With a decision pending at the Oregon Court of Appeals regarding Aurora Airport planning, the Clackamas County Circuit Court determined where an essentially identical case will, at least initially, be litigated.
The court denied the city of Wilsonville's request to transfer the case to the Court of Appeals, approved the Oregon Department of Aviation's request to move it to Marion County and granted a motion by Aurora Airport Improvement Association (which includes airport business interests) to intervene, meaning they'll have standing to argue the case alongside the state.
The city has continued to argue that the 2011 master plan violated state land use laws — and therefore a 2019 Oregon Aviation Board decision that essentially validated the plan was unlawful — but a recent Land Use Board of Appeals decision dismissed the case.
However, the city appealed that decision to the Court of Appeals and filed the separate circuit court case in Clackamas County.
LUBA ruled it lacked jurisdiction in the matter, and the city is moving forward with both cases because it's not clear at this point which court has jurisdiction.
In a variety of ways, Wilsonville government and airport business interests have opposing views of this internecine conflict.
Wendie Kellington and Erick Haynie, attorneys representing the AAIA, said the decision to move the case to Marion County made sense because 1000 Friends of Oregon, the city of Aurora and Joseph Schaefer also have filed cases disputing the 2019 Oregon Aviation Board decision in that county.
"In my view, this all just makes perfect sense in the legal scheme of things," Kellington said. "It's not, in my view at least, a huge victory one way or the other. It just makes good sense. I'm sure Wilsonville views it as a loss, but I think it's the right thing to do in a pandemic with scarce judicial resources, scarce resources all around."
Though ideally preferring the OCOA, Wilsonville attorney Barbara Jacobson said the city wanted the case to be in Clackamas County rather than Marion County because it's a closer venue and noted that the city's case is a bit different than those being argued by other appellants.
According to the AAIA lawyers, the decision to allow the case to be transferred to the Court of Appeals would have created a duplicative situation where the body was reviewing nearly identical versions of the same case. Hamie also said he felt the decision inevitably would have been transferred back to circuit court and thus would have wasted time and money.
Jacobson, however, said any Marion County decision likely would get appealed to the Court of Appeals.
"We were trying to get this in front of the Court of Appeals at the same time they were looking at the LUBA decision because they go hand-in-hand. For whatever reason they didn't want to do that," she said.
The AAIA lawyers think Marion County will dismiss the case because, in their interpretation, LUBA already made a decision on the merits of the case, essentially rejecting all of Wilsonville and other appellants' arguments.
"I'm confident they will dismiss the case. There's case law in Oregon (based on) the proposition that when LUBA rejects the substantive argument of a land use appellant in connection with a decision to reject jurisdiction that circuit court is to follow the lead with LUBA," Haynie said, adding that the LUBA decision made clear that the city and others' arguments were unfounded.
The city, however, is arguing that LUBA cannot have simultaneously made a decision on the merits of the case and also say that it lacked jurisdiction.
"We'll see if they're right on that or we're right on that," Jacobson said.
A hearing for the circuit court case is scheduled for next month and Hanie said he will file a motion to dismiss the case after that. Haynie expects a decision on whether to dismiss the case to be made within two to three months. However, Jacobson said the two sides could come to a mutual resolution to end this conflict following the upcoming Court of Appeals decision. The lawyers expect that ruling to be made in the coming weeks.
Meanwhile, the aviation department already has said it plans to restart the airport master planning process soon. The broader implication of whatever is decided in court could be, according to Jacobson, future land use disputes. To Wilsonville's chagrin, LUBA ruled in its opinion that Marion County had approved the master plan and that it therefore didn't need to separately comply with state land use laws. She added that it's possible that whatever decision the court makes could be appealed to the Oregon Supreme Court.
"The idea that if a county simply says they like an airport master plan, that's enough to avoid whether to look at whether the master plan complies with the (state) goals or not … I think that would be the reason it would get appealed beyond where it is now," Jacobson said.
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