Schaefer v. Oregon Aviation Board

316

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)

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

495 P3d 1267

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 com-

plied with the Marion County Comprehensive Plan and that, because of that

compliance, there was no need to consider whether it complied with any state-

wide 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 ORS 836.642 to conclude

Cite as 312 Or App 316 (2021) 317

that proposed new uses at the Aurora State Airport are rural uses for land use

purposes; and in determining that OAR 660-012-0065(3)(n) applied.

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.

318 Schaefer v. Oregon Aviation Board

ARMSTRONG, P. J.

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 ORS 197.180 and an implementing rule, OAR 738-

130-0055(6).1 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), 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.

1

ORS 197.180(1) provides as follows:

“Except as provided in ORS 197.277 or subsection (2) of this section or

unless expressly exempted by another statute from any of the requirements

of this section, state agencies shall carry out their planning duties, powers

and responsibilities and take actions that are authorized by law with respect

to programs affecting land use:

“(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.”

OAR 738-130-0055(6) provides as follows: “The Aviation Board shall adopt

findings of compatibility with the acknowledged comprehensive plans of affected

cities and counties and findings of compliance with applicable statewide plan-

ning goals when it adopts the final facility plan.”

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.

Cite as 312 Or App 316 (2021) 319

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 ORS 197.015(10)(a)(B) (“Land

use decision” includes “A final decision or determination of

a state agency other than the commission with respect to

which the agency is required to apply the goals.”). Our dis-

position in this case makes it unnecessary for us to consider

whether LUBA’s construction of ORS 197.180(1) and ORS

197.015(10)(a)(B) is correct.

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 ORS 836.642 and, based

on that construction, concluded that the airport expansion

complies with various provisions of the MCCP and Goal 14

because any land use at the Aurora State Airport is a rural

2

The board relied on OAR 660-030-0065(2), which provides as follows:

“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 OAR

660-030-0070.”

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.

3

Some of the parties have filed joint briefs on judicial review. Petitioners

1000 Friends of Oregon and Friends of French Prairie have filed a joint brief, and

we refer to them as 1000 Friends.

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.

320 Schaefer v. Oregon Aviation Board

use as a matter of law; and (3) LUBA incorrectly construed

OAR 660-012-0065(3)(n) when it held that the changes pro-

posed in the Master Plan were not changes that would “per-

mit service to a larger class of airplane” and, consequently,

that the Master Plan complied with Goals 3, 11, and 14 as

a matter of law. As explained below, we agree with petition-

ers on all of those points. We reject without discussion peti-

tioner City of Wilsonville’s fourth and fifth assignments of

error, and our disposition makes it unnecessary for us to

address private respondents’ cross-assignment of error.4 We

reverse and remand LUBA’s order.

I. BACKGROUND

We begin with a brief procedural background and

provide additional facts below as we address each of peti-

tioners’ arguments. In late 2009, the board began a pub-

lic 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 pre-

ferred 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.

4

In petitioner City of Wilsonville’s fourth assignment of error, it contends

that the City of Wilsonville and Clackamas County are an “affected city [and]

county” under OAR 738-130-000(5). It does not contend that the City of Aurora is

an affected city, and we express no opinion on that question.

5

Petitioner City of Wilsonville contends that the board adopted only the last

two chapters of the Master Plan at the October 27, 2011, meeting and argues that

LUBA erred in determining that the board legitimately adopted any version of the

Master Plan. Likewise, petitioner City of Aurora contends that the 2012 Master

Plan was never adopted. LUBA should consider those arguments on remand in

light of the complete record. For purposes of this opinion, we assume, without

deciding, that the board adopted the 2012 Master Plan on October 27, 2011.

Cite as 312 Or App 316 (2021) 321

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 consid-

ered whether “[t]he state agency made a decision that violated

the goals.” ORS 197.835(9)(b). As always, our task on review

is to discern whether LUBA’s order is “unlawful in substance

or procedure,” ORS 197.850(9)(a), and we “may not substitute

[our] judgment for that of [LUBA] as to any issue of fact,”

ORS 197.850(8). Our understanding of how to implement that

standard of review turns on LUBA’s scope of review.

ORS 197.835 sets out LUBA’s scope of review. For

our purposes, the relevant subsection of the statute is sub-

section (9), which provides as follows:

“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 substan-

tial rights of the petitioner;

“(C) Made a decision not supported by substantial evi-

dence 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 ORS 197.835(8) (LUBA “shall

reverse or remand a decision involving the application of a

322 Schaefer v. Oregon Aviation Board

plan or land use regulation provision if the decision is not in

compliance with applicable provisions of the comprehensive

plan or land use regulations”).

