Should citizens, members of the public, have the legal right to challenge government decisions or seek enforcement when a government agency chooses not to comply with the law!

Not according to a recent Circuit Court ruling which not only challenges that public right, but has also brought legal action against a person who has worked for years to assure that development and expansion at the Aurora Airport is legal.

Specifically, because of this recent Circuit Court ruling, the major developer at the Aurora Airport and his sewer association are demanding that Joseph Schaefer pay them $357,000 in legal fees incurred in fighting his enforcement of the Land Use Board of Appeals (LUBA) ruling against them.  The Circuit court dismissed Schaefer’s enforcement case because he is not a party to TLM’s permits – yet no project opponent is ever a party to an unlawful permit.  Thus no project opponent can enforce a LUBA decision in their favor in the Circuit Court.

There’s a private sewer on state lands? How did that happen?

Sewer association? Yes, it turns out that there is a sewer association for private companies, and the septicdrain fields for that sewer association are located on state land. Hard to believe, but true. HDSE Sewer Association was granted a lease by the Dept. of Aviation (ODAV) and an permit by the Dept. of Environmental Quality to place their drain fields at the south end of the state airport near the end of the runway, without any land use approval (a Goal 11 excpetion) that mentions that the drainfiled will be on the ODAV property.Apart from crony capitalism, how does this get explained?

Another example of crony capitalism was the granting of a Thru-The-Fence (TTF) agreement by ODAV to TLM Holdings, owner of the church camp property on the east side of the airport. TTF agreements allow private property that is not part of the airport to have unfettered and direct access to the airport as if they were part of the airport and inside the property line fence. Among other things, what this does is inflate the value of that property. In the case of the church camp property, it is ag land zoned EFU. Despite LUBA’s reversal of TLM’s application, ODAV refuses to terminate the TTF agreement because it has nothing to do with land use – the opposite of what the Court of appeals ruled.

Why should anyone care? Because the proposed commercial development of the church camp property brought all this to light. TLM Holdings proposed to pipe sewage from its commercial development across the airport to the drain fields on the state airport. Marion County granted a zone change on the church camp property, and based on that ODAV granted the TTF agreement.

Shouldn’t someone challenge these questionable agreements?

Seeing the linked problems, Joseph Schaefer filed a LUBA (Land Use Board of Appeals) appeal of the Marion County zone change on which these agreements were based. On March 14, 2023 LUBA issued a ruling that Reversed the Marion County zone change because the proposed use is prohibited by law. That meant the TTF agreement was invalid because it can’t be issued without a prior land use approval. It also was now apparent that Marion County and DEQ should never have issued drain field permits on state airport property. Specifically, the complaint stated:

This case challenges Defendants’ actions to develop the TLM Holdings, LLC property and the Oregon Department of Aviation property because the Marion County Land Use Approval for that development was rejected twice by the Court of Appeals and then reversed in the Land Use Board of Appeals’ third Final Opinion and Order (“LUBA’s Final Order”). Defendants contend the actions taken after, and based on, the Marion County Land Use Approval remain valid notwithstanding the Court of Appeals and LUBA reversals. Plaintiff contends the reversals conclusively demonstrate 2 those actions are prohibited by law and therefore invalid.

LUBA reversed. Then what happened?

TLM Continued construction by importing 1200 dump truck loads of fill, and no enforcement of the LUBA ruling occurred.

LUBA has no enforcement mechanism, so what happens when people or parties choose not to comply? The land use statutes allow successful LUBA opponents and members of the public to go to circuit court, and Joseph Schaefer did just that, filing suit in Marion County Circuit Court to force these agencies to comply with the LUBA reversal. To its credit, DEQ terminated its construction permit and was dismissed from the suit.

But instead of requiring ODAV and Marion County to follow DEQ’s lawful example and terminate their permits and the TTF agreement, on March 29, 2024, the Marion County Circuit Court ruled that because Schaefer is not a party to those permits he cannot sue to enforce LUBA’s order.   Specifically, the Circuit Court opinion stated:

The defendant is not party to any of the contracts, permits, or approvals he seeks to have undone and therefore lacks standing for the relief he is requesting in regard to voiding other agreements.

Doesn’t the Circuit Court ruling turn the LUBA reversal on its head?

One has to ask how the Circuit Court could rule this way? If a citizen lacks standing to enforce a LUBA ruling in the citizen’s favor, then doesn’t that mean the public has no standing? If the public lacks standing, then does that mean compliance with a LUBA ruling is optional and no one can enforce it? The Marion County circuit Court thinks so.

Over the last decade we’ve seen bits and pieces of the land use system dismantled or eroded, and now we’re looking at a court decision that removes accountability. Now not only is Joseph Schaefer forced to appeal to the Court of Appeals (for the fifth time is as many years) to have that court fix the problem, but in the face of the Circuit Court ruling, TLM Holdings and HDSE Sewer Association demand $357,000 in legal expenses. FOFP is launching a Go Fund Me campaign to raise funds for Joseph Schaefer’s legal defense.

Won’t you contribute? This is a serious situation. Not only an exposed flaw in our land use system that needs to be corrected, but two well-funded business entities trying to shut down a successful challenger through a huge legal countersuit.