On Thursday, December 9, Oregon’s Supreme Court delivered their ruling on the Petition for Review of the earlier Court of Appeals decision. The ruling was strikingly terse:

The court has considered the petition for review and orders that it be denied.

The central argument in the briefs filed with the Supreme Court arguing against review focused on a central proposition: that even state agencies have to comply with state law… specifically, ORS 197.180(1). And what does that statute say?

State agencies shall carry out their planning duties, powers and responsibilities and take actions that are authorized by law with respect to programs affecting land use: (a) In compliance with the goals, rules implementing the goals and rules implementing this section; and (b) In a manner compatible with acknowledged comprehensive plans and land use regulations.

It’s pretty clear that the intent is compliance with the land use system, so the Supreme Court decision to deny review, made in a far shorter time than usual and signed by the Chief Justice, strongly supports that premise.

That, in fact, was the central argument of the brief against review filed by 1000 Friends and FOFP:

The agencies’ request to overturn Schaefer v. Oregon Aviation Board is simply the latest in a long line of misguided attempts to avoid judicial review. 312 Or App 316 (2021) modified 313 Or App 725 (2021). The agencies would rather point out inconsistencies in the language of two provisions of their own regulations than engage in a good faith attempt to comply with the underlying statute. ORS 197.180(1) (requiring that agency actions comply with the statewide land use planning goals and be consistent with comprehensive plans). As a result, Petitioners’ proposed rule of law would undermine the purpose of ORS 197.180(1) and undermine the integrity of Oregon’s land use planning laws.

Respondents respectfully request that this Court decline the agencies’ latest, and hopefully last, invitation to waste the public’s time and money on this effort. The decision in Schaefer ensures that the agencies’ newly initiated proceedings to adopt a new airport master plan will result in a timely final decision and findings. The Court of Appeals’ decision will also ensure that the agency’s actions comply with ORS 197.180(1).

The Court of Appeals ruling was a Reverse and Remand of the appealed decision by the Land Use Board of Appeals concerning adoption of the 2012 Aurora Airport Master Plan. LUBA dismissed the case saying it did not have jurisdiction. The Court of Appeals made clear that it did have jurisdiction because the decision was a land use decision, and went so far as to address specific areas where land use laws were ignored or violated. That ruling, then, becomes the guiding document for remand when the case returns to LUBA.