By QUINTON SMITH/YachatsNews
While they wait for a judge’s ruling on vacation rental regulations, Lincoln County commissioners took the pre-emptive step Friday of putting a 1-year moratorium on issuing new licenses in case the judge tosses out the contested rules.
Circuit pro-tem judge Joseph Allison said at the end of a 5-hour hearing Wednesday that he intended to rule on the county’s regulations by Thursday or Friday. That hadn’t happened as of 8 p.m. Friday.
As a precautionary measure, county commissioners held a special meeting at 4:30 p.m. Friday to unanimously approve an emergency order halting any new licenses. If Allison rules in the county’s favor commissioners would vote at its first meeting in September to end the moratorium.
Commissioners want to avoid a situation that occurred in November 2021 when a 3-day window of apparent rental licenses opened up, causing a rush of applications. Commissioners had to quickly make a moratorium retroactive, and the licenses were eventually rejected.
The county has a waiting list of 60 license applicants, commissioners were told Friday. The county order being challenged in court would slowly drop the number of licenses from the current 509 to 181 as owners sold or changed the use of their houses.
On Wednesday, Allison told lawyers he would not rule from the bench that afternoon, but intended to issue a written ruling Thursday or Friday “because I expect it to be appealed.”
“Certainly these decisions will have a great effect on a great number of people,” Allison said at the conclusion of oral arguments.
Twenty vacation rental owners filed suit against the county last November objecting to a new ordinance restricting the use of their properties.
The lawsuit, which consolidated and amended some previous filings, has been the subject of responses and motions by attorneys since then. The lawyer for the rental owners and outside attorneys for the county have been fighting in court and before the Oregon Land Use Board of Appeals since late 2021.
The county’s legal fees so far have reached $246,000 – and it is asking that the plaintiffs pay those if Allison rules in its favor.
The county has been trying to get a handle on the burgeoning number of vacation rentals in unincorporated areas since 2016. Commissioners approved a number of changes to an existing ordinance on Oct. 27, 2021 — just days before voters approved a ballot measure that would have phased out short-term rentals in residential neighborhoods.
Vacation rentals in unincorporated areas once numbered more than 600. Now there are 509, after the county prohibited the transfer of licenses to new owners and put a moratorium on issuing new ones in most unincorporated areas. Under the latest regulations, they are supposed to eventually drop to 181 in areas outside of the seven cities.
A coalition of property owners appealed both the ballot measure and the updated county ordinance to LUBA, contending both were land-use measures. But the quasi-judicial body said the county’s revised ordinance was not a land-use issue, that it had no jurisdiction over it and sent that lawsuit back to circuit court.
LUBA did retain jurisdiction over the ballot measure and ruled last August that it conflicted with Oregon land-use law and declared it invalid.
That put the focus back to the county’s ordinance – and threw the issue into the courtroom of Allison, a Newport attorney working in Lincoln County the last two years as a temporary judge under a state contract to help with its caseload.
Regulation of businesses
Most of the arguments Wednesday focused on whether county Ordinance 523 was a land-use measure or simply a regulation of business licenses and practices.
Emily Matasar, one of two attorneys for the county, said LUBA had already concluded that the county’s ordinance was not a land-use issue.
Matasar used the example of a restaurant in a commercial zone. While the zoning allows the restaurant to be there, the county can enforce ordinances on securing a business license and meeting health standards, fire safety and building codes.
“The county can enforce other regulations,” she said. “That does not make it a land-use decision. It’s crucial to distinguish the difference …”
That argument drew interest from Allison, who asked if the county – knowing it could not limit vacation rentals through zoning — could put so many conditions on short-term rentals that they would make it “prohibitive” to operate.
“Can you use business licenses to prevent a use that is allowed under land-use code?” Allison asked, wondering minutes later if the county’s ordinance was a political decision “to circumvent land-use decisions they couldn’t enforce.”
Chris Crean, who is representing the county with Matasar, quickly jumped in to say that Allison was assuming facts not in the court filings “to reach that kind of conclusion.”
“These are not land-use regulations,” Crean said. “LUBA has already decided that.”
