By QUINTON SMITH/YachatsNews.com
NEWPORT – A Lincoln County judge says she will make a ruling by the end of this week whether to issue a permanent injunction to prevent the county from implementing a voter-approved ballot measure that stops the county from issuing vacation rental licenses and phases existing licenses out over five years.
Circuit Judge Amanda Benjamin heard 80 minutes of arguments Monday from lawyers representing four rental owners, Lincoln County, and the neighborhood coalition which put the initiative on the ballot and which has asked to intervene in the case.
Benjamin is being asked to rule on two main issues – who has jurisdiction over the case, the circuit court or the Oregon Land Use Board of Appeals, and whether she should stop the county from implementing the measure until legal issues are argued formally next year.
“I want to review the case law cited,” Benjamin told the lawyers, who appeared remotely on a TV screen in Room 303 of the county courthouse. “I will have that decision to you this week.”
Benjamin issued a temporary restraining order last week that stopped the county from implementing the measure. It expires at 5 p.m. Friday.
Benjamin seemed to indicate that if she determines the court has jurisdiction over the case, that a permanent injunction would be put into effect at least into March when she asked attorneys if they would be prepared to argue motions that month.
Voters approved Ballot Measure 21-203 on Nov. 2 by a ratio of 58-to-42 percent. The issue reached the ballot after a signature-gathering effort by a coalition of neighborhoods and during a two-month campaign was vigorously opposed by two lodging organizations.
Once the measure passed, it was fully expected that it 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.
The measure took effect Nov. 19 and applies to an estimated 515 vacation rentals in unincorporated Lincoln County.
Steven Berman of Portland, the attorney for Via Oregon and the four individuals, argued Monday there would be “no significant harm” by delaying implementation of a 5-year phase-out process for four months until a more formal hearing is conducted.
On Friday, three days after the temporary restraining order was issued, Lincoln County commissioners held a special meeting to re-institute its moratorium on new rental licenses and making it retroactive to Nov. 30. Just the previous week commissioners decided to let their moratorium expire at the end of November because the ballot measure was supposed to have taken effect.
15neighborhoods, the coalition that put the measure on the ballot, said in an email Tuesday that vacation rental opponents do not have to worry about new licenses being issued during a permanent injunction because the judge “cannot stop the county from enforcing the moratorium that the Board of Commissioners reinstated at its emergency meeting last Friday.”
During the two days when the county’s moratorium had been lifted and the restraining order in effect, nine clients of Sweet Homes Vacation Getaways filed vacation rental license applications. The county does not intend to process those, commissioners said last week.
“We would be in a pickle had the Board of Commissioners not reinstated the moratorium against new licenses on Friday,” 15neighborhoods co-chair Monica Kirk of Depoe Bay said in an email.
Who has jurisdiction over case?
Berman argued that Lincoln County circuit court had jurisdiction over the case because it can review the decision by the county clerk to approve the measure’s wording, that the measure did not include several necessary legal clauses, that the county did not properly notify individual license holders and did not conduct a public hearing.
Berman also argued that the measure improperly forbids the license holders from having a vacation rental inside cities, which fall under their rules and regulations, prohibits license transfers to heirs or buyers, limits current occupancy levels, and causes licenses holders to change previously-approved rental contracts.
“We don’t have to win on legal arguments now,” Berman said. “We only have to show that it can cause damage and there are issues.”
Lincoln County has hired an attorney, Christopher Crean of Portland, to represent the two defendants in the case – county clerk Dana Jenkins and Sheriff Curtis Landers.
In his filing Dec. 3 and arguments Monday, Crean said the court lacked jurisdiction to decide the case because it was a land-use issue that is exclusively under the jurisdiction of the Oregon Land Use Board of Appeals.
He also argued that the four plaintiffs – representing all other license holders – are not harmed because the new law does not affect the residential use of their homes, only the commercial use.
Crean also argued that the plaintiffs had 60 days after the ballot language was approved in August to contest legal issues with it. After the election is too late, he said.
“The Oregon Supreme Court has established a very high standard for election challenges,” he said.
While Crean admitted their were technical issues with the ballot measure, it was “absolutely clear” in its intent to implement land-use changes. “That makes it a land-use regulation … subject to LUBA’s exclusive jurisdiction,” he said. “This is a zoning ordinance.”
Attorney Daniel Kearns, representing 15neighborhoods, said that the group disagreed the measure was a land-use issue, but that the judge should dismiss the injunction request because technical issues should have been brought up when the ballot title was approved.
He also said the measure was an amendment to the county’s business regulations “and that’s fair game for an initiative.”
“It’s an initiative to change a county code,” Kearns said. “You have to be careful to amend or disturb that result.”
- Quinton Smith, a longtime Oregon journalist, is the founder and editor of YachatsNews.com and can be reached at YachatsNews@gmail.com
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To see the complaint by Via Oregon and four plaintiffs go here.
Why does the minority get to challenge the will of the majority? I bought a house in a quiet neighborhood not across the street from a hotel! The unlicensed short-term rentals in the neighborhood are even worse — they do what ever they want and pay no taxes. The whole thing is out of hand
Charge owners of vacation rentals additional property tax for not providing housing to local residents and for profiting off their homes. There should be no financial incentive for running STR’s. Homes should be for living in and for providing housing in neighborhoods.