1000 Friends of Oregon v. Clackamas County ( 2022 )

444
Submitted April 1, affirmed on petition and cross-petition June 23, 2022
1000 FRIENDS OF OREGON,
Respondent,
and
Dennis TYLKA,
Respondent
Cross-Petitioner,
v.
CLACKAMAS COUNTY,
Petitioner
Cross-Respondent.
Land Use Board of Appeals
2021003; A177973
514 P3d 553
In a land use action, the Land Use Board of Appeals (LUBA) reversed and
remanded Clackamas County’s decision to adopt Ordinance ZDO-273, which
amended the county’s Zoning and Development Ordinance (ZDO) to authorize
the short-term rental use of dwelling units and guest houses for up to 30 con-
secutive nights throughout the county, including on farm and forest land. LUBA
explained that ORS 215.283 and OAR 660-006-0025 strictly regulate the use
of dwellings located on resource land, and concluded that state law does not
expressly allow the short-term rental use of dwellings on land zoned for resource
uses. On review, the county contends that LUBA erred in concluding that state
law must explicitly provide for the short-term rental of a dwelling in order for
dwellings otherwise legally authorized in resource zones to be used as such.
Held: LUBA’s order was not unlawful in substance. LUBA was correct to conclude
that the county’s amendments to the ZDO violated the provisions of ORS chapter
215 and its implementing regulations.
Affirmed on petition and cross-petition.
Nathan K. Boderman and Stephen L. Madkour and
Clackamas County Counsel, filed the briefs for petitioner-
cross-respondent.
Dennis Tylka filed the brief, pro se.
Andrew Mulkey filed the brief for respondent 1000
Friends of Oregon.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
Cite as 320 Or App 444 (2022) 445
SHORR, P. J.
Affirmed on petition and cross-petition.
446 1000 Friends of Oregon v. Clackamas County
SHORR, P. J.
This case involves a dispute related to the use of
homes as short-term rentals on farm and forest land in
Clackamas County. The county adopted Ordinance ZDO-
273, which amended the county’s Zoning and Development
Ordinance (ZDO) to authorize the short-term rental use of
dwelling units and guest houses for up to 30 consecutive
nights throughout the county, including on farm and forest
land. Petitioner 1000 Friends of Oregon (1000 Friends) and
intervenor-petitioner Dennis Tylka (Tylka) sought review
of the county’s decision by the Land Use Board of Appeals
(LUBA). LUBA agreed, in substantial part, and, accord-
ingly, remanded the county’s decision. The county and Tylka
each seek judicial review of LUBA’s decision. We affirm on
Tylka’s cross-petition without discussion, and we write to
address the assignment of error raised in the county’s peti-
tion. We review the LUBA order to determine if it is “unlaw-
ful in substance,” ORS 197.850(9)(a), and conclude that it is
not. We therefore affirm on the petition and cross-petition.
BACKGROUND
We take the pertinent background facts from
LUBA’s final order and from undisputed evidence in the
record. In 2019, the Clackamas County Board of County
Commissioners (BCC) instructed county staff to look into
ways to allow and regulate short-term occupancies of homes
throughout Clackamas County, including homes that are
often advertised on websites such as Airbnb, HomeAway,
VRBO, VacationRentals.com, or Booking.com. At that time,
short-term rentals were not specifically addressed in the
county’s ZDO. The county thereafter began a two-part proj-
ect to authorize and regulate the short-term rental use of
dwelling units and guest houses. In November 2020, the
county completed one part of the project with the adop-
tion of Ordinance No. 09-2020, which created a new chap-
ter in Clackamas County Code (CCC), title 8, Business
Regulations. The new chapter establishes a registration
program for short-term rentals in the county. It further
sets out standards addressing elements such as maxi-
mum occupancy and minimum parking requirements, and
compliance with the county’s garbage requirements, noise
Cite as 320 Or App 444 (2022) 447
control, parking, and towing ordinances. The chapter also
includes enforcement mechanisms such as penalties and
fines for noncompliance with the terms of the registration
program.
