Joseph SCHAEFER, City of Aurora, City of Wilsonville, 1000 Friends of Oregon, and Friends of French Prairie, Petitioners, and CLACKAMAS COUNTY, Intervenor-Petitioner below, v. OREGON AVIATION BOARD; Oregon Department of Aviation; Aurora Airport Improvement Association; Bruce Bennett; Wilson Construction Company, Inc.; Ted Millar; TLM Holdings, LLC; Anthony Alan Helbling; and Wilsonville Chamber of Commerce, Respondents.
Land Use Board of Appeals 2019123, 2019127, 2019129, 2019130; A175219
In the Court of Appeals of the State of Oregon
Submitted March 19; reversed and remanded June 16, 2021
Reconsideration allowed by opinion August 4, 2021
312 Or App 316 (2021) | 495 P3d 1267
See 313 Or App 725, 492 P3d 782 (2021)
Submitted March 19; reversed and remanded June 16; on respondents’ (Aurora Airport Improvement Association; Bruce Bennett; Wilson Construction Company, Inc.; Ted Millar; TLM Holdings, LLC; Anthony Alan Helbling; and Wilsonville Chamber of Commerce) petition for reconsideration filed June 30 and petitioners’ response to respondents’ petition for reconsideration filed July 7, reconsideration allowed by opinion August 4, 2021
See 313 Or App 725, 492 P3d 782 (2021)
In 2011, the Oregon Aviation Board (board) adopted a Master Plan for the Aurora State Airport. In 2019, the board belatedly adopted findings of land use compatibility for that decision. The board determined that the Master Plan complied with the Marion County Comprehensive Plan and that, because of that compliance, there was no need to consider whether it complied with any statewide planning goals. Alternatively, the board determined that the Master Plan complied with the goals. Petitioners appealed to the Land Use Board of Appeals (LUBA). LUBA concluded that the decision was not a land use decision because, after deciding—correctly, in LUBA‘s view—that the Master Plan complied with the Marion County Comprehensive Plan, the board did not need to directly apply the goals. Petitioners seek judicial review. Held: LUBA erred in excluding the 2011 Master Plan—the Master Plan document that was before the board on October 27, 2011—from the record; in holding that the 2012 Master Plan did not propose airport development on EFU land; in relying on
Reversed and remanded.
Joseph Schaefer filed the brief pro se.
Sara Kendrick filed the brief for petitioner City of Aurora.
Barbara A. Jacobson and J. Ryan Adams filed the brief for petitioner City of Wilsonville.
Andrew Mulkey filed the brief for petitioners 1000 Friends of Oregon and Friends of French Prairie.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondents Oregon Aviation Board and Oregon Department of Aviation.
Eric S. Postma and Bittner & Hahs, PC; Wendie L. Kellington and Kellington Law Group, PC, filed the brief for respondents Aurora Airport Improvement Association, Bruce Bennett, Wilsonville Construction Company, Inc., Ted Millar, TLM Holdings, LLC, Anthony Alan Helbling, and Wilsonville Chamber of Commerce.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
ARMSTRONG, P. J.
Reversed and remanded.
ARMSTRONG, P.
In 2011, the Oregon Aviation Board (board) adopted a Master Plan for the Aurora State Airport. In 2019, the board belatedly adopted findings of land use compatibility to bring its adoption of the Master Plan into compliance with
Petitioners appealed to the Land Use Board of Appeals (LUBA), contending that 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.
