Schaefer v. Or. Aviation Bd.

312 Or.App. 316

495 P.3d 1267

Joseph SCHAEFER, City of Aurora, City of Wilsonville, 1000 Friends of Oregon, and Friends of French Prairie, Petitioners,andClackamas County, Intervenor-Petitioner below,

v.OREGON AVIATION BOARD; Oregon Department of Aviation; Aurora Airport Improvement Association; Bruce Bennett; Wilson Construction Company, Inc.; Ted Millar; TLM Holdings, LLC; Anthony Alan Helbling; and Wilsonville Chamber of Commerce, Respondents.

A175219

Court of Appeals of Oregon.

Submitted March 19, 2021.

June 16, 2021

Joseph Schaefer filed the brief pro se.

Sara Kendrick filed the brief for petitioner City of Aurora.

Barbara A. Jacobson and J. Ryan Adams filed the brief for petitioner City of Wilsonville.

Andrew Mulkey filed the brief for petitioners 1000 Friends of Oregon and Friends of French Prairie.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondents Oregon Aviation Board and Oregon Department of Aviation.

Eric S. Postma and Bittner & Hahs, PC; Wendie L. Kellington and Kellington Law Group, PC, filed the brief for respondents Aurora Airport Improvement Association, Bruce Bennett, Wilsonville Construction Company, Inc., Ted Millar, TLM Holdings, LLC, Anthony Alan Helbling, and Wilsonville Chamber of Commerce.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

ARMSTRONG, P. J.

In 2011, the Oregon Aviation Board (board) adopted a Master Plan for the Aurora State Airport. In 2019, the board belatedly adopted findings of land use compatibility to bring its adoption of the Master Plan into compliance with ORS 197.180 and an implementing rule, OAR 738-130-0055(6).¹ The board determined that the Master Plan complied with the Marion County Comprehensive Plan and that, because of that compliance, there was no need to consider whether it complied with any statewide planning goals. Alternatively, the board determined that the Master Plan complied with the goals.

Petitioners appealed to the Land Use Board of Appeals (LUBA), contending that the Master Plan that the board actually adopted in 2011 was not in the record and, in any case, that the 2012 Master Plan, which was in the record, was compatible with neither the Marion County Comprehensive Plan nor the statewide planning goals. Petitioners asserted, among other things, that the Airport Layout Plan contained in the 2012 Master Plan showed the airport development extending onto nearby land that is zoned for Exclusive Farm Use (EFU). LUBA rejected all of petitioners’ challenges, concluded that the 2012 Master Plan complied with the Marion County Comprehensive Plan and that the goals did not apply, and dismissed the appeal.

LUBA concluded that the decision was not a land use decision because, after deciding—correctly, in LUBA's view—that the Master Plan complied with the Marion County Comprehensive Plan (MCCP), the board did not need to directly apply the goals.² ORS 197.015(10)(a)(B) ("Land use decision" includes "A final decision or determination of a state agency other than the commission with respect to which the agency is required to apply the goals."). Our disposition in this case makes it unnecessary for us to consider whether LUBA's construction of ORS 197.180(1) and ORS 197.015(10)(a)(B) is correct.

Petitioners seek judicial review, contending that, for a variety of reasons, LUBA's decision was unlawful in substance and procedure.³ As we will explain, we agree with petitioners City of Aurora and City of Wilsonville that LUBA committed procedural error by denying petitioners’ objection that the Master Plan approved in 2011 needed to be in the record. We also address various petitioners’ contentions that LUBA's order is unlawful in substance because (1) it holds, contrary to the Master Plan document, that the Master Plan does not include airport-related development on EFU land; (2) LUBA incorrectly construed ORS 836.642 and, based on that construction, concluded that the airport expansion complies with various provisions of the MCCP and Goal 14 because any land use at the Aurora State Airport is a rural use as a matter of law; and (3) LUBA incorrectly construed OAR 660-012-0065(3)(n) when it held that the changes proposed in the Master Plan were not changes that would "permit service to a larger class of airplane" and, consequently, that the Master Plan complied with Goals 3, 11, and 14 as a matter of law. As explained below, we agree with petitioners on all of those points. We reject without discussion petitioner City of Wilsonville's fourth and fifth assignments of error, and our disposition makes it unnecessary for us to address private respondents’ cross-assignment of error.⁴ We reverse and remand LUBA's order.

