Last November, Lincoln County voters approved a ballot measure limiting the number of short-term rentals in unincorporated areas. Their hope was to control the growing number of short-term rental homes in the county, with a plan to phase out short-term rentals in five years. But, earlier this month, the Oregon Land Use Board of Appeals overturned the measure, ruling the decision goes against state laws. Quinton Smith is the founder of Yachats News. He joins us to share more about what this means for Lincoln County.
The following transcript was created by a computer and edited by a volunteer:
Dave Miller: This is Think Out Loud on OPB, I’m Dave Miller. We start today with the battle over short term rentals in Lincoln County. Last fall voters there approved a ballot measure to phase out short term rentals in unincorporated parts of the county and the county commission enacted regulations of its own, but vacation rental owners and property managers fought back and won a recent legal victory, putting the regulation of these units into question. Quinton Smith is the founder of Yachats News. He joins us to talk about what all of this means. Welcome to Think Out Loud.
Quinton Smith: Thank you. Good afternoon.
Miller: Good afternoon to you. So there are these two different sets of county level restrictions on short term rentals. Let’s start with the ballot measure, the voter passed one. What did it say?
Smith: The ballot measure came about because the group of neighborhood organizations, basically a citizens’ group, thought the county commission wasn’t acting quick enough or well enough to regulate or deal with short term rentals in unincorporated areas. So these areas are, you know, north and south of Lincoln City, north and south of Newport. You know, in between all the six or seven incorporated cities in the county.
Miller: These cities that have their own regulations of different kinds for short term rentals?
Smith: Correct. Most of the cities along (Highway) 101 have restrictions on short term rentals, either a cap or limit in certain areas or restrictions, you’re going to have X amount in this area and unlimited amount in commercial areas and stuff. So the cities had already put on their limits or restrictions, the county never did. And so vacation rental people interested in owning vacation rentals saw the difference, started buying properties in unincorporated areas where there are significant traditional-looking neighborhoods, but just not in the city and started using those as vacation rentals. It went from around two hundred vacation rentals, licensed vacation rentals in unincorporated Lincoln County to around six hundred within a period of about three years. Some neighborhoods fought back and said, this is too much. The county was slow to adjust, slow to do anything. So they said, ‘To heck with you, we’re gonna put this on the ballot and let the voters decide…’ which, they collected the signatures for the initiative petition, voters got a chance at it last November in the November general election, passed it 56-44 a big, you know, fight and debate over that, the vacation rental industry weighed in heavily, the neighborhood groups fought back kind of thing, but it, but it passed.
Miller: What were the arguments made? I think you’ve been giving us a sense for the arguments in favor of this ballot measure, that because of what they saw, proponents, as county inaction, a lack of county regulation. There was this profusion of short term rentals and people in the neighborhood didn’t like what they saw as changing the character of their neighborhoods. What were the arguments against this ballot measure to phase out short term rentals?
Smith: The arguments against it were that it was too extreme, that it would phase them out to zero, in five years; that if the county regulated them better and enforced the rules better, then there would be fewer complaints. And then if you cracked down on the really bad characters by having a system which they now propose, of canceling their licenses, this would bring the bad actors in line. They also relied heavily on an economic argument that the number of vacation rentals in the county are a significant economic driver- both in the management companies and the laborers they use to clean, repair, manage the five hundred now, vacation rentals. So there’s an economic argument, there is a property rights argument and there was a, ‘If you just enforce what you have, things could be a lot better.’
Miller: What were the fears of the bad actors or the bad actions of either short term rental managers or their short term tenants?
Smith: The fear is that you’re in a residential neighborhood and this is where the problems occur, and literally it may look very similar to a neighborhood in suburban Portland or anywhere else where there’s houses on five to ten thousand square foot lots and you have this turn of, especially in the busy seasons, people coming and going and what essentially you may have thought was a residential neighborhood and now you have this every three to seven days, this churn of cars and people and whatnot. And clearly some areas are different than others. I live in Yachats, where there is a cap, and frankly we have an aging population and a quiet population. It is way different than the scene in Lincoln City where there is a lot more to do. That attracts a younger crowd, maybe a louder, busier crowd than some more sedate place like Yachats. So you have that whole difference of, are these good neighbors or not? You know, is it worth this or not? And that’s the question – is this worth it to residential neighborhoods?