LUBA concluded that the decision was not a land use decision because, after deciding—correctly, in LUBA‘s view—that the Master Plan complied with the Marion County Comprehensive Plan (MCCP), the board did not need to directly apply the goals.2
Petitioners seek judicial review, contending that, for a variety of reasons, LUBA‘s decision was unlawful in substance and procedure.3 As we will explain, we agree with petitioners City of Aurora and City of Wilsonville that LUBA committed procedural error by denying petitioners’ objection that the Master Plan approved in 2011 needed to be in the record. We also address various petitioners’ contentions that LUBA‘s order is 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
use as a matter of law; and (3) LUBA incorrectly construed
I. BACKGROUND
We begin with a brief procedural background and provide additional facts below as we address each of petitioners’ arguments. In late 2009, the board began a public process to update the master plan for the Aurora State Airport. At a meeting on October 27, 2011, the board had before it a document entitled Aurora State Airport Master Plan, which we refer to as the 2011 Master Plan. The board adopted a Master Plan at the October 27, 2011, meeting.5
After the Federal Aviation Administration (FAA) rejected the preferred development alternative identified in the 2011 Master Plan, the Master Plan was modified in 2012. Throughout this opinion, we refer to the modified master plan document as the 2012 Master Plan or simply the Master Plan. The FAA eventually approved the preferred alternative identified in the 2012 Master Plan, and the director of the Oregon Aviation Department signed the plan. However, the board never formally approved or adopted the 2012 Master Plan after October 27, 2011.
In 2019, the board adopted findings of land use compatibility for the 2012 Master Plan. The board explained that it had “adopted the Master Plan at its October 27, 2011, meeting.”
Petitioners challenged the land use compatibility findings before LUBA. LUBA rejected all of petitioners’ assignments of error to the procedure and substance of the board‘s findings, and petitioners seek judicial review.
II. STANDARD OF REVIEW
At the outset, we consider our standard of review of LUBA‘s decision in a case, like this one, where LUBA considered whether “[t]he state agency made a decision that violated the goals.”
“In addition to the review under subsections (1) to (8) of this section, [LUBA] shall reverse or remand the land use decision under review if the board finds:
“(a) The local government or special district:
“(A) Exceeded its jurisdiction;
“(B) Failed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner;
“(C) Made a decision not supported by substantial evidence in the whole record;
“(D) Improperly construed the applicable law; or
“(E) Made an unconstitutional decision; or
“(b) The state agency made a decision that violated the goals.”
(Emphasis added.); see also
plan or land use regulation provision if the decision is not in compliance with applicable provisions of the comprehensive plan or land use regulations“).
“[W]here LUBA has properly understood and applied the ‘substantial evidence’ test of
ORS 197.835([9])(a)(C) , a reviewing court should affirm its order, notwithstanding the reviewing court‘s disagreement with LUBA as to whether the evidence is ‘substantial.’ This does not mean, of course, that a reviewing court must blindly accept LUBA‘s evaluation of substantiality. The evidence in a particular case might be so at odds with LUBA‘s evaluation that a reviewing court could infer that LUBA had misunderstood or misapplied its scope of review, and reversal or remand might be proper.”
Younger v. City of Portland, 305 Or 346, 358-59, 752 P2d 262 (1988) (citation omitted). In other words, “where LUBA has review of a local government‘s findings of fact, we review to determine whether LUBA ‘misunderstood or misapplied’ the substantial evidence standard of review.” Rogue Advocates v. Jackson County, 282 Or App 381, 388 n 4, 385 P3d 1262 (2016) (quoting Younger, 305 Or at 359).
In contrast with the specificity of LUBA‘s scope of review established in
Under
procedural adequacy of the previous decisionmaker,
This case does not require us to fully elaborate our standard of review of LUBA‘s decisions under
A. The 2011 Master Plan
We begin our analysis by considering petitioners’ City of Aurora and City of Wilsonville‘s contention that LUBA erred in denying petitioners’ requests to add to the
record the Master Plan document that the board had before it on October 27, 2011.
A document entitled Aurora State Airport Master Plan appears in the record. That document includes material created after 2011, including an Appendix to Chapter 5 that narrates events that occurred through at least November 2012.7 LUBA and the parties agree that the version of the master plan in the record is the 2012 version. That document indisputably was substantially modified after October 27, 2011, by, for example, identifying a different development option as the preferred alternative and omitting some of the discussion and documentation relating to the original preferred alternative. Although the Appendix to Chapter 5 narrates subsequent events and some of the changes that were made, the 2012 Master Plan does not include the text of the 2011 Master Plan or a complete list of changes; it is impossible to identify most of the material that was added and any that was removed after October 27, 2011.
