150 August 12, 2026 No. 762
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Peter BRIGGS,
Richard E. Cave, Jane C. Gibbons, Craig McClanahan,
Katherine Guptill, Ken Guptill, Julie D. Reading,
Jane M. Fitzpatrick, Mitchell Moore, Gary Weske,
Linda Fender, Darrell Fender, Douglas Palmer,
Jayne Palmer, Olena Strozhenko, Nadine Scott,
Jerry Merritt, Lorin J. Lynch, and Zane Kesey,
Plaintiffs-Appellants
Cross-Respondents,
and
Anthony D. SCHAUERMANN,
Plaintiff,
v.
LINCOLN COUNTY,
and Curtis L. Landers, Lincoln County Sheriff,
in his official capacity for Lincoln County Sheriff’s Office,
Licensing Authority under LCC Ch. 4,
Defendants-Respondents
Cross-Appellants.
Lincoln County Circuit Court
22CV38244; A183535
Joseph C. Allison, Judge pro tempore.
Argued and submitted May 20, 2025.
Heather A. Brann argued the cause for appellants-crossrespondents. Also on the briefs was Heather A. Brann PC.
Emily M. Matasar argued the cause for respondentscross-appellants. Also on the briefs was Christopher D.
Crean and Beery, Elsner & Hammond, LLP.
Before Ortega, Presiding Judge, Hellman, Judge, and
O’Connor, Judge.
HELLMAN, J.
Cite as 352 Or App 150 (2026) 151
On appeal, affirmed; on cross-appeal, reversed and
remanded.
152 Briggs v. Lincoln County
HELLMAN, J.
This case involves Lincoln County’s short-term residential rental licensing program. Plaintiffs sought declaratory and injunctive relief in circuit court against Lincoln
County and the Lincoln County Sheriff, who issues licenses
under the program (collectively, the county), challenging the
program under provisions in ORS chapter 215 and under
the Oregon Constitution on vagueness grounds. On crossmotions for summary judgment, the circuit court ruled
in favor of the county on plaintiffs’ statutory claims. On
plaintiffs’ constitutional claims, the court concluded that
three provisions in the short-term rental program were
invalid. The court concluded that the sentence, “Events,
such as weddings, rehearsal dinners, and similar activities are prohibited,” in Lincoln County Code (LCC) 4.440(7)
(b), was unconstitutionally vague under Article I, section
20, of the Oregon Constitution, and that LCC 4.445(3) and
(4) were unconstitutionally vague and contained an unconstitutional delegation of authority under Article I, section
21, of the Oregon Constitution. Plaintiffs appeal from the
judgment, assigning error to the court’s dismissal of their
statutory claims, and the county cross-appeals from the
judgment, assigning error to the court’s invalidation of the
three provisions.
On plaintiffs’ appeal, we conclude that the circuit
court did not err and affirm. None of the statutes in ORS
chapter 215 that plaintiffs rely on apply to the county’s
actions in this case because they were not land use decisions. On the county’s cross-appeal, we conclude that the
circuit court erred in invalidating the three provisions, and
reverse and remand.
I. BACKGROUND
“When, as here, the facts are not in dispute, we
review rulings on cross-motions for summary judgment to
determine whether either party is entitled to judgment as a
matter of law.” Busch v. Farmington Centers Beaverton, 203
Or App 349, 124 P3d 1282 (2005), rev den, 341 Or 216 (2006).
We set out the historical and procedural facts that are pertinent to this appeal below.
Cite as 352 Or App 150 (2026) 153
Plaintiffs own residential property located in
Lincoln County and have rented those properties as shortterm rentals. In 2016, the county adopted Ordinance 487,
which established a business licensing program for shortterm rentals (STRs),1 which became LCC 4.405 to 4.460,
which is in the chapter of the code containing the county’s
business regulations. The county included a findings and
purpose section, which provides:
“(1) The Lincoln County Board of Commissioners finds
that:
“(a) The growth in the number of short term rental of
dwelling units within the County has been accompanied
by increased problems of excessive noise, spilled garbage,
shortages of parking, and overcrowded accommodations;
“(b) The best way to regulate these impacts is to establish conditions for operation of these rentals and to implement a licensing program by the County to ensure compliance with those standards; and
“(c) The conditions established herein will allow operation of such rentals in a manner that respects and protects
the livability of the neighborhoods in which these rentals
are located.
“(2) The purpose of LCC 4.405 through 4.460 is to provide for the peace, health, safety and livability of residents
of, and visitors to, Lincoln County. This is not a land use
ordinance and is not made a part of Lincoln County Code
Chapter 1, Land Use Planning.”
LCC 4.405. The county updated that program three separate times with Ordinances 490, 509, and 523.
Ordinance 523, which was adopted in October 2021,
significantly amended the program. Four of those amendments we take specific note of for purposes of this appeal:
First, the ordinance required the county to establish seven
1
“Short Term Rental” is defined as “the renting of a dwelling unit (including any accessory guest house on the same property) to any person(s) on a day to day basis or for a period of time of up to thirty (30) consecutive nights.” LCC 4.415(10). The STR program applies to the unincorporated areas of the county and does not apply to “Bed and Breakfast Inns, Hotels, Lodges, Motels, Resorts, Recreational Vehicle Parks, Campgrounds, or other similar lodging units which are regulated by LCC Chapter 1.” LCC 4.410. LCC chapter 1 contains the county’s comprehensive plan and zoning regulations.
154 Briggs v. Lincoln County
geographical subarea boundaries for STR licenses by a
Board of Commissioners order and, within each subarea,
limit the number of STR licenses that can be issued for the
subarea and maintain a “waitlist” for prospective licenses
to be chosen by lottery when one becomes available. LCC
4.420(4), (5). That provisions states, “This will reduce the
concentration of short term rentals in some areas and allow
spreading of the units to other areas.” LCC 4.420(4).
