Wilsonville and state argue their case in Aurora Airport litigation
After many months were spent establishing the record for the case, the Wilsonville government submitted a brief in its Land Use Board of Appeals legal effort contesting the validity of the Aurora Airport Master Plan. A month later, parties like the Oregon Department of Aviation and Wilsonville Chamber of Commerce provided responses.
In a brief filed Monday, Sept. 21, the city contended that the master planning process — which was said to be completed in 2011 but then was seemingly validated during a 2019 Oregon Aviation Board (OAB) meeting — was mired in missteps, revisions and land use process circumvention.
"The Master Plan process was, at best, to coin Shakespeare, 'A Comedy of Errors;' an inept violation of public record and land use laws," the brief stated. "At worst, it was a deliberate attempt to subvert public process and Oregon land use law for the benefit of a select few wealthy corporate interests."
On the other hand, in their own response brief, the Oregon Department of Aviation and Oregon Aviation Board argued that the plan was approved nearly a decade ago and that the decision the city is appealing, the OAB's decision to adopt the Findings of Compatibility and Compliance in Support of ODA's State Agency Coordination Program, was not a land use decision and therefore LUBA doesn't have jurisdiction to reverse it.
"The 2012 Plan was never appealed to LUBA or challenged pursuant to ORS 183.484. Therefore, any challenges to this plan based on the OAB not complying with its SAC is a collateral attack and should be denied," it said.
City leaders have worried for years about airport expansion and have raised concern that a runway extension project was added to the master plan without public input. They also wanted more say in airport planning.
In 2019, the OAB approved the findings of compatibility and compliance, a required process the board completed for other airport planning efforts as well after realizing it had not done so since transitioning out of the Oregon Department of Transportation many years ago. The ODA and OAB stated that this decision was brought forward "to moot any potential legal challenge" over compliance with the SAC program.
In Wilsonville's brief, which was over 50 pages, the city pointed out that the findings were only adopted after petitioners raised questions about the validity of the Aurora Airport Master Plan and noted that Director Betty Stansbury wrote in early 2019 that the master plan had not been adopted. Stansbury later changed her stance, saying that it had been adopted in 2011 and that all they needed to do was adopt the findings of compatibility, which is a planning requirement.
"In April 2019, Respondent stated that the Master Plan had not been adopted (App 50-51), but suddenly reversed course in August 2019 to claim the Master Plan was adopted, after all, on Oct. 27, 2011, and then 'finalized' in December 2012. (App 52.) There is no evidence of any Master Plan properly noticed public hearing or adoption in the Record for that date," the brief read.
The city wrote that, during an OAB meeting where there could have been a vote on the master plan, the agenda did not include a public hearing and the minutes state that only the final chapter of the master plan had been approved. The brief also cited a statement by a consultant that the master plan would first be sent to the Federal Aviation Administration before going back to the OAB for approval. Overall, the meeting transcript did not clearly indicate that the master plan had been approved, the city noted.
The OAB and ODA brief said that the confusion regarding the adoption of the plan was due to staff and board turnover.
However, both briefs cited OAB Chair Mark Gardiner saying, "OK, I will entertain a motion to approve the master plan submitted and fire it off to the FAA." The board passed his motion.
The city argued that this motion wasn't a proper approval of the plan and that the evidence suggested that the statement was made to approve the final chapters of the plan, not the plan in totality.
The ODA and OAB pointed out that Gardiner mentioned a major milestone passing at the meeting, suggesting that the board was approving the full plan.
"Therefore, the totality of the circumstances shows, and is substantial evidence, that the OAB did, in fact, adopt the entire 2012 Plan at this meeting," its response read.
The city also pointed out that the ODA revised its agenda item for the 2019 findings adoption meeting from "Adopt the Aurora Master Plan, Airport Layout, Findings of Compatibility, and Findings of Compliance" to "Adopt Findings of Compatibility and Compliance in Support of ODA's State Agency Coordination Program for Aurora State Airport Master Plan Update" after a Wilsonville attorney questioned them about the agenda.
"In other words, the original agenda contemplated adoption of the Master Plan; the revised agenda was written as if the Master Plan was already adopted, as ODA had insisted was the case," the brief read.
The city also argued that the master plan was modified after the supposed approval in 2011 without a public hearing or OAB vote. A project to add a runway extension, which the city believes will lead to increased flights and therefore traffic at the airport, was included in 2012. The FAA first sent a letter in 2011 rejecting the proposed runway extension and then approved a revised Airport Layout Plan that included south and north extensions in 2012.
"This revision is a significant change that required opportunity for public testimony," the Wilsonville brief read.
The ODA, however, claimed that the plan did not change materially and therefore did not need another approval by the OAB. It also noted that Marion County Board of Commissioners passed a resolution supporting the master plan in 2013 and advised the ODA to apply for land use permits for projects within the plan.
Notably, the city advocated for the inclusion of the initial 2011 plan (before it was modified) in the case record but that document was not included. City Attorney Barbara Jacobson surmised that the reason it wasn't included is because the document doesn't exist.
"They produce a 2012 master plan but they never produced the master plan they claimed they passed and sent on to the FAA in 2011," she said.
Additionally, the city pointed out that the findings and compatibility were adopted eight years after the supposed approval of the master plan and cited a case that rejected a late findings adoption for an annexation decision.
The ODA and OAB contend, however, that they were subject to the Oregon Department of Transportation's SAC plan at the time the plan was supposedly approved and that they didn't move forward with the SAC plan because it was consistent with Marion County's Comprehensive Plan. They also said failure to adopt the SAC plan "to a T" does not negate the master plan adoption.
"Because Marion County is the only affected jurisdiction and did not raise an issue about the compatibility in 2011, 2013 or 2019, the only finding that is required is that the 2012 Plan is compatible with Marion County's acknowledged comprehensive plan," the response reads.
Because of myriad concerns, the city stated that the ODA should restart airport planning efforts and follow statewide land use planning goals and land use laws in doing so.
The Wilsonville Chamber of Commerce, however, sided with the department and board's position.
"Petitioners assert throughout the briefs that the 2012 Master Plan is required to address a degree of detail and exactness that is neither required of, nor appropriate for an airport facility plan, but will ultimately be addressed by the time development occurs," it wrote.
Joining Wilsonville in the appeal are Clackamas County, Aurora Planning Commissioner Joseph Schaefer, the city of Aurora, 100 Friends of Oregon and Friends of French Prairie.
The combined 1000 Friends and French of French Prairie brief touched on similar points as Wilsonville's briefs regarding adoption of the plan, also stating that the ODA had said for years that the master plan had not been adopted as well as outlining the potential impact the runway extension could have on local farmland. For their part, Aurora and Schaefer said in their joint brief that the ODA arbitrarily determined that Marion County was the only government unit affected by the airport and that urban uses like airport activity should not take place within rural areas. Aurora leaders would like the airport to be annexed into city jurisdiction.
Oral arguments for the case are slated to take place next week.
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