Flight Shop, Inc. v. Leading Edge Aviation, Inc.

• Decision Date: 20 April 2016
• Docket Number: 14CV0133,A157216.
• Citation: 373 P.3d 177,277 Or.App. 638
• Parties: THE FLIGHT SHOP, INC., an Oregon corporation, dba Professional Air; and Aero Facilities, LLC, an Oregon limited liability company, Plaintiffs–Appellants, v. LEADING EDGE AVIATION, INC., an Oregon corporation, Defendant–Respondent.
• Court: Oregon Court of Appeals

277 Or.App. 638

373 P.3d 177

THE FLIGHT SHOP, INC., an Oregon corporation, dba Professional Air; and Aero Facilities, LLC, an Oregon limited liability company, Plaintiffs–Appellants

v.LEADING EDGE AVIATION, INC., an Oregon corporation, Defendant–Respondent.

14CV0133

A157216.

Court of Appeals of Oregon.

Argued and Submitted Sept. 17, 2015.

Decided April 20, 2016.

Michael H. McGean, Bend, argued the cause for appellants. With him on the briefs was Francis Hansen & Martin LLP.

Mark G. Reinecke, Bend, argued the cause for respondent. With him on the brief was Bryant, Lovlien & Jarvis, P.C.

Before DeVORE, Presiding Judge, and FLYNN, Judge, and SCHUMAN, Senior Judge.

DeVORE

, P.J.

Plaintiff appeals from a general judgment that dismissed for lack of subject matter jurisdiction its two claims against defendant.¹ Plaintiff's claims allege that defendant has violated county zoning regulations governing defendant's aircraft refueling station and a canopy over that station. The county initially granted defendant site plan approval for the refueling station, but plaintiff appealed the county's decision to the Land Use Board of Appeals (LUBA). LUBA responded that, because the county had approved the site plan without making a required finding, the matter should be remanded to the county for further proceedings. After LUBA remanded but before further proceedings were done, plaintiff initiated this enforcement action in circuit court against defendant, seeking injunctive relief and statutory fines. The court concluded that it lacked authority to consider plaintiff's claims because the land use decisional process was still ongoing and because LUBA has exclusive jurisdiction over the issues raised in plaintiff's claims. We agree with the trial court, and we affirm.

On a motion to dismiss for want of jurisdiction, we assume the truth of the facts alleged in the complaint, and we may consider additional facts established in the record. Nordbye v. BRCP/GM Ellington, 271 Or.App. 168, 174, 349 P.3d 639 (2015)

; Beck v. City of Portland, 202 Or.App. 360, 365, 122 P.3d 131 (2005). Plaintiff, The Flight Shop Inc., operates an aircraft services business at the Bend Municipal Airport. Defendant, Leading Edge Aviation Inc., also operates a business at the Bend Municipal Airport, an aircraft rental and instruction business.

The use of property at the airport is subject to the zoning regulations of Deschutes County. The county has adopted the Bend Municipal Airport Master Plan as a planning document to be used to guide future airport development. In April 2013, defendant filed a land use application with the county. The application sought review and approval of a site plan in order to build a refueling station at the airport on a property located to the north of defendant's existing business. The property is zoned as an Airfield Operations District (AOD). Defendant's plans contemplated two fuel tanks and a self-serve fueling station. Those plans did not then specify any structure to cover the fuel tanks.

The county's hearings officer approved defendant's site plan. When doing so, she did not find it necessary to consider whether defendant's site plan was consistent with the county's airport master plan. She reasoned that, under the applicable county codes, only uses that are conditionally permissible within the various airport zones must be found to be consistent with the airport master plan. She concluded that defendant's proposed refueling station was permitted outright and that the airport master plan did not need to be consulted when a use was permitted outright. See Deschutes County Code (DCC) 18.76.070 (“fuel storage and sales” is “permitted outright” on land zoned as an “Airfield Operations District”).

Plaintiff sought to challenge the approval of defendant's plan before the county's Board of Commissioners, but the local board declined review. Plaintiff appealed to LUBA and argued, among other things, that the hearings officer had erred when she decided not to consider whether defendant's application was consistent with the airport master plan.

While the LUBA appeal was pending, defendant received the necessary building permits and began to construct the refueling station. Some time later, defendant received an amended building permit for a canopy over its new fuel tanks. Defendant finished installation of the fuel tanks and pumps in November 2013. In early January 2014, defendant began to construct the canopy.

