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CapitalPress.com
Friday, July 1, 2022
Biden administration
Oregon Court of Appeals restricts
short-term rentals of farm dwellings supports rejection of
Proposition 12
By MATEUSZ PERKOWSKI
Capital Press
Houses in Oregon farm and forest
zones can’t be used for short-term rent-
als without an analysis of potential agri-
cultural impacts, according to the state’s
Court of Appeals.
The appellate court has rejected rules
enacted by Clackamas County, which
allowed farm and forest dwellings to be
used for Airbnb and similar short-term
rental services.
Short-term rentals have come under
fire for potentially interfering with agri-
cultural activities and inflating the price
of rural properties, but they’ve also
allowed many farmers to diversify their
incomes.
“We are sharing our property with
strangers. That’s not always comfort-
able, but that’s how we can fix our trac-
tors,” said Scottie Jones, an Oregon
sheep farmer and founder of the U.S.
Farm Stay Association.
In 2020, Clackamas County updated
its zoning regulations to require regis-
tration and other parameters for short-
term rentals, but otherwise allowed tem-
porary lodging in dwellings in farm and
forest “resource” zones.
The county reasoned that dwell-
ings remain dwellings whether they’re
occupied on a long- or short-term basis,
so rentals don’t change a residential
house’s fundamental nature.
The Court of Appeals has disagreed
with the county’s “contention that short-
term rental is indistinguishable from the
ordinary residential use of a dwelling,”
upholding a decision by the state’s Land
Use Board of Appeals.
Houses that are used by “groups
of strangers who occupy a building
in a transitory way” exceed the ordi-
nary use of a dwelling, and thus cannot
be allowed outright in farm and forest
zones, the appellate court said.
“We are not persuaded by the coun-
ty’s contention that the nature of the
use of a dwelling remains as a residen-
tial one, and as originally approved or
established in the resource zone, when
it is used as a short-term rental,” the rul-
ing said.
By CAROL RYAN DUMAS
Capital Press
Mateusz Perkowski/Capital Press
Scottie Jones, an Oregon sheep farmer, founded the U.S. Farm Stay Asso-
ciation. Jones said she doesn’t disagree with an Oregon Court of Appeals
ruling that restricts short-term rentals of farm dwellings, but wishes land
use criteria were more consistent.
Properties in “resource” zones are
intended for farm and forest uses.
Exceptions have to meet the “farm
impacts test” and obtain conditional use
permits, the ruling said. Under this test,
non-farm uses cannot force significant
changes to agricultural practices or sig-
nificantly increase their cost.
These land use rules undermine the
county’s argument that short-term rent-
als of dwellings aren’t subject to condi-
tional use requirements, the ruling said.
It’s likely that farm and forest dwell-
ings can still be used for short-term rent-
als as long as they’re permitted as home
occupations, said Mary Kyle McCurdy,
deputy director of 1,000 Friends of Ore-
gon, a farmland preservation group that
opposed the county’s regulations.
“That is still a potential opening,”
she said, though the Court of Appeals
did not expressly reach that conclusion.
Though 1,000 Friends of Oregon
doesn’t agree with all the activities per-
mitted as “home occupations,” the orga-
nization hasn’t objected to temporary
lodging being permitted this way if it’s
not detrimental to agriculture, McCurdy
said.
Home occupation permits are already
used by farmers to provide lodging,
but the land use rules aren’t consistent
across the state, said Jones, founder of
the U.S. Farm Stay Association.
“The counties really do treat this dif-
ferently,” she said.
Jones said she has no problem with
“farm stays” being required to meet the
farm impacts test, to have the farmer
live on-site or even to provide an educa-
tional component.
Such rules can assure farm stays
remain authentic and aren’t exploited
by “investors coming in with frat par-
ties,” she said.
Short-term rentals have proven con-
troversial when absentee landowners
rent out properties for gatherings and
events that neighbors find disruptive.
While concerns have been raised
about “hotels” on farmland, it should
be recognized that farm stays help agri-
cultural operations become more finan-
cially resilient, Jones said.
The Biden administra-
tion has filed an amicus
brief in the U.S. Supreme
Court in support of an
appeal by National Pork
Producers Council and
American Farm Bureau
Federation ahead of the
court’s review of Califor-
nia’s Proposition 12.
Prop 12 seeks to ban
the sale of uncooked pork
from pigs that do not meet
what the petitioners call
the state’s arbitrary pro-
duction standards. That
ban includes pork from
pigs raised on farms out-
side of California.
The administration’s
brief calls for the rever-
sal of the 9th U.S. Circuit
Court of Appeals ruling
in July 2021 upholding
a lower court’s ruling
against the groups’ chal-
lenge to the measure.
Approved by Cali-
fornia voters in 2018,
Prop 12 establishes min-
imum space require-
ments for breeding pigs,
calves raised for veal and
egg-laying hens within
the state. It also bans the
sale of pork, veal and
eggs from animals raised
elsewhere if their living
conditions don’t meet
California’s standards.
