492 P.3d 782
Or. Ct. App.
2021

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

August 4, 2021

Petitions for review denied December 9, 2021

313 Or App 725 | 492 P3d 782

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, former opinion modified and adhered to as modified August 4; petitions for review denied December 9, 2021 (369 Or 69)

Wendie L. Kellington, Kellington Law Group PC, and W. Michael Gillette, Schwabe Williamson & Wyatt PC, and Eric S. Postma, Bittner & Hahs, P.C., for petition and reply.

Joseph Schaefer pro se, Emily Gilchrist, Andrew Mulkey, and Barbara Jacobsen for response and sur-reply.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

PER CURIAM

Reconsideration allowed, former opinion modified and adhered to as modified.

PER CURIAM

Respondents Aurora Airport Improvement Association, Bruce Bennett, Wilson Construction Company, Inc., Ted Millar, TLM Holdings, LLC, Anthony Alan Helbling, and Wilsonville Chamber of Commerce (jointly, private respondents) petition for reconsideration of our opinion in Schaefer v. Oregon Aviation Board, 312 Or App 316, 495 P3d 1267 (2021). We allow reconsideration, modify our prior opinion as described below, and adhere to the opinion as modified.

In their petition, private respondents contend, among other things, that our statement that “[t]he FAA does not use the term ‘class’ to describe airplane sizes,” Schaefer, 312 Or App at 340, is factually incorrect. They point out that the Federal Aviation Administration (FAA) defines its grouping of planes into Airplane Design Groups as “[a] classification of aircraft based on wingspan and tail height.” FAA Advisory Circular 150/5300-13A, Airport Design (2014), at 3 (available at https://www.faa.gov/documentLibrary/media/Advisory_Circular/150-5300-13Achg1-interactive-201907.pdf (last accessed July 16, 2021)).

That definition of Airplane Design Group as a classification system may render our statement about the term “class” misleading. Accordingly, we allow reconsideration and delete the sentence, “The FAA does not use the term ‘class’ to describe airplane sizes.” We also modify the next sentence, “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,” Schaefer, 312 Or App at 340-41, by removing the word “however.” With those modifications, we adhere to our prior opinion. We reject private respondents’ remaining contentions on reconsideration without discussion.

Reconsideration allowed, former opinion modified and adhered to as modified.