Whittemore v. City of Gearhart

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Municipal Law
  • Date Filed: 05-30-2017
  • Case #: 2016-101/102
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Under Gearhart Zoning Ordinance 11.040, the City of Gearhart may amend the Gearhart Zoning Ordinance only if it reports findings to establish that the offered amendment is consistent with the Gearhart Comprehensive Plan policies.

Petitioners appeal two ordinances that amend the City of Gearhart Zoning Ordinance (GZO) to restrict vacation rental dwellings (VRDs). GZO 11.040 requires any amendments to the GZO to be consistent with the Gearhart Comprehensive Plan policies (GCP). Policy #4 of the GCP for Residential Development provides, “[t]he City will recognize the importance of the City’s residential neighborhoods and the need to protect them from the negative impacts of the transient rental of property, and to discourage increased levels of traffic and similar disruptions.”

Petitioners challenge the adequacy of, and evidentiary support for, the council’s findings concerning Policy #4. Specifically, petitioners contend that the council must first explain what it thinks a “residential neighborhood” is before it can adopt findings to explain why it believes Ordinance 901 is consistent with Policy #4. In particular, petitioners claim that many of Gearhart’s neighborhoods are more accurately viewed as “non-residential,” because the majority of the homes are owned by persons whose legal domicile is someplace other than the City of Gearhart. Thus, petitioners argue that Ordinance 901 should be remanded for the city to adopt “findings that distinguish between residential and non-residential neighborhoods” and then to explain how it is consistent with Policy #4 to apply Ordinance 901 to non-residential neighborhoods.

Respondent argues, and LUBA agrees, that the Policy’s findings show that the areas of the city that are zoned and developed residentially are “residential neighborhoods,” within the meaning of Policy #4. Moreover, the findings explain that houses in the city’s residential neighborhoods have historically been used as VRDs with no restrictions, so long as such use does not become a public nuisance. In addition, the findings explain that the number of residences that are used as VRDs has substantially increased, which is what the city cites as its motivation for Ordinance 901. Since respondent adequately explained what it thought residential neighborhood is and explained why Ordinance 901 is consistent with Policy #4, LUBA rejects petitioner’s argument. AFFIRMED.