By QUINTON SMITH/YachatsNews.com
NEWPORT – After hearing two hours of arguments Wednesday, a Lincoln County circuit judge said she would wait until later this month to rule on whether she had jurisdiction over the validity of a voter-approved measure to phase out vacation rentals in unincorporated Lincoln County.
Lawyers representing vacation rental owners are challenging the validity of Ballot Measure 21-203, which voters approved last November and are trying to get the issue before the Oregon Land Use Board of Appeals, not a local circuit court.
The measure is not being implemented because of a temporary injunction issued in December by Lincoln County Circuit Court Judge Amanda Benjamin, who heard Wednesday’s arguments. The measure would restrict occupancy levels and put other restrictions on an estimated 530 vacation rentals in unincorporated areas and phase them out of residential neighborhoods over five years.
The arguments Wednesday revolved around whether the measure falls under Oregon’s land-use laws and if the circuit court has jurisdiction to issue a permanent injunction against the measure. Lawyers for the license holders contend the measure is really a land-use issue and belongs before the Oregon Land Use Board of Appeals, a quasi-judicial state agency that reviews land-use decisions.
Lincoln County is the defendant and has hired outside attorneys to represent it in court to defend both the ballot measure and a less restrictive ordinance it passed just days before last November’s election.
The county is in an odd position because while it has to defend the measure in court, its lawyers told Benjamin on Wednesday 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 has intervened in the case to make the argument that the measure is not a land-use issue, but one of county licensing and regulation.
Vacation rental owners have asked LUBA to declare invalid both the ballot measure and the county ordinance.
The agency ruled last month that the county ordinance is not a land-use issue and referred it back to Lincoln County circuit court to decide. But it has not yet ruled on the ballot measure appeal.
On Friday, the LUBA sent yet another appeal by vacation rental owners – a challenge to the county commission’s moratorium on issuing new rental licenses – back to Lincoln County circuit court to decide. All that is left before LUBA is the challenge to the ballot measure, which is suspended pending a decision from Benjamin.
It is widely expected that any decision by Benjamin or LUBA will be taken to the Oregon Court of Appeals.
Lawyers disagree on overturning election
Steven Berman, the lead attorney for the vacation rental owners, said Wednesday that Measure 21-203 wasn’t “free of controversy” before it reached the ballot, citing comments by county commissioners and their former county counsel warning of legal and financial issues with the measure should voters pass it.
Berman told Benjamin that voter approval was “not a valid test whether it’s a valid, constitutional measure” and “immaterial” to whether the measure was properly worded or if it was a land-use issue for LUBA to decide.
Lydia Anderson-Dana, another plaintiff attorneys, argued the ballot measure was a land-use issue because it dictates what can happen in particular zones.
“You can call it a licensing issue, but if it bans the use then it’s a zoning issue,” she told Benjamin. “It’s a land-use regulation and requires Lincoln County to follow a different process.”
Emily Matasar, one of the attorneys for the county, argued that because the measure was an initiative passed by voters, rules governing the county’s process do not apply. While attorneys agreed that the lack of proper “implementing language” for the measure was an issue, Matasar said that did not affect the results of the election and is not a basis to invalidate it. And finally, she argued, the measure affects only commercial use of property in certain areas and doesn’t reference “non-conforming uses” in the county’s land-use rules.
Daniel Kearns, the attorney representing 15neighborhoods, said lawyers arguing both sides of the case would have drafted the measure differently. “But someone had to write this down and get it out there,” Kearns said.
He argued that it was dangerous to invalidate an initiative measure by using land-use laws. Citing the “purity of the ballot,” Kearns told Benjamin that “invalidating an election is a serious matter not to be taking lightly.”
“Did the voters know what the heck they were doing?” he asked. “There was no question what was happening” with the 58 to 42 percent margin of passage.
At the end of the hearing Benjamin said that she had “a pretty good idea of where everyone agrees or disagrees” and said she would study briefs filed by the lawyers the next two weeks before issuing her ruling.