Miller: This ballot measure, it passed, but the group that represents short term property owners and managers filed a challenge, and it went to the Land Use Board of Appeals, or LUBA, which recently ruled. What did they say?
Smith: This started out actually in Lincoln County Circuit Court; circuit court said the ballot measure was a land use issue and maybe stop again. Three things ended up in circuit court. The short term rental industry challenged the ballot measure. It challenged this county ordinance, which was kind of competing with the ballot measure and it challenged the county’s moratorium on issuing new licenses until this all sorted out. The circuit court judge said the ballot measure was a land use issue because it referred to zoning and sent it to LUBA, Land Use Board of Appeals. Actually, the Judge sent all three to LUBA. LUBA sent two of them back saying, ‘No, the county ordinance and the county moratorium are regulatory decisions, that belongs in circuit court. We will deal with the ballot measure and the issue of zoning and land use.’ What it decided August eighth was that you can’t go back and regulate a nonconforming use. This would be houses being used as a short term rental, you decide in November of 2021 that you don’t like them anymore. You pass a measure that bans them, they have to be gone. It’d be very similar but more extreme, like, ‘Hey, I move next to Portland International Airport, I don’t like those planes coming in all the time, I’m going to start a ballot measure to outlaw planes landing at PDX. I mean, that’s an extreme thing, so you can’t go back and regulate a nonconforming use, you can go forward, but you can’t go back.
Miller: So that is the Land Use Board of Appeals, essentially throwing out the voter passed measure. But as you noted, the county enacted, just before voters did in the fall of last year, their own restrictions on short term rentals in unincorporated parts of the county. What’s the status of the county’s regulations?
Smith: The county’s regulations are being challenged by the same people who challenged the ballot measure, but in circuit court. The big difference is, while so far the court has said the ballot measure was a land use issue, it says the county’s ordinance is a regulation of business licenses, totally different animal. So you can regulate or theoretically or practically, you can regulate business licenses just like the OLCC does. If I go buy Joe’s Bar and Grill, then Quinton Smith has to apply to the OLCC to get a license for the new business that I now own. The county says this is how most cities regulate them. And this is where there’s been unsuccessful challenges to this. And so there’s kind of case law on the business license regulation.
Smith: And that’s where,...
Miller: What did Commissioners say this morning about what they’re going to do in terms of enacting their regulations, given that they are facing a legal challenge?
Smith: They’re going to go ahead, and the legal challenge is supposed to take up to a year, and that includes probably appeals by either side. So they feel that their ordinance is, quote ‘the law of the land.’ and they’re going to extend their license moratorium for six months and they’re going to give their staff six months to implement and begin developing the rules of the road, so to speak. Here’s what you need to do. Here’s how you need to do it. It’s interesting as well, the county has some pretty big decisions to make. In their ordinance, they divided up the county into seven areas and you can’t call them zones, seven areas, five of which are west of Highway 101. And they want to put limits on licenses in those seven areas. The most controversial will be those five that are west of 101, and so they need still to decide what those limits will be in each area of unincorporated county. So let’s say the area between Yachats and Waldport has one hundred current – I’m making the number up – of one hundred current licenses, they need to decide, Okay, is that okay? Or we’re going to put a limit of 80 on there. They need to go through in each zone, put a limit or name a limit of licenses. That’s going to be very complicated, drawn out and what not. The other part, they have occupancy limits that aren’t as strict as the ballot measure. Those are pretty clear cut. And if you own a vacation rental in unincorporated Lincoln County, probably 95% are on septic systems. There’s new rules for how you deal with your septic system.
Miller: Quinton Smith, thanks very much.
That’s Quinton Smith. He is the founder of Yachats News.
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