Second, the ordinance added a prohibition on “[e]
vents, such as weddings, rehearsal dinners, and similar
activities” to the provision setting maximum occupancy limits for STRs. LCC 4.440(7)(b).
Third, the ordinance amended the complaint procedures applicable to STRs by adding a process for a complaining party to submit a complaint to the Licensing Authority,
which it is directed to investigate and, if a violation is found, may require the STR owner to appear for an informal hearing before the Hearings Officer. LCC 4.445(3). That provision also provides that “[a]uthority is specifically delegated
to County Counsel’s Office to adopt administrative procedures for the hearing, including report requirements, fees,
hearing procedures and notice, evidentiary requirements,
standard of review and decision, and enforcement options
for this administrative process.” LCC 4.445(3). Under LCC
4.445(4), “[a]ppeals from a decision of the Hearings Officer
are made to Circuit Court.” That process is separate from the
county’s enforcement code in LCC chapter 10, and from procedures to revoke, cancel, or deny renewal of a STR license
in LCC 4.450. See LCC 4.445(3) (“Nothing in this administrative procedure precludes the County and the Licensing
Authority from utilizing other enforcement actions as authorized in this Chapter and LCC Chapter 10.”); LCC 4.445(5)
(“This procedure is separate from but complementary with
the procedures used to revoke, cancel or deny renewal of a
license, LCC 4.450.”).
Fourth, and finally, the ordinance further provided,
relative to its specific delegations of authority:
“The Lincoln County Licensing Authority is, and
County Counsel’s Office and the Onsite Waste Management
Division of the Department of Planning and Development
Cite as 352 Or App 150 (2026) 155
as specifically authorized in the Chapter are, delegated the
authority and responsibility to adopt rules, requirements,
procedures, forms and practices consistent with the overall
intent of this Chapter, to implement, administer, and operate the licensing program for the County. All fees associated with the program shall be set by separate Order of the
Board of Commissioners.”
LCC 4.456.
The county also adopted a series of resolutions that
imposed and then extended a temporary prohibition on
the Lincoln County Sheriff from issuing new STR licenses
(the Resolutions). And, in February 2023, the county issued
Order 01-23-037 (the Order), which established the seven
subarea boundaries and set the maximum allowable STR
licenses for each subarea.
In November 2021, plaintiffs sought review of
Ordinance 523 at the Land Use Board of Appeals (LUBA). In
its final opinion and order, LUBA determined that Ordinance
523 was not a land use regulation and that it lacked jurisdiction over the matter. LUBA transferred the case to circuit court. Briggs et al. v. Lincoln County, ___ Or LUBA ___
(LUBA No. 2021-113, Feb 10, 2022) (Briggs Ordinance) (slip
op at 13, 14). No one sought judicial review of LUBA’s order.
Also in November 2021, Lincoln County voters
approved Ballot Measure 21-203, which amended the STR
program and, as relevant on this appeal, defined STRs as
not residential uses and made existing licensed STRs nonconforming uses in county residential zones R-1-A, R-1,
and R-2. The ballot measure was challenged in both circuit
court and LUBA. Ultimately, both the circuit court and
LUBA concluded that jurisdiction was exclusive to LUBA.
LUBA then issued its final opinion and order invalidating the ballot measure because it violated ORS 215.130(5)
and is preempted by ORS 215.130. Briggs et al. v. Lincoln
County, ___ Or LUBA ___ (LUBA Nos. 2021-118/2022-030,
Aug 8, 2022) (Briggs Ballot Measure) (slip op at 20, 23). No
one sought judicial review of LUBA’s order invalidating the
ballot measure.
In the circuit court after LUBA transferred
this case, plaintiffs ultimately sought declaratory and
156 Briggs v. Lincoln County
injunctive relief from Ordinances 487, 490, 509, and 523 (the
Ordinances), the Resolutions, and the Order.2 Specifically,
plaintiffs alleged in their claims that those county actions
violate and are preempted by ORS 215.130(5), were enacted
in violation of the processes required by ORS 215.503 and
ORS 215.223, and are unconstitutionally vague.
Plaintiffs and the county cross-moved for summary
judgment, and the circuit court issued a letter opinion and
order. Aside from their claims of unconstitutional vagueness, the court granted summary judgment to the county.
It made the following conclusions about plaintiffs’ statutory
claims: (1) exclusive jurisdiction lies in LUBA to review any
land use decision; (2) if the county’s regulations are not zoning ordinances, then ORS 215.223 does not apply; (3) if the
county’s regulations do not relate to comprehensive plans,
land use planning, or zoning, then ORS 215.503 does not
apply; and (4) ORS 215.130(5) only applies if the county’s
regulation is a zoning or land use regulation. The court
summed up the problem: “This court only has jurisdiction to
hear the claims if the ordinances are not land use decisions,
but if the ordinances are not land use decisions, then the
statutes upon which the claims rest do not apply to those
ordinances.” On that basis, the court granted summary
judgment to the county on the statutory claims.
With regard to plaintiffs’ vagueness claims under
the Oregon Constitution, the court first noted that plaintiffs conceded that their constitutional claims were brought
only under the Oregon Constitution. The court concluded
that three provisions in Ordinance 523 were invalid under
Article I, sections 20 and 21. Specifically, the court invalidated the sentence that reads, “Events, such as weddings,
rehearsal dinners, and similar activities are prohibited,”
in LCC 4.440(7)(b) (the Events provision) as unconstitutionally vague under Article I, section 20, and invalidated
LCC 4.445(3) and (4) as an unconstitutional delegation and
unconstitutionally vague under both Article I, sections 20
and 21. We discuss the circuit court’s opinion about those
provisions in more detail in our analysis.