In December 2020, the county completed the second
part of the project with the adoption of Ordinance ZDO-273,
which makes amendments to the county’s ZDO in chapter
202 (Definitions) and chapter 833 (Special Use Requirements
- Guest Houses) to modify the definition of “dwelling unit”
and expand the allowed use of guest houses. The amend-
ment to ZDO 202 expanded the definition of “dwelling unit,”
which had, prior to the amendment, provided that it was
“designed for residential occupancy by one family.”1 The
amendment added the following italicized language:
“A building, or portion thereof, with one or more rooms
designed for residential occupancy by one family. A dwell-
ing unit may be occupied by one family or, except as other-
wise provided in this Ordinance, may be used for residential
occupancy by no more than 15 persons for a period that does
not exceed 30 consecutive nights by any one person.”
In ZDO 833.01, regarding guest houses, the amendments
removed a requirement that the “[o]ccupants of the guest
house and the primary dwelling shall live together as one
housekeeping unit” and removed a prohibition on a guest
house being a source of rental income. The following itali-
cized language was added and the language with the strike-
through was deleted:
“A. Use: A guest house shall be used only by members
of the family residing in the primary dwelling, their non-
paying guests, or their nonpaying employees who work on
the premises, .A guest house shall not be a source of rental
income. or for residential occupancy by one or more paying
guests for a period that does not exceed 30 consecutive nights
by any one person. Residential occupancy by paying guests
1
ZDO 202 defines a “family” as “[a]ny individual or group of persons, regard-
less of relationship but not exceeding 15 persons, living together as a single
housekeeping unit within a dwelling unit”; a “housekeeping unit” is defined
in relevant part as “a living arrangement within a dwelling unit in which the
kitchen, living and dining rooms, and other general living areas of the dwelling
unit are shared in common, and the duties, rights, and obligations associated
with the performance of domestic tasks and management of household affairs,
are shared by residents by virtue of legal relationship or mutual agreement.”
448 1000 Friends of Oregon v. Clackamas County
plus occupants of the primary dwelling shall not exceed 15
persons.
“* * * * *
“E. Facilities: Occupants of the guest house and the
primary dwelling shall live together as one housekeeping
unit, sharing the kitchen and laundry facilities in the pri-
mary dwelling. The guest house may contain include one
bathroom plus one additional sink, but shall not include
laundry facilities, a stove, oven, or other cooking appliances.”
1000 Friends petitioned for review to LUBA,2 rais-
ing two assignments of error: 1) that the county’s expansion
of the allowed use of a dwelling unit on farm and forest land
conflicted with the statutory meaning of “dwelling” in ORS
215.283 and that the amendment of the ZDO also conflicted
with the provisions of its own zoning ordinance, and 2) that
the county’s decision to amend the definition of dwelling
unit and the scope of the allowed use of a guest house did
not comply with the agriculture and forest policies of the
county’s comprehensive plan or statewide planning Goal
3 (Agricultural Lands)3 and Goal 4 (Forest Lands).4 1000
Friends asserted that the county’s decision to allow the use
on farmland of a dwelling and accessory structures as tem-
porary accommodations for paying overnight guests violates
state law and the county’s zoning ordinance and that the
county’s decision misconstrued the uses allowed pursuant
to a dwelling approval on forest land. In sum, 1000 Friends’
argument was that the county’s decision improperly con-
strues applicable portions of ORS chapter 215 and OAR
660-006-0025.
2
Tylka also sought review by LUBA, raising five assignments of error that
included assertions that the county’s ZDO amendments violated statewide plan-
ning Goal 2 and certain Clackamas County Comprehensive Plan policies; Tylka’s
assignments were not focused solely on resource lands, but rather challenged the
county’s decision more broadly. Neither party challenged the county’s CCC title 8
amendments.
3
Goal 3 is “[t]o preserve and maintain agricultural lands.”
