Akiyama v. Tillamook Cty.

554 P.3d 268

333 Or.App. 315

Jennifer AKIYAMA; David Allen; Kimberly D.M. Bergstrom; Eric C.M. Bergstrom; Peter Birch; Kathy Hamel; Mark Buxton; Robin Buxton; Nate Castillo; Minerva Castillo; Doug Coates; Carl T. Coffman; Paul S. Cosgrove; Emily Draper; Christine Eisenschmidt; Robert Govender-Towle; Justin Greene; Nicole Ralston; Colin Grey; Karen Jackson; Brian Johnson; The Smith Johnson-Leupp LLC; Justin Jones, Trustee; Carrie Koepke; Cascadia Investment Properties, Inc.; Lana Kowalski; Mike Kowalski; Ron Lockwood; Martha Lockwood; Richard Lofton; Jeanine Lofton Hendrix; Andy Long; Sandra Y. Manning, Trustee; Bonnie McDowell; Phil Zapf; John P. McLoughlin; Katie McLoughlin; Desiree McMenamin; Dustin McMenamin; Maria M. Meyer; John Meyer; Skip Patten; Brian Patterson; Barbara Patterson; Stephen Piucci; Melissa Powers; Anthony Power; Holly Power; Susan Schomburg; Michael Smith; Janell Weeks; Heather L. Weigler; Jake Weigler; Kenneth G. Willett; Kevin Wingert; Brenda Huffstuttler; Jordan Winters; and Rachel Winters, Petitioners,

v.TILLAMOOK COUNTY, Tom Prehoditch, Jerry Keene, Vickie Prehoditch, Jacki Hinton, David Boone, Barbara Triplett, Amy Bell, Gary Billingsley, Michael Woodin, Dave Benneth, Carol Hoke, Laurie Kovack, Bruce Bishop, Mark L. Roberts, Joanie Blum, Candice Miller, and Gregory Miller, Respondents.

A183660

Court of Appeals of Oregon.

Argued and Submitted April 24, 2024.

June 26, 2024

Land Use Board of Appeals, 2023063

Heather A. Brann, Portland, argued the cause for petitioners. Also on the brief was Heather A. Brann PC.

Daniel Kearns, Portland, argued the cause for respondents. Also on the brief was Reeve Kearns PC.

Before Joyce, Presiding Judge, Lagesen, Chief Judge, and Jacquot, Judge.

LAGESEN, C. J.

₃₁₇Petitioners seek judicial review of a final order of the Land Use Board of Appeals (LUBA). In that order, LUBA granted Tillamook County’s motion to dismiss for lack of jurisdiction petitioners’ challenge to county Ordinance 84-2, which regulates the use of private homes as short-term rentals. LUBA concluded that the ordinance was not a land use regulation and, consequently, was not within the statutory scope of LUBA’s review. LUBA also concluded that it did not have jurisdiction to review the ordinance under the common-law "significant impact" test. Petitioners assign error to each of LUBA’s determinations with respect to its jurisdiction. We review to determine whether LUBA’s order is unlawful in substance or procedure, ORS 197.850(9)(a), and affirm.

I. LUBA’S JURISDICTION

At issue in this case is the scope of LUBA’s jurisdiction to review decisions of local governments. To provide context for the parties’ dispute and our analysis, we supply an overview of the law governing LUBA’s jurisdiction.

[1] LUBA’s jurisdiction to review local government actions derives from both statute and, perhaps surprisingly for a legislatively created body, the common law. Under both sources of law, the party seeking to invoke LUBA’s review has the burden of proving that their challenge to government action is within LUBA’s jurisdiction. Billington v. Polk County, 299 Or. 471, 475, 703 P.2d 232 (1985).

A. Statutory Jurisdiction

[2, 3] By statute, LUBA has "exclusive jurisdiction to review any ‘land use decision.’ " ORS 197.825(1). A "land use decision" includes a decision by a local government "that concerns the adoption, amendment, or application of the [statewide planning] goals, a provision of the county’s comprehensive plan, a land use regulation, or a new land use regulation." ORS 197.015(10)(a)(A). A "land use regulation" includes a local government’s "zoning ordinance, land division ordinance * * * or similar general ordinance establishing standards for implementing a comprehensive plan." ORS ₃₁₈197.015(11). Even when a local government does not characterize its actions as be land use regulations, LUBA long has held that its jurisdiction extends to actions that have a "clear connection" to the county’s comprehensive plan. Rest-Haven Memorial Park v. City of Eugene, 30 Or LUBA 282, 288, aff’d, 175 Or App 419, 28 P.3d 1229 (2001).¹ Consistent with the text of ORS 197.015(11), to meet the clear connection test, LUBA has required challengers to show that the government action, however denominated, establishes standards to implement the government’s comprehensive plan. Ramsey v. City of Portland, 30 Or LUBA 212, 217 (1995); Buys v. City of Portland, 69 Or LUBA 486, 491 (2014).