2
Although plaintiffs included general discussion of the Order in their second amended complaint, plaintiffs did not separately challenge the Order in its claims for relief, having appeared to treat it the same as the Resolutions. Cite as 352 Or App 150 (2026) 157
Plaintiffs appeal from the court’s dismissal of their
statutory claims, and the county cross-appeals from the
court’s invalidation of the three provisions in Ordinance
523.
II. PLAINTIFFS’ APPEAL
On appeal, plaintiffs raise four assignments of
error, challenging the court’s dismissal of their claims that
are based on provisions in ORS chapter 215.3
A. ORS 34.102
In their first assignment of error, plaintiffs argue
that the circuit court erred in not referring questions of
jurisdiction to the Court of Appeals under ORS 34.102 and
instead concluding that it lacked jurisdiction to review the
county’s actions for compliance with ORS chapter 215.4 But
the circuit court did not determine that it lacked jurisdiction to review the county’s actions. Instead, consistent with
LUBA’s earlier opinions, the circuit court determined that
the county’s challenged actions were not land use decisions.
The circuit court further determined that the statutes on
which plaintiffs relied—ORS 215.130(5), ORS 215.223, and
ORS 215.530—only applied to land use decisions. As a result,
those statutes were inapplicable to the county’s challenged
actions. Thus, the circuit court granted summary judgment
to the county because, as a matter of law, plaintiffs had not
put forth a valid legal basis for their claims. Based on the
circuit court’s decision, there was nothing to refer to the
Court of Appeals.5
3
We note that, in their briefing, plaintiffs often refer to ORS 215.503 as “Measure 56.” Ballot Measure 56 was a ballot measure referred by the legislature and approved by the voters in 1998 and which substantially amended ORS 215.503, as well as added other statutes to ORS chapters 197, 227, and 268. See Or Laws 1999, ch 1. We caution against continuing to use old general references—particularly a reference to a ballot measure approved over 25 years ago— because it is not helpful to our review, as it causes confusion and does not inform the court which statutory provision is at issue.
4
Among other things, ORS 34.102 allows for LUBA to transfer a case to the circuit court, or for the circuit court to transfer a case to LUBA, if it determines that jurisdiction properly lies in the other venue. ORS 34.102(3), (4). Additionally, ORS 34.102(5) provides a mechanism for the circuit court and LUBA to refer cases to us if there is a dispute as to whether jurisdiction exists.
5
We note that the circuit court did incorrectly state that it did not have jurisdiction to determine whether the county’s actions were land use decisions. 158 Briggs v. Lincoln County
To be sure, the circuit court approached the jurisdictional issue in a somewhat roundabout way and did not
spell out each step of the analysis in the same way that we
have here. However, when the opinion and order is read in
its entirety, and in context of the general judgment, the circuit court plainly exercised its jurisdictional authority to
consider the merits of plaintiffs’ claims. Because the premise underlying plaintiffs’ first assignment of error is incorrect, that assignment of error provides no basis for relief.
B. Applicability of ORS 215.130(5) and ORS 215.503
In their second and third assignments of error,
plaintiffs argue that the circuit court erred in ruling that
ORS 215.503 and ORS 215.130(5) apply only to land use
decisions.6 Before we proceed to the merits of those assignments of error, we resolve two issues that are common
between them. First, in both assignments of error, plaintiffs maintain that the circuit court concluded that it lacked
jurisdiction to consider their claims. As we explained above,
that is an incorrect characterization of the circuit court’s
ruling, and we do not further engage with those arguments.
Instead, we analyze plaintiffs’ remaining challenges to the
circuit court’s summary judgment rulings.
Second, at times plaintiffs’ briefing appears to suggest that the county’s challenged actions could be considered
land use decisions. To the extent that plaintiffs’ make that
argument, we reject it. Past litigation before LUBA and this
court has made clear that the county’s challenged actions are
not land use decisions. See Akiyama v. Tillamook County, 333
Or App 315, 327-28, 554 P3d 268, rev den, 373 Or 154 (2024)
(rejecting argument that Tillamook County’s STR licensing program rezoned property and thus was within LUBA’s
However, LUBA had already determined that Ordinance 523 and the Order were not land use decisions. Briggs Ordinance, ___ Or LUBA at ___ (slip op at 13) (Ordinance 523); see also Dean et al. v. Lincoln County, ___ Or LUBA ___ (LUBA No 2023-020, Sept 20, 2023), aff’d, 329 Or App 811 (2023) (nonprecedential memorandum opinion) (the Order). And, more importantly, the court did not dismiss for lack of jurisdiction; it exercised jurisdiction and granted summary judgment to the county because the statutes on which plaintiffs rested their claims did not apply.
6
Plaintiffs do not challenge the circuit court’s determination that ORS 215.223 applies only to zoning ordinances or the court’s grant of summary judgment to the county on that basis.
Cite as 352 Or App 150 (2026) 159
jurisdiction; affirming the conclusion in Dean v. Lincoln
County, 329 Or App 811 (2023) (nonprecedential memorandum opinion) that the Order establishing the Lincoln County
STR program subareas was not a land use decision); Briggs
Ordinance, ___ Or LUBA at ___ (slip op at 13) (determining
in an unchallenged final order that Ordinance 523 was not a
land use decision). Having made those two points, we turn to
the merits of plaintiffs’ assignments of error.
