The LUBA Appeal filed by FOFP against the letter from the Director of the Oregon Department of Aviation (ODA) was dismissed by LUBA on Dec. 10, 2019, because “we conclude that the challenged decision is not a land use decision as defined in ORS 197.15(10)(1)(B).” The importance of this appeal though, and the responses to the demand letters sent to the Director of ODA is that it prompted ODA to hold a hearing on compatibility in September, which then led to the Aviation Board (OAB) hearing in Sunriver.
As described previously, the purpose of the hearing was changed after being announced, and was held under the title of Adopt Findings of Compatibility and Compliance in Support of ODA’s State Agency Coordination Program for Aurora State Airport Master Plan Update. That is what the Aviation Board did, even though it was pointed out to them in oral and written testimony that they were violating the ODA master plan process by adopting findings of compatibility eight years after they say the Aurora Airport Master Plan was adopted (they should have been adopted before approval), and they were also violating Oregon’s land use system by seeking to defer to Marion County for “land use decisions” instead of addressing the land use Goals as they exist.
The result of this decision by the Aviation Board prompted a second round of LUBA Appeals filed on November 20 by Joseph Schaefer, City of Wilsonville, 1000 Friends of Oregon and FOFP, specific to the fact that: 1) the Master Plan was, in fact, not adopted by the Board at it’s October 27, 2011 meeting; 2) that adopting findings of compatibility eight years later violated ODA’s own regulations; and 3) that the decision made by the Aviation Board was in fact a land use decision (even though the Agency’s attorney argued that it was not).
Of note, while contending that a final decision was made by the Aviation Board at the Sunriver hearing, the agency has not published a decision, and when asked said they had no plans to publish a written decision! While there have been motions to intervene in favor of that airport (Aurora Airport Improvement Association, Wilsonville Chamber of Commerce and Marion County) and in favor of the Appellants (Clackamas County), the majority of the intervening time has been spent on determining what comprised the record for this appeal.
ODA has argued that the Aviation Board hearing in Sunriver on Oct. 31 was a stand-alone event, and that all documents prior to the “final” published version of the 2012 Master Plan for the Aurora Airport should not be in the record. That means they are trying to exclude the versions of the master plan as it was being developed, as well as the documents and plans prepared by ODA and its aviation consultant. On May 12, 2020 LUBA issued an Order on the Record in which they stated that they “we reject OAB’s premise that the 2011 and 2019 proceedings are not the same proceeding for purposes of determining the content of the record.” They went on to agree that other materials including “the minutes and audio files of those meetings, and public notices of Aviation Board meetings and purported decisions” should also be in the record. There is still a record matter to be settled, concerning ODA staff and consultant reports and PowerPoint slides, etc. for master plan meetings.
Once this final matter on the record is settled, the appeal should move to the filing of briefs. What is apparent, though, is that both ODA and the Aviation Board conducted a master planning process for Aurora that was characterized by lack of transparency and public process, and that behavior has continued as they have had to address the current LUBA appeal of the so-called approval of the Aurora Airport Master Plan.
A very good overview article by Bill Poehler appeared in the Statesman Journal on June 26. Download it here.