Appeal 32378

OSSC 903.2.8.1

An automatic sprinkler system installed in accordance with Section 903.3.1.3 shall be permitted in Group R-3 occupancies.
Automatic sprinkler systems installed in one- and two-family dwellings; Group R-3; Group R-4, Condition 1; and townhouses shall be permitted to be installed throughout in accordance with NFPA 13D.

a) The property is a single-family residential structure in the CE zone. Per PZC 33.207.030, the property owner has elected to use the property as an accessory short-term rental regulated as a Retail Sales and Service use, which is an allowed use in the CE zone.
b) Matt Rozzell email 4/8/24: "The City of Portland views the non-owner occupied short-term rentals zoned as retail sales and service as a commercial structure regulated under the OSSC." There is no legal support for this statement.
c) Existing occupancy class is R-3 and occupancy class is not changing
i) OSSC 310.4: R-3 occupancies include buildings that do not contain more than two dwelling units
ii) Definition of dwelling unit: A single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation.
(1) Note also definition of dwelling: Any building that contains one or two dwelling units used, intended, or designed to be built, used, rented, leased, let or hired out to be occupied, or that are occupied for living purposes
(2) Permanent or transitory occupancy is irrelevant to the definition of a dwelling or a dwelling unit; to the contrary a dwelling expressly includes dwelling units "leased, let or hired out"
d) Property owner has not proposed to "construct, enlarge, alter, repair, move, or change the occupancy of" the building or structure, so no building permit is required. OSSC 105.1
i) This conclusion is supported by 10/12/21 email from Chris Reeves at the ICC

ii) In addition, ICC proposed a clarification that R-1 occupancies require more than two dwelling units; that clarification was rejected for being too restrictive. Therefore, a dwelling with a single dwelling unit is clearly R-3

e) ORSC also applies under ORSC R101.2.1 – detached one- and two-family dwellings and townhouses classified as Group R-3

i) Since no building permit is required, there is no jurisdiction and attempt to regulate a short-term rental via the building code violates ORSC R101.2.3.1

R101.2.3.1 Matters outside the statutory authority of this code. The following matters are outside the statutory authority of this code. Local municipalities may not regulate these matters under the authority of this code. A municipality may have additional authority outside of this code to regulate these matters locally, where not preempted:

1. Post-occupancy lease or rental arrangements, short term rentals, vacation rentals and similar uses.

ii) Requiring upgrades to meet code without any permit trigger also violates ORS 455.040(1) and ORSC R102.7

N/A

Existing R-3 occupancies may not be regulated under the building code without the existence of a trigger under OSSC 105.1. The fact that the property is in the CE zone and that the property owner has chosen to use the property as an accessory short-term rental regulated as a Retail Sales and Service use is irrelevant. Therefore, the property owner cannot be obligated to upgrade the property to comply with OSSC 903.2.8.1