4
Goal 4 is
“[t]o conserve forest lands by maintaining the forest land base and to protect
the state’s forest economy by making possible economically efficient forest
practices that assure the continuous growing and harvesting of forest tree
species as the leading use on forest land consistent with sound management
of soil, air, water, and fish and wildlife resources and to provide for recre-
ational opportunities and agriculture.”
Cite as 320 Or App 444 (2022) 449
As we understand the county’s position before
LUBA, it disputed 1000 Friends’ premise that the changes
to the ordinances expanded the allowed use of dwelling units
on farm and forest land. The county argued that, for pur-
poses of the ZDO, “a dwelling remains a dwelling regardless
of whether occupancy is on a short-term or long-term basis”
and that, under the amended provisions, the “use of dwell-
ings and guest houses [remains] limited to ‘residential occu-
pancy.’ ” The county essentially argued that, if a dwelling
was originally approved for residential use on resource land,
the fact that it could be used as a short-term rental under
the amendments to the ZDO did not change the nature of its
use and it remained a permissible use under the applicable
statutes and rules.5
LUBA described the parties’ central dispute as
“whether a short-term rental is a permitted use of a dwelling
unit or guest house on farm or forest land where the dwell-
ing unit or guest house is otherwise allowed under applica-
ble law.” LUBA set out the pertinent statutory scheme for its
consideration:
“The ZDO amendments allow the short-term rental use
of dwelling units and guest houses throughout the county,
including in the county’s Exclusive Farm Use (EFU) zone,
governed by ZDO 401; Timber (TBR) zone, governed by
ZDO 406; and Ag/Forest (AG/F) zone, governed by ZDO
407. ORS 215.203(1) provides in part, ‘Zoning ordinances
may be adopted to zone designated areas of land within
the county as [EFU] zones. Land within such zones shall be
used exclusively for farm use except as otherwise provided
in ORS 215.213, 215.283 or 215.284.’ (Emphasis added.)
Certain dwellings are allowed on land zoned EFU under
ORS 215.283(1) and others under ORS 215.283(2). ORS
215.284 restricts the establishment of single-family dwell-
ings not provided in conjunction with farm use on land
zoned EFU. ORS 215.283(1)(e) allows accessory structures
5
LUBA explained that, in the county’s view, “the ZDO amendments cannot
and do not authorize the short-term rental use of an existing dwelling unit if
that use would be prohibited by the decision that initially approved the dwell-
ing unit.” LUBA pointed to findings by the county in the record that asserted
that “[d]wellings that are approved with specific restrictions on occupancy and/or
usage would remain ineligible for use as [a short-term rental]. Examples of such
dwellings include temporary dwellings for care (‘hardship dwellings’), accessory
farmworker dwellings, or caretaker dwellings.”
450 1000 Friends of Oregon v. Clackamas County
associated with farm and forest use. The uses that are
allowed on forest land are set out in OAR 660-006-0025
and include the dwellings authorized by ORS 215.705 to
215.757 as well as other dwellings under prescribed condi-
tions. OAR 660-006-0025(1)(d), (e).”
(Footnotes omitted.)
LUBA further explained that
“ORS 215.283 lists the uses that are allowed on EFU
land, and a county cannot allow uses that are not listed
under the statute in an EFU zone. OAR chapter 660, divi-
sion 6, similarly identifies the limited uses that are allowed
on forest land. We discuss each below.
“The uses listed in ORS 215.283(1) are authorized as
of right, and counties may not restrict those uses through
additional local standards. Brentmar v. Jackson County,
321 Or 481, 496, 900 P2d 1030 (1995). ORS 215.283(2) lists
nonfarm uses and structures that are conditionally autho-
rized and that must satisfy ORS 215.296(1), which we refer
to as the farm impacts test. The farm impacts test requires
the local governing body or its designee to find that the use
will not:
“ ‘(a) Force a significant change in accepted farm or
forest practices on surrounding lands devoted to farm
or forest use; or
“ ‘(b) Significantly increase the cost of accepted
farm or forest practices on surrounding lands devoted
to farm or forest use.’ ORS 215.296(1).