On review, petitioners City of Aurora and City of Wilsonville assign error to that ruling, pointing out that there is no evidence that the 2012 Master Plan includes the 2011 version and that the 2012 Master Plan itself demonstrates that it does not include the 2011 version. Agency respondents defend LUBA‘s determination that the 2012
Master Plan includes the 2011 Master Plan. For their part, private respondents contend that the proceedings before the board in 2019 are the only “proceedings before the final decision maker” that are at issue here, and that the 2012 Master Plan was the only version of the master plan presented in those proceedings.
We agree with petitioners. First, no evidence supports LUBA‘s determination that the 2012 Master Plan included the version of the Master Plan approved on October 27, 2011. To the contrary, the 2012 Master Plan itself demonstrates conclusively that the later version is different from the earlier version; it narrates events and explains some of the changes to the document that occurred after 2011, which include identifying a different preferred alternative in the text and on the Airport Layout Plan (ALP). And it is impossible to tell from the 2012 Master Plan what material was added and what was removed after 2011. LUBA erred in concluding that the 2012 Master Plan includes the 2011 Master Plan.
We also reject private respondents’ contention that the events of 2019 are the only “proceedings before the final decision maker” at issue here.
The version of the master plan that the board approved on October 27, 2011, along with any other materials that the board considered at that meeting, had to be part of the record before LUBA.
B. Compliance with the MCCP and the Goals
1. Marion County‘s failure to identify conflicts with the MCCP
We turn to the parties’ central contentions about LUBA‘s determination that the 2012 Master Plan complies with the MCCP and that Goals 3, 11, and 14 do not apply. As an initial matter, we reject the agency respondents’ contention that LUBA should not have evaluated the Master Plan for compliance with the MCCP because Marion County was part of the public master planning process and did not identify any conflicts with its comprehensive plan. See
The agency respondents do not explain, and we do not perceive, how ODA‘s ability to deem the draft plan compatible with the MCCP affects the board‘s obligation to “adopt findings of compatibility with the acknowledged comprehensive plans of affected cities and counties and findings of compliance with applicable statewide planning goals when it adopts the final facility plan.”
plan, that is not what the board did in this case; rather, it adopted findings of compatibility.
2. The Master Plan proposes airport development on EFU land
We next consider whether the Master Plan proposes airport development on land zoned EFU. Before LUBA, petitioners contended that it did, and, consequently, that the Master Plan was incompatible with the Agricultural Lands policies of the MCCP. Rather than relying on the contents of the Master Plan itself to answer that question, LUBA relied substantially on information provided later, including information about changes, or potential changes, to the board‘s development plans that took place after the Master Plan was complete, to determine that the Master Plan did not propose airport development on EFU land.
We begin with factual background. The Master Plan contains seven chapters that, together, provide the facts and reasoning to support its proposed development plan, which the Master Plan identifies as the preferred alternative. The preferred alternative is described in text and also depicted in the Airport Layout Plan, or ALP, a set of drawings that makes up Chapter 6. The Master Plan explains that the ALP is “a pictorial
The state-owned property that the airport occupies is zoned Public (P) in the Marion County Code. On the south and southeast, the airport property ends at Keil Road, and the property across Keil Road from the airport to the south and east is zoned EFU. The ALP in the Master Plan depicts a runway extension of 1,000 feet to the south of the
existing runway, within the boundary of the property that the airport currently occupies. As shown in Figures 1 and 2, at the end of the runway, the ALP depicts an additional chevron-striped stopway continuing southward in line with the runway.9 The stopway extends beyond the airport property line, across Keil Road, and onto land zoned EFU. The ALP also depicts an Instrument Landing System Localizer extending further beyond the stopway to the south on EFU land.10 The ALP also depicts part of a taxiway on the east side of the runway (upwards on the ALP drawings) extending off of the airport property, across existing Keil Road (which is shown on the ALP as being rerouted) onto land zoned EFU.