Land-use argument
Heather Brann, the attorney for the vacation rental owners, argued throughout the hearing that the county’s ordinance was a land-use decision and that Allison should send it back to LUBA.
“My clients do not oppose business regulations,” Brann said. “The reason we are here are the same reasons the ballot measure was challenged” and described the county ordinance as a “back door measure” to do what the ballot measure attempted.
“The ordinance is an attempt to restrict and limit use,” she said. “It’s a retroactive restriction and change” to a permitted land use. “They’re trying to use a license to get at a use.”
As for who has jurisdiction over the case, Allison said if he decides the county ordinance is not a land-use decision then the local court has the authority to make a ruling. Brann suggested he send the issue to the Oregon Court of Appeals to settle the jurisdictional issue.
Crean objected to that suggestion, saying LUBA was already clear that any decision about the county’s ordinance belonged in Lincoln County circuit court.
Allison replied later that he was concerned that the county ordinance was a “hybrid order” that affected land use and that he had found no court decisions to guide any decision on it.
“This will continue to be litigated because it’s affecting peoples’ livelihoods and property,” he said.
- Quinton Smith is the editor of YachatsNews.com and can be reached at YachatsNews@gmail.com
I bought a home in Lincoln county for use as a vacation home for my family, but also I wanted to leave the home to my kids as a source of income in the future through short term rentals. I feel that my rights as a property owner have been completely stripped away. No one should be allowed to tell me how I use my property and also, this ordinance is discriminatory because some people can have rentals and others cannot have rentals. This case will probably end up in the Supreme Court.
Like the earlier commenter, we feel our property rights have been stripped away.
We bought my home in Lincoln County to use as my permanent, personal residence in a residential neighborhood, not a business zone. Ten percent of the homes in my neighborhood are licensed, and two more are waitlisted.
Our kids? They can have our home when we die. It will probably be paid off, but if not, they will not be able to live on the rental proceeds. Our deed prohibits our home from being used ever as a short-term rental.
To the owner/investors who paid cash (and caused 3+ years of bidding wars) hoping to get a business license, sometimes investments don’t work out. Don’t blame Lincoln County for your bad judgment. To the owner/investors who have business licenses, the earlier commenter is wrong. You can pass along your property to your kids. They must apply for a STR business license ($750 application fee) and wait until they appear on the waitlist.
Thank you, Lincoln County, for defending my interests as a permanent resident of Lincoln County.
And I believe your rights to generate income for your offspring are trumped by the public interest in and need for housing for people who live here, the right to have peaceful neighborhoods not disrupted by commercial businesses, and the public health benefits of not having septic systems overwhelmed by excessive numbers of vacation home renters.
The people who have owned these homes for decades on the coast trumps the argument that beach front property is for “housing.” Thirty percent of these homes are vacation and second homes and have been for decades. And there are no “septic issues.” There is no, zero, none, data to back it up. A full-time resident uses their septic more than a vacation rental and a full time rental with max occupancy uses it more than all of the above. And we have the data to back it up, unlike the county that just makes it up. Eliminating vacation rentals disseminates to working class families that work hard to save and afford to own a second home like rich people. By going to extremes, there will be beach homes only owned by rich people and are occupied 20 percent of the year.
I worked hard and saved to own a home at the beach. I live in it. I don’t have enough money to own two houses. Only one is a home. I put all of my eggs in one basket. It is in your interest to own a both a house to live in and a motel. It is not in mine to live next to the latter.
In March 2019 in unincorporated Lincoln County, the sheriff’s licensing office reported 390 licensed STRs. By March 4, 2020, when commissioners first suspended licensing, there were 601. During this same period of time, the bidding wars started with out-of-town investors paying cash over the asking price. There is anecdotal evidence of how this affected workforce housing because no data were kept, as far as I know.
But the anecdotal evidence is compelling: (1) The Lincoln County School District published a full-page color ad in the News-Time twice advertising vacancies. The district started the 2020 school year with 60+ unfilled positions; (2) the News-Times ran a story about staff shortages at our hospitals. The Samaritan human resources department’s housing coordinator said the hospitals were asking residents with available bedrooms to call to help house new hires; (3) the Fire Districts’ 2019 class of volunteers (who had earned a stipend during their 3-year certification program) left the county because they either lost their longterm rental or wanted to start a family, but not in a tourist community.
