On December 16, 2020, Oregon’s Land Use Board of Appeals (LUBA) delivered a non-decision on an appeal concerning the master plan for the Aurora State Airport. Specifically, LUBA handed down a dismissal of the appeal claiming that the Board did not have jurisdiction!
Specifically, the Cities of Aurora and Wilsonville, 1000 Friends, Friends of French Prairie and Aurora Planning Commissioner Joseph Schaefer as an individual were appealing a decision made by the Oregon Aviation Board (OAB) in October of 2019. That decision approved “Findings of Compatibility” for the Aurora State Airport Master Plan which the Aviation Board also asserted had been approved and adopted in November of 2011. The Department of Justice attorney for the Department of Aviation (ODA) told the OAB in October 2019 that the decision the board was about to make was “not a land use decision,” in spite of the fact that the master plan in question contemplated taking 55 acres of EFU land south of the Aurora State Airport for expansion. Also ignored were these subjects (assignments of error):
- The Aurora Airport Master Plan was never adopted according to minutes of the 11/2011 OAB meeting
- ODA tried to skirt Statewide planning goals by contending they did not apply because the master plan was part of the Marion County comprehensive plan
- ODA failed to coordinate with required local governments (Aurora, Wilsonville and Clackamas County)
- ODA failed to comply with its own State Agency Coordinating rules and coordinate with state agencies
- ODA ignored Goal 6 about water discharge and Goal 9 about carrying capacity of the land
- ODA ignored Goal 11 in failing to plan for necessary public services
- ODA ignored the requirement in Goal 12 by not developing an alternatives assessment
- ODA failed to make findings of compatibility before adopting the master plan, not eight years after alleged plan adoption
- ODA failed to comply with the goal exception for expansion of urban uses onto farmland and did not assess the impact on local agricultural operation
Does the LUBA decision clear the way for runway extension?
The Aurora State Airport contains both public and privately-owned assets. The state airport portion is composed of a runway, taxiway, aprons and some hangar space owned and operated by ODA. The rest of the property that comprises the “airport” and runs primarily parallel to the runway. That part is privately owned. The biggest proponents and financial supporters of expansion are those who would financially benefit from this expenditure of tax dollars. They are aviation companies, flight schools and real estate developers. They have not only paid for much of the legal work over the years, but are actively promoting LUBA’s dismissal of the appeal as a “win” for the private developers of the Aurora State Airport. They assert that it “clears the way for runway extension,” or “the end of delays in improving the airport,” and are attempting to reframe the argument as a waste of time and local taxpayer money to pursue legal remedies.
The fact of the matter is that the LUBA decision does not “clear the way” for runway extension. That is because setting aside the appeal does not fund and green-light runway extension. ODA has another problem, separate from the legal challenges, and that is the recent ruling. The Federal Aviation Administration ruled that the Aurora State Airport master plan is so old and outdated that it is not considered valid and has to either be updated or re-done. Both are multi-year efforts; without a valid master plan ODA can’t apply for FAA funding or receive permission to proceed on construction. This is evident by the fact that in December ODA announced the withdrawal of an environmental assessment for a small construction project to improve the north runup area… after being informed by the FAA that their master plan was not valid.
What about Oregon’s Land Use laws?
Completely separate from the FAA/master plan matter are the State of Oregon land use requirements—the legal requirements in the state land use system. The FAA is not responsible for land use, and directs airports and aviation departments to understand and comply with their relevant land use laws.
The LUBA appeal of the OAB decision specifically focused on important land use matters and issues of public process. It also questions the credibility of the OAD to fairly administer the airports in a way responsive to the concerns of surrounding communities. Specifically, the LUBA appeal was not about approving or renouncing the Aurora Airport Master Plan. Rather it was about the legal assertion by the OAB that the master plan which contemplates taking fifty-five acres of agriculture land ‘was not a land use decision,’ and thus the land use system requirement did not apply. These are all examples of problems pertaining to poor management, lax oversight and the deficient operational capacity of ODA. The Portland State University Oregon Solutions division called out these problems in the Aurora State Airport Assessment Report of December 2018.
This is not an arcane or theoretical matter. In the decision to dismiss, LUBA essentially said that if a state agency (here, ODA) can demonstrate that their master plan is compatible with a County Comprehensive Plan, then they are excepted from demonstrating that the comply with the State land use requirements.
Can a County Comprehensive Plan replace the State land use system?
In Marion County, where the Aurora Airport is considered to be “an engine of growth” and the largest campaign contributions for commissioner races over the past decade came from Aurora Airport interests, is it little wonder that a master plan was easily be adopted into the County Comprehensive Plan?
Except, it wasn’t!
What was adopted into the Marion County Comprehensive Plan was the 1976 Aurora Airport master plan, which was updated in 2000, and that was subsequently updated in 2012. The 2012 Aurora Airport Master Plan was not “adopted” into the comprehensive plan and no land use standards were applied to analyze and assess the changes and impacts. Instead, the Board of Commissioners adopted a resolution that “acknowledges and supports the 2012 update to the Aurora State Airport Master Plan.” A resolution of nonbinding support is not a land use decision, especially if it includes no analysis or assessment of impact.
What should be clear to anyone who looks at the history and facts is that this comprehensive plan loophole which LUBA supported is a way to skirt the State land use and public process system, and what actually happened with the dismissal decision was LUBA giving ODA a pass on having to conduct the usual and customary land use impact assessments and the corresponding need to receive exceptions to specific Goals in the land use system.
That is precisely why an appeal (Petition for Judicial Review) to the Court of Appeals is necessary and has been filed—because LUBA elected not to address the assignments of error, but rather to dismiss on the arguable basis of jurisdiction. It is our view that the Court of Appeals will prove to be a court more interested in justice and law and less concerned about protecting the questionable decisions of another state agency.
State agencies have an obligation to serve all taxpayer and citizens, not be a cheerleader for industry interests. It is time for the Governor and legislative leadership of State of Oregon to correct two decades of damaged public process, incompetent management and cronyism by the OAB and the ODA. This conflict has been caused a callous disregard for the local citizens and municipalities and now must be corrected by the appellate court.
Airport developers who are ready to cash in by buying cheap farmland to flip as an urban use may say that this is a victory, On the contrary, it was not a victory. LUBA deepened and prolonged a decades long conflict rather than resolving it. Nor is the LUBA dismissal in any way an approval of the Aurora Airport Master Plan. This self-serving interpretation ignores the recent FAA ruling that the master plan is outdated and no longer valid.
The LUBA decision ignored the substantial legal questions which demand attention by the Court of Appeals.
The fact of the matter is that any assertion that the LUBA dismissal is somehow approval of the Aurora Airport Master Plan is self-serving blindness because of the recent FAA ruling on the state of that master plan. That situation is compounded by the substantive legal questions which LUBA chose to avoid and which now move to the Court of Appeals.