ASTORIA, Ore. — The question of whether to allow vacation rentals at the historic Gilbaugh Building in downtown Astoria is back before the city.
In December 2023, a hearings officer upheld a city staff decision to let Bob and Cindy Magie use the fourplex on Exchange Street for vacation rentals. Housing advocates appealed to the Astoria City Council, which rejected the appeal in a 2-2 vote in February.
Andrew Kipp, a software engineer who advocates for workforce and affordable housing, took the issue to the Oregon Land Use Board of Appeals.
This week, the appeals board sided with Kipp and remanded the question back to the city.
“I think it kind of goes without saying that we are disappointed,” Cindy Magie, who serves on the Planning Commission, said.
Carrie Richter, a Portland attorney who represents the Magies, told KMUN they are evaluating their options.
Validation
For Kipp, the appeals board ruling is a validation. He said he believes city code is clear that long-term tenants could not be removed from a building after January 2019 in order to turn units into short-term rentals.
“So, while it’s taken a bit longer than I thought it would, I never really doubted that the facts and the law would ultimately show that the city erred when it allowed that to happen,” he wrote in an email to KMUN.
Kipp, who formed the Astoria Housing Alliance earlier this year, describes the housing shortage as the most important issue facing the community. “I am pleased with the outcome but also exasperated that the whole thing was necessary to begin with,” he said. “ … The dispute over the Gilbaugh Building put the city’s will to protect the housing supply from (short-term rentals) to the test, and frankly, they failed.”
A critical aspect of the debate rests on when the Magies looked to turn the fourplex into vacation rentals.
When the Magies bought the property in 2015 to renovate, the type of vacation rentals they wanted to operate would have been allowed. Two cottages on the property have been used as vacation rentals. But by the time they advertised the fourplex units as vacation rentals, a new city homestay lodging ordinance was in place prohibiting the conversion after January 2019. The Magies’ property is in a commercial zone. Hotels are allowed, but the ordinance prevents buildings that have been used for residential housing to be turned into vacation rentals.
Initially, city staff were not going to allow the Magies to use the fourplex for vacation rentals. Staff later reversed their decision, however, agreeing that the couple had taken steps to turn the building into vacation rentals before the homestay lodging ordinance went into effect.
The Magies argue that they always intended to develop the property as vacation rentals and invested time and money to make substantial improvements.
Kipp, in his petitions to the city and later to the state, pushed back. Daniel Kearns, a Portland attorney, represented Kipp.
In its ruling, the appeals board agreed with Kipp that hearings officer Alan Rappleyea had misconstrued aspects of the city’s code. As a result, Rappleyea adopted “inadequate findings unsupported by substantial evidence” when he concluded that the vacation rentals at the fourplex were protected as a legal nonconforming use.
The hearings officer also found that based on work and investments the Magies had made at the Gilbaugh Building, the couple had established a vested right to continue to develop the property as vacation rentals.
But the state’s ruling notes that the information the hearings officer used to reach this conclusion included a mix of actions related to the vacation rentals, with steps taken before and after the new homestay lodging ordinance went into effect.
The appeals board instructed that on remand back to the city, the hearings officer needs to determine whether the Magies had a vested right to establish vacation rentals at all of the units in the fourplex before January 2019.
City Attorney Blair Henningsgaard anticipates he will go to the City Council with information about the appeals board ruling and the next steps.
Confusion
The Land Use Board of Appeals has previously stepped in to help resolve confusion over Astoria’s code. In 2021, the state reversed a decision by the City Council to deny Hollander Hospitality’s request for a one-year extension on the controversial Fairfield Inn & Suites hotel project along the riverfront.
The appeals board said city leaders had imposed requirements that were inconsistent with or not spelled out in city code.
Now, with the Magie decision, Henningsgaard said, “My takeaway is we need some improvements to the city code to protect people who are developing their property … and fix our definitions and fix the language in our code that makes it difficult for people to understand what it really means.”