Appeal 33440

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 as previously required. I am requesting the board to clarify that these properties remain classified as residential structures regulated under the ORSC.

1. 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.
2. 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.
3. Existing occupancy class is R-3 and occupancy class is not changing

a. OSSC 310.4: R-3 occupancies include buildings that do not contain more than two dwelling units
b. 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.
i. 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
ii. 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".

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

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.

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

1. Property had one dwelling unit built under the ORSC, and proposing a second dwelling unit to be built under the same code guide as part of the building alteration/addition.
2. Unit 1 has 1,134 sf; Unit 2 has 1,166 sf.
3. Property is single story with an existing shared basement. Basement to remain S-1 occupancy for utility and storage area.
4. Unit 1 (main floor) max exit distance is 63’ – 0”.
5. Unit 2 (main floor) max exit distance is 72’ – 5”.

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 CM2 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, this particular project was pro-actively submitted for permit using a 13-D system and now the following additional requirements are being added:

• Exterior walls less than 5’ from FSD to be 1 hour rated from both sides – north, west, and south walls required to have gyp installed on interior and exterior side. The ORSC does not require fire rated resistance for exterior walls greater than 3 feet from FSD.
• Window openings on north, west, and south elevations are over the 10% allowed unprotected openings under the OSSC, and under 25% allowed in an unprotected/sprinklered building. The ORSC allows unlimited openings in walls greater than 3 feet from FSD.
• In order to meet the parapet exception of condition 4 for 705.11 Parapets under the OSSC, the entire roof assembly will be 1 hour rated. The ORSC does not have the same requirements.

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.

Evidence

Question:

“Could the state clarify whether or not a property originally constructed under the ORSC being used as a short-term rental constitutes a change of occupancy?”

Response:

“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. As noted in R101.2.3, short term rentals, such as Airbnbs are not contemplated by the ORSC as anything other than a Group R-3 regulated by the ORSC. 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.

Nothing in the ORSC contemplates transiency, or that the occupants be permanent in nature. Historically, this has been the reasoning for such post-occupancy rental arrangements being entirely bifurcated from the code. There is no citable limit regarding length of stay, number of occupants, or similar parameters under the code.

These type of lease and rental arrangements are clearly not contemplated or addressed by the state building code and can only be adequately addressed through supplemental local regulatory tools such as licensing requirements, ordinances, etc.


Many municipalities have addressed these unique post-occupancy rental uses via local ordinances or similar local regulations. The local regulation of these uses vary, with the vast majority of municipalities requiring local business licensure for the uses detailed in their local laws. Other municipalities have also intentionally chosen not to regulate these uses in their community or communities. It is definitely a consideration for local policy makers and elected officials and one where community engagement and local public process may be of significant importance in the locally considered approach.

Finally, there have been ongoing discussions at the federal level regarding the federal ADA and these intermittent places of lodging.”

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

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“While a case could be made that such rental properties should be regulated as a Group R-1 facility in accordance with the 2021 International Building Code (IBC), these types of dwelling units, in my opinion, are still most appropriately regulated in accordance with the IRC. While the IRC does not address specific contractual land-use types of ownership arrangements, these types of dwelling units are typically individually owned.

It should be noted that the term “dwelling” in the IRC is defined as any building containing 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. New single family homes intended to be rental properties, in my opinion, need only be built in accordance with the provisions of the IRC. Most likely, the fire and life safety hazards associated with the proposed rental homes are no different than any other single family dwelling.”

ICC - Chris Reeves

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“As indicated in your correspondence, an existing non sprinklered Group R-3 occupancy is being converted to a Group R-3 rental property (Airbnb). Your question is whether sprinkler protection is required due to the change to a rental property.

While Group R-3 occupancies are limited to not more than two dwelling units in accordance with Section 310.4 of the 2018 International Building Code (IBC), Group R-3 occupancies regulated by the IBC are typically a part of a mixed occupancy building.

While a case could be made that such rental properties should be now regulated as a Group R-1 facility in accordance with the IBC as a change of occupancy, these types of duplexes, in my opinion, are still most appropriately regulated as a Group R-3 occupancy. Please note that the IBC does not address specific contractual land-use types of ownership arrangements. Most likely, the fire and life safety hazards associated with the proposed rental duplexes are no different than any other existing duplex.

With that being said, as noted in Section 1004.1 of the IEBC, buildings or portions thereof that undergo a change of occupancy within a space with a different sprinkler system threshold requirement based on Chapter 9 of the IBC would be subject to retroactive sprinkler protection. In this case, the duplex is not undergoing a change of occupancy nor is it now being regulated with a different sprinkler system threshold with respect to Chapter 9 of the IBC. Therefore, the provisions of IEBC Section 1011.1.1 for compliance with Chapter 9 of the IBC would, in my opinion, not be applicable; thus not warranting retroactive sprinkler protection.”

ICC - Chris Reeves
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“As stated previously, the code offers no cite-it path related to lease/rent restrictions, timelines of occupancy, post-occupancy rental arrangements, “short-term” rentals, etc. The ability to enforce post-occupancy arrangements, rental terms, tenant vacancy/turnover, and related peripheral concerns locally are subject to local municipality discretion.”

OSSC - Tony Rocco

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2024 IEBC - Chapter 10 - Change of Occupancy

In a recent project, we encountered conflicting interpretations among city employees regarding the application of residential SDC Fees, despite our adherence to transient-use requirements. David Wood, Plan Review Supervisor, described the situation as “a pretty cut & dry interpretation,” referencing the 2024 code R101.2.3.1. However, follow-up attempts via email were unsuccessful, and it was only after a phone call that Mr. Wood apologized and indicated he had been overruled. Additionally, in a follow-up call, Building Official Matt Rozzell stated that “there are some people willing to die on their swords for this issue.”

This situation underscores the need for a consistent and clear application of the code, free from personal biases or strong opinions. The interpretation and enforcement of life safety codes should be straightforward and based strictly on the code itself to ensure fairness and compliance.

703.2

Fire-resistance ratings. The fire-resistance rating of building elements components or assemblies shall be determined in accordance with the test procedures set forth in ASTM E 119 or UL 263 or in accordance with Section 703.3.

We are proposing to keep the existing 2x8 floor joist framing.

We are proposing to keep the existing 2x8 floor joists in lieu of using 2x10s to meet the fire rating requirements of GA File No. FC 5120, as well as the STC rating. An additional layer of 5/8” type ‘X’ gypsum wall board will be applied to the underside of the rated assembly for a total of (2) layers 5/8” type ‘X’ gypsum board that will provide a total 80 minute rating per ORSC 2022 Table 722.2.1.4(2) exceeding the 1-hr rated floor/ceiling assembly of GA File No. FC 5120. The assembly occurs at the main level floor located within the existing building footprint that is defined by the basement perimeter walls.

The building was built per residential code with 2x8 joists at 16” O.C. and will continue to operate nearly identical to its original use. The building is to remain as R-3 congregate living for short term rental with 10 or fewer occupants per unit. It would cause an undue burden to change the floor framing to 2x10 in order to achieve a 1-hr rated assembly that would decrease the head height in the shared basement space.