Schaefer v. Marion Cnty., A177262

• Court: Court of Appeals of Oregon
• Writing for the Court: KAMINS, J.
• Citation: 318 Or.App. 617,509 P.3d 718
• Parties: Joseph SCHAEFER, Petitioner, v. MARION COUNTY and TLM Holdings, LLC, Respondents.
• Docket Number: A177262
• Decision Date: 30 March 2022

318 Or.App. 617
509 P.3d 718

Joseph SCHAEFER, Petitioner,
v.
MARION COUNTY and TLM Holdings, LLC, Respondents.

A177262

Court of Appeals of Oregon.

Submitted January 7, 2022.
March 30, 2022

Joseph Schaefer filed the briefs pro se.

Scott A. Norris filed the brief for respondent Marion County.

Alan M. Sorem and Saalfeld Griggs PC filed the brief for respondent TLM Holdings, LLC.

Andrew Mulkey filed the brief amicus curiae for 1000 Friends of Oregon.

Emily Gilchrist filed the brief amicus curiae for City of Aurora.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

KAMINS, J.

318 Or.App. 619

This case presents a dispute about compliance with statewide land use planning goals on land near the Aurora State Airport. Petitioner Schaefer seeks review of an order of the Land Use Board of Appeals (LUBA) affirming Marion County's approval of TLM Holdings, LLC's (TLM's) application for a comprehensive plan map amendment, a zoning map amendment, exceptions to statewide land use planning goals 3 and 14, and a

509 P.3d 720

conditional use permit for a variety of uses on a 16.54-acre parcel adjacent to the airport. LUBA concluded that, pursuant to OAR 660-012-0065(3)(n), the development that TLM proposes for the parcel is "consistent with Goals 3, 4, 11, and 14 without a goal exception," OAR 660-012-0065(1).

OAR 660-012-0065(3)(n) provides that "[e]xpansions or alterations of public use airports that do not permit service to a larger class of airplanes" are consistent with Goals 3, 4, 11, and 14.¹ In Schaefer v. Oregon Aviation Board , 312 Or. App. 316, 345, 495 P.3d 1267, adh'd to as modified on recons. , 313 Or. App. 725, 492 P.3d 782, rev. den. , 369 Or. 69, 499 P.3d 1280 (2021), we interpreted the phrase "permit service to a larger class of airplanes" in that rule provision. Here, we interpret the phrase "[e]xpansions * * * of public use airports."² OAR 660-012-0065(3)(n). As explained below, we conclude that an expansion of a public use airport occurs when, pursuant to OAR chapter 660, division 13, a local government adopts

318 Or.App. 620

a map showing an airport boundary that includes a larger area than the boundary shown on the previously adopted map of the airport. Requests for comprehensive plan amendments and zone changes, like the ones at issue here, sought by private parties without corresponding expansion of the airport boundary through the airport planning process are not expansions of public use airports within the meaning of OAR 660-012-0065(3)(n).

Accordingly, LUBA erred in affirming the county's determination that TLM's proposal to develop its parcel adjacent to the airport qualifies as an expansion of a public use airport under OAR 660-012-0065(3)(n) and, consequently, is "consistent with Goals 3, 4, 11, and 14 without a goal exception," OAR 660-012-0065(1). Thus, we reverse and remand.

"[O]ur task on review is to discern whether LUBA's order is ‘unlawful in substance or procedure,’ ORS 197.850(9)(a), and we ‘may not substitute [our] judgment for that of [LUBA] as to any issue of fact,’ ORS 197.850(8)." Schaefer , 312 Or. App. at 321, 495 P.3d 1267 (brackets in original). Here, the question is whether LUBA's order was "unlawful in substance," that is, whether "it represented a mistaken interpretation of the applicable law." Mountain West Investment Corp. v. City of Silverton , 175 Or. App. 556, 559, 30 P.3d 420 (2001).

I. FACTS

The relevant facts are undisputed. The Aurora State Airport is located in Marion County and operated by the Oregon Department of Aviation. All of the land that is currently developed for airport-related uses is zoned Public (P). Some of that land is owned by the state and some of it is privately owned.

