Twenty vacation rental owners served notice Wednesday that they intend to appeal an ordinance regulating short-term rentals outside of cities adopted by the Lincoln County Board of Commissioners on Oct. 27.
The group was organized by VIA Oregon, a coalition of vacation rental managers and owners that advocated for the industry during the commissioners’ multi-year discussion on new county regulations. It announced in a press release Wednesday that 20 of its members planned to take the county to the Oregon Land Use Board of Appeals over Ordinance 523, the eventual product of those long discussions.
A press release from VIA Oregon called the ordinance, which creates new occupancy limits, septic system requirements, complaint enforcement procedures and a framework for area caps on the number of licenses, as well as other provisions, “an approach of systematically turning business licensing from its ordinary purposes into a device of land use, planning and zoning, with the goal and effect of taking away a property owner’s rights to continue an activity that was lawful when it began.”
Oregon statute strictly limits land use regulation, and the county has accordingly emphasized that its regulatory efforts are a business licensing and not a land use approach. The only venue for rulings on land use decisions is the Land Use Board of Appeals, and it must decide whether the ordinance is a matter for its deliberation and rule on its legality. The three members of the board are attorneys appointed by the governor. Their decisions can be appealed to the Oregon Court of Appeals.
The VIA Oregon press release singles out as onerous a provision of the ordinance that makes licenses non-transferable — buyers or heirs of vacation rental homes cannot renew the license under their own names.
“Instead, the county would deny that right and require the new owner or heir to wait in a lottery or wait list until a ‘new’ license became available,” the release reads.
“Similarly, while the county’s original (2016) ordinance acknowledged the state requirement to ‘grandfather’ existing lawful uses, the county has arbitrarily decided to recognize that state right only for the owners of larger homes who sought an occupancy of 16 guests or more, and the county quit acknowledging those rights altogether after 2017.”
VIA Oregon spokesperson Amy Anderson said an official notice of intent to appeal was filed with the land use board Wednesday, with the formal petition and legal arguments to follow. In addition to claiming that the ordinance takes away a use by right, the filing signed by attorney Dean Alterman also claims the county did not mail notice of its final action “to participants or other persons affected by the ordinance.”
Every rental owner listed in the notice of appeal also submitted written comments with mostly identical wording for the board of commissioners’ final hearing on the ordinance. A VIA Oregon email to members Oct. 26 provided suggested comment language and advised comments needed to be on the record prior to adoption in order to establish grounds for an appeal.
Separate from that appeal, the organization is also gearing up for litigation related to Measure 21-203, which goes further than the commissioners’ ordinance, with a five-year phase out of all short-term rental licenses in unincorporated residential zones and other provisions.
County Clerk Dana Jenkins is expected to certify the results of the Nov. 2 election, in which 10,080 to 7,338 voted in favor of the measure, by the end of the day today (Friday). Commissioners would then have to adopt its provisions as county code before they could take effect. At a meeting since its passage, commissioners have suggested they believe some of those provisions might not be legally enforceable.
VIA Oregon asked its members on Nov. 11 to answer a questionnaire in order to select “a small group of plaintiffs to represent the interests of the entire group” in a lawsuit in Lincoln County Circuit Court. Anderson said Via Oregon was still accepting questionnaires and compiling responses, and it would be some time before she would have any updates on a potential legal filing.
The defendant in any potential lawsuit would be the county, although the organization that successfully promoted the ballot measure, 15neighborhoods, would likely file to intervene and make its own legal arguments to defend it.
In a Nov. 15 letter to County Counsel Kristin Yuille, 15neighborhoods steering committee member Monica Kirk asked when the measure’s provisions would become effective, what its impact would be and how it might be incorporated along with Ordinance 523. She also asked what state statute an appeal of the measure might be filed under and if 15neighborhoods would be notified if an appeal was filed.
Commissioners did not meet this week but will meet on Nov. 24, and a discussion of the current moratorium on new short-term rental licenses is on the agenda. Chair Doug Hunt declined to comment notice on the appeal of ordinance 523.