“The nonfarm uses listed under ORS 215.283(2) may
also be subject to any local standards enacted pursuant to
ORS 215.296(10).
“ORS 215.283 regulates the use of EFU land. Accord-
ingly, if the county wants to allow the nonfarm short-term
rental use of a dwelling unit on EFU land, that use must be
allowed pursuant to either ORS 215.283(1) or (2). * * * [W]e
agree with [1000 Friends and Tylka] that, absent any iden-
tification by the county of the authority in ORS 215.283,
or the Land Conservation and Development Commission’s
[(LCDC’s)] rules implementing that statute, for allowing
the short-term rental use of dwelling units or guest houses
on EFU land, that use is not allowed under ORS 215.283.
The uses that are allowed on forest land are similarly
Cite as 320 Or App 444 (2022) 451
restricted by OAR 660-006-0025 and, absent any identifi-
cation of authority under OAR 660-006-0025 for allowing
the short-term rental use of dwelling units or guest houses
on forest land, that use is not allowed.”
(Emphasis in original; footnote omitted.)
In reaching its decision to remand the county’s deci-
sion, LUBA applied the statutory construction analysis set
out in PGE v. Bureau of Labor and Industries, 317 Or 606,
610-11, 859 P2d 1143 (1993) and State v. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009) to determine the intent of the
legislature. LUBA began with the text:
“ORS Chapter 215 provides no generally applicable defi-
nition of ‘dwelling’ or ‘residence,’ and we therefore look to
the plain, ordinary meaning of those words. ‘Dwelling’
means ‘a building or construction used for a residence’ and
‘residence’ means ‘a building used as a home : dwelling.’
Webster’s Third New Int’l Dictionary 706, 1931 (unabridged
ed 2002) (boldface in original; emphases added). As the
county points out, the term ‘dwelling,’ considered alone,
does not necessarily require owner occupancy or occupancy
of a given duration. However, the term ‘residence’ refers
to ‘a building used as a home,’ and ‘home’ is defined not
only as ‘a private dwelling : house’ but also as ‘the house
and grounds with their appurtenances habitually occupied
by a family : one’s principal place of residence : domicile.’
Webster’s at 1082 (boldface in original). The various terms
connote a distinction between a building used as a ‘home’
and a building used as something other than a ‘home,’ for
example, a hotel.”
LUBA concluded that the text alone did not resolve the ques-
tion of whether a short-term rental was an allowed use of a
dwelling or residence in a resource zone, and it continued on
with a contextual analysis. Ultimately, LUBA determined
that the county was approaching the issue from the wrong
direction. It stated,
“ORS 215.283 and related statutes demonstrate that state
law strictly regulates transient lodging on resource land
with consideration of its effects on accepted farm and forest
practices. The question is not whether the short-term rental
use of dwellings is expressly prohibited on land zoned for
resource uses. Instead, the question is whether state law
452 1000 Friends of Oregon v. Clackamas County
expressly allows the short-term rental use of dwellings on
land zoned for resource uses. The county has not demon-
strated that it does.”
(Emphases in original.)
ISSUE ON REVIEW
On review before us, the county raises a single
assignment of error in which it contends that LUBA erred
in concluding that state law must explicitly provide for the
short-term rental of a dwelling in order for dwellings other-
wise legally authorized in resource zones to be used as such.
As we understand the county’s argument, it reiterates the
position that it took before LUBA: In its view, the approval
or existence of a lawful “dwelling” on farm or forest land
carries with it a right to use that dwelling for ordinary res-
idential purposes, and short-term rental is indistinguish-
able from ordinary residential use of a dwelling. Thus, the
county asserts that “the authorization to maintain and
occupy a dwelling includes the right to occupy that dwelling
on a short-term basis unless otherwise prohibited by state
or local regulation, and that no explicit provision in state
law is necessary to authorize the use of existing dwellings
for short-term occupancies.”
