Dean v. Lincoln County

Where a decision by a local government lacks a clear connection to the comprehensive plan or zoning regulations, LUBA will hold that decision is not a land use decision. Ramsey v. City of Portland, 30 Or LUBA 212, 213, 217-18 (1995); Oregon Aviation Watch v. City of Hillsboro, 67 Or LUBA 252, 253, 256 (2013).

At issue is a decision by the board of commissioners, Order 01-23-037 (the Order), which approved the establishment of geographic subareas for short term rental (“STR”) licenses then set a maximum amount of STR licenses for each subarea. The Order implemented previously enacted Ordinance 523 (“the Ordinance”), which required the future establishment of STR license subareas and created Lincoln County Code (LCC) 4.420(5). LCC 4.420(5) provides that “[t]he boundaries of the subareas, and the number of licenses allowed within the subareas shall be recommended by the Licensing Authority and approved by the Board of Commissioners by Board Order. The boundaries and subarea capacities may be reviewed by the Board periodically and adjusted by Board Order.” The County prohibited the transfer of STR licenses, therefore any new owner of a property that previously held an STR license needed to obtain a new STR license.

LUBA previously held that the Ordinance is not a land use decision subject to its jurisdiction because the Ordinance did not rezone property and the petitioners failed to establish that the Ordinance implemented the comprehensive plan or any zoning ordinance. Briggs v. Lincoln County, __ Or LUBA ___ (LUBA No. 2021-113, Feb 10, 2022). In Briggs, LUBA determined that the petitioners failed to establish that any future subareas amended the zoning. Briggs was not appealed and is final.

Petitioners filed a notice of intent to appeal “Ordinance #523: Amendment to Lincoln County Code (Ordinance #487, #490, and #509) Section 4.405 through 4.460 Short Term Rental of Dwelling Units, as modified by Order #01-23-037” (the NITA). LUBA understood the NITA to only appeal the Order.

The County moved to dismiss the appeal and argued that the Ordinance is final and the Order is not a land use decision subject to LUBA jurisdiction because it does not adopt, amend, or apply the goals, the comprehensive plan, or any land use regulations. Petitioners argued that the Order applies the regulations within the Ordinance therefore arguments against the Ordinance must be allowed in this appeal. LUBA determined that Petitioners’ argument was an attempt to re-challenge the Ordinance and reasoned that it would not consider any of Petitioners’ arguments directed at the Ordinance.

Petitioners had the burden to establish LUBA jurisdiction over the Order. Billington v. Polk County, 703 P2d 232 (1985); Bowen v. City of Dunes City, 28 Or LUBA 324, 330 (1994). LUBA has jurisdiction to review certain land use decisions (ORS 197.825(1)), including “[a] final decision or determination made by a local government … that concerns the adoption, amendment or application of … [t]he goals … [a] comprehensive plan provision … [a] land use regulation … or … [a] new land use regulation” (ORS 197.015(10)(a)(A)). A land use regulation is “any local government zoning ordinance, land division ordinance … or similar general ordinance establishing standards for implementing a comprehensive plan”. ORS 197.015(11).

Petitioners also argued that the Briggs Decision allowed future establishment of the connection between the Ordinance and the comprehensive plan or land use regulations and, further, that the County did establish that connection once it implemented the Ordinance through the Order. LUBA rejected this argument and determined that Petitioners failed to establish that the Order is a land use decision. Accordingly, LUBA held that the Order was not a land use decision therefore LUBA did not have jurisdiction.

Transferred.