My neighbors are teachers. They knew two special education teachers who had signed contracts, but couldn’t find housing, and withdrew before the year started.
I called the Samaritan housing coordinator for the community placement program. Yes, they were nurses, techs, and doctors who had passed background checks and were ready to start work, but could not find housing.
These anecdotes suggest that it was long term workforce housing, not just long-time second homes, that became STRs.
Why do renters produce more sewage than a full time resident? It would seem to me that a unit not always rented would produce less sewage.
Although a logical assumption, biochemistry says otherwise.
Unlike sewer waste manage that relies on chemicals, septic works because bacteria convert the waste.
But bacteria can’t live on a “feast or famine” and are killed off if the “feast” is too much for them to process.
Septic systems are designed to service the number of bedrooms in a dwelling. I assume the occupancy regulation is based on the County Sanitarian’s best professional judgment.
If STR septic systems fail more frequently than monster systems, the occupancy may need to be adjusted out of concern for public health and safety.
Good question.
https://www.premiertechaqua.com/en-us/wastewater/what-is-septic-system
When a building is a business it’s no longer a home. When your neighbors moved in to a residential neighborhood they weren’t locating in a business district. I understand your disappointment but also, your rights don’t trump everyone else’s.
Sometimes they’re both. A “second home” is just that. A “home.” If its occasionally rented out as well, that’s a win-win for the home owner and the local community. Is it better that a property bring regular tourism dollars to help the local economies (shops, restaurants, et al.) rather than sit empty sometimes 90% of the time that the home owner isn’t there utilizing it for Holiday?
I think this comes down a question of Freedom. I can sympathize and understand the concerns of the local residents, but I see it from the other side as well. I own a home in Lincoln County I currently rent out as a long-term rental to a nice family. I’m fine with that as I live in Eastern Oregon and trying to manage the home as an STR from my location just isn’t practical.
However, if at some time in the future I lose my current great tenants and I’m in a position to utilize my property as a second home, I would like to have that option available to me, along with the ability to offer it for short term rentals to help offset my cost. I certainly don’t want/need local government telling me how to and restricting my ability to use my own property as I see fit.
I am definitely on the side of the plaintiffs in this case.
Your rights end when you turn your property into a motel in a residential neighborhood. Try living near a vacation rental before you talk about your rights.
I lived in a rental neighborhood, loved meeting people from all over. People can either embrace being nice or be miserable. If you buy in a restrictive gated community, you could have no rentals. Do your homework before buying.
So the local people that need to serve you at local eateries for example can. Short term rentals in residential neighborhoods are not in the best interest of anyone that resides in the county. We already have a housing shortage and it is alarming the amount of houses that sit empty the majority of the year.
If you don’t want your residential property rights challenged, changed or limited, don’t operate a public business out of your “second home” that adversely affects the entire neighborhood and takes housing away from the very people you like to boast about employing.
And don’t give me the argument, as one STR owner stated a while ago, that their properties are ones that workers in Lincoln County couldn’t afford anyway. How very arrogant and so very untrue since many STR’s are smaller homes that are not expensive ocean front properties.
Come on Lincoln County, stand up for the people who live and work here and give them areas that are true neighborhoods free of hundreds of unwanted “guests”.
There is a lot of talk about “property rights” in the STR issue facing the county, coming from STR proponents. Often lost in their discussions are the numerous issues involving property – impacts on the greater community, crowding, septic waste issues, traffic, law enforcement, fire safety, noise levels. The current court case revolves around regulating property use. We all live with regulations and while we may disagree with some, the majority of regulations are there for good reason. Take traffic regulations for example. Regulations arise because something is not working properly and organized action to improve the situation arises and as a result, laws and regulations are made. While democracy may be a battered and tattered thing on the National level, I still see it functioning on the local level. The majority of voters in the county spoke through Ballot Measure 21-203 about the need to regulate STRs for the unaddressed issues mentioned above. No one is saying that property owners can not rent their homes. The matter is length of time. I am a homeowner in one of the STR hotspots in an unincorporated part of the county. My wife and I could not have made that happen had we not been lucky by the grace of God to find a “long” term rental in the county, while our home was being built.
