Meyer v. City of King City

"We do not find anything in this discussion that requires interpreting ‘protecting’ to the maximum extent possible to mean that the easement must be avoided at all costs, or that any impacts be de minimis.”

In 2018 the City Council announced a new plan for the Kingston Terrace Planning. The regional planning area accepted the plan with nine conditions, one of which was requiring a Transportation System Plan (TSP).  On June 14, 2023, the City Council’s decision approving the TSP became final. This appeal followed.

Third Assignment of Error

The petitioner’s third assignment of error was that the plan failed to address a road that would cut through a privately owned airstrip and whether such encroachment would be permitted under ORS 836. For the reasons described below, the court does not believe that the petitioners adequately develop this argument to be sufficient for review.

The petitioner argues that the city council failed to address statutory requirements under ORS 836.600 and ORS 836.010-.016 regarding their airstrip, specifically the compatibility of proposed encroachments with these statutes. However, the petitioner did not identify any specific requirements or regulations that the city council failed to consider. The city contends that ORS 836.608(2) mandates local governments to recognize private airports in planning documents. It points out that the Kingston Terrace Master Plan (KTMP), adopted after the TSP, includes findings addressing the airstrip. The city argues that there is no requirement for such recognition to occur specifically in the TSP rather than the KTMP.

Additionally, the petitioner claims that roads in the TSP could interfere with airstrip operations, allegedly violating ORS 836.008(3)(a). However, no such provision exists, and the city suggests the petitioner may have meant ORS 836.608(3)(a), which addresses growth and limitations at airports. The petitioner did not provide a developed argument demonstrating a violation of this statute. The subassignment of error is also denied.

The petitioner further argues that the TSP must establish an Airport Safety Overlay Zone as required by OAR 660-013-0070(1), which mandates local governments to adopt such zones to promote aviation safety. However, the respondent points out that Washington County's existing Airport Overlay zoning regulations already apply to the area, including the petitioner’s airport. The petitioner does not argue that these regulations must specifically be addressed in the TSP or identify any timing requirements for adopting airport overlay zoning. Therefore, this subassignment of error is denied.

The petitioner argues broadly that Oregon law requires cities with planning authority over areas containing airports to adopt comprehensive plans and land use regulations consistent with ORS 836.600-.630 and OAR 660-013. Additionally, they claim the Transportation Planning Rule (TPR) requires minimizing transportation conflicts and adopting regulations to protect transportation facilities. However, the petitioner does not develop arguments asserting that airport land use regulations must be adopted simultaneously with the Transportation System Plan (TSP) or before city annexation and rezoning. They also fail to argue that specific comprehensive plan provisions must be included in the TSP. The subassignment is denied.

The third assignment of error is denied.

Second Assignment of Error

The petitioner’s second assignment of error claims that the city’s decision does not comply with Statewide Planning Goal 5. The petitioner argues that a comprehensive plan amendment must comply with the statewide planning goals, particularly Goal 5, if it affects a Goal 5 resource. The petitioner claims that the TSP establishes road layouts crossing areas with regional and local Goal 5 resources, effectively allowing new uses. The city counters that current county code provisions already permit roads in these areas and the TSP does not introduce new uses.

In Terra Hydr Inc. v. City of Tualatin Or LUBA 279, 299 (2013), it was determined that a TSP does not authorize new "conflicting uses" if the city's Goal 5 program explicitly permits such uses, like trails or public ways, within protected resource areas. Similarly, the petitioner has not shown that roads are prohibited under existing zoning or identified specific Goal 5 resources impacted by the TSP. The petitioner has not demonstrated that the TSP allows "new conflicting uses" affecting specific resources on an acknowledged resource list, and thus has not established the need for further Goal 5 analysis.

The petitioner argues that Statewide Planning Goal 5 requires local governments to identify, inventory, and protect natural resources, including riparian corridors and wildlife habitats. They claim the city council's findings on Goal 5 compliance are deficient because they focus on regional resources, rely on Metro’s Title 13 model ordinance (which does not protect locally significant resources), and are premature since rules to protect Goal 5 resources were not yet adopted. The decision rejects these arguments for several reasons. First, Goal 5 compliance is required if the TSP creates or amends a resource list or is adopted to protect specific Goal 5 resources. The petitioner does not assert either condition applies to the TSP. Second, the city's findings are not limited to Metro's Title 13 ordinance but also reference an intergovernmental agreement with Clean Water Services. Third, the petitioner does not establish that the city was required to adopt a Goal 5 program before adopting the TSP.

The petitioner’s arguments are insufficiently developed to demonstrate that Goal 5 findings were required at this stage. The second assignment of error is denied.

First Assignment of Error

Petitioner’s first assignment of error is that the TSP does not comply with Metro Ordinance 18-1427’s condition of approval which states, “Columbia Land Trust holds a conservation easement over portions of the Bankston property, which King City's concept plan identifies as the intended location for a key transportation facility serving the expansion area. King City shall work with the Columbia Land Trust to protect, to the maximum extent possible, the portion of the Bankston property covered by the conservation easement."

The petitioner argues that the selected road alignment violates the Metro condition of approval by failing to protect the conservation easement area "to the maximum extent possible." The conservation easement aims to preserve forested wetlands, wildlife habitats, clean water for the Tualatin River, and scenic views, and prohibits new roads. The petitioner claims alternative road alignments that avoid the easement entirely were available and should have been pursued. They interpret "protect" as shielding the easement from more than minimal impacts.

However, the city council’s interpretation of the condition, upheld in a previous ruling, does not prohibit roads within the easement but requires minimizing impacts while working with the easement holder. The court found no requirement for complete avoidance or de minimis impacts in the condition's text. Evidence indicates the city worked with the easement holder, though disagreements over alternatives persisted. The condition does not mandate the city's agreement with the easement holder, and Metro's plan anticipated the road in the easement area. The council’s decision was upheld.

The petitioner’s second subassignment of error challenges the adequacy of the city council's findings in concluding that the conservation easement is protected "to the maximum extent possible." The petitioner argues that the easement's protection should have been the primary factor in determining road alignment and that any alignment avoiding the easement necessarily represents maximum protection.

The court rejected this argument, reaffirming its earlier interpretation from the Meyer Master Plan Appeal. It found that the condition of approval does not mandate avoiding the easement at all costs or prioritizing it over all other considerations. Instead, it requires the city to work with the easement holder to minimize impacts while achieving the urbanization and housing development goals outlined by Metro.

The court concluded that substantial evidence supports the city council's decision, which is legislative in nature and complies with the requirement for an adequate factual base under Statewide Planning Goal 2. The petitioner's argument relies on an interpretation of the condition that was rejected, and therefore the second subassignment of error was denied, and the decision was affirmed.