514 P.3d 553
Or. Ct. App.2022Background
- Clackamas County adopted a two-part short-term rental regime: Ordinance No. 09-2020 (CCC Title 8 registration and standards) and Ordinance ZDO-273 (amending the Zoning and Development Ordinance to redefine "dwelling unit" and loosen guest-house restrictions to allow paid stays up to 30 consecutive nights).
- 1000 Friends of Oregon and intervenor Dennis Tylka petitioned LUBA, arguing the ZDO amendments improperly authorize short-term, paid lodging on resource-zoned lands (EFU, TBR, AG/F) in conflict with ORS chapter 215 and LCDC rules (OAR ch. 660, div. 6).
- The county argued a lawfully established dwelling retains the right to residential occupancy and that short-term rentals are indistinguishable from ordinary residential use unless expressly prohibited.
- LUBA concluded the county had not identified statutory or regulatory authority in ORS 215.283 or OAR 660-006-0025 to allow the short-term rental use of dwellings on resource land, characterized such rentals as distinct (transient/commercial) uses, and remanded the county decision.
- The county sought review in the Court of Appeals, which affirmed LUBA: short-term rentals as regulated by the county are not an ordinary residential use and, absent express authorization in state statutes or rules, are not allowed on resource land.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether short-term, paid lodging in an otherwise lawful dwelling on resource-zoned land is permitted without express state authorization | 1000 Friends: ZDO amendments unlawfully allow a commercial/transient lodging use on resource land absent statutory/regulatory authorization and without applying required conditional-use criteria | County: A lawful dwelling retains the right to residential occupancy; short-term rental is an ordinary residential use and needs no explicit statutory authorization | LUBA and Court: Short-term rentals (as regulated) are transient/commercial and differ from a "home;" state law (ORS ch. 215 and OAR 660-006-0025) does not expressly authorize them on resource land, so the county’s amendments conflict with state law |
Key Cases Cited
- PGE v. Bureau of Labor & Indus., 317 Or 606 (state statutory construction framework)
- State v. Gaines, 346 Or 160 (statutory interpretation principles)
- Brentmar v. Jackson County, 321 Or 481 (uses in EFU zones and limits on local restrictions)
- Warburton v. Harney County, 174 Or App 322 (EFU uses are exceptions to exclusive farm use)
- Central Oregon LandWatch v. Deschutes County, 276 Or App 282 (reading ORS 215.283 in light of preservation goals)
- Nicita v. City of Oregon City, 317 Or App 709 (LUBA-order unlawful-in-substance standard)