support, causing an estimated $10,000 in damage to the home’s deck, according to court records.

Seeking to repair the damaged deck, Dang applied for a permit from the City of Rockaway Beach on March 23, 2018. According to court records, the City Manager Terri Michel found the application incomplete and requested additional materials and fee payments to complete the process. Court records state that Dang’s attorney, Wendie Kellington, fulfilled the request on April 17, 2018, adding that no further information would be submitted.

The permit application was denied in a letter dated May 4, 2018. However, the letter indicated that the denial was conditional and that additional material could be submitted to change the course.

Court records show that additional information was a “site investigation” and an ocean shore alteration permit that Kellington claims was not previously requested by the City and do not appear to be required under city code. The second round of additional information was ultimately submitted, and two months later the permit was officially denied amid ongoing arguments over timelines.

In the summer of 2018, an appeal was filed regarding the permit denial. The City of Rockaway Beach responded by scheduling a joint hearing with the city council and the planning commission. But when Kellington and the City could not agree on a hearing date, Dang’s attorney requested a writ of Mandamus, essentially asking for court oversight and claiming the City violated permit process deadlines set by state law.

Kellington requested the writ of Mandamus to order the City of Rockaway Beach to approve the permit for deck repairs, without which the home cannot be rented. It was also requested that the City pay Dang’s attorney fees and legal costs.

On April 2, 2019, Judge Jonathan Hill awarded Dang more than $201,000 for attorney fees and more than $12,000 in litigation costs. Kellington was billed out at $365 an hour and her fellow attorney for Dang, Jonathan Radmacher, charged $390 an hour. While the City protested to the court that the rates were too high, Hill found the billable hours met with the regional median for such specialized representation.