Oregon Coast Alliance v. Curry County

While LUBA cannot give effect to a severance clause included in a local government ordinance, the inclusion of a severance clause is not sufficient, on its own, to provide a basis for LUBA's remand of the ordinance.

Petitioner appealed a County adoption of an ordinance that, among other things, expanded the zones where accessory dwelling units (ADUs) may be constructed and expressly authorized the use of short-term rentals (STRs) in certain zones under newly adopted standards. The ordinance did not amend the County’s comprehensive plan or change the County’s zoning.

On appeal, Petitioner made seven assignments of error, including: 1) and 2) argued that the ordinance was inconsistent with the County’s comprehensive plan and the Statewide planning Goals, 3) argued the ordinance was inconsistent with the County code because the STRs fell under the existing “motel/lodge” designation, 5) argued the ordinance’s severance clause was inconsistent with LUBA’s scope or review and state law, and 6) and 7) argued that different provisions in the ordinance were inconsistent with state law.

Under ORS 197.835(7), LUBA “shall reverse or remand an amendment to a land use regulation or the adoption of a new land use regulation if: (a) The regulation is not in compliance with the comprehensive plan; or (b) The comprehensive plan does not contain specific policies or other provisions which provide the basis for the regulation, and the regulation is not in compliance with the statewide planning goals."

LUBA denied the first, second, and fourth assignments of error due to Petitioner’s failure to sufficiently develop their arguments for review or failing to explain how the County’s actions were not compliant with their obligations. LUBA denied Petitioner’s third assignment of error claiming the STR provisions were inconsistent with the existing land use provisions because, as LUBA pointed out, under the provisions a “motel/lodge” occurred in a “building or group of buildings” while a STR occurred in a “lawfully established dwelling unit,” and thus the two terms were distinguishable and not inconsistent. LUBA denied Petitioner’s fifth assignment of error regarding the severance clause, noting that, while LUBA cannot give effect to a severance clause due to its inability to partially affirm and partially remand a decision, the inclusion of a severance clause in the County’s decision, without more, did not provide a basis for remand. LUBA finally denied the sixth and seventh assignments or error, finding that when the provisions at issue were read in context, they achieved the same purpose as state law required and so were not inconsistent with state law.

Affirmed.