Akiyama v. Tillamook County

Where petitioners do not file a conditional motion to transfer, and LUBA concludes it lacks jurisdiction, it will dismiss the appeal.

In 2017, Tillamook County passed Ordinance 84-1, which set standards for short-term rentals, required owners to obtain licenses, and allowed for license revocation for noncompliance. In 2023, the county adopted Ordinance 84-2, repealing Ordinance 84-1. The new ordinance introduced updated requirements for short-term rental operations, maintained the licensing program, and introduced penalties for violations. It also imposed limits on the number of licenses per owner, established geographical subareas with license caps, set density limitations, and introduced minimum rental requirements for renewal.

 The petitioners filed a notice to appeal Ordinance 84-2, and the Respondents filed a motion to dismiss for lack of jurisdiction, arguing that the Ordinance is not a land use decision. “‘Land use decision’ includes a local government decision that ‘concerns 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).

 Petitioners argue that Ordinance 84-1 is a land use regulation and Ordinance 84-2 amends that regulation. They also argue Ordinance 84-2 is a new land use regulation. The county countered by saying that Ordinance 84-1 is not a land use regulation because it does not establish standards for implementing the Tillamook County Comprehensive Plan (TCCP). They argue that 84-2 is not a land use regulation for the same reason. Furthermore, they argue that 84-2 is a business licensing regulation.

 Petitioners first assert that during the hearings for 84-2, elected officials agreed that the ordinance was a land use regulation. The court held that, “explanatory statements made by staff or officials are irrelevant in determining whether Ordinance 84 is a land use regulation.”

 Next, they argue that 84-2 is a new land use regulation because it has a clear connection to the Tillamook County Land Use Ordinance (LUO) and TCCP. In Rest-Haven Memorial Park v. City of Eugene the court explained that “LUBA does not have jurisdiction to review such an ordinance, provided there is no clear connection between the ordinance and the comprehensive plan. The Board reasons that the connection between the ordinance and the county’s comprehensive plan comes from a zoning provision that does not clearly implement the plan. The board held that, “at best, petitioners have established a tenuous connection between Ordinance 84-2 and a general provision of the LUO, not the TCCP.”

 The petitioners argued that Ordinance 84-2 aligns with the Tillamook County Comprehensive Plan (TCCP) by citing Goal 1, which involves citizen participation. They claimed that the involvement of the Citizen Advisory Committees (CACs) in adopting the ordinance indicated it was part of the TCCP's maintenance. The county countered by stating that the CACs participate in both land use and non-land use matters in an advisory role, so this did not establish a direct connection.

The petitioners also referenced TCCP Goal 7, which aims to protect life and property from tsunamis, and argued that Ordinance 84-2 supports this by requiring the posting of tsunami evacuation brochures. Additionally, they cited Goal 10, which seeks to minimize the impact of regulations on housing costs, claiming that the ordinance’s focus on affordable and workplace housing aligns with this goal. However, the board determined that while the ordinance's subject matter might overlap with elements of the comprehensive plan, this does not mean the ordinance sets standards for implementing the plan.

Furthermore, the board disagrees that Ordinance 84-2 regulates the use of land. The board explains that LUO does not regulate short term rentals, and Ordinance 84-2 does not regulate the use of land either. Petitioner then cites to 84-2 section .080(G) which provides that the properties need to be in compliance with County zoning requirements. The county responded that a short-term rental license is a business license, and the language merely references LUO procedure for adjudicating non-conforming use. The board agrees that this section does not convert Ordinance 84-2 into a land use regulation. Petitioners have not established a clear connection between Ordinance 84-2 and the TCCP and therefore have not established it as a “new land use regulation.”

 Petitioners next argument is that Ordinance 84-2 rezones property pursuant to ORS 215.503(9) and is a “zoning ordinance” under ORS 197.015(11). The board rejected a similar argument in Briggs v. Lincoln County. There, the board held that ORS 215.503(9) is merely a notice statute for when areas are rezoned. Therefore, the petitioners failed to establish that Ordinance 84-2 rezones property.

 Finally, the petitioners argue that Ordinance 84-2 is a “significant impacts” land use decision. Under the significant impacts test, “a government decision that has a ‘significant impact on present or future land use’ is a land use decision. To meet this threshold there must be an actual qualitative or quantitative impact on present or future land uses, and not merely speculative. The Petitioners allege that Ordinance 84-2 has a special impact because it injures constitutional property rights, restricts transferability of licenses, imposes minimum annual rental obligations, percentage caps and density limits, and limit on number of licenses one owner can obtain. The board agrees with the respondents that “Ordinance 84-2 has no more or less impact on land use than any other business licensing programs that regulate business use of property.” The board concludes that Ordinance 84-2 does not have a significant impact on land use.

 Appeal is dismissed.