I. BACKGROUND

We begin with a brief procedural background and provide additional facts below as we address each of petitioners’ arguments. In late 2009, the board began a public process to update the master plan for the Aurora State Airport. At a meeting on October 27, 2011, the board had before it a document entitled Aurora State Airport Master Plan, which we refer to as the 2011 Master Plan. The board adopted a Master Plan at the October 27, 2011, meeting.⁵

After the Federal Aviation Administration (FAA) rejected the preferred development alternative identified in the 2011 Master Plan, the Master Plan was modified in 2012. Throughout this opinion, we refer to the modified master plan document as the 2012 Master Plan or simply the Master Plan. The FAA eventually approved the preferred alternative identified in the 2012 Master Plan, and the director of the Oregon Aviation Department signed the plan. However, the board never formally approved or adopted the 2012 Master Plan after October 27, 2011.

In 2019, the board adopted findings of land use compatibility for the 2012 Master Plan. The board explained that it had "adopted the Master Plan at its October 27, 2011, meeting."

Petitioners challenged the land-use compatibility findings before LUBA. LUBA rejected all of petitioners’ assignments of error to the procedure and substance of the board's findings, and petitioners seek judicial review.

II. STANDARD OF REVIEW

At the outset, we consider our standard of review of LUBA's decision in a case, like this one, where LUBA considered whether "[t]he state agency made a decision that violated the goals." ORS 197.835(9)(b). As always, our task on review is to discern whether LUBA's order is "unlawful in substance or procedure," ORS 197.850(9)(a), and we "may not substitute [our] judgment for that of [LUBA] as to any issue of fact," ORS 197.850(8). Our understanding of how to implement that standard of review turns on LUBA's scope of review.

ORS 197.835 sets out LUBA's scope of review. For our purposes, the relevant subsection of the statute is subsection (9), which provides as follows:

"In addition to the review under subsections (1) to (8) of this section, [LUBA] shall reverse or remand the land use decision under review if the board finds:

"(a) The local government or special district:

"(A) Exceeded its jurisdiction;

"(B) Failed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner;

"(C) Made a decision not supported by substantial evidence in the whole record;

"(D) Improperly construed the applicable law; or

"(E) Made an unconstitutional decision; or

"(b) The state agency made a decision that violated the goals. "

(Emphasis added.); see also ORS 197.835(8) (LUBA "shall reverse or remand a decision involving the application of a plan or land use regulation provision if the decision is not in compliance with applicable provisions of the comprehensive plan or land use regulations").

Abundant case law applies our standard of review of LUBA orders applying subsection (9)(a), that is, LUBA orders deciding whether a local government or special district committed reversible error in one of the five specified ways. Under that case law, our review of LUBA's determination of whether a local government made a decision not supported by substantial evidence in the whole record, ORS 197.835(9)(a)(C), is very limited:

"[W]here LUBA has properly understood and applied the ‘substantial evidence’ test of ORS 197.835 ([9])(a)(C), a reviewing court should affirm its order, notwithstanding the reviewing court's disagreement with LUBA as to whether the evidence is ‘substantial.’ This does not mean, of course, that a reviewing court must blindly accept LUBA's evaluation of substantiality. The evidence in a particular case might be so at odds with LUBA's evaluation that a reviewing court could infer that LUBA had misunderstood or misapplied its scope of review, and reversal or remand might be proper."

Younger v. City of Portland , 305 Or. 346, 358-59, 752 P.2d 262 (1988) (citation omitted). In other words, "where LUBA has review of a local government's findings of fact, we review to determine whether LUBA ‘misunderstood or misapplied’ the substantial evidence standard of review." Rogue Advocates v. Jackson County , 282 Or. App. 381, 388 n. 4, 385 P.3d 1262 (2016) (quoting Younger , 305 Or. at 359, 752 P.2d 262 ).

In contrast with the specificity of LUBA's scope of review established in ORS 197.835(9)(a)(A) through (E), paragraph (9)(b) of ORS 197.835 states only that LUBA shall reverse and remand "if the board finds * * * [t]he state agency made a decision that violated the goals." We have never addressed what our standard of review requires when LUBA has reviewed a state agency decision for compliance with the goals.

Under ORS 197.835(9)(a), LUBA uses an appellate lens to review the local government or special district's decision: LUBA makes determinations about the jurisdiction and procedural adequacy of the previous decisionmaker, ORS 197.835(9)(a)(A), (B) ; the sufficiency of the evidence before the previous decisionmaker, ORS 197.835(9)(a)(C) ; or the legal correctness of the previous...