- Court: Oregon Land Use Board of Appeals
- Area(s) of Law: Land Use
- Date Filed: 08-08-2022
- Case #: LUBA No. 2022-030
- Judge(s)/Court Below: Rudd
- Full Text Opinion
Petitioners challenged ballot measure BM 21-203, aimed at limiting short-term rentals (STRs) in unincorporated Lincoln County. BM 21-203 amends Lincoln County Code (LCC), coupling the recategorization of existing licensed STR uses in l-A, R-l and R-2 zones as nonconforming, personal to the property owner, and not assignable or transferrable, with the amortization of licensing for STR uses in those zones over a five-year period. The intention of the measure is that “the sale of homes with a rental license will result in a gradual attrition of the total number of dwellings with a short-term rental license" within the zones.
ORS 215.130(5) provides: "The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued,” and “[a] change of ownership or occupancy shall be permitted."
Petitioners argued that BM 21-203 violates ORS 215.130(5) because it requires that a previously lawful use be phased out within five years and does not allow for the transfer of that use. LUBA agreed with Petitioners, finding that the text of BM 21-203 presumes that prior to its enactment, STRs within the affected zones were allowed uses, and that effective upon its date of enactment, STRs “shall become” nonconforming uses, bringing BM 21-203 within the purview of ORS 215.130(5). Intervenors argued that BM 21-203 is a business licensing, and not a land use, regulation, and that as a result, ORS 215.130(5) was not implicated. LUBA disagreed, looking to Port of Hood River v. City of Hood River, where it had previously held that voter initiatives which effectively rezoned property were incompatible with ORS 215.130(5). LUBA further disagreed, finding that the measure did not just implicate licensure of STRs, but the use of the property itself. In particular, LUBA noted LCC 4.424's hardship provision which was designed to "accommodate the non-conforming use of a dwelling [where] an STR cannot be adequately amortized," as evidence that the measure alters use. Accordingly, LUBA held that BM 21-203 is a land use regulation requiring the cessation of nonconforming use in contravention of ORS 215.130(5).
Similarly, BM 21-203’s newly enacted LCC 4.422(a), provides that “[t]hese non-conforming uses [(STRs)] . . . shall not be assignable or transferable, and such uses shall cease when ownership of a property is transferred.” Intervenors likewise argued that the amendment pertains to licensure and not to use. Again, LUBA disagreed, noting that under the change to LCC 4.442(a), use is required to cease, and that in subsequent provisions like LCC 4.423 the word “use” and “usage” appears repeatedly in reference to STRs. Accordingly, LUBA held that LCC 4.422(a) further violates ORS 215.130(5) by “providing that a change in ownership is no longer allowed.”
Petitioners further argued that BM 21-203 is preempted by ORS 215.130. LUBA agreed that the two pieces of legislation cannot operate concurrently, and that BM 21-203 was preempted. LUBA cited La Grande/Astoria v. PERB (1978) holding that, “[w]hen a local enactment is found incompatible with state law in an area of substantive policy, the state law will displace the local rule.” Accordingly, LUBA held that BM 21-203 is preempted and that the measure is “prohibited as a matter of law.” Under OAR 661-010-0071(l)(c) “LUBA shall reverse a land use decision that violates a provision of applicable law and is prohibited as a matter of law.” Reversed.