1000 Friends defends LUBA’s analysis and con-
clusion. It argues in part that “[t]he use contemplated by
the county would allow a dwelling to function as a business
operated out of a dwelling to provide customers or paying
guests overnight lodging,” and that “ORS chapter 215 and
its implementing regulations limit the use of non-farm and
non-forest businesses on farm and forest land.” According to
1000 Friends, the county’s amendments do not impose any
of the relevant approval criteria in the statutes or regula-
tions that would be required to permit a dwelling on farm or
forest land to operate as an overnight lodging business. For
that reason, it contends, LUBA was correct to conclude that
the county’s amendments violated the provisions of ORS
chapter 215 and its implementing regulations.
As noted, we review LUBA’s order to determine if
it is “unlawful in substance.” ORS 197.850(9)(a). “A LUBA
order is unlawful in substance if it represented a mistaken
Cite as 320 Or App 444 (2022) 453
interpretation of the applicable law.” Nicita v. City of Oregon
City, 317 Or App 709, 716, 507 P3d 804 (2022) (internal quo-
tation marks omitted). At the outset, we agree with LUBA’s
textual analysis, as recounted above, of the terms “dwell-
ing” and “residence,” and with its conclusion that the “var-
ious terms connote a distinction between a building used
as a ‘home’ and a building used as something other than a
‘home,’ ” such as a hotel.
LUBA stated that its textual analysis “does not,
however, resolve the question of whether a short-term rental
is an allowed use of a dwelling or residence in a resource
zone.” We understand the county to take issue with that
reasoning. That is, the county contends that a dwelling or
residence may always be used for residential purposes, and
short-term rental is indistinguishable from ordinary resi-
dential use of a dwelling. Accordingly, in the county’s view,
short-term rental is always allowed regardless of whether
it is explicitly allowed by the statutes and rules addressing
land uses in resource zones.
For purposes of considering the county’s argument,
we assume, without deciding, that the county is correct that
ORS chapter 215 and OAR chapter 660, division 6, contem-
plate that a lawfully established dwelling or residence may
always be used for residential purposes. As explained below,
the county’s argument nevertheless fails, because we dis-
agree with its contention that short-term rental is indistin-
guishable from ordinary residential use of a dwelling.
As LUBA explained, a “dwelling” or “residence”
requires use as a home. A home is occupied by a group of
people sharing a household—not by individuals and groups
who share no social or legal relationship—on a long-term
or permanent basis—not in a transitory way. See Webster’s
at 1082 (defining “home” as “the house and grounds with
their appurtenances habitually occupied by a family : one’s
principal place of residence : domicile”). Cf. ORS 90.110(6)
(excluding “[v]acation occupancy” from application of the
Residential Landlord Tenant Act); ORS 90.100(51) (defining
“[v]acation occupancy” as “occupancy in a dwelling unit, not
including transient occupancy in a hotel or motel, that has
all of the following characteristics: (a) The occupant rents
454 1000 Friends of Oregon v. Clackamas County
the unit for vacation purposes only, not as a principal resi-
dence; (b) The occupant has a principal residence other than
at the unit; and (c) The period of authorized occupancy does
not exceed 45 days.”).
By defining “dwelling unit” to include buildings or
portions thereof that “may be used for residential occupancy
by no more than 15 persons for a period that does not exceed
30 consecutive nights by any one person,” the county has
expanded its definition of “dwelling unit” beyond buildings
used as homes. ZDO 202 (as amended). The same is true of
its omission of the previous requirement that “[o]ccupants of
the guest house and the primary dwelling shall live together
as one housekeeping unit.” ZDO 833.01. Short-term rentals,
as addressed by the ordinances, are different from ordinary
residential uses because they include groups of strangers
who occupy a building in a transitory way—“for a period
that does not exceed 30 consecutive nights.” Thus, assum-
ing, without deciding, that the existence of a lawful dwelling
or residence carries with it the right to ordinary residential
use, ordinary residential use does not include short-term
rentals as addressed in the county’s ordinances.
