Winters v. Tillamook County ( 2024 )

188 January 10, 2024 No. 22
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Jordan WINTERS,
Rachel Winters, Justin Greene,
Nicole Ralston, Carl Coffman,
Paul Koepke, Carrie Koepke, and
Cascadia Investment Properties,
Petitioners,
v.
TILLAMOOK COUNTY,
Respondent.
Land Use Board of Appeals
2023030; A182566
Argued December 13, 2023.
Heather A. Brann argued the cause for petitioners. On
the brief were David Petersen, Sasha A. Petrova, Danny
Newman, and Tonkon Torp LLP.
Daniel Kearns argued the cause for respondent. Also on
the brief was Reeve Kearns PC.
Before Joyce, Presiding Judge, Lagesen, Chief Judge,
and Jacquot, Judge.
LAGESEN, C. J.
Affirmed.
Nonprecedential Memo Op: 330 Or App 188 (2024) 189
LAGESEN, C. J.
Petitioners 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’ appeal of Tillamook County
Order 22-033, which temporarily paused the county’s pro-
cessing of applications for new short-term rental (STR) per-
mits. In response to the county’s motion, petitioners asserted
two bases for LUBA’s jurisdiction to hear the appeal. First,
petitioners contended that the county’s order was a “mor-
atorium on construction or land development” under ORS
197.520(1) which LUBA has jurisdiction to review pursuant
to that statute. Second, petitioners contended that the coun-
ty’s order was a “land use decision” under ORS 197.015(10),
which LUBA has exclusive jurisdiction to review pursuant
to ORS 197.825(1), because the order amended Tillamook
County’s Ordinance 84 (2017) (Ordinance 84).1 LUBA con-
cluded that the order was neither a development “morato-
rium on construction or land development,” nor a “land use
decision” as defined by statute. Petitioners challenge both of
those conclusions before us. Reviewing to determine whether
LUBA’s order is “unlawful in substance,” ORS 197.850(9)(a),
we affirm.
As to petitioners’ assertion that the county’s order
was a moratorium, LUBA concluded that the order did not
meet the statutory definition of a moratorium because the
temporary suspension of STR permit processing did not
involve either “construction or land development,” ORS
197.250(1), or “the subdivision or partitioning of, or con-
struction on, any land.” ORS 197.524(1). LUBA reasoned
that the county’s order did not affect petitioners’ ability to
build the dwellings they intended to use as STRs.
As to petitioners’ assertion that the county’s order
was a land use decision, LUBA concluded that the order did
not meet the statutory definition of a “land use decision”
1
Ordinance 84 required owners of dwelling properties to obtain and pay for
a permit to use the dwelling as an STR. Petitioners argued before LUBA that
Ordinance 84 included standards for implementing housing elements of the coun-
ty’s comprehensive plan such that LUBA had jurisdiction to review their appeal
as a land use decision. LUBA rejected that argument for the reason stated in this
opinion.
190 Winters v. Tillamook County
because the order did not adopt, amend, or apply a statewide
planning goal, a provision of the county’s comprehensive
plan, or a land use regulation as defined by statute. ORS
197.015(10)(a)(A) and (11). Indeed, contrary to petitioners’
argument that the county’s order was a land use decision
because it amended Ordinance 84, the fact that a local gov-
ernment includes something in ordinances that the county
characterizes as “land use” ordinances is not determinative
of whether a particular decision is a “land use decision” sub-
ject to LUBA’s review. See Ramsey v. City of Portland, 30 Or
LUBA 212, 217 (1995) (requiring a “clear” connection between
the county ordinance alleged to be a land use decision and
the county’s comprehensive plan for LUBA to have jurisdic-
tion to review county decisions related to the ordinance);
Friends of Yamhill County v. Board of Commissioners, 351
Or 219, 251-52, 264 P3d 1265 (2011) (noting that, although
LUBA opinions are not binding authority on the courts, its
decisions are relevant for persuasive value).
Having reviewed the county’s order, the parties’
arguments about that order, and LUBA’s decision, we are
not persuaded that LUBA’s determinations were erroneous.
We therefore affirm.
Affirmed.