Figure 1
Figure 2
LUBA rejected petitioners’ arguments that the ALP depicted, and, consequently, the Master Plan proposed, airport development on EFU land. After noting various respondents’ arguments, including their contention that the ALP “is not a design-level document or a site plan,” LUBA explained, “given respondents’ responses [to petitioners’ arguments] and the evidence in the record, it is not clear to us that the taxiway and the stopway are
proposed to be located outside the P zone.” LUBA also held that
“respondents’ explanation that ODA could choose not to construct the taxiway or install the Localizer if they had to be located on EFU land, and that the stopway will be located in the P zone, undercuts petitioners’ speculation that the improvements will be located in the EFU zone. Stated differently, petitioners’ speculation that those improvements may be located outside the P zone is, at this point, just speculation, and not enough to demonstrate that the 2012 Airport Plan is incompatible with the MCCP.”
LUBA misunderstood its task. It relied on testimony in the record about the board‘s plans for development to conclude that the board did not intend to construct airport improvements on EFU land. But the question is not what the board‘s development plans are; the question is what development the Master Plan proposes, and whether that development is consistent with the MCCP and the goals.
LUBA reasoned that, because the ALP “is not a design-level document or a site plan,” it is impossible to assess the development it depicts for compliance with the MCCP and the goals; thus, LUBA relied on other testimony
The improvements that the ALP depicts extend off the airport property and onto EFU property. Thus, the Master Plan proposes airport development on EFU land. That conclusion requires us to remand to LUBA for reconsideration of its determination that the Master Plan complies with the Agricultural Lands policies of the MCCP.12
3. ORS 836.640 does not apply
LUBA rejected petitioners’ other challenges to the Master Plan‘s compliance with the MCCP on the ground that those arguments relied on an assumption that the airport expansion was an urban use of rural land, but that
land use purposes.14 They point out that LUBA has previously held that, “in view of the area served and level of service provided,” formerly existing and proposed uses at the Aurora State Airport “are clearly urban public facility uses.” Murray v. Marion County, 23 Or LUBA 268, 283-84 (1992).
Petitioners’ argument requires us to construe
LUBA concluded that those statutory provisions establish as a matter of law that all current uses at the Aurora State Airport and the additional development proposed by the Master Plan are rural, rather than urban, uses for purposes of Goal 14 and the MCCP provisions listed above, 312 Or App at 331 n 13. See generally 1000 Friends of Oregon v. LCDC (Curry Co.), 301 Or 447, 724 P2d 268 (1986) (explaining the significance of rural and urban land uses). LUBA misconstrued the statute. As explained below, although
“The Department of Land Conservation and Development [(DLCD)], the county and a city, if any, within whose jurisdiction a pilot site is located shall coordinate with the Oregon Department of Aviation to ensure that the applicable comprehensive plans and land use regulations, including airport zoning classifications pursuant to
ORS 836.600 to836.630 , facilitate through the fence operations and support the development or expansion of the pilot site consistent with applicable statewide land use planning requirements.”
(Emphasis added.) Thus,
Nor does the legislature‘s use of “rural” to describe airports eligible for the pilot program suggest anything about how existing or new uses at airports with pilot programs should be categorized for land use purposes. As noted above, in
Because private respondents appear to argue that the provisions of
“In recognition of the importance of the network of airports to the economy of the state and the safety and recreation of its citizens, the policy of the State of Oregon is to encourage and support the continued operation and vitality of Oregon‘s airports. Such encouragement and support extends to all commercial and recreational uses and activities described in
ORS 836.616(2) .”
For purposes of
“the strip of land used for taking off and landing aircraft, together with all adjacent land used in 1994 in connection with the aircraft landing or taking off from the strip of land, including but not limited to land used for the existing commercial and recreational airport uses and activities as of December 31, 1994.”
in
In this case, it is undisputed that the relevant part of the airport boundary is the edge of the state-owned airport property that is bordered by Keil Road. See
The provisions of
In short, nothing about the statutory text or context suggests that LUBA‘s construction of
4. OAR 660-012-0065(3)(n) does not apply
Finally, we consider petitioners 1000 Friends’ and Schaefer‘s contention that LUBA erred in concluding that
that the development proposed by the Master Plan would not change the airport‘s Airport Reference Code, which is described below, and, consequently, that it did not propose expansion or alteration of the airport that would “permit service to a larger class of airplane.”19 Before LUBA, petitioners disputed that contention.