1. ORS 215.503
In their second assignment of error, plaintiffs
assert that the Ordinances, Resolutions, and Order at
issue “rezoned” plaintiffs’ property under ORS 215.503(9)
(b) by “limiting land uses previously allowed in the affected
zone,” because STRs in residential zones were previously
allowed outright by the zoning code, LLC chapter 1. Relying
on Akiyama, plaintiffs assert that a “rezoning” under ORS
215.503(9)(b) is not necessarily co-extensive with a “land
use decision” under ORS 197.015(10)(a)(A). That is, plaintiffs
take the position that there can be a rezoning under ORS
215.503(9)(b) that does not qualify as a land use decision, but which nonetheless triggers application of other provisions in
ORS 215.503. Specifically, plaintiffs argue that they were
entitled to review of the county’s actions for failure to comply with ORS 215.503(4), which requires special notice when
an ordinance proposes to rezone the property, and for failure
to comply with ORS 215.503(2), which requires zoning to be
adopted by an ordinance. As a result, plaintiffs’ claim that
the circuit court erred in determining that ORS 215.503(9)
did not apply to the county’s challenged actions and granting summary judgment to the county on that basis.
The circuit court did not err because there was no
“rezoning” of plaintiffs’ property. Zoning (and “rezoning”)
are terms of art that apply to specific types of land use decisions. See ORS 197.015(10)(a)(A) (providing that a “land use
decision” includes any decision by a local government “that
concerns the adoption, amendment, or application of” the
statewide planning goals, a provision of the county’s comprehensive plan, a land use regulation, or a new land use regulation); ORS 197.015(11) (providing that a “land use regulation” includes a local government’s “zoning ordinance, land
160 Briggs v. Lincoln County
division ordinance * * * or similar general ordinance establishing standards for implementing a comprehensive plan”
(emphasis added)). The statutes in ORS chapter 215 “generally govern[ ] county zoning and planning, and the authority
of counties to zone land.” Morgan v. Jackson County, 290 Or
App 111, 116, 414 P3d 917, rev den, 362 Or 860 (2018) (internal quotation marks and citations omitted). ORS 215.503(9)
provides a definition of rezoning for ORS 215.530: “property
is rezoned when the governing body of the county” either “[c]
hanges the base zoning classification of the property” or “[a]
dopts or amends an ordinance in a manner that limits or
prohibits land uses previously allowed in the affected zone.”
Thus, ORS 215.503(9) would apply to the county’s actions
in this case only if the county made a land use decision to
rezone property. But as we previously concluded, the county’s actions here were not land use decisions.
Contrary to plaintiffs’ argument, Akiyama does
not carve out a type of rezoning that exists outside of land
use decisions. Instead, that opinion confirms that “rezoned”
under ORS 215.503(9) is co-extensive with the definition of
land use decision in ORS 197.015(10), or land use regulation
in ORS 197.015(11), which specifically includes zoning ordinances. See Akiyama, 333 Or App at 328 (“[W]e remain persuaded that LUBA correctly concluded that ORS 215.503(9)
is irrelevant to the determination whether a regulation is
a zoning ordinance.”). In Akiyama, we explained that “land
use” as used in ORS 215.503(9) does not “alter existing law
on what constitutes a land use decision and what does not.
That is, ‘land uses previously allowed’ in ORS 215.503(9)
refers to uses of property as allowed by the county’s land use
laws and zoning categories.” 333 Or App at 328. We further
explained that ORS 215.503 was not intended “to define (or
redefine) what it means for property to be rezoned, the Voter’s Pamphlet indicates that the purpose of the measure was to
ensure that property owners received notice of existing types
of land-use changes.” Id. at 328-29 (emphasis added). Thus,
under Akiyama, ORS 215.503(9) does not create a new or
different category for “rezoning” that falls outside existing
land use decisions. Because ORS 215.503(9) did not apply to
the county’s challenged actions, the circuit court did not err
Cite as 352 Or App 150 (2026) 161
in granting summary judgment to the county on that basis.
We thus reject plaintiffs’ second assignment of error.
2. ORS 215.130(5)
In their third assignment of error, plaintiffs
assert that the circuit court erred in concluding that ORS
215.130(5) only applied to county actions that were land use
decisions and granting summary judgment to the county
on that basis. To support their argument, plaintiffs point to
the phrase “lawful requirement” in the statute, which, they
argue, applies to county decisions in general, and the fact
that not every sentence in the statute contains an explicit
link to a land use decision.
We disagree with plaintiffs’ interpretation of ORS
215.130(5). We start with the text of the statute, which
provides:
“The lawful use of any building, structure or land at
the time of the enactment or amendment of any zoning
ordinance or regulation may be continued. Alteration of
any such use may be permitted subject to subsection (9) of
this section. Alteration of any such use shall be permitted
when necessary to comply with any lawful requirement for
alteration in the use. Except as provided in ORS 215.215,
a county shall not place conditions upon the continuation
or alteration of a use described under this subsection when
necessary to comply with state or local health or safety
requirements, or to maintain in good repair the existing
structures associated with the use. A change of ownership
or occupancy shall be permitted.”
As established in the first sentence, ORS 215.130(5)
applies when there has been an “enactment or amendment”
of a “zoning ordinance or regulation.” The remainder of
the statute provides limits on county actions vis a vis previously “lawful uses” after that triggering condition.7 That
7
ORS 215.130(5) “describes an exception to the application of zoning ordinances for a use that is inconsistent with zoning but that was lawfully in existence before the enactment or amendment of the ordinance, which our case law describes as a ‘nonconforming use.’ ” Deschutes County v. Pink Pit, LLC, 306 Or App 563, 573, 475 P3d 910 (2020). “Generally, ‘[a] lawful nonconforming use of land is one that is contrary to a land use ordinance but that nonetheless is allowed to continue because the use lawfully existed prior to the enactment of the ordinance.’ ” Morgan, 290 Or App at 114 (quoting Rouge Advocates v. Board of Comm. of Jackson County, 277 Or App 651, 654, 372 P3d 587 (2016), rev dismissed, 362 Or 162 Briggs v. Lincoln County
interpretation is reinforced by the repeated references in
the remainder of the text to the “use” described by the first
sentence. See ORS 215.130(5) (“Alteration of any such use
* * *. Alteration of any such use * * *. Except as provided in
ORS 215.215, a county shall not place conditions upon the
continuation or alteration of a use described under this subsection * * *. A change of ownership or occupancy shall be
permitted.).