We further observe that the county’s newly adopted
amendment to its county code regarding short-term rentals,
the aforementioned requirements in CCC title 8, includes
the definition of “short-term rental” as “a dwelling unit, or
portion of a dwelling unit, that is rented to any person or
entity for lodging or residential purposes, for a period of up
to 30 consecutive nights.” Ordinance No. 09-2020 (empha-
sis added). The county’s ZDO defines “commercial use” as
“[t]he use of land and/or structures for the conduct of retail,
service, office, artisan, restaurant, lodging, child care, adult
daycare, entertainment, private recreational, professional,
and similar uses.” ZDO 202 (emphasis added). The county
recognizes that short-term rentals are often advertised on
various websites such as Airbnb and VRBO. The nature of
such advertisement and resulting use of the dwelling, or
parts thereof, is that the dwelling is to be used for short-
term lodging for compensation. The county’s proposed use of
dwellings as short-term rentals would qualify as a “commer-
cial use” under the county’s ZDO. Although it is true that the
occupancy itself may be of a residential nature—temporarily
Cite as 320 Or App 444 (2022) 455
living in the dwelling—the use of the dwelling as a short-
term rental for compensation is not the same as the use of
a dwelling as a home. We are not persuaded by the county’s
contention that the nature of the use of a dwelling remains as
a residential one, and as originally approved or established
in the resource zone, when it is used as a short-term rental.
We turn to the relevant statutes in ORS chapter
215. ORS 215.203(1) provides, in part:
“Zoning ordinances may be adopted to zone designated
areas of land within the county as exclusive farm use zones.
Land within such zones shall be used exclusively for farm
use except as otherwise provided in ORS 215.213, 215.283
or 215.284.”6
“Farm use” is defined, in part, as
“the current employment of land for the primary purpose of
obtaining a profit in money by raising, harvesting and sell-
ing crops or the feeding, breeding, management and sale of,
or the produce of, livestock, poultry, fur-bearing animals or
honeybees or for dairying and the sale of dairy products or
any other agricultural or horticultural use or animal hus-
bandry or any combination thereof. ‘Farm use’ includes the
preparation, storage and disposal by marketing or other-
wise of the products or by-products raised on such land for
human or animal use. ‘Farm use’ also includes the current
employment of land for the primary purpose of obtaining a
profit in money by stabling or training equines including
but not limited to providing riding lessons, training clinics
and schooling shows. ‘Farm use’ also includes the propaga-
tion, cultivation, maintenance and harvesting of aquatic,
bird and animal species that are under the jurisdiction
of the State Fish and Wildlife Commission, to the extent
allowed by the rules adopted by the commission. ‘Farm
use’ includes the on-site construction and maintenance of
equipment and facilities used for the activities described in
this subsection. * * *”
ORS 215.203(2)(a).
6
ORS 215.213 applies in counties that adopted a marginal lands system prior
to 1993, and ORS 215.283 applies in nonmarginal lands counties. ORS 215.283
applies in Clackamas County. ORS 215.284 restricts the establishment of single-
family dwellings not provided in conjunction with farm use on land zoned EFU;
the meaning of that statute is not implicated by the parties’ arguments on review
before us.
456 1000 Friends of Oregon v. Clackamas County
We have previously explained that “[t]he ‘exclu-
sively’ and ‘except as otherwise provided’ language [in ORS
215.203(1)] evidences a legislative intent to encourage the
use of EFU-zoned land solely for farm use and to treat the
permitted nonfarm uses in the listed statutes as exceptions
to the use of that land for farming activities.” Warburton v.
