Winters, et. al. v. Tillamook County

Where a petitioner fails to show that a local government’s decision is a final decision subject to LUBA’s jurisdiction, LUBA will dismiss.

At issue is a county permit technician’s rejection of three separate applications for new short-term rental permits. The County previously adopted an ordinance that provided definitions, standards, and permit requirements for short-term rental of dwellings (Ordinance 84). The County's Community Development Department (the Department) issues short-term rental permits under Ordinance 84. On May 25, 2022, the Board of County Commissioners (the Board) adopted an order suspending the Department’s processing and accepting of new short-term rental permits from July 1, 2022 to June 30, 2023, except for applications for renewal or transfer of existing permits, applications filed before July 1, 2022, and applications from owners where the properties were pending sale and in escrow on July 1, 2022 (Board Order 22-033). In February 2023, Petitioners each filed applications for short-term rental permits of new dwellings constructed in 2022, and each received an email from the Department declining to process the applications according to Board Order 22-033 (the decisions). Petitioners separately appealed to LUBA and LUBA consolidated the cases.

ORS 197.825(1) provides that LUBA has exclusive jurisdiction to review land use decisions. A “land use decision” is a final decision that relates to the adoption, amendment, or application of the goals, a comprehensive plan provision, a land use regulation, or a new land use regulation. ORS 197.015(10)(a)(A). LUBA previously held that Board Order 22-033 is not a land use decision or a moratorium. Winters v. Tillamook County, __ Or LUBA ___ (LUBA No 2023-030, Sept 29, 2023).

The County moved to dismiss and argued that the decisions were not land use decisions under ORS 197.015(10)(a) because the decisions did not apply the County’s Land Use Ordinance (LUO) or the County’s Comprehensive Plan (TCCP) but instead applied Board Order 22-033. The County also argued that the decisions were not final decisions under ORS 197.015(10)(a). Petitioners argued that the decisions were decisions under LUO 1.030(2) because the decisions were based on regulations administered by the Department. LUBA agreed with Petitioners that the decisions were decisions under LUO 1.030(2). But LUBA determined that Petitioners held the burden to establish that the decisions were land use decisions. Billington v. Polk County, 703 P2d 232 (1985). LUBA further determined that Petitioners failed to show that the decisions were final decisions under ORS 197.015(10)(a) because Petitioners did not respond to the County’s arguments. Accordingly, LUBA held that it lacked jurisdiction over the matters.