Abundant case law applies our standard of review

of LUBA orders applying subsection (9)(a), that is, LUBA

orders deciding whether a local government or special dis-

trict committed reversible error in one of the five specified

ways. Under that case law, our review of LUBA’s determi-

nation of whether a local government made a decision not

supported by substantial evidence in the whole record, ORS

197.835(9)(a)(C), is very limited:

“[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, notwithstand-

ing 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 par-

ticular case might be so at odds with LUBA’s evaluation

that a reviewing court could infer that LUBA had misun-

derstood 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 ORS 197.835(9)(a)(A) through (E),

paragraph (9)(b) of ORS 197.835 states only that LUBA

shall reverse and remand “if the board finds * * * [t]he state

agency made a decision that violated the goals.” We have

never addressed what our standard of review requires when

LUBA has reviewed a state agency decision for compliance

with the goals.

Under ORS 197.835(9)(a), LUBA uses an appellate

lens to review the local government or special district’s deci-

sion: LUBA makes determinations about the jurisdiction and

Cite as 312 Or App 316 (2021) 323

procedural adequacy of the previous decisionmaker, ORS

197.835(9)(a)(A), (B); the sufficiency of the evidence before

the previous decisionmaker, ORS 197.835(9)(a)(C); or the

legal correctness of the previous decisionmaker’s decision,

ORS 197.835(9)(a)(D), (E). By contrast, in defining LUBA’s

scope of review, ORS 197.835(9)(b) does not invoke appellate

concepts that would cause LUBA to defer to the factual or

legal determinations of any previous decisionmaker. Rather,

it appears that, under ORS 197.835(9)(b), LUBA directly

assesses, in the first instance, whether the substance of the

state agency’s decision complied with the goals.

This case does not require us to fully elaborate

our standard of review of LUBA’s decisions under ORS

197.835(9)(b). In a case like this one, where the central ques-

tion is whether a facility plan—a document—complies with

the goals, and the parties agree (for some purposes, at least)

that that document is in the record, our review is largely for

mistaken construction of the applicable law; there are few,

if any, relevant factual issues for us to review. ORS 197.850

(9)(a). To the extent that we are called on to review LUBA’s

factual determinations in this case, it suffices to note that,

as to the few disputed facts at issue, there is no evidence in

the record to support LUBA’s erroneous findings.6

III. ANALYSIS

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

6

It may be that we review factfinding by LUBA under ORS 197.835(9)(b) for

substantial evidence. Cf. ORS 197.850(9)(c) (providing that the court shall reverse

and remand a LUBA order if “[t]he order is not supported by substantial evi-

dence in the whole record as to facts found by the board under ORS 197.835(2)”);

Rogue Advocates, 282 Or App at 388 n 4 (“Under ORS 197.850(9)(c), where LUBA

itself engages in fact finding [about certain enumerated procedural issues], we

review those findings for substantial evidence.”). See also Zimmerman v. LCDC,

274 Or App 512, 519, 361 P3d 619 (2015) (noting that our review of LUBA’s legal

determinations is the “functional equivalent” of our standard of review of an

agency’s legal determination under ORS 183.482(8)(a)); ORS 183.482(8)(c) (Court

of Appeals reviews agency factfinding for substantial evidence); ORS 183.482(7)

(Court of Appeals “shall not substitute its judgment for that of the agency as to

any issue of fact”). However, as noted in the text, we need not decide that question

here.

324 Schaefer v. Oregon Aviation Board

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.

OAR 661-010-0025(1)(b), one of LUBA’s eviden-

tiary rules, provides that the record “shall include” “[a]ll

written testimony and all exhibits, maps, documents or

other materials specifically incorporated into the record or

placed before, and not rejected by, the final decision maker,

during the course of the proceedings before the final deci-

sion maker.” Before LUBA, petitioners contended that the

document that the board approved on October 27, 2011, was

required to be in the record. LUBA did not disagree with

that proposition, but rather held that the 2012 Master Plan

document included the master plan that had been approved

on October 27, 2011. On that ground, it rejected petitioners’

contentions that the 2011 Master Plan document had to be

included in the record.

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 demon-

strates that it does not include the 2011 version. Agency

respondents defend LUBA’s determination that the 2012

7

Petitioner City of Wilsonville points out that parts of the 2012 Master Plan

are dated later than 2012, including one item that is dated 2017.