Harney County, 174 Or App 322, 328, 25 P3d 978, rev den,
332 Or 559 (2001). ORS 215.283(1) contains a list of uses
that “may be established in any area zoned for exclusive
farm use.”7 ORS 215.283(2) contains a list of nonfarm con-
ditional uses that a county may allow in an EFU zone if
the county determines that the use will not significantly
affect surrounding lands devoted to farm use under ORS
215.296—the “farm impacts test.” That is, the uses permit-
ted in ORS 215.283(2) are conditionally allowed if they meet
the farm impacts test. In Warburton, we stated that “sub-
section (1) of ORS 215.283 delineates exceptions to what nor-
mally would be allowed in EFU zones” and that “[i]n keep-
ing with [the legislature’s intent], the listed nonfarm uses
in ORS 215.283(1) should not be expansively interpreted to
encompass uses that would subvert the goal of preserving
land for agriculture use.” 174 Or App at 328 (emphasis in
original); see also Central Oregon LandWatch v. Deschutes
County, 276 Or App 282, 289, 367 P3d 560 (2016) (applying
same legislative intent to subsection (2) of ORS 215.283).
Our prior explanation that the uses delineated in ORS
215.283 are meant to be read as exceptions to use of EFU
land supports LUBA’s conclusion that the correct question
here is whether state law expressly allows the short-term
rental use of dwellings on land zoned for resource uses.
The conditional uses outlined in ORS 215.283(2)
provide contextual support for the conclusion that the leg-
islature specifically provides for vacation use or transient
lodging, subject to the farm impacts test, when it intends to
7
For example, ORS 215.283(1)(d) provides, in part, that “a dwelling” may
be established “on real property used for farm use if the dwelling is occupied
by a relative of the farm operator or the farm operator’s spouse * * * if the farm
operator does or will require the assistance of the relative in the management of
the farm use and the dwelling is located on the same lot or parcel as the dwelling
of the farm operator,” and ORS 215.283(1)(e) provides, in part, that “primary
or accessory dwellings and other buildings customarily provided in conjunction
with farm use” may be established.
Cite as 320 Or App 444 (2022) 457
allow such uses in a resource zone. ORS 215.283(2)(c) per-
mits campgrounds; ORS 215.283(2)(t) allows a “destination
resort that is approved consistent with the requirements
of any statewide planning goal relating to the siting of a
destination resort”; and ORS 215.283(2)(cc) allows “[g]uest
ranches in eastern Oregon, as described in ORS 215.461.”
ORS 215.283(2) also specifies certain uses of existing dwell-
ings that are conditionally allowed, subject to the farm
impacts test in ORS 215.296, on EFU land: ORS 215.283(2)(u)
permits “[r]oom and board arrangements for a maximum
of five unrelated persons in existing residences”; ORS
215.283(2)(o) provides for “[r]esidential homes as defined in
ORS 197.660,[8] in existing dwellings”; and ORS 215.283(2)(i)
authorizes “home occupations as provided in ORS 215.448.”9
We agree with LUBA’s assessment that those express reg-
ulations of uses and living arrangements within existing
dwellings “undermines the county’s broad contention that
any residential use of an existing dwelling is allowed, sub-
ject only to existing statutory restrictions.” (Emphasis in
original.)
There is similar contextual support in regard to
uses that are authorized in forest zones. OAR 660-006-0025
provides, in part,
“(1) Goal 4 requires that forest land be conserved.
Forest lands are conserved by adopting and applying com-
prehensive plan provisions and zoning regulations consis-
tent with the goals and this rule. In addition to forest prac-
tices and operations and uses auxiliary to forest practices,
as set forth in ORS 527.722, the Commission has deter-
mined that five general types of uses, as set forth in the
8
ORS 197.660(2) defines “residential home” as “a residential treatment or
training home, as defined in ORS 443.400, a residential facility registered under
ORS 443.480 to 443.500 or an adult foster home licensed under ORS 443.705 to
443.825 that provides residential care alone or in conjunction with treatment
or training or a combination thereof for five or fewer individuals who need not
be related. Staff persons required to meet licensing requirements shall not be
counted in the number of facility residents, and need not be related to each other
or to any resident of the residential home.”
9
We note that 1000 Friends suggests that ORS 215.448 provides a pathway
to permit overnight lodging businesses and vacation rentals on resource land.
LUBA did not address whether a short-term rental could be conditionally permit-
ted as an accessory use through a home occupation approval. We do not address it
either.
