Lincoln County judge says state land-use agency should be the one to decide validity of voter-approved short-term rental measure

 

By QUINTON SMITH/YachatsNews.com

A Lincoln County judge ruled Wednesday that the circuit court does not have legal authority to determine the validity of a voter-approved measure to phase out vacation rentals in unincorporated areas, saying it is a land-use issue that should be decided by a quasi-state agency.

“The measure includes new land use regulations which will have a significant impact on future use of land in Lincoln County,” Circuit Judge Amanda Benjamin concluded in her four-page ruling. “Jurisdiction is proper before the (Oregon) Land Use Board of Appeals.”

Benjamin’s ruling is a victory – but maybe a temporary one – by four vacation rental license holders who challenged Ballot Measure 21-203 in court and to LUBA, a quasi-judicial state agency that reviews land-use decisions.

Dissatisfied with the county’s slow approach to regulating short-term rentals, a coalition of neighborhood groups collected enough signatures in 2021 to put the measure on last November’s ballot. Voters approved it by a 58-to-42 percent margin.

The license holders immediately challenged the measure, asking Benjamin in December to issue a temporary injunction against Lincoln County, which had to implement the measure. After getting written opinions in January and February, Benjamin heard oral arguments in early March – and issued her ruling Wednesday.

There are approximately 530 licensed vacation rentals in unincorporated Lincoln County affected by the legal fight over the ballot measure or the county’s less restrictive ordinance. The legal challenges do not involve vacation rentals inside the seven cities in the county.

While the ruling was about jurisdiction – not whether the measure is legal – there was decidedly different takes on it from opponents and proponents.

Via Oregon, the vacation rental organization formed to help fight the measure, said the transfer of jurisdiction “is completely normal for a land use case working its way through litigation.”

“All of our homeowners’ challenges are still pending, and we look forward to a final ruling on their merits,” the group said in a statement. “We stand by our claim that the ballot measure causes illegal hardship to Lincoln County property owners and hope that the Land Use Board of Appeals will ultimately invalidate it.”

15neighborhoods, the grassroots organization that put Measure 21-203 on the ballot, said with Benjamin’s transferring the case to LUBA it expects her to dissolve her temporary injunction against the county from enforcing the measure and it “becomes effective and enforceable as the voters wanted.”

“We do not anticipate that the measure will qualify for a similar ‘stay’ before LUBA,” 15neighborhoods said in a statement approved by its attorney. “In other words, the sheriff is prohibited from issuing new short-term rental licenses in certain residential neighborhoods.” It said they expect the sheriff to send out another notice similar to the one issued shortly after the Nov. 2 election.

Monica Kirk of Depoe Bay, one of the leaders of 15neighborhoods, said their attorney believes “this is a win that the county can begin enforcing the ballot measure as it started to last November.”

On Friday, Sheriff Curtis Landers said the county is interpreting the Benjamin’s decision differently, that the county is “not changing anything at this time” and that his office is following the commission’s moratorium on issuing new licenses.

County counsel Kristin Yuille said Friday that the injunction against enforcing the ballot measure “will remain in place unless otherwise lifted by the court.

“Once the transfer does occur then LUBA will make a ruling on the stay,” Yuille said in an email. “We are weeks, if not months, from all this occurring. And as the sheriff indicated, we have a moratorium in place, so no new licenses will issue during this time.”

The complicated background

There are three legal actions bouncing between Lincoln County circuit court and LUBA, including:

• The license holder lawsuit that Benjamin ruled on Wednesday over who has jurisdiction over BM 21-203. The licensees have also filed an appeal on it to LUBA, which put its decision on hold until Benjamin made her ruling;
• The license holders also appealed to LUBA to throw out a county ordinance passed just days before the November election that put tighter restrictions vacation rentals and limited their number in areas west of U.S. Highway 101. LUBA already ruled that issue was not a land-use decision and belonged in circuit court;
• And, the license holders asked LUBA to overturn a county moratorium that halted issuing new vacation rental licenses until legal cases were determined. LUBA also sent that back to Lincoln County circuit court.

Lincoln County is in an odd position because while it has to defend the ballot measure in court, its lawyers told Benjamin during oral arguments this month they believe the measure involves land-use decisions and should be decided by LUBA not her.

15neighborhoods, the group that got the initiative on the ballot, disagrees with the county’s position and intervened in the case to make the argument that the measure is not a land-use issue, but one of county licensing and regulation.

It is widely expected that any decision by Benjamin or LUBA on the ballot measure will be taken to the Oregon Court of Appeals.

The judge’s ruling

In her ruling Benjamin said Ballot Measure 21-203 is a land-use decision in part because:

• “Intervenors assert that because the measure does not rezone any property, it is not a zoning ordinance. While it is true that the measure does not rezone any property in Lincoln County it does place new restrictions on land in three residential zones and those limits apply only because of the land’s existence in the specified zone.”
• “… the measure states that if a subdivision wishes to allow short-term rentals it must petition the county for a zoning change. The effect of this measure is to change three residential zones in such a way that any landowner in these zones would have to apply to rezone their property in order to be granted the same rights they had prior to the measure. While not labeled a zoning ordinance the plain language of the measure clearly establishes that it is in fact a zoning ordinance.”
• “The measure is also a land use regulation because it establishes standards for implementing a comprehensive plan. This measure identifies a specific problem occurring with land use in Lincoln County and establishes a specific procedure for correcting that problem in line with the county planning goals. This is also different than the recent cases in which LUBA determined that the regulations of short-term rental licenses were not land-use decisions. This measure does not simply involve the regulation of short-term licenses. This measure serves to eliminate all short-term rentals from certain areas of land regardless of their compliance with specific business license criteria.
• “The goal of the measure is not safe and compliant business operation, it is orderly and efficient use of land. Regardless of what chapter this measure amends, the court finds that it does establish standards for implementing a comprehensive plan and is thus a land-use regulation.”
• “The measure has a significant impact on present or future use of land. Even if the measure is not a ‘land-use decision’ as defined by statute, LUBA has jurisdiction because it will have a significant impact on present or future use of land. The measure phases out short-term rentals in three residential zones, however it also limits the number of short-term rental licenses a single owner can have in unincorporated Lincoln County regardless of their location. This decision creates an actual and significant impact on future land uses in Lincoln County. The impacts are likely to occur as a result of the measure given the number of short-term rentals that currently exist in Lincoln County.”

To read the full ruling, go here