Cite as 312 Or App 316 (2021) 325

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 deci-

sion 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 demon-

strates 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. OAR 661-010-0025(1)(b). The

board made its 2019 findings in an effort to comply with OAR

738-130-0055(6), which provides that “[t]he Aviation Board

shall adopt findings of [land use] compatibility * * * when

it adopts the final facility plan.” (Emphasis added.) Under

that rule, the board’s adoption of a final facility plan and its

land use compatibility findings are two parts of the same

proceeding. That remains the case here, notwithstanding

the delay between the adoption of the Master Plan and the

findings of land use compatibility.8

8

Given the process contemplated in OAR 738-130-0055(6) to implement ORS

197.180(1), we also question whether an agency can treat its adoption of a facil-

ity plan as final while also contemplating, as the board argues it did here, that

the plan may undergo significant changes before it achieves its final form. If

the “final facility plan” that is adopted and for which the agency adopts land

use compatibility findings is not, in fact, the final version of the facility plan,

then it is not clear how the procedure established in OAR 738-130-0055 actu-

ally ensures that the agency is “carry[ing] out [its] planning duties, powers and

responsibilities and tak[ing] actions that are authorized by law with respect to

programs affecting land use” “[i]n compliance with the goals” and “[i]n a manner

compatible with acknowledged comprehensive plans and land use regulations.”

ORS 197.180(1).

326 Schaefer v. Oregon Aviation Board

The version of the master plan that the board

approved on October 27, 2011, along with any other mate-

rials that the board considered at that meeting, had to be

part of the record before LUBA. OAR 661-010-0025(1)(b). We

need not consider whether that procedural error, standing

alone, would merit reversal, because, as explained below, we

agree with petitioners that the case must be remanded in

any event.

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’ con-

tention 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

OAR 738-130-0055(2) (allowing the Oregon Department of

Aviation (ODA) to “deem that the draft plan is compatible

with that jurisdiction’s acknowledged comprehensive plan”

if it receives no response from a jurisdiction after providing

a draft plan to the jurisdiction).

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.” OAR 738-130-

0055(6); see also ORS 197.180(1) (requiring state agencies to

“take actions that are authorized by law with respect to pro-

grams affecting land use * * * [i]n compliance with the goals,

rules implementing the goals and rules implementing this

section; and [i]n a manner compatible with acknowledged

comprehensive plans and land use regulations”). Moreover,

even to any extent that the board could have relied on ODA’s

decision to deem a plan compatible with the comprehensive

Cite as 312 Or App 316 (2021) 327

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, peti-

tioners 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 infor-

mation 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 culmination of the master planning process.”

That is, as the Master Plan explains, “[t]he ALP depicts

the current airport layout and proposed improvements to

the Airport for the 20-year planning period.” See also OAR

738-005-0010(20) (ALP “refers to a major product of airport

master planning”). An ALP must be submitted to the FAA

for approval, and “[a]ll airport development carried out at

federally obligated airports [like the Aurora State Airport]

must be done in accordance with an FAA-approved ALP.”

OAR 738-005-0010(20).

The state-owned property that the airport occu-

pies 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

328 Schaefer v. Oregon Aviation Board

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 prop-

erty 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) extend-

ing off of the airport property, across existing Keil Road

(which is shown on the ALP as being rerouted) onto land

zoned EFU.

Figure 1

9

We have included excerpts from two of the drawings that make up the ALP

to make the expansions off the existing airport property more easily understood.

Both drawings show the same expansions in the same places.

10

In light of our conclusion, explained below, that the Master Plan proposes

development of the stopway and taxiway on EFU land, we do not reach private

respondents’ contention, raised in their cross-assignment of error, that the

Localizer is an allowed use in the EFU zone.

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 argu-

ments about the Localizer, in light of our clarification that the Master Plan, and

only the Master Plan, embodies the relevant decision.

Cite as 312 Or App 316 (2021) 329

Figure 2

The record also contains additional information

about the board’s development plans and the significance

of the development proposed in an airport master plan. For

example, in their testimony, Matthew Maass, ODA Deputy

Director, and Aron Fagre, an airport planning expert,

explained in a variety of ways that the development shown

on the ALP is not actually the development that the board

intends for the airport. Maass explained that “[t]he Master

Plan is a concept document that shows where future devel-

opment might go” and that “My understanding is, that it is

the intent of this agency to not construct any pavement on

current EFU land as part of the runway extension.” Fagre

indicated that “ALPs are not drawn to surveyed or engi-

neering specificity” and opined that “it is certainly feasi-

ble for the airport to construct all improvements—runway,

taxiway including run up area and stop way in the Marion

County P zone.”

