News of a possible court battle seemed to come as a surprise to Rockaway Beach City Council members during their March meeting. Councilor Kristine Hayes said she received a screenshot of a docket showing the City was headed to court.
Hayes raised questions about a constitutional writ and federal lawsuit as well as a request for attorney fees at the circuit court level. She said there was nothing in recent City correspondence or discussions to indicate the pending litigation, adding that she emailed an inquiry to City Attorney John Putman.
Putman said he received the email but did not respond, preferring to discuss the matter behind the closed doors of an executive session, which was held later in the evening. “We’re not out of that lawsuit yet,” Putman said. “The decision was made; it’s being appealed.”
Hayes responded that she was concerned about learning of the continuing court proceedings through a citizen’s tip. She asked if any other councilors were aware of the situation, which they apparently were not. Putman told the council although he is still an attorney of record on the case he has taken a position of limited involvement, not handling any arguments or document preparation unless asked.
“This has been removed from my world,” Putman said. “I’ve taken the position that my work on that case is at a minimum.” He said the other attorney involved or the city manager should be keeping the council informed. He also advised that confidentiality should be maintained in communicating about court matters.
“As a council member, I don’t want to find out in the grocery store that we’re being taken to court for $200,000,” Hayes said. “I think we should all be informed – we’re representing the citizens and landowners. It’s upsetting.”
City Manager Terri Michel said she has been cautious in what aspects of the case are discussed publicly because it is sensitive. She said she would continue taking direction from the attorney guiding her through the case.
“Don’t think for an instant, any of you, that I am not disturbed by this case and how it’s gone down,” Michel said. “I wouldn’t be sitting in this seat if I didn’t care about the people that live here … I am doing everything that I can to protect it and to listen to the people that are professionals and know the best about what to do.”
Council President Sue Wilson asked for the council to be updated on such matters. She said a detailed “blow-by-blow” wasn’t necessary, but whether there is a large or small amount of money at stake, the council should be kept apprised of upcoming court dates, motions, arguments or anything that could materially impact the City of Rockaway Beach.
The federal lawsuit that was discussed pertains to 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 and legal fees for the homeowner.
Hillsboro resident Tai Dang, along with Hue Le and Tue Nguyen own 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 ethnic animus against one or more plaintiffs.” He claims the City has approved riprap permits for “all white applicants.” Dang emigrated from Vietnam when he was 14.
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.
Originally built for Dang’s family according to court records, the home would later become a vacation rental. 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.
It’s noteworthy that Michel, who was City’s permit specialist in 2009, approved the initial build of the home. In an April 2009 letter to Dang, Michel said the home was compliant with standards and regulations after having conducted a site inspection.
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.
In December, it was ruled that the City must allow Dang to repair his home, according to The Oregonian. The back decks were reportedly verging on collapse, and waves washed out the basement walls. In January, ORPD agreed to give Dang a permit to install 81 feet of riprap.
On April 2, 2019, Judge Jonathan Hill awarded Dang more than $201,000 for attorney fees and more than $12,000 in court 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.