Because the county’s actions did not rezone property and were not land use decisions, ORS 215.130(5) does
not apply to the county’s actions. See Morgan, 290 Or App
at 117 (concluding that “lawful use” in ORS 215.130(5) is a
lawful use “under the prior zoning or land use regulations.
Put simply, the provision concerns zoning and land use regulation.”).8 As such, ORS 215.130(5) does not apply to the
county’s actions here, and the circuit court did not err. We
thus reject plaintiffs’ third assignment of error.
C. Issue Preclusion
In their fourth assignment of error, plaintiffs argue
that the circuit court erred in failing to apply issue preclusion to issues resolved by LUBA in Briggs Ballot Measure,
which invalidated the ballot measure passed by the county’s voters. Specifically, plaintiffs sought a ruling from the
circuit court that the following issues were preclusively
resolved against the county: (1) short term rental of dwellings is a use allowed outright under the county’s zoning
code; (2) as a preexisting lawful use under the zoning code,
the county cannot get around ORS 215.130(5) by ending
licenses for STRs; and (3) ending a license for an STR when
ownership transfers violates ORS 215.130(5).
Issue preclusion applies when (1) “[t]he issue in the
two proceedings is identical”; (2) “[t]he issue was actually
269 (2017)). “[A] use that is lawful under existing zoning is not a nonconforming use.” Deschutes County, 306 Or App at 575.
8
In addition, we observe that the requirement that owners obtain an STR license and the limits on the maximum number of licenses available in each geographical subarea are part of a licensing system and “[g]enerally, business or occupational licensing is a system that does not regulate with regard to particular locations in the use of real properties,” and, as such, are “not the sort of ‘law’ that is at issue when ORS 215.130(5) refers to ‘lawful use of any building, structure or land.’ ” Morgan, 290 Or App at 118.
Cite as 352 Or App 150 (2026) 163
litigated and was essential to a final decision on the merits in the prior proceeding”; (3) “[t]he party sought to be precluded
has had a full and fair opportunity to be heard on that issue”; (4) “[t]he party sought to be precluded was a party or was in
privity with a party to the prior proceeding”; and (5) “[t]he
prior proceeding was the type of proceeding to which this
court will give preclusive effect.” Nelson v. Emerald People’s
Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993).
The circuit court did not err when it declined to
apply issue preclusion in this case. That is because the
issues in this litigation were not identical to those in Briggs Ballot Measure, nor were they litigated and essential to a
final decision in the prior proceeding.
First, in Briggs Ballot Measure, LUBA did not
determine that short term rental of dwellings is a use
allowed outright under the county’s zoning code or that
short term rental of dwellings was a “lawful use” under
ORS 215.130(5). Rather, LUBA merely assumed those conditions existed for purposes of deciding the case because
the ballot measure itself stated that STRs were “nonconforming uses.” See Briggs Ballot Measure, ___ Or LUBA at
___ (slip op at 11) (“We assume for purposes of this decision,
and particularly our application of ORS 215.130(5), that BM
21-203 accurately categorizes STRs as nonconforming uses
as that term is used in ORS 215.130(5).”); id. at ___ (slip
op at 15) (“BM 21-203 therefore presumes that prior to its
enactment, STRs were allowed uses in those zones [R-1-A,
R-1, and R-2] and for purposes of this opinion, we assume
that is correct.”).
Second, LUBA’s analysis in Briggs Ballot Measure
under ORS 215.130(5) is not applicable to the county’s
actions in this case, because the county’s actions here did
not involve land use decisions. In fact, LUBA recognized
as much in Briggs Ballot Measure when it stated that the
amendments in Ordinance 523, which it had decided was
not a land use decision in Briggs Ordinance, “are qualitatively different than those voters adopted in BM 21-203 and
we do not address them further.” Briggs Ballot Measure, ___
Or LUBA at ___ (slip op at 16): see also Briggs Ordinance,
___ Or LUBA at ___ (slip op at 10) (“As explained above,
164 Briggs v. Lincoln County
however, Ordinance 523 is not a ‘zoning ordinance or regulation’ and, therefore, ORS 215.130(5) does not apply and does
not bar the county from restricting the transfer of licenses
upon the change of ownership of property. Furthermore,
failure to have a required business license is not relevant
to a determination of whether a land use is legally nonconforming for zoning purposes.”).
Put simply, LUBA did not fully and finally resolve
any issues presented in this case in Briggs Ballot Measure,
and the circuit court did not err in failing to give it preclusive effect. We thus reject plaintiffs’ fourth assignment of
error.
III. THE COUNTY’S CROSS-APPEAL
On cross-appeal, the county challenges the circuit
court’s invalidation of the Events provision in LCC 4.440(7)
(b), and its invalidation of LCC 4.445(3) and (4).9
A. Vagueness and Delegation under Article I, sections 20
and 21
Before we turn to the issues in this appeal, we
address plaintiffs’ arguments based on a lack of fair notice.
The circuit court determined that those arguments failed as
a matter of law because plaintiffs only brought their challenge under the Oregon Constitution, and plaintiffs did not
challenge that ruling on appeal. See, e.g., State v. Krueger,
208 Or App 166, 171, 144 P3d 1007 (2006) (explaining that
fair notice is a challenge under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution).