458 1000 Friends of Oregon v. Clackamas County
goal, may be allowed in the forest environment, subject to
the standards in the goal and in this rule. These general
types of uses are:
“* * * * *
“(d) Dwellings authorized by ORS 215.705 to 215.757
(ORS 215.757); and
“(e) Other dwellings under prescribed conditions.”
As an example of the kind of dwelling authorized by the
rule, ORS 215.705 permits a single-family dwelling to be
established under certain circumstances if the “lot or parcel
on which the dwelling will be sited was lawfully created and
was acquired by the present owner * * * prior to January 1,
1985,” or “[b]y devise or by intestate succession from a per-
son who acquired the lot or parcel prior to January 1, 1985.”
ORS 215.705(1)(a). ORS 215.755 allows replacement dwell-
ings, “hardship” dwellings where a hardship is suffered by
the existing resident or a relative of the resident, and “[c]are-
taker residences for public parks and public fish hatcheries.”
ORS 215.757, which was adopted in 2019, allows a
county to approve, subject to certain restrictions noted in
the statute, an accessory dwelling to be constructed that is
occupied by the owner or a relative “to allow the relative to
assist in the harvesting, processing or replanting of forest
products or in the management, operation, planning, acqui-
sition or supervision of forest lots or parcels of the owner.”
Notably, ORS 215.757(3) states that “[i]f a new
single-family dwelling unit is constructed under this sec-
tion, a county may not allow the new or existing dwelling
unit to be used for vacation occupancy as defined in ORS
90.100.” The county argues that “[i]f, as LUBA concludes,
any use of land whatsoever must be explicitly set out in [a]
statute otherwise it is prohibited, then the restriction in
[subsection (3)] is entirely unnecessary.” We understand the
county to argue by extension that the legislature knows how
to explicitly prohibit vacation uses of dwellings, and there-
fore that it would have done so throughout the land use laws
it if had intended to prohibit them.
In ORS 215.757, the legislature allowed an acces-
sory dwelling to be built so that family could assist with
Cite as 320 Or App 444 (2022) 459
certain forest uses; by specifically prohibiting the accessory
dwelling to be used for vacation occupancy, it prevents the
particular accessory dwelling to be built for one purpose
and then later turned into a vacation rental. That is, even
if short-term rentals are at some point allowed, this par-
ticular accessory dwelling will be excluded from that use.
We are not persuaded that this specific prohibition as to a
particular type of approved unit for family members under-
mines our conclusion, which is based on the text and context
of all of the relevant statutes, that the intent of the legisla-
ture is to prohibit the types of uses of land in resource zones
that are addressed by the county’s amendments.
In addition, OAR 660-006-0025(4) lists certain uses
that “may be allowed on forest lands” subject to review stan-
dards in OAR 660-006-0025(5)—similar to the conditional
uses in ORS 215.283(2). For example, OAR 660-006-0025(4)(e)
allows “[p]rivate parks and campgrounds,” where a camp-
ground is “an area devoted to overnight temporary use for
vacation, recreational or emergency purposes, but not for
residential purposes.” OAR 660-006-0025(4)(p) provides that
“[p]rivate seasonal accommodations for fee hunting opera-
tions may be allowed” subject to other rule provisions and
a restriction that accommodations “are limited to no more
than 15 guest rooms.” OAR 660-006-0025(4)(w) similarly
allows for “[p]rivate accommodations for fishing occupied
on a temporary basis” subject to certain conditions. Those
conditional uses are all temporary or seasonal and evidence
an intent to restrict vacation and recreation activities on
resource land except as specified.
Having reviewed the statutory scheme as it relates
to the use of resource land, we conclude that regardless of
whether the question is whether the short-term rental use
of dwellings is implicitly included in the allowance of “dwell-
ings” or “residences” on that land or, instead, whether state
law expressly allows the short-term rental use of dwellings
on land zoned for resource uses, the answer is the same: It
does not. Accordingly, the county’s ordinances conflict with
state law, and LUBA correctly remanded the decision to the
county.
Affirmed on petition and cross-petition.