On judicial review, petitioner 1000 Friends disputes that construction and contends that the development proposed in the Master Plan does permit service to a larger class of airplanes. Both 1000 Friends and Schaefer also argue that LUBA‘s construction of
“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.” Noble v. Dept. of Fish and Wildlife, 355 Or 435, 448, 326 P3d 589 (2014) (internal citation omitted) (citing State v. Hogevoll, 348 Or 104, 109, 228 P3d 569 (2010)). “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.” Gunderson, LLC v. City of Portland, 352 Or 648, 662, 290 P3d 803 (2012) (citing Dept. of Human Services v. J. R. F., 351 Or 570, 579, 273 P3d 87 (2012), and Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997)). As explained below, applying those principles, we conclude that LUBA erred in concluding that
We begin by considering the statutory and regulatory context of
“Roads, highways and other transportation facilities and improvements not allowed under subsections (1) and (2) of this section may be established, subject to the approval of the governing body or its designee, in areas zoned for exclusive farm use subject to:
“(a) Adoption of an exception to the goal related to agricultural lands and to any other applicable goal with which the facility or improvement does not comply; or
“(b)
ORS 215.296 for those uses identified by rule of the Land Conservation and Development Commission [(LCDC)] as provided in section 3, chapter 529, Oregon Laws 1993.”22
LCDC is empowered to refine the legislature‘s policy regarding uses on EFU land “so long as [LCDC‘s rules] are not less restrictive than [
“The following transportation improvements are consistent with Goals 3, 4, 11, and 14 subject to the requirements of this rule:
“*****
“(n) Expansions or alterations of public use airports that do not permit service to a larger class of airplanes[.]”
The rule does not elaborate on what it means to “permit service to a larger class of airplanes.”
To understand the rule and the development proposed in the Master Plan, some technical background information is necessary. We begin by considering Airport Reference Codes (ARCs). The FAA uses an ARC to relate airport design standards to the characteristics of the aircraft that use the airport. A given airplane‘s ARC is made up of a letter, which represents the Aircraft Approach Category and is determined by aircraft approach speed, and a roman numeral, which represents the Airplane Design Group and is determined by wingspan or tail height of the aircraft.
An airport‘s ARC is the same as the ARC of the airport‘s “critical aircraft,” which, the Master Plan explains, is “the most demanding aircraft that uses the airport ‘regularly’ or ‘substantially.‘” The Master Plan explains that the FAA defines “regular” or “substantial” use as “at least 500 annual itinerant operations.” The FAA must approve the determination of an airport‘s critical aircraft. FAA Advisory Circular 150, 5000-17, Critical Aircraft and Regular Use Determination (2017), at 2.6, 2-4 (available at https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_150_5000-17.pdf (last accessed June 8, 2021)).23
“Different aircraft may define separate elements of airport design. Therefore, effective planning of an airport may need to consider different and multiple Critical Aircraft ***” Id. at 3.1.1, 3-1.
Above, we explained that the critical aircraft determination takes into account the Aircraft Approach Category (approach speed) and Airplane Design Group (wingspan or tail height) of the aircraft that regularly use the airport. Those classifications determine many of the airfield design standards including runway and taxiway width and separation and the size of various areas at the sides and ends of the runway that protect aircraft and nearby land uses.
With that background in mind, we return to the text of
The FAA does not use the term “class” to describe airplane sizes.24 As set out above, however, the FAA groups airplanes in several ways; as relevant here, it groups them by weight as well as by wingspan or tail height. Even if we were to accept LUBA‘s premise that “larger” modifies “airplanes” — that the phrase “larger class of airplanes” is equivalent to “class of larger airplanes” — we do not understand why LCDC would have intended to consider only wingspan or tail height, rather than also including airplanes that are larger by weight.
