- Court: Oregon Court of Appeals
- Area(s) of Law: Land Use
- Date Filed: 12-29-2022
- Case #: A179153
- Judge(s)/Court Below: James, P.J. for the Court; Aoyagi, J.; & Joyce, J.
- Full Text Opinion
This is the second time the Court of Appeals heard issues regarding TLM Holdings, LLC and their attempt to obtain a conditional use permit, which would permit them to develop industrial and commercial property adjacent to the Aurora State Airport. The Court had previously agreed with Petitioner that LUBA erred in affirming Marion County’s determination that Petitioner’s development plans constituted “expansion … of [a] public use airport[ ]” and thus was “consistent with Goals 3, 4, 11, and 14” as a matter of law. OAR 660-012- 0065(3)(n); Schaefer v. Marion County, 318 Or App 617, 620 (2022).
On appeal, Petitioner’s contended that LUBA erred in concluding the county could rely on the existing airport as a reason for the goal exceptions. Petitioner argued that OAR 660-012-0060(5) prohibits such a justification for basing the goal 3 exception. OAR 660-012-0060(5) states, “The presence of a transportation facility or improvement shall not be a basis for an exception to allow residential, commercial, institutional, or industrial development on rural lands under this division or OAR 660-004-0022 and 660-004-0028.” LUBA interpreted this administrative rule to not apply to exceptions under OAR 660-004-0022 that are based on the reasons specified in the rule. The Court found that LUBA incorrectly interpreted OAR 660-012-0060(5) and agreed with Petitioner’s interpretation of the administrative rule. Accordingly, OAR 660-012-0060(5) applies to any exception under OAR 660-004-0022 (for the specified types of development on rural lands), not just a subset of possible exceptions under OAR 660-004-0022. Reversed and Remanded.