About a week later, LUBA issued its decision. LUBA ruled that the hearings officer had erred when she failed to consider the airport master plan. LUBA determined that even uses that the county code permits outright in airport zones must be found to comply with any relevant standards that appear in the airport master plan.² LUBA observed that the hearings officer had not reached the question whether the airport master plan contained any standards that were relevant to defendant's application. LUBA concluded that the county should be given that opportunity. LUBA directed that “[t]he county's decision is remanded” for further evaluation.

Three days after LUBA's decision, plaintiff sent the county a request that it take enforcement action against defendant for its continued operation of the refueling station, which plaintiff alleged was now in violation of the county's land use regulations. The county sent a letter advising defendant of plaintiff's request and asking defendant for a meeting to “discuss [plaintiff's request] and [take] corrective action.” After defendant met with county officials, the county decided not to initiate code enforcement against defendant. Instead, defendant prompted the county to resume proceedings to reconsider defendant's proposal in light of LUBA's opinion. ORS 215.435

.³ Taking the cue, the county set a public hearing and engaged the hearings officer for further consideration of the site plan.

Plaintiff filed a private enforcement action in February 2014, before the conclusion of local proceedings. Under ORS 215.185

, a private person is authorized to bring an enforcement action if that person owns an “interest in real property” that “may be affected” by a violation of a county land use regulation. Invoking that authority, plaintiff alleged that defendant was violating the county code (1) by continuing to operate its refueling station after LUBA remanded the approval of defendant's site plan and (2) by constructing a canopy without first seeking site plan approval for that structure. Plaintiff petitioned the court to grant “immediate and permanent injunctive relief” to prohibit “defendant from continuing to maintain and operate its fuel station without land use approval” and to require “defendant to remove the fuel tanks.” In addition, plaintiff urged the court to fine defendant for continuing violations and to award those fines to plaintiff, as permitted by DCC 1.16.045.

Defendant responded with a motion to dismiss as permitted by ORCP 21

A. Defendant argued, among other things, that the trial court did not have subject matter jurisdiction over either of plaintiff's claims. As to the first claim, defendant argued that the site plan approval for its refueling station was “still in the land use process” and that LUBA has exclusive jurisdiction to review challenges to that process. As to the second claim, defendant argued that the county's decision to issue it a building permit for the canopy without requiring that defendant go though the site planning process was itself a land use decision. As such, defendant argued, the jurisdiction to review that decision belonged exclusively to LUBA.

The trial court postponed its decision on defendant's motion in order to allow the parties to present evidence on plaintiff's petition for a preliminary injunction. After receiving that evidence, the trial court declared that injunctive relief was not appropriate. At a later hearing, the trial court granted defendant's Rule 21

motion and dismissed plaintiff's claims, concluding that the trial court lacked subject matter jurisdiction. Plaintiff appeals, assigning error to that ruling. We review that decision for errors of law. Campbell v. Tardio, 261 Or.App. 78, 80, 323 P.3d 317 (2014).

Necessarily, we begin with ORS 197.825

, the statute that divides jurisdiction over land use matters between LUBA and the circuit courts. That statute provides that LUBA has jurisdiction to “review any land use decision or limited land use decision of a local government, special district or a state agency.” ORS 197.825(1). The circuit courts retain jurisdiction over actions to enforce LUBA's orders and over actions for “declaratory, injunctive or mandatory relief” that have been “brought to enforce the provisions of an adopted comprehensive plan or land use regulations.” ORS 197.825(3)(a), (b). In effect, ORS 197.825 draws a “jurisdictional line” between “the land use decision and review process and the enforcement process.” Clackamas County v. Marson, 128 Or.App. 18, 22, 874 P.2d 110

, rev. den., 319 Or. 572, 879 P.2d 1286 (1994).

Under ORS 197.825

, LUBA's jurisdiction over the review of land use decisions is “exclusive” of the circuit court's jurisdiction over enforcement actions. ORS 197.825(1). There is “no overlap in the subjects over which LUBA and the circuit court have jurisdiction.” Doughton v. Douglas County, 90 Or.App. 49, 52, 750 P.2d 1174 (1988). When the matter at issue is “subject to the land use decision process or[,] susceptible to resolution though a land use decision,” jurisdiction belongs to LUBA and not the circuit courts. Marson, 128 Or.App. at 22, 874 P.2d 110.

LUBA's exclusive jurisdiction over the review of land use decisions is central to Oregon's “comprehensive system for reviewing land use decisions.” Simon v. Board of Co. Comm. of Marion Co., 91 Or.App. 487, 490, 755 P.2d 741 (1988)

. As we have explained, “[b]y creating LUBA and giving it exclusive jurisdiction, the legislature created a body with particular expertise...