As a result, we do not address any arguments regarding the
lack of fair notice in our opinion.
As applicable here, under the Oregon Constitution,
a statute may be unconstitutionally “vague” on its face if it is “so vaguely crafted as to permit arbitrary or unequal application and uncontrolled discretion, in violation of Article I,
sections 20 and 21.”10 Id. at 170. “[T]o prevail on a facial
9
We reject plaintiffs’ preservation challenge to the county’s arguments without further explanation.
10
Article I, section 20, provides that “[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” Article I, section 21, provides, in relevant Cite as 352 Or App 150 (2026) 165
vagueness challenge, the defendant must demonstrate that
the statute ‘is unconstitutionally vague in all of its possible applications.’ ” Id. at 171 (quoting State v. Chakerian, 325 Or 370, 381, 938 P2d 756 (1997)). “That is to say, if we can
identify conduct that the statute clearly proscribes, then it
is irrelevant that the defendant is able to identify problems
concerning how the statute might be applied to other conduct.” Id.; see also Ceaser v. Dept. of Human Services, 311 Or
App 702, 713, 493 P3d 66 (2021) (applying same to administrative rule).
Unconstitutional delegation of legislative authority
is also implicated in this case. Generally, a claim of unconstitutional delegation of legislative power refers to situations in which the Oregon Legislature has delegated authority.
Although the circuit court relied on the concept of unconstitutional delegation of legislative authority, neither the circuit court nor either party on appeal has explained why or
how Article I, section 21, applies to a delegation made by a
county, which is governed by county charter (if the county
has one) or by statute.11 See, e.g., ORS 203.035 (setting out
power of governing body of county over matters of county
concern); ORS 203.111 (providing that county governing
body “shall exercise general legislative authority over all
matters of county concern”); ORS 203.240 (setting out the
organization, powers, and duties of a county board of commissioners). However, for purpose of this opinion, we assume
without deciding that a challenge to a county’s governing
part, that “nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.”
11
Pre-Hospital Medical Services, Inc. v. Malheur County, 134 Or App 481, 896 P2d 585 (1995), does not directly address whether a challenge to delegation by a county’s governing board can be brought under Article 1, section 21, and whether it is analyzed in the same manner as legislative delegation. That case focused on the statutory legislative directives to the county and whether the county enactment honored the legislative policy. Moreover, the analysis did not expressly rely on Article I, section 21. Instead, it relied on Anderson v. Peden, 284 Or 313, 325-26, 326 n 10, 587 P2d 59 (1978), which was concerned with due process under the Fourteenth Amendment to the United States Constitution in its discussion of delegation, and Megdal v. Board of Dental Examiners, 288 Or 293, 298, 605 P2d 273 (1980), which was concerned with the Oregon Legislature’s delegation of its power, as provided in Article IV, section 1, and Article III, section 1. We are unaware of any Oregon case law that touches on application of Article I, section 21, to a county’s ordinance as an unlawful delegation of the county’s legislative authority over matters of county concern.
166 Briggs v. Lincoln County
body’s delegation can be brought under Article I, section 21,
and that it is analyzed under the case law applicable to delegation by the Oregon Legislature.
“Three provisions of the Oregon Constitution, taken
together, prohibit the delegation of legislative power to make
laws.” State v. Davilla, 234 Or App 637, 645, 230 P3d 22
(2010), rev den, 350 Or 717 (2011). Those provisions are
Article I, section 21, which provides no law shall be passed
that relies on an authority to take effect, except as provided
in the Oregon Constitution; Article III, section 1, which provides that the powers of state government is divided into
three branches; and Article IV, section 1(1), which provides
that the legislative power of the state is vested in the Oregon Legislature.12 “The purpose of Article I, section 21, is to ‘prevent unlawful delegation of legislative authority’ to make
laws.” Along Came Trudy LLC v. OLCC, 330 Or App 295,
307, 543 P3d 751, rev den, 372 Or 588 (2024) (quoting Marr v.
Fisher et al., 182 Or 383, 388, 187 P2d 966 (1947)). However,
that prohibition is not absolute. “The legislature may delegate authority to other bodies ‘to adopt rules that define or
implement broad statutory standards.’ ” Id. (quoting State v.
Long, 315 Or 95, 101, 843 P2d 420 (1992)). Whether a particular enactment contains an unconstitutional delegation
depends on “whether the enactment is complete when it
leaves the legislative halls. A legislative enactment is complete if it contains a full expression of legislative policy and sufficient procedural safeguards to protect against arbitrary application.” State v. Self, 75 Or App 230, 236-37, 706
P2d 975 (1985) (citation omitted); see also City of Damascus
v. Brown, 266 Or App 416, 443, 337 P3d 1019 (2014) (quoting that standard as a succinct articulation of the task on
review).
12
Article III, section 1, provides:
“The powers of the Government shall be divided into three separate
branches, the Legislative, the Executive, including the administrative, and
the Judicial; and no person charged with official duties under one of these
branches, shall exercise any of the functions of another, except as in this
Constitution expressly provided.”
Article IV, section 1(1) provides that the “legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.” Cite as 352 Or App 150 (2026) 167
B. Events Provision in LCC 4.440(7)(b)
We first address the circuit court’s invalidation of
the sentence, “Events, such as weddings, rehearsal dinners,
and similar activities are prohibited,” in LCC 4.440(7)(b).
