Emerald Cove LLC v. City of Lincoln City

Petitioners seeking review by LUBA have the burden of establishing that LUBA has jurisdiction; accordingly, when a petitioner cannot carry its burden, that petitioner's appeal will be dismissed.

Emerald Cove, LLC (Emerald) appealed the city Vacation Rental Dwelling (VRD) License Appeals Board’s decision denying an appeal of the planning and community director’s approval, with conditions, of Emerald’s VRD License renewal application. Emerald’s six-bedroom (and two-bunkroom) dwelling, built in 2008, has been rented as a VRD since 2009. Pursuant to Lincoln City Municipal Code (LCMC) 5.14, an owner of property to be used as a VRD must obtain a revocable VRD License annually. In 2014, the city enacted an ordinance that added LCMC 5.14.060.B.4.a, which, in response to Emerald’s renewal application of January 2015, the city interpreted to impose a five-bedroom limit as a condition for Emerald’s VRD License. Under LCMC 5.14.090.E.4, the VRD License Appeals Board’s decision “is a final decision [. . .] appealable only by writ of review to circuit court.”

The city moved to dismiss Emerald’s appeal to LUBA for lack of jurisdiction, arguing that the challenged decision is not a “land use decision” as defined by ORS 197.015(10)(a) because it did not concern application of comprehensive plan provisions or land use regulations. Emerald argued that LUBA had jurisdiction because the challenged decision applied “Lincoln County’s land use regulations (or absence of regulations) on vacation rentals,” and improperly applied “as land use regulation portions of the Oregon Residential Specialty Code and the Oregon Structural Specialty Code.” LUBA noted that absent a clear connection between an ordinance and the comprehensive plan, the ordinance is not a land use regulation, even if it generally or indirectly furthers some comprehensive plan provisions. LUBA additionally noted that the plan provisions cited by Emerald were “potential implementation strategies and broadly worded policy statements” that were not clearly or directly connected to the occupancy limitation imposed by LCMC 5.14.060.B.4.a, and that LCMC 5.14.060.B.4.a was therefore not a land use regulation. DISMISSED.