Shaw v. Jackson County

Where an application for a short-term rental is shown to be an accessory use of a primary residential use, and the local government does not forbid short-term rentals as a “home occupation,” LUBA cannot say as a matter of law that the local government erred in approving a short-term rental as a home occupation.

Petitioner appealed a County approval of an application to establish a short-term rental as a home occupation. On appeal to LUBA, Petitioner made one assignment of error: that the County erred as a matter of law in approving the application because a “hotel or motel” was a prohibited use in the residential zone and the County’s code did not expressly permit short-term rentals in any zone.

Under ORS 215.448(1), “[t]he governing body of a county or its designate may allow, subject to the approval of the governing body or its designate, the establishment of a home occupation and the parking of vehicles in any zone.” “Home occupation” “does not describe any particular use or activity,” but the local government may “establish additional reasonable conditions of approval for the establishment of a home occupation.” 1000 Friends of Oregon v. Marion County, __ Or. LUBA __, __ (LUBA Nos. 17 2022-085/086, Feb. 16,2023) (slip op at 9-10).

LUBA denied Petitioner’s assignment of error, pointing out that the question was not whether the short-term rental was a permitted use because this was a home occupation, and “home occupations” were a permitted use in a residential zone. LUBA reasoned that “visitor accommodations” like a hotel or motel were primarily commercial uses that were prohibited in the residential zone, while “home occupations” were accessory commercial uses of a primary residential use. LUBA noted that the applicants resided at the property and proposed to only use a portion of a dwelling as a short-term rental, which was consistent with an accessory home occupation use at a residence. Thus, LUBA found the question was whether the County’s limitations on a home occupation forbade the use of a short-term rental as a home occupation. As the County’s code did not forbid short-term rentals as a home occupation, and nothing had been cited to indicate the County could not permit a short-term rental or “visitor accommodation” use when it had determined the use fulfilled the requirements of a home occupation, LUBA concluded that it could not say as a matter of law that the short-term rental use was prohibited, or that County’s decision to approve the application was wrong.

Affirmed.