Land Use Board of Appeals dismisses appeal related to the Aurora Airport Master Plan
The legal contestation of the Aurora Airport Master Plan, which has been spearheaded by the City of Wilsonville, hit a roadblock but is still plowing forward full speed ahead.
The list of legal challenges is varied and complex but here's a rundown of what's happening:
On Dec. 10, the State of Oregon Land Use Board of Appeals (LUBA) dismissed an appeal by Friends of French Prairie — a farmland advocacy group — of a letter Oregon Department of Aviation Director Betty Stansbury sent to its attorney stating that the 2012 Aurora Airport Master Plan had been approved.
Meanwhile, LUBA has yet to release opinions on separate appeals filed by the City of Wilsonville and other entities related to an Oregon Aviation Board decision while the Wilsonville Chamber of Commerce has filed a motion to intervene in that LUBA case. If that weren't enough, the City and others are preparing circuit court filings in three counties.
In its final opinion, LUBA determined that Stansbury was not making a land use decision in the letter but rather providing information about a decision that was already made.
"While we express no opinion about the accuracy or inaccuracy of the ODA's statement, we
agree with respondents that the August Stansbury letter is not a final determination or decision of any kind by the ODA," the opinion reads.
Friends of French Prairie initially appealed Stansbury's letter because President Ben Williams said it was the first time the ODA had provided a definitive proclamation that the airport master plan had been approved.
Williiams said he expected the dismissal and noted that LUBA did not make a statement about the validity of the master plan.
"Had we not appealed it, then the department of aviation would have been in the position to say 'Well, it was a land use decision and we (Friends of French Prairie) didn't appeal it,'" Williams said. "We eliminated that possibility but have two definitive positions that LUBA is not drawing an opinion on the content of Stansbury's letter and said that a state agency has to comply with land use laws."
Willams said Friends of French Prairie spent over $20,000 on LUBA appeal legal fees and is still working to pay off that money. For its upcoming appeals, Friends of French Prairie's umbrella organization, 1000 Friends of Oregon, is playing a larger role and receiving consultation pro bono.
Despite the cost and the dismissal, Willams said the appeal was ultimately beneficial.
"The 1000 Friends involvement just like the Aurora and Wilsonville's involvement is to a large degree in response to what we were able to find out through our own legal efforts," he said.
LUBA has not seen the last of appeals regarding the airport master plan. The City of Wilsonville, City of Aurora, 1000 Friends and City of Aurora Planning Commissioner Joseph Shaefer have all filed appeals of a decision the Oregon Aviation Board made to determine that the master plan complies with certain statewide regulations during a meeting Oct. 31.
City of Wilsonville Attorney Barbara Jacobson said Clackamas County is filing an appeal of its own and that LUBA recently determined that it would consolidate all of the appeals.
At the same time, the Wilsonville Chamber of Commerce filed a motion to intervene in the appeals case, meaning it will have a chance to pose arguments in the proceedings. The Chamber has historically supported the airport's plans but attorney Eric Postma said the Chamber has yet to establish a position in the case.
"To preserve your chance to speak in the future you have to file," he said.
He added: "In any court case where you are the responding party your position will be in response to what the other parties are saying substantively and that has yet to be disclosed."
The issue of whether a matter under question was a land use decision will likely come up again. At the Oct. 31 meeting, ODA attorney Lucinda Jackson said that the Board's decision to adopt the Findings of Compatibility and Compliance in support of the ODA's State Agency Coordination Program for the 2012 Aurora State Airport Master Plan Update, which is the decision in question, was not a land use decision either.
"We feel like it is a land use decision and so does Aurora, so does 1000 Friends and Clackamas County. We'll see what LUBA says," Jacobson said. "If it's not a land use decision it's still an appealable decision to the court on writ of review. One way or the other I believe our case will be heard."
Jacobson is referring to plans by Wilsonville, Aurora and 1000 Friends' to file appeals in Clackamas County, Marion County and Multnomah County, respectively. These entities will need to file by the end of the month to meet the 60-day deadline.
Noting the ODA's small legal budget, Williams surmised that these appeals in different counties could overwhelm the department.
Jacobson didn't rule out the possibility that these cases would also be consolidated, but said the circuit court appeals might differ more widely than the LUBA appeals because their litigative scope goes beyond land use compliance. However, Jacobson did not reveal her legal arguments.
"LUBA would consolidate more easily typically than circuit courts where you have different arguments being made," Jacobson said. "In circuit court you can raise any violation of any law. We have several different statutes we're citing in our complaint."
The City of Wilsonville is contesting the validity of the master plan because representatives contend that statewide land use planning goals weren't followed during the master planning process, particularly related to the addition of a project to add a 1,000-foot runway extension. Airport advocates believe the extension would improve safety while detractors think it could pave the way more activity and development.
"Wilsonville's primary argument is (that) we feel like the process was very flawed and didn't follow the law at all," Jacobson said. "Our main goal is to have them start over and do it correctly so all the entities impacted by it at least have the opportunity to weigh in."
Jacobson does not expect any decisions to be made until January at the earliest.
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