B. Common Law Jurisdiction

[4] Under the common law, LUBA has jurisdiction to review local governmental actions that have a significant impact on land use, even if the action does not fall within the statutory definition of a land use decision. Marks v. LCDC, 327 Or App 708, 727-28, 536 P.3d 995 (2023); Billington, 299 Or. at 478-79, 703 P.2d 232. We will elaborate on the test later but note here that it focuses on expected impacts on land use that are "likely" to occur and are not speculative. Marks, 327 Or App at 728, 536 P.3d 995. The test, we have explained, is "deceptively easy to articulate" for a standard that, in practice, remains opaque. Marks, 327 Or. App. at 727-28, 536 P.3d 995.

II. FACTUAL BACKGROUND

Having outlined the sources and scope of LUBA’s jurisdiction, we turn to the facts of this case. Petitioners seek LUBA’s review of Tillamook County’s Ordinance 84-2, which regulates short-term rentals of residential property. In their view, LUBA has both statutory and common law jurisdiction to review the ordinance. Understanding petitioners’ arguments requires understanding of both the regulatory history of short-term rentals in the county, as well as an understanding of our previous decisions addressing LUBA’s jurisdiction over the county’s short-term rental regulations.

₃₁₉In 2017, Tillamook County adopted Ordinance 84 to regulate the licensing² and operation of private dwellings used as short-term rental units in unincorporated areas of the county.³ Ordinance 84 (2017) required owners of private dwellings intending to use them as short-term rentals to acquire and pay for an operation license before using the dwelling as a short-term rental. The 2017 ordinance also provided that a license could be revoked for noncompliance with the ordinance’s provisions; a licensee also could be subject to a tax penalty.⁴

In 2022, the Tillamook County board of commissioners passed Board Order 22-03. The order temporarily suspended the county’s acceptance, processing, and issuance of new applications for short-term rental licenses. A number of parties sought LUBA’s review of the order. They argued that LUBA had jurisdiction to review the order on either or both of two bases. First, they argued that it was subject to LUBA’s review as a "development moratorium" because it paused the issuance of new short-term rental licenses. Second, they argued that it was a "land use regulation" because, in petitioners’ view, it amended an existing land use regulation. Specifically, petitioners contended that Ordinance 84 (2017) was itself a land use regulation, such that any amendment to the ordinance also qualified as a land use regulation. Winters v. Tillamook County, 330 Or App 188, 189-90, 189 n 1 (2024) (nonprecedential memorandum opinion) (Winters I).

LUBA rejected both arguments. It concluded that the order was not a "development moratorium" because it did not involve either "construction or land development," as defined by ORS 197.250(1), or "the subdivision or partitioning of, or construction on, any land" as defined in ORS ₃₂₀197.524(1); the order did not prevent the petitioners from constructing the dwellings they hoped to use as short-term rentals. Id. at 188. As to whether the order was a "land use regulation" by virtue of the fact that it amended Ordinance 84, LUBA determined that Ordinance 84 itself was not a land use regulation because it did not adopt, amend, or apply a statewide planning goal, a provision of the Tillamook County Comprehensive Plan (TCCP), or other land use regulations. Id. at 190. On judicial review, we affirmed.⁵

In 2023, the county adopted a second amended version of the ordinance, Ordinance 84-2, at issue in this case. Ordinance 84-2 maintained the licensing scheme for short-term rentals and established new operational requirements for them. For example, the ordinance establishes requirements for solid waste collection—such as requiring property owners to obtain weekly solid waste collection services, to provide waste bins on site, and to have an adequate septic system; requires each short-term rental to pass a fire safety inspection which includes checking for the presence of fire extinguishers and smoke detectors, rails on certain stairways, ensuring that fireplaces are properly ventilated, and requiring emergency escapes in the property; requires that all structural improvements to short-term rentals be permitted; and provides procedures for owners to respond to complaints from neighbors. The ordinance requires property owners to demonstrate compliance with these—and all other—operational requirements. Noncompliance may result in license revocation, nonrenewal, and penalties.

Ordinance 84-2 also made a few other notable changes that, in petitioners’ view, demonstrate that the ₃₂₁ordinance is subject to LUBA’s review. For example, the ordinance limits the number of licenses to one per licensee,⁶ establishes geographical subareas within the county and limits the number of licenses that may be issued for each subarea, establishes a density limitation on the issuance of short-term rental licenses, and establishes a minimum rental rate requirement to qualify for license renewal.

As noted, petitioners sought LUBA’s review of Ordinance 84-2, alleging that LUBA had both statutory and common law jurisdiction. LUBA dismissed and petitioners seek judicial review of the order of dismissal.

III. STANDARD OF REVIEW

[5] We review LUBA’s final order to determine whether it is "unlawful in substance or procedure." ORS 197.850(9) (a). A...