By QUINTON SMITH/YachatsNews.com
The legal fight over Lincoln County’s new restrictions on vacation rentals will likely take place in local court, not before the Oregon Land Use Board of Appeals.
The state agency, which reviews land-use decisions, ruled Feb. 10 that it does not have jurisdiction over a county ordinance that more tightly regulates and limits the number of vacation rentals in unincorporated areas of Lincoln County. In a 14-page decision, LUBA said the ordinance does not fall under state land-use laws, and that any legal challenges to it belong in circuit court.
The short-term rental owners who took the case to LUBA can appeal the decision to the Oregon Court of Appeals.
Opponents of the ordinance and ballot measure were trying to fight the new rules both before LUBA and in Lincoln County circuit court, where they have asked a judge to permanently stop their implementation. Judge Amanda Benjamin issued a preliminary injunction in December and is scheduled to hear arguments for a permanent injunction in March.
The legal fights stem from an ordinance passed by county commissioners Oct. 27, and then a ballot measure approved by voters Nov. 2, to more tightly regulate vacation rentals in unincorporated Lincoln County.
Twenty short-term rental license holders organized by a rental advocacy group appealed three issues to the agency — the county’s ordinance, the ballot measure, and then a Dec. 3 decision by county commissioners to suspend issuing any new vacation rental licenses retroactive to Nov. 30. Their lawyers contended the ordinance and ballot measure were really land-use issues for LUBA to decide.
LUBA’s ruling applied to Ordinance 523, which county commissioners passed days before the election on the more restrictive initiative petition. The commission’s ordinance tightened various rules on vacation rentals, prohibited license transfers and limited their numbers in five zones along the coast.
Ballot Measure 21-203, which voters passed by a 58-to-42 percent margin, has some of the same restrictions, but tighter occupancy limits and a five-year phase-out of rentals in residential neighborhoods.
In its legal arguments to LUBA, the county’s attorneys argued the ordinance was not a land-use issue but a regulation of business licenses and therefore did not fall under the agency’s jurisdiction. LUBA agreed, saying the county’s restrictions were not a re-zoning of property and there was no connection between the new ordinance and the county’s comprehensive land-use plan.
LUBA said because it determined that the county’s ordinance was not a land-use decision, it would also not take up the plaintiff’s appeals of the ballot measure or the commissioners’ suspension of new licenses — and transferred the ordinance appeal to Lincoln County circuit court.
Ironically, the same day that LUBA issued its ruling from Salem, Benjamin conducted a hearing in Newport where attorneys for vacation rental owners and the county said the circuit court case over Ballot Measure 21-203 should be transferred to the state agency.
15neighborhoods, the group that put the initiative on the Nov. 2 ballot, were granted intervenor status and argued that the measure was not a land-use regulation but “just a garden variety business regulation that limits” where and how vacation rentals can operate, said its lawyer, Daniel Kearns of Portland.
In a memo to 15neighborhoods supporters, Kearns said if Benjamin agrees to move the ballot measure appeal to LUBA, they would appeal to the Oregon Court of Appeals.
“Ultimately, it is the Court of Appeals that must decide whether Measure 21-203 is properly characterized as a ‘land-use regulation’ or not,” Kearns wrote.
To read the decision by the Oregon Land Use Board of Appeals go here