The 1976 Aurora State Airport Master Plan, including its airport layout plan, which is a map of the airport, is part of the Marion County Comprehensive Plan. The 1976 airport layout plan shows the subject property outside what it refers to as the "ultimate airport property"—that is, the boundary of the property proposed, in the 1976 Master Plan, to be used as an airport. The "ultimate airport property" on that plan includes the state-owned airport property and, in

318 Or.App. 621

addition, some privately owned property. The plan includes the following note on the subject property:

509 P.3d 721

"THIS AREA ACCEPTABLE FOR AIRPORT RELATED DEVELOPMENT UNDER PRIVATE OWNERSHIP"

The privately owned land that is part of the "ultimate airport property" on the 1976 airport layout plan is zoned P and is developed for airport-related uses. The subject parcel is adjacent to some of that property; however it is in a Primary Agriculture (PA) comprehensive plan designation and is zoned for Exclusive Farm Use (EFU). The subject parcel is benefited by an easement that allows its owners use of a paved taxi lane on adjoining property, which provides access to the airport runway.

TLM applied to Marion County for a comprehensive plan map amendment to change the comprehensive plan designation from PA to public and semi-public; a zoning map amendment to change the zoning from EFU to P with a limited use overlay; exceptions to Goals 3 and 14; and a conditional use permit "to authorize the future development of ten categories of airport-related uses" on the subject parcel. Although the application included a site plan and a description of development, it noted that the site plan and descriptions were "conceptual only."

The county approved the application with conditions, reasoning that (1) under OAR 660-012-0065(3)(n), the comprehensive plan and zoning changes did not require goal exceptions because the application was for an "[e]xpansion[ ] *** of [a] public use airport[ ] that does not permit service to a larger class of airplanes," and (2) in the alternative, goal exceptions were justified. Petitioner appealed to LUBA, and LUBA agreed with the county's first conclusion and, consequently, declined to address petitioner's assignments of error directed at the county's second line of reasoning.³

318 Or.App. 622

On judicial review, petitioner, joined by amici 1000 Friends of Oregon and the City of Aurora, contends that LUBA erred in a variety of ways. In his first assignment of error, he argues that TLM's application was not for an expansion of a public use airport within the meaning of OAR 660-012-0065(3)(n), and that LUBA erred in concluding that the rule applies to situations like this one. TLM and Marion County respond that LUBA correctly interpreted the rule.

" ‘When interpreting an administrative rule, we seek to divine the intent of the rule's drafters, employing essentially the same framework that we employ when interpreting a statute. Under that analytical framework, we consider the text of the rule in its regulatory and statutory context.’ " Schaefer , 312 Or. App. at 336-37, 495 P.3d 1267 (quoting Noble v. Dept. of Fish and Wildlife , 355 Or. 435, 448, 326 P.3d 589 (2014) (internal citation omitted)). " ‘In construing statutes and administrative rules, we are obliged to determine the correct interpretation, regardless of the nature of the parties’ arguments or the quality of the information that they supply to the court.’ " Id. at 337, 495 P.3d 1267 (quoting Gunderson, LLC v. City of Portland , 352 Or. 648, 662, 290 P.3d 803 (2012) (citing Dept. of Human Services v. J. R. F. , 351 Or. 570, 579, 273 P.3d 87 (2012), and Stull v. Hoke , 326 Or. 72, 77, 948 P.2d 722 (1997) ).

Here, as explained above, we must determine the meaning of "[e]xpansions * * * of public use airports" in OAR 660-012-0065(3)(n). As LUBA observed, the Land Conservation and Development Commission (LCDC) originally adopted a rule using that phrase in 1991, OAR 660-012-0065(4)(o) (May 8, 1991), and adopted OAR 660-012-0065(3)(n) in its current form in 1995. LUBA held that LCDC intended " ‘public use airports’ to mean airports that are ‘[o]pen to the flying public considering performance and weight of the aircraft being used. May or may not be attended or have services available.’ " (Quoting OAR 738-020-0015(2)(b) (Sept. 20, 1989).). LUBA rejected petitioner's argument that the proposed development was not an expansion of a public use airport, explaining that " OAR 660-012-0065(3)(n) applies to the proposed comprehensive plan map and

318 Or.App. 623

zoning

509 P.3d 722

map amendments to expand the Airport because the Airport is a ‘public use airport.’ "

We agree with LUBA that the Aurora State Airport is a public use airport as contemplated by the rule. Indeed, petitioner has never disputed that point. Rather, the argument that petitioner raised before the county, reiterated before LUBA, and renews on judicial review is that the requested land use actions and proposed development do not constitute an expansion of a public use airport. As explained below, we agree with petitioner.

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