On June 16, 2021 the Oregon Court of Appeals reversed and remanded the prior Land Use Board of Appeals (LUBA) ruling concerning the Aurora Airport and the airport master plan. Rather than just ruling on procedural matters like the process of the State Aviation Board adopting the master plan in 2011, they also ruled on the substantive legal matters (assignments of error) that were alleged by the petitioners (Joseph Schaefer, City of Aurora, City of Wilsonville, 1000 Friends of Oregon and Friends of French Prairie).
In 2020 LUBA dismissed the appeal by petitioners, saying it did not have jurisdiction because the adoption of ‘findings of compatibility’ and the approval of the 2012 Master Plan were not land use decisions. The legal arguments in the appeal, which were ignored by LUBA were summarized by the Court of Appeals as
… 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.
In the first significant statement in their decision, the Court of Appeals said that the Aviation Board “never formally approved or adopted the 2012 Master Plan after October 27, 2011,” confirming the assertions of Friends of French Prairie’s earlier LUBA appeal that the master plan had never been properly approved or adopted. The Court of Appeals made abundantly clear that the Oregon Aviation Board could not try to evade review by trying to separate approval of the airport master plan from a decision to adopt the findings in support of the plan, which is what the agency tried to do at their infamous ‘Halloween Hearing’ in Sunriver!. The Court of Appeals states unequivocally, “the [aviation] board’s adoption of a final facility plan and its land use compatibility findings are two parts of the same proceeding.” On remand, that means the agency must produce the October 27, 2011 version of the airport master plan.
The Court of Appeals ruling on the major legal arguments states that LUBA’s order was “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.
In summary, the Court of Appeals ruling states, “we agree with petitioners on all those points” and, finally, “We reverse and remand LUBA’s order.”
This decision is a major victory for Oregon land use, affirming that even a State agency cannot create methods to circumvent the State land use system, especially by trying to do so through simply asserting without proof compatibility with a county comprehensive plan. It specifically negates the Department of Aviation’s attempt to claim it was not expanding onto EFU land when it’s own master plan for Aurora shows it does, and further negates their attempt to argue that increasing the airport classification will not bring in larger aircraft when that, in fact, is precisely what airport classifications are designed to do.
LUBA will now have to decide the original appeal on the merits, with detailed guidance from the Court of Appeals on how to do so. The court has sent the matter back to LUBA for a decision consistent with the court’s ruling. The result should be an outcome the opposite of what LUBA previously decided.
The Aviation Board and Department of Aviation do have an appeal option to the State Supreme Court, but the decision clearly confirms what we have been saying for a decade: that the Department of Aviation, the Aviation Board, and the commercial aviation interests at Aurora have been working together to avoid public transparency and manipulating the land use system to expand the airport for the benefit of a few moneyed interests, and doing so at the expense of the surrounding communities and residents.