As a long term resident in my neighborhood, I see see so many useful properties lying vacant during the off season, while so many here search for housing. It may be time for STR owners and STR hopefuls to expand their sense of community and offer their rentals for long term, especially when the county is in such dire need for that.
These “issues” should be dealt with regulation not elimination. And the county created rules and have taken in million of dollars in tax revenue and not created any kind of program or department for enforcement of these rules. This issue is on them. If they would have set up a legitimate enforcement division, we would not be in this position we are in today. It’s akin to creating health and safety rules for restaurants to follow and not hiring any health inspectors. Most restaurant owners are responsible and professional and would follow the rules, but there would be a handful that would not and we’d see people getting sick left and right. Would that be the restaurant industry’s fault or the county’s fault for not having inspectors to make sure that everyone was following the rules? I think we know the answer to that. And the traffic is generated from the thousands of hotel rooms that are on the coast, not from the 500 vacation rentals that span 40 miles. You want to get rid of those hotels too? If you live in a tourist driven area, you are going to have traffic. We have had traffic in summer for decades. Heavy traffic on the coast is from all the visitors, not just the ones that occupy STRs.
Friends, let’s be factual.
The county ordinance being challenged does not prevent people who have a license from keeping the license.
But, the current licensee must pay the annual renewal fee of $500 and follow the new rules about occupancy and the rules about parking, and noise that have been in effect for decades to avoid forfeiture. Reasonable, right?
The new occupancy rule of (2/bedroom plus 2 for the house not counting kids under two) and septic maintenance requirement are logical.
There are two classes of plaintiffs: (1) those who have a license, but don’t want to be told what to do even if in the public interest, and (2) those who don’t have a license and are angry that they can’t get a license until their Region falls below the cap. (Today the Wait List stands at 64.)
So, under the “maps and caps” ordinance now in Court, no one loses a license and neighborhoods can look forward to reducing the public nuisance as the number of licenses drops from 509 to 187.
Be grateful, renting investors, that I am not the county attorney or a commissioner. We’d be phasing out non-resident investor licenses, being stricter about enforcing violations, and fining property managers when their properties get a “strike” for violating the Ordinance.
In other words, I’d implement more efficient, but still fact-based action, based on the public interest to restore workforce housing and preserve our neighborhoods.
Very well said. Thank you.
I have read or “skimmed” most of the above comments. Excuse me people, Lincoln County has a housing crisis for the long time residents and the hard working people who live here permanently. Why can’t we change the regulations making neighborhoods “mixed” zones? Right now R-1 neighborhoods are for those who can afford it to eat, sleep and occasionally take a walk around the neighborhood. If we rezoned these neighborhoods to be residential/commercial, small artisan like businesses could thrive. Maybe you and your neighbors would get to know one another. You might even solve the STR situation before it made its way to the courthouse. Both sides need to start thinking outside the box and not just about yourselves.
I might be missing your point, but a “Home Occupation” (office, artisan studio, barber, beautician, small-scale manufacturing, home appliance repairs, etc) is already a permitted use for R1 zones, so long as the owner lives there and the space is no more than 600 square feet.
Presumably, back in the day, that was as much of a nuisance as was allowable in R1 zones where residential housing was sited,
The problem is that STRs are such a nuisance that they do not even meet the requirement for a “Home Occupation” in the Lincoln County Code Chapter 1.
In Unincorporated Lincoln County, 2/3rds of the existing STRs are on septic. Even the County’s Tourist/Commercial Zone (CT) requires motels, etc to be on sewer.
Would you support an ordinance that allowed only permanent residents to get an STR license…regardless of the zone or neighborhood?
This would address neighborhood concerns because the Owner (their neighbor) would be on-site and available to oversee the conduct of the renters.
This would address housing concerns because only permanently-occupied residences would be licensed.
I’d like to start a dialogue around this idea.
https://www.co.lincoln.or.us/DocumentCenter/View/1030/Home-Occupations-PDF