Schaefer v. Oregon Aviation Board

In 2012, the agency adopted an update to an airport master plan. The airport is located in Marion County on land zoned Public (P), and most of the adjacent land is zoned exclusive farm use (EFU). In 2019, the agency adopted findings in support of the 2012 update. These appeals followed.

Under OEC 202(7), LUBA may take official notice of “[a]n ordinance, comprehensive plan or enactment of any county or incorporated city in this state.” Petitioners moved for LUBA to take official notice of (1) minutes of a county board of commissioners meeting and (2) a county ordinance. Because petitioners requested that LUBA take notice of the minutes to resolve an evidentiary dispute, and because they did not state the purpose for which they requested that LUBA take notice of the ordinance, LUBA denied both motions.

Under ORS 197.825, LUBA has jurisdiction to review “land use decisions.” Under ORS 197.015(10)(a)(B), agency decisions are land use decisions if the agency is “required to apply the goals” in making its decision. The agency argued that, because it was not required to apply the goals in adopting the 2019 findings, that adoption was not a land use decision. The agency therefore moved to dismiss the appeals.

Under ORS 197.180(1), agency land use programs, such as airport master plans, must comply with the goals and be compatible with acknowledged comprehensive plans. Under OAR 660-030-0065(2), an agency may comply with the goals “by assuring that its land use program is compatible with the applicable acknowledged comprehensive plan(s).” Under OAR 660-030-0065(3)(b), an agency must apply the goals when its land use program “is not compatible with an acknowledged comprehensive plan.” The agency argued that, under OAR 660-030-0065(2), it was not required to apply the goals because the 2012 update was compatible with the Marion County Comprehensive Plan (MCCP). LUBA agreed with the agency, concluding that, just as local governments need not apply the goals to their land use decisions after their comprehensive plans have been acknowledged, neither do state agencies need to apply the goals when the applicable comprehensive plan has been acknowledged.

Petitioner argued that the 2012 update was incompatible with the agricultural lands policies of the MCCP because it depicted future airport development on EFU land, where it was not permitted. Respondents argued that, although a draft of the 2012 update identified an area suitable for airport development, the update itself contained a statement that the agency determined not to develop that area. In addition, while the 2012 update did contemplate acquisition of EFU land by the agency, that land was needed only to satisfy a Federal Aviation Administration (FAA) requirement for a runway protection zone which would remain zoned EFU. Of the development actually depicted by the 2012 update, respondents argued that, (1) because the 2012 update was not a design-level document, it did not definitively indicate that the depicted future development would be located on EFU land, (2) the depicted development was not located on EFU land, (3) the agency could choose not to proceed with some of the depicted development if it were located on EFU land, and (4) some of the development was permitted on EFU land under ORS 215.283(1)(c) as utility facilities necessary for public service. LUBA concluded that it was not clear that some of the future development depicted by the 2012 update would be located on EFU land and, because the agency could choose not to proceed with some of that development, petitioner’s argument that the 2012 update was incompatible with the MCCP agricultural policies was mere speculation.

Petitioner argued that the 2012 update was also incompatible with the urbanization policies of the MCCP. Respondents argued that, because ORS 836.642(2) designates the airport as a “rural airport” for purposes of a state economic development program, the 2012 update was compatible with the MCCP urbanization policies. Because petitioner did not develop an argument as to why that was not the case, LUBA agreed with respondents.

Under OAR 660-012-0065(3)(n), “[e]xpansions or alterations of public use airports that do not permit service to a larger class of airplanes” are consistent with Statewide Planning Goals 3 (Agricultural Lands), 4 (Forest Lands), 11 (Public Facilities and Services), and 14 (Urbanization) as a matter of law. Respondents argued that, even if demonstrating compliance with the MCCP were insufficient, the agency was not required to apply Goals 3, 4, 11, and 14 because the development depicted by the 2012 update would not permit service to a larger class of airplanes. Petitioner argued that, because the development depicted by the 2012 update would change the airport’s Airport Reference Code (ARC) from B-II to C-II, it would permit service to a larger class of airplanes. ARCs consist of a letter followed by a Roman numeral. The letter refers to approach speed, while the Roman numeral refers to wingspan or tail height. Respondents first argued that the airport had already changed from ARC B-II to C-II without the development depicted by the 2012 update. However, respondents argued that, even if the ARC had not already changed, because the change from B-II to C-II allows greater approach speeds, but not greater wingspan or tail height, the development would not permit service to a larger class of airplanes. LUBA agreed with respondents that OAR 660-012-0065(3)(n) applied and that, as a result, the agency was not required to apply Goals 3, 4, 11, and 14.

Under OAR 738-130-0055(6), the agency was required to adopt findings of compatibility with the acknowledged comprehensive plans of “affected cities and counties.” Under OAR 738-130-0005(15) and OAR 731-015-0005(2), “affected city or county” means a city or county with “comprehensive planning authority over a site or area which is directly impacted” by the agency’s actions. Petitioner argued that the agency was required but failed to demonstrate that the 2012 update was compatible with a nearby city’s comprehensive plan. Although a county Airport Overlay (AO) zone extended into the city’s jurisdiction, LUBA agreed with respondents that that did not give the city planning authority over the airport. For that reason, and because petitioner did not argue that the 2012 update was actually inconsistent with any provision of the city’s comprehensive plan, LUBA rejected petitioner’s argument.

Petitioner argued that, even if the 2019 findings were not a statutory “land use decision” under ORS 197.015(10), they were a “significant impacts” land use decision under Peterson v. City of Klamath Falls. In order to be a significant impacts land use decision, a decision must have a significant impact on present or future land uses and it must not be governed by a goal, comprehensive plan provision, or land use regulation. Petitioner argued that the non-land use standards that applied to the decision were the FAA standards requiring and governing runway protection zones. Because those standards were implemented by the AO zone, which was a land use regulation, and because the 2012 update did nothing to change present or future land uses, LUBA concluded that the 2019 findings were not a significant impacts land use decision. Although certain administrative rules adopted by the agency define certain “activities that significantly affect land use” for purposes of coordinating with affected local governments, LUBA concluded that those rules were irrelevant to determining whether a specific decision qualifies as a significant impacts land use decision, thereby conferring jurisdiction on LUBA.

Because petitioner did not demonstrate that the 2012 update was incompatible with the acknowledged MCCP; because, even if the agency was otherwise required to apply the goals, the development depicted by the 2012 update complied with the relevant goals as a matter of law; and because the 2019 findings were not a significant impacts land use decision, LUBA concluded that it lacked jurisdiction. The appeals were therefore DISMISSED.