However, we think it is more likely that, by placing “larger” immediately before “class,” rather than immediately before “airplanes,” LCDC indicated an intention to refer to a larger — that is, a more inclusive — class of airplanes, rather than merely referring to larger airplanes. With that understanding, and considering that the FAA‘s method of determining critical aircraft includes consideration of MTOW and approach speed as well as wingspan or tail height, we conclude that LCDC intended “larger class of airplanes” to mean a class that includes airplanes with a greater variety of approach speeds, a greater variety of MTOWs, or a greater variety of wingspans or tail heights.
That textual understanding is consistent with the rule‘s context. As explained above, the legislature has empowered LCDC to allow certain transportation improvements — improvements that the legislature has not considered important enough to list in sections (1) and (2) of the statutory provisions on EFU land without exceptions to goals 3, 4, 11, and 14.
To assist in our consideration of that argument, we set out additional facts about the airport expansion proposed by the Master Plan. The Master Plan explains that, last time the Master Plan was updated, in 2000, the planned ARC for the airport was B-II:
“According to the 2000 Airport Master Plan, the planned ARC was B-II, exemplified by the King Air turboprop and the Cessna Citation jet. At that time, ODA decided to constrain the forecast by keeping the airfield ARC at B-II. A runway designed for ARC B-II is adequate for about 45% of the business jets manufactured.”
(Footnote omitted.) By the time of the 2012 update, the airport had more than 500 annual itinerant operations by airplanes that fit into Aircraft Approach Category C. Consequently, the Master Plan proposed that “the current ARC should be C-II.” The Master Plan elaborated:
“The current and forecast ARC is C-II, which reflects a family of business jets. The critical aircraft is the aircraft in ARC that uses the Airport the most. The current critical aircraft is the IAI Astra 1125. A runway designed for ARC C-II would be adequate for about 90% of the business jets manufactured.”
(Footnote omitted.)
To explain how the airport could currently be meeting the FAA standards for an ARC of C-II even though it had a planned ARC of B-II and met B-II design standards, the Master Plan explained that “the airfield is adequate for many operators of Aircraft Approach Category C airplanes, even though the Airport does not meet all design standards for ARC C-II.”25
The Master Plan proposed improvements to the airport to move from ARC B-II design standards to ARC C-II design standards. The improvements necessary to meet C-II design standards were expanding the Runway Safety Area, expanding the Runway Object Free Area, expanding the Obstacle Free Zone, expanding the Runway Protection Zone, and adding runway blast pads.
The Master Plan also proposed lengthening the runway to a length more appropriate for the MTOW classification of the new critical aircraft. The Master Plan explains, “The current runway length of 5,004 feet accommodates 100% of the small aircraft fleet [(MTOW up to 12,500 lbs.)] with fewer than 10 passenger seats. However, the recommended lengths for larger aircraft exceed the current runway length.” The development option that the Master Plan proposed included a runway expansion of 1,000 feet, yielding a 6,004-foot runway. The Master Plan identified a 5,500-foot runway as adequate for 100% of large airplanes with MTOW between 12,500 and 60,000 at 60% of their useful load. The Master Plan also explained, “The runway extension [(of 1,000 feet)] would accommodate nearly all business jets with ARC C-II and below that could potentially operate at the Airport.”
As explained above, the board reasoned (and respondents argued before LUBA) that the development proposed by the Master Plan would not “permit service to a larger class of airplanes” because, although the airport‘s planned ARC was B-II, the airport already served enough planes with an ARC of C-II to bring its ARC up to C-II. They contended that the airport expansion would not “permit service” to a larger class of airplanes because the airport already served larger airplanes. LUBA apparently agreed.
As we understand that argument, it construes “permit” to mean “to make possible.”
“Permit” also has another meaning: “to give (a person) leave : authorize.” Id. If we understand “permit service” to be synonymous with “authorize service,” then the rule is focused on the design capacity of the airport‘s facilities, rather than the airplanes that it is possible for the facilities to accommodate. Under that interpretation, the question is whether the expansion or alteration of the airport authorizes service to a larger class of airplanes by increasing airport design standards or, by contrast, whether the expansion or alteration merely updates airport facilities within the existing design standards.
