Appeal 32385

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.

The property is a two-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.

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.
Existing occupancy class is R-3 and occupancy class is not changing
OSSC 310.4: R-3 occupancies include buildings that do not contain more than two dwelling units

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.

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

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"

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

This conclusion is supported by 10/12/21 email from Chris Reeves at the ICC
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
ORSC also applies under ORSC R101.2.1 – detached one- and two-family dwellings and townhouses classified as Group R-3

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.

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

Property is two dwelling units
Property is 1,292 sq. ft.
Property is single-story
Property has two exits from each dwelling unit
Property has 50% frontage
Furthest exit distance in each unit is less than 20ft

Existing R-3 occupancies may not be regulated under the building code without a trigger under OSSC 105.1. The fact that the property is in the CE zone and the owner has chosen to use it 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. This interpretation has already been clarified by both governing bodies of the building code (ICC and Oregon Building Code Division). The building code is not being used to regulate short-term rentals anywhere else in Oregon, nor are we aware of it being used anywhere in the country. In fact, many municipalities allow short-term rental use in R-2 properties below a certain threshold.

The term "accessory" is being used to explain the differences in permit types, but the ORSC makes no mention of this word, nor have the ICC or Oregon Building Codes Division. There is no logical argument that it is considered safe and acceptable to have nightly guests for 90 days per year with no permanent occupant present, but as soon as you reach 91 days it becomes unsafe. Is there a specific building code citation for this interpretation?

Additionally, our team has independently researched whether properties are following this regulation. Based on our findings, over 90% of Type-B permits appear to be full-time rentals. We believe it is safe to assume Type-A permits would yield similar results. These permits can be issued for buildings in any zone and of almost all sizes and safety standards, without any mandatory inspection. According to Portland's interpretation (which does not align with the ICC, State of Oregon, our own opinion, that of our legal advisors, and numerous private architects/engineers we have consulted), it is not only acceptable to violate the building code for 90 days per year, but there is also no verification that individuals are following the rules of these permits. Enforcement of properties having permits at all has only recently begun after four years.

Even if this were considered a change of occupancy (which we believe it is not), the IEBC states that in the case of a change of occupancy, a sprinkler system shall not be required in a one- or two-family dwelling constructed in accordance with the IRC.

Given these points, we respectfully request a reevaluation of the current interpretation and its practical implications. Ensuring consistent and reasonable regulations will benefit property owners and align Portland's practices with broader standards observed nationwide.