In its letter opinion, the court concluded that the Events
provision was unconstitutionally vague under Article I,
section 20, because it gave “unbridled discretion” to decide
what was prohibited because “event” “could mean any activity on the property. The court further concluded that the
limiting terms “weddings” and “rehearsal dinners” means
that “events” was defined as “noteworthy happenings” or
“social occasions or activities.” However, the circuit court
concluded those limitations did not cure the vagueness problem, nor could the problem be cured by finding commonalities between weddings and rehearsal dinners. The court
also declined to read the Events provision in the context of
the Findings and Purpose section, LLC 4.405(1), of the STR
program, because that “would create terms in the ordinance
that do not exist there.”
We conclude that the circuit court erred in invalidating the Events provision based on Article I, sections 20
and 21. As explained above, to be facially invalid, the Events
provision must be “ ‘unconstitutionally vague in all of its
possible applications.’ ” Krueger, 208 Or App at 171 (quoting
Chakerian, 325 Or at 381). “That is to say, if we can identify
conduct that the statute clearly proscribes, then it is irrelevant that the defendant is able to identify problems concerning how the statute might be applied to other conduct.”
Id. On its face, the Events provision clearly proscribes two
types of events—weddings and rehearsal dinners. As such,
it is not unconstitutionally vague in all its applications. See id. (“[W]hatever vagueness issues may be conjured up in the
abstract, the fact remains that the statute clearly applies,
for example, to an individual who stands on a street corner
and flags traffic for the express purpose of soliciting an act
of prostitution.”). Because the Events provision clearly proscribes some conduct, plaintiffs’ speculation as to the wide
range of events or activities that could be implicated by the
prohibition does not provide a basis to conclude that the provision is unconstitutionally vague.
168 Briggs v. Lincoln County
Further, the circuit court erred in declining to
review the Events provision in the context of other STR provisions, including the Findings and Purpose section, LLC
4.405. “[W]hen evaluating an ordinance for unconstitutional
vagueness, we must always examine the words in context.
Even words that, by themselves, might otherwise be unclear,
may drive clarification from their use in context.” Krueger,
208 Or App at 171-72.
Here, the Events provision does not appear in isolation; it was expressly made a part of a subsection that
addresses STR occupancy limits:
“(7) Limits on Occupancy. The maximum occupancy
for a short term rental unit shall be calculated on the lesser
of the following calculations:
“(a) the request of the applicant for a license;
“(b) two (2) persons per sleeping area plus two (2) additional persons. The maximum occupancy at all times shall
be limited to two persons per sleeping area plus up to two
(2) additional persons. Events, such as weddings, rehearsal
dinners, and similar activities are prohibited. For the purpose of maximum occupancy, those under two (2) years of
age shall not be counted. Accessory structures, tents and
recreational vehicles and similar sleeping arrangements
shall not be used to increase the number of people approved
to occupy a short term rental.
“(c) the occupancy capacity as determined by Onsite
Waste Management from review of the ESER required in
this section.
“(d) Notwithstanding the forgoing, no more than 16
persons shall occupy the short term rental unit at any
one time except for grandfathered occupancies established
under Ordinance # 487.
“(e) Grandfathered occupancies cannot exceed the
capacity of the onsite wastewater system under an Existing
System Evaluation Report and a determination made by
the Onsite Waste Management Division”
LCC 4.440(7) (emphasis added). Given that context, the
Events provision is directed at “events” that exceed the maximum occupancy of an STR; that is, holding an event at an
Cite as 352 Or App 150 (2026) 169
STR does not excuse the maximum occupancy requirement,
which applies “at all times.”
With that understanding in place, the list of unfettered discretion concerns of the circuit court disappears.
The ordinance expresses a clear policy about the Events
provision: it is directed at prohibiting weddings, rehearsal
dinners, and similar activities that exceed the maximum
occupancy limit. That construction is also supported by
the Findings and Purpose section, LLC 4.405(1)(a), which
provides that the STR regulations were directed at the
“problems of excessive noise, spilled garbage, shortages of
parking, and overcrowded accommodations”—all problems
associated with too many people occupying an STR. Even
if “events,” read in isolation poses a constitutional problem,
when viewed in context, it is a word clearly tied to gatherings that exceed a maximum occupancy limit. The Events
provision is thus not unconstitutionally vague on its face,
and the circuit court erred in so concluding.
C. Complaint Procedures in LCC 4.445(3) and (4)
We next address the circuit court’s invalidation
of LCC 4.445(3) and (4), which were provisions the county
included in its complaint procedure. LCC 4.445 provides
that complaints “will initially proceed through the informal
resolution process provided herein. If the complaint is unresolved, then the more formal process shall be utilized as set
forth below[.]” Subsections (1) and (2) describe the informal
process of the complainant and contact person for the STR
communicating with each other about a complaint. The sections at issue then provide:
“(3) Step Three: Administrative Hearing. If the
response from the contact person is not satisfactory, the
complaining party may use the County’s online complaint
system at the county website to lodge a formal complaint or
submit a complaint in writing to the Licensing Authority.
The complaint shall be investigated by the Licensing
Authority. If the Licensing Authority finds there is information, evidence and belief provided by the complainant
or otherwise found by the Licensing Authority sufficient to
proceed with a determination of a violation of this Chapter,
the Licensing Authority may issue a written report and
170 Briggs v. Lincoln County
cite the STR owner to appear before a Hearings Officer
designated by the County within 30 days of the complaint
to determine if a violation of this Chapter has indeed
occurred. If the Licensing Authority does not proceed with
the complaint, the matter shall be considered terminated.
“The Hearings Officer shall hold an informal hearing
on the matter and issue a final written decision on whether
or not a violation has occurred and what action should be
taken if there is a violation. Authority is specifically delegated to County Counsel’s Office to adopt administrative
procedures for the hearing, including report requirements,
fees, hearing procedures and notice, evidentiary requirements, standard of review and decision, and enforcement
options for this administrative process. A copy of this
administrative process shall be posted on the County
website.
