Circuit judge stops Lincoln County from implementing measure that phases out short-term rentals until at least March

By QUINTON SMITH/YachatsNews.com

A judge has issue a preliminary injunction to stop Lincoln County from implementing until at least March a voter-approved initiative that phases out vacation rentals in unincorporated areas.

In her ruling, circuit judge Amanda Benjamin concluded that the harm to the public in delaying enactment of the measure “is outweighed by the potential harm to both the plaintiffs and defendants …”

Benjamin conducted a hearing on the injunction request Monday, wrote her ruling Wednesday and the court posted it on the statewide court information system Friday.

At issue is Ballot Measure 21-203, which voters approved Nov. 2 by a ratio of 58-to-42 percent. When it took effect Nov. 19, the new law put tighter restrictions on 515 short-term rentals in unincorporated areas of Lincoln County, stopped the issuing of new licenses and transfer of current licenses, and phased them out in residential neighborhoods over five years.

It was fully expected the measure would be challenged in court. That occurred Nov. 30 when attorneys for Via Oregon and four vacation rental owners sought a temporary restraining order to prevent enforcement of the measure and then for a judge to void it.

Defendants in the case are Lincoln County Sheriff Curtis Landers, whose office administers the vacation rental ordinance, and county clerk Dana Jenkins, who approved the measure’s ballot title, oversaw the election and certified the results.

In her ruling, Benjamin said that:

• The circuit court has jurisdiction over the issue. Lawyers for the county and initiative petitioners argued Monday that the issue belonged before the Oregon Land Use Board of Appeals;
• It appears from written and oral arguments that the four license holders who are plaintiffs and represent all other rental owners, “are entitled to some relief” from the ballot measure’s language;
• If enacted immediately, the measure would “result in injury to the plaintiffs” and that the county “may also be harmed” because of additional litigation and monetary damages;
• And, that lawyers have agreed to timeline “that will likely result in resolution of the case by March 2022.”

During Monday’s hearing, attorneys sparred over two main issues – who has jurisdiction over the case, the circuit court or the Land Use Board of Appeals, and whether Benjamin should stop the county from implementing the measure until legal issues are argued formally next year.

After the 80-minute hearing, Benjamin promised a decision by Friday. But when Benjamin asked attorneys if they would be prepared to argue motions in March, it was an indication if the court had jurisdiction over the case, that a preliminary injunction would be put into effect for at least four months.

County ordinance take effect Jan. 25

The practical effect of the judge’s ruling is to put the ballot measure’s new rules on hold until a decision next year.

But even that ruling could be appealed – similar to the four-year legal battle over the voter-approved ban on aerial pesticide spraying that was overturned by a Lincoln County judge and upheld this year by the Oregon Court of Appeals.

Lincoln County commissioners have a role in this as well.

On Dec. 3, three days after Benjamin issued her temporary restraining order, commissioners held a special meeting to re-institute its moratorium on new rental licenses and making it retroactive to Nov. 30. The previous week commissioners had decided to let their moratorium expire at the end of November because the ballot measure was supposed to have taken effect.

But laws and ordinances could get even more confusing for rental owners and their neighbors.

With implementation of the ballot measure on hold, a county ordinance passed just six days before the Nov. 2 election would take effect Jan. 25. It also tightens restrictions on vacation rentals, but not as much as the ballot measure and it does not phase them out.

But that may wind up in court as well.

Attorneys for vacation rental license holders have filed notice with the state that they intend to challenge the county’s new ordinance as an unlawful change in land-use laws. This week, they also filed notice with the Land Use Board of Appeals on behalf of 20 license holders that they intend to challenge Ballot Measure 21-203 on the same grounds.

15neighborhoods, the group that collected signatures to put the measure before voters, said it expected Benjamin’s injunction and now hopes commissioners and county staff will use the time “to write the policies and procedures needed to implement” the county’s ordinance.
“15neighborhoods trusts the county will use this reprieve wisely and put some flesh on the bones of its short-term business licensing program,” the group said in a statement.

• Quinton Smith, a longtime Oregon journalist, is the founder and editor of YachatsNews.com and can be reached at YachatsNews@gmail.com