Appeal 33433

Section R101.2.3.1

Under Section R101.2.3.1, titled "Matters outside the statutory authority of this code," it is stated that local municipalities do not have the authority under this code to regulate certain matters. These matters include post-occupancy lease or rental arrangements, short-term rentals, vacation rentals, and similar uses. While a municipality may possess additional authority outside of this code to locally regulate these matters, such authority should not be preemptive.”

“As a starting point, the opinion below from ICC’s Chris Reeves is accurate and in line with the position of Oregon Building Codes Division and the statewide building codes. The new 2023 ORSC language you noted was specifically added for this scenario.”

“There is no citable path in the ORSC or OSSC to require a change of occupancy permit for a dwelling constructed under the ORSC that is being used as a short-term rental.”

~ Eric McMullen, Structural Program Assistant Chief, Oregon Building Codes Division

Short-term rentals do not require a change of occupancy permit. I am requesting the board to clarify that these properties remain classified as residential structures regulated under the ORSC.

The property is a two-family residential structure in the CM1 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 CM1 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 1,728 sq. ft.
Property is two-stories
Unit 1 (main floor) max exit distance is 70’ – 11”.
Unit 2 (upper level) max exit distance is 51’ – 4”.

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 CM1 zone and the owner has chosen to use it as a 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 differentiate permit types, yet this terminology is not supported by the ORSC, the ICC, or the Oregon Building Codes Division. The OSSC 508.2 defines accessory uses as “Those occupancies that are ancillary to the main occupancy of the building or portion thereof.” This definition clearly refers to minor uses within a building that primarily serves another function, such as a small office within a warehouse. The city's argument that renting by the night constitutes a different use entirely undermines the validity of using the term "accessory" in this context. From a building code perspective, all short-term rentals should be treated uniformly. Regulation of these properties is more appropriately managed through zoning codes, as is already the case. The assertion that it is safe and acceptable to host nightly guests for up to 90 days per year without a permanent occupant, but suddenly unsafe at 91 days, lacks any logical or safety-based foundation. Is there a specific building code citation that justifies 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 all governing authorities say 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.

Despite this particular project was pro-actively sprinklered using a 13-D system and now the following additional requirements are being added:

Eaves at the west elevation are within 2’ of the FSD are required to be finished at the underside with 2 layers of 5/8” type X gypsum.
Exterior walls less than 5’ from FSD to be 1 hour rated from both sides – east wall required to have gyp installed on interior and exterior side
West wall to have 1 layer of 5/8” type X installed on the interior side.
Window openings on west façade to be protected with a dedicated sprinkler head at each opening, egress windows to have self-closing device (would have to change to casement), and other operable windows to be permanently fixed.
Openings on east side within 25% unprotected percentage.
Closing stair down to basement from window reason being the amount of beams that bring the head clearance down to 6’-0” is not acceptable.
Lower ceiling granted for garage only for direct access from garage door for bike storage

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.