“Nothing in this administrative procedure precludes
the County and the Licensing Authority from utilizing
other enforcement actions as authorized in this Chapter
and LCC Chapter 10.
“(4) Appeals from a decision of the Hearings Officer
are made to Circuit Court.”
LCC 4.445(3), (4). Finally, subsection (5) provides, “This procedure is separate from but complimentary with the procedures used to revoke, cancel or deny renewal of a license,
LCC 4.450.” LCC 4.445(5).
In its letter opinion, the circuit court concluded
that LCC 4.445(3) contains an unconstitutional delegation
of authority because the provision is not a complete enactment. The circuit court reached that conclusion because it
determined that the provision lacked standards, rules, and/
or guidelines to (1) determine who is appointed a hearings
officer; (2) conduct of the hearings; (3) circumscribe what
a hearings offer may order; (4) guide the County Counsel’s
Office in the process of adopting procedure; and (5) impose
fees or enforcement mechanisms. As a result, the court concluded that LLC 4.445(3) was “an unconstitutional delegation of power to the County Counsel’s Office under Article I,
section 21,” and that “the lack of ascertainable standards for
the informal hearing procedure, its consequences, and its
participants creates a serious danger of unequal application
Cite as 352 Or App 150 (2026) 171
of the law, and therefore the court finds the section to be
unconstitutionally vague under Article I, section 20[.]”
Assuming without deciding that Article I, section
21, and the case law on delegation of the Oregon Legislature’s
power, applies here, we conclude that the circuit court erred
in invalidating LCC 4.445(3) and (4) under Article I, sections 20 and 21.
As stated above, “[t]he purpose of Article I, section
21, is to prevent unlawful delegation of legislative authority
to make laws.” Along Came Trudy LLC, 330 Or App at 307
(internal quotation marks omitted). “The legislature may
delegate authority to other bodies ‘to adopt rules that define
or implement broad statutory standards.’ ” Id. (quoting Long,
315 Or at 101). A legislative enactment is not an unconstitutional delegation “if it contains a full expression of legislative policy and sufficient procedural safeguards to protect
against arbitrary application.” Self, 75 Or App at 236-37.
Under those standards, the county did not make an unlawful delegation of its legislative authority of matters of county concern in LCC 4.445(3) and (4).
As with the Events provision, we do not view LCC
4.445(3) and (4) in isolation; we view those provisions in
the context of the STR program. That program sets out
the legislative policy underlying the program, the licensing
scheme, and detailed regulations on the operation of STRs.
See LCC 4.405 (findings and purpose); LCC 4.420 - .430
(licenses); LCC 4.440 (operating standards). In that context,
the delegation in LCC 4.445(3) to the Licensing Authority to
investigate complaints and determine if “there is information, evidence and belief” “sufficient to proceed with a determination of a violation of this Chapter” is not an unlawful
delegation of legislative authority. The paragraph governing
the Licensing Authority’s authority with respect to complaints is simply a legitimate delegation to implement the
standards provided by the county.
Turning to the delegation to a Hearings Officer,
we first find no issue with the existence of the position of
Hearings Officer, which LLC 4.445(3) provides will be
“designated by the County.” The county’s designation of a
172 Briggs v. Lincoln County
Hearings Officer is neither vague nor an unlawful delegation because the county has expressly retained the legislative authority to designate that person. We disagree with
plaintiffs’ argument that the county unlawfully delegated
authority to the Hearings Officer, who is directed to “hold
an informal hearing on the matter and issue a final written
decision on whether or not a violation has occurred and what
action should be taken if there is a violation.” LCC 4.445(3).
LCC 4.445(3) and (4) contain procedural safeguards, including the hearing itself, the requirement of a written decision,
and the opportunity to obtain judicial review of the decision
by the circuit court. And under LCC 4.445(3), the Hearings
Officer’s conduct is also subject to rules adopted by the
County Counsel’s Office.
Finally, we address the delegation to the County
Counsel’s Office to “to adopt administrative procedures for
the hearing, including report requirements, fees, hearing
procedures and notice, evidentiary requirements, standard
of review and decision, and enforcement options for this
administrative process.” LCC 4.445(3). The STR complaint
procedure reflects the county’s completed legislative policy
and broad legislative standard to provide an informal procedure by which to review complaints against STRs, without
having to initiate a code violation action in circuit court,
which is the enforcement scheme set out in LCC chapter 10.
As we have stated, “[t]he legislature may delegate authority to other bodies to adopt rules that define or implement
broad statutory standards.” Along Came Trudy LLC, 330 Or
App at 307 (internal quotation marks omitted). The delegation to the County Counsel’s Office meets that standard,
because it is directed to adopt specific types of administrative procedures for the hearing, which are also guided by the
county’s legislative policy for the complaint proceedings, as
well as, by “the overall intent of this Chapter,” LLC 4.456.
The County Counsel’s Office is also directed by the county
to make those procedures publicly available on the county’s
website. LCC 4.445(3). We thus conclude that LLC 4.445(3)
and (4) do not contain an unlawful delegation of the county’s
legislative authority.
Cite as 352 Or App 150 (2026) 173
For the same reasons, we also conclude that LCC
4.445(3) and (4) are not unconstitutionally vague. Those provisions set out a complete policy and process for complaints
against STRs, it is not “so vaguely crafted as to permit arbitrary or unequal application and uncontrolled discretion, in
violation of Article I, sections 20 and 21.” Krueger, 208 Or
App at 170.
In sum, the circuit court erred in granting summary judgment to plaintiffs and in denying summary judgment to the county with respect to plaintiffs’ constitutional
challenges to LCC 4.440(7)(b), and LCC 4.445(3) and (4).
On appeal, affirmed; on cross-appeal, reversed and
remanded.