The latter construction is more consistent with the rule‘s context. If “permit” means “make possible,” the rule allows nearly all expansions or alterations of public-use airports on EFU land. Many large airplanes can use an airport the size of Aurora State by means of constrained operations or in an emergency; the Master Plan documents service at Aurora State to planes with an ARC of D-III and a plane with an MTOW of 93,500 pounds. See also FAA AC 150/5000-17, Critical Aircraft and Regular Use Determinations, 3.11.1, at 3-4 (“[T]he airport sponsor cannot restrict airport access based on design standards without an FAA determination ***“). Because it is already possible for very large airplanes to use the airport, very few, if any, expansions or alterations will make it possible for a larger class of airplanes to use the airport.
Furthermore, as explained above, an airport‘s ARC increases only when the ARCs of the aircraft that currently use the airport have increased, because the critical aircraft determines the airport‘s ARC, and the critical aircraft is based on the airplanes that “regularly” or “substantially” use the airport. Consequently, an airport expansion or alteration that increases ARC design standards will always follow increased service to larger airplanes; it will never precede that service. If “permit service” means to make service possible, then an alteration or expansion that increases design standards will always fall within the rule — and be exempt from the goals — because that alteration or expansion will merely bring the airport facilities up to the design standards required by the airplanes currently served.
By contrast, if “permit service” means “authorize service,” then the focus of the rule is on the design and size of the airport facilities, a logical consideration given the rule‘s context. As explained above,
We conclude that LCDC intended “permit service” to mean “authorize service.” With that understanding, an upgrade to design standards for a greater ARC or a longer runway to serve planes with greater MTOW is an expansion or alteration that permits — authorizes — service to a larger class of airplanes. Airplanes in the upgraded ARC or the greater MTOW grouping are then among the airplanes authorized to use the airport by virtue of its design standards.
Thus, an “expansion[] or alteration[] of a public use airport that do[es] not permit service to a larger class of airplanes” is an expansion or alteration that does not authorize the airport, by increasing design standards or otherwise, to serve a group of airplanes with a greater variety of approach speeds, a greater variety of MTOWs, or a greater variety of wingspans or tail heights.
To summarize, LUBA erred in excluding the 2011 Master Plan — the Master Plan document that was before the board on October 27, 2011 — from the record; in holding that the 2012 Master Plan did not propose airport development on EFU land; in relying on
Reversed and remanded.
Notes
“Except as provided in
“(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.”
In 2011, a similar but separate rule, promulgated by the Oregon Department of Transportation, applied to the board‘s adoption of facility plans like the Master Plan. However, the parties have not addressed any differences between the two rules, and, accordingly, we do not address any differences.
“Except as provided in section (3) of this rule, a state agency shall comply with the statewide goals by assuring that its land use program is compatible with the applicable acknowledged comprehensive plan(s) as provided in
The parties have disputed whether that provision applies and, if it does, whether it is valid. However, our disposition makes it unnecessary for us to consider those issues.
Respondents Aurora Airport Improvement Association, Bruce Bennett, Wilson Construction Company, Inc., Ted Millar, TLM Holdings, LLC, Anthony Alan Helbling, and Wilsonville Chamber of Commerce have filed joint briefs, and we refer to them as the private respondents.
Respondents Oregon Aviation Board and Oregon Department of Aviation have filed a joint brief, and we refer to them as the agency respondents.
Petitioners City of Aurora, City of Wilsonville, and Joseph Schaefer have filed individual briefs.
For the same reason, we do not reach the parties’ arguments about the Runway Protection Zone, the Runway Object Free Area, and the relocation of Keil Road. On remand, LUBA may consider those arguments, as well as arguments about the Localizer, in light of our clarification that the Master Plan, and only the Master Plan, embodies the relevant decision.
Petitioners also contended that the Master Plan conflicted with the MCCP because the 1976 Aurora State Airport Master Plan is part of the MCCP, and it proposed extension of the runway to the north rather than the south. Schaefer renews that argument on appeal. However, in light of our disposition, we do not reach it. LUBA should consider it on remand.
In its order, LUBA indicated that it was relying on
It is true that neither Schaefer nor the City of Aurora developed extremely detailed arguments against the application of