National Pork and
Farm Bureau sued the
California
Department
of Food and Agricul-
ture on the grounds that
Prop 12 violates the U.S.
Constitution’s
Com-
merce Clause in banning
the sale of out-of-state
pork from animals con-
fined in a manner incon-
sistent with California
standards.
In the 9th Circuit
Court of Appeals, they
argued the measure com-
pels out-of-state produc-
ers to change their opera-
tions to meet California’s
standards, impermissibly
regulating extraterrito-
rial conduct outside Cal-
ifornia’s borders.
The court disagreed,
saying Prop 12 does not
dictate the price of prod-
uct and does not tie the
price of in-state products
to out-of-state prices
and does not violate the
underlying principles of
the Commerce Clause.
The court recognized
the measure could have
an indirect effect on how
pork is produced and
sold outside California
but held such upstream
effects don’t violate the
Commerce Clause.
In its brief, the Biden
administration
argued
the Commerce Clause
prohibits state laws that
unduly restrict inter-
state commerce. The
brief states petitioners
plausibly allege Prop 12
unduly restricts and sub-
stantially burdens inter-
state commerce.
Further, it states Prop
12 does not advance a
legitimate local inter-
est as California has no
legitimate interest in the
housing conditions of
out-of-state animals and
Prop 12 has no human
health or safety benefits.
The Supreme Court is
scheduled to hear argu-
ments Oct. 11.
Oregon predator trap check regulation worries livestock industry
By MATEUSZ PERKOWSKI
Capital Press
Traps for predators
must be checked more
frequently under new
Oregon wildlife regula-
tions that the farm indus-
try fears will undermine
protections for livestock.
Significantly for cat-
tle and sheep producers,
restraining traps must
be checked more than
twice as often if they’re
meant to stop predators
from damaging livestock
operations.
Due to the long dis-
tances between many
traps, agriculture groups
worry the revised rules
will hinder efforts to con-
trol coyotes and other
predators.
“We have a multi-
tude of predatory animals
and their populations
are growing,” said Todd
Nash, president of the
Oregon Cattemen’s Asso-
ciation. “The thing that
seems to reduce over time
is the number of capable
trappers. They’re spread
so thin to begin with that
they’re covering huge
swaths of land.”
For traps that kill pred-
ators, the state’s Fish and
Wildlife Commission has
reduced the time between
trap checks from 30 days
to 14 days, which the
OCA did not oppose.
However, traps and
snares that restrain live-
stock-damaging
preda-
tors must now be checked
every two days under the
new regulations, com-
pared to every seven days
previously.
With the limited num-
ber of available trappers,
the rule change effec-
tively reduces the amount
of work they’ll be able
to perform — especially
when fuel prices are so
high, critics say.
“That’s a game changer.
You change the way you
operate,” Nash said.
If they’re not intended
to prevent livestock dam-
age, restraining traps for
predators must now also
be checked every two
days, down from three
days previously.
Traps
intended
to
curb livestock damage
are meant to catch spe-
cific predators, they were
previously given more
time to work than those
not aimed at particular
individuals.
By “bending to urban
pressure” and reducing
trap check intervals, the
commission has shown
it’s “out of touch with
rural communities and
land managers,” said Lau-
ren Smith, the Oregon
Farm Bureau’s govern-
ment and national affairs
director.
“Across Oregon’s vast
landscape, there are ter-
rain and weather issues,
USDA
A coyote attacks a lamb. Traps intended to stop predators from harming livestock
must be checked more frequently under new Oregon regulations that worry live-
stock producers.
lack of road access, trap
efficiency and many other
issues that come into play
when making such a sig-
nificant reduction in a
trap check time intervals,”
Smith said in an email.
The rule change fails
to account for these prac-
tical challenges or the
livestock
losses
and
other costs that predators
impose on rural landown-
ers, she said.
Complying with the
new rules will cause
expenses to “skyrocket”
for the USDA’s Wildlife
Services division, whose
agents are often hired to
trap predators, said Jim
Soares, vice president
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S235809-1
of the Oregon Trappers
Association.
The agency would
need to spend substan-
tially more money just to
perform the same amount
of work, but it’s unclear
where the additional fund-
ing would come from,
Soares said.
“This is going to be
devastating for the live-
stock industry,” he said.
Environmental advo-
cates, on the other hand,
cheered the revised trap
check
requirements
because shorter intervals
will decrease the amount
of time that animals
suffer.
More frequent checks
will also help prevent
the unintended deaths
of non-target threatened
and endangered spe-
cies caught in restrain-
ing traps, according to
the Center for Biological
Diversity nonprofit.
The regulatory deci-
sion is a “step in the right
direction” and better rep-
resents “Oregon’s val-
ues,” but it still falls short
of the 24-hour trap check
intervals recommended
by wildlife experts, the
group said. “This change
makes trapping less inhu-
mane, but Oregon still has
a long way to go.”