LUBA rejected petitioners’ arguments that the

ALP depicted, and, consequently, the Master Plan pro-

posed, airport development on EFU land. After noting

various respondents’ arguments, including their conten-

tion 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

330 Schaefer v. Oregon Aviation Board

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 testi-

mony in the record about the board’s plans for development

to conclude that the board did not intend to construct air-

port 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. OAR 738-130-0055(6) (requiring the board to adopt

land use compatibility findings “when it adopts the final

facility plan”); OAR 738-130-0005 (the purpose of ODA’s

state agency coordination rules is to establish procedures

to “assure that [ODA] land use programs”—including

“[a]doption of transportation facility plans,” OAR 738-130-

0025(3)—“are carried out in compliance with the statewide

planning goals and in a manner compatible with acknowl-

edged comprehensive plans”).

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

about where the improvements might or might not ulti-

mately be built to determine the Master Plan’s compliance

with those provisions. That reasoning again misapprehends

the task at hand. The ALP is not a casual sketch of poten-

tial future development; it is the “pictorial culmination of

the master planning process” and it depicts the “proposed

improvements to the airport for the 20-year planning

period.” It must be approved by the FAA, and “[a]ll airport

development” “must be done in accordance with” it. OAR

Cite as 312 Or App 316 (2021) 331

738-005-0010(20). In light of the ALP’s role in the master

planning process, the ALP drawings are the authoritative

documents that determine the location of the improvements

proposed by the Master Plan.11

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 recon-

sideration of its determination that the Master Plan com-

plies 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 air-

port expansion was an urban use of rural land, but that

ORS 836.640 establishes, as a matter of law, that the air-

port and the development proposed in the Master Plan are

rural uses.13 On review, petitioners Schaefer and City of

Aurora contend that LUBA erred in relying on ORS 836.640

to conclude that the airport development was “rural” for

11

We do not discount the possibility that, once design-level documents for the

improvements proposed in the Master Plan are developed, the details of the loca-

tion of the improvements may change from the locations shown on the ALP draw-

ings. Our point is simply that, as the “final facility plan,” OAR 730-130-0055(6),

the Master Plan, and its “pictorial culmination,” the ALP, are, as a matter of law,

sufficiently authoritative to be evaluated for compliance with the MCCP and the

goals.

12

Private respondents contend that the compatibility of the Master Plan

with the MCCP was conclusively determined by the Marion County Board of

Commissioners’ 2013 adoption of a resolution in support of the Master Plan. The

resolution states that the Board of Commissioners “acknowledges and supports”

the 2012 Master Plan; it is not a determination, formal or otherwise, of the plan’s

compliance with the MCCP.

13

Petitioners challenged the Master Plan’s compliance with the Rural

Development Policies 1, 3, and 4; Rural Services Policies 1 through 4; Special

District Policies 6, 7, and 8; Urban Land Use Goals a, b, and c; Urban Growth

Policies 1, 2, 3, and 6; Growth Management Framework Purposes 1, 2, 3, and 5;

and Growth Management Framework Goals 1, 6, and 7.

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.

332 Schaefer v. Oregon Aviation Board

land use purposes.14 They point out that LUBA has previ-

ously held that, “in view of the area served and level of ser-

vice 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 ORS

836.642, which we do by “examining the text and context of

[the statute], with the goal of determining legislative intent.

State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009).” Stop

the Dump Coalition v. Yamhill County, 364 Or 432, 446, 435

P3d 698 (2019). ORS 836.642(1) requires the ODA to “estab-

lish a pilot program at up to six rural airports to encour-

age development of through the fence operations designed to

promote economic development.”15 The pilot program “shall

operate at” “[t]he Aurora State Airport” and “[n]ot more

than five additional rural airports.” ORS 836.642(2). “ ‘Rural

airport’ means an airport described in ORS 836.610(1) that

principally serves a city or metropolitan statistical area

with a population of 500,000 or fewer.” ORS 836.640(4).

Thus, ORS 836.642 implies that the Aurora State Airport is

a “rural airport,” a defined term referring to an airport that

“principally serves a city or metropolitan statistical area

with a population of 500,000 or fewer.”16

14

We reject without discussion respondents’ contention that these assign-

ments of error are not preserved or were waived before LUBA.

In its order, LUBA indicated that it was relying on ORS 836.642 in part

because petitioner Schaefer had not adequately developed an argument to the

contrary. Regardless of whether that is accurate with regard to Schaefer, the City

of Aurora fully developed its argument that ORS 836.642 was irrelevant to the

question at hand, and it renews that argument on appeal.

It is true that neither Schaefer nor the City of Aurora developed extremely

detailed arguments against the application of ORS 836.642. That is because, as

we explain below, nothing about the statutory text or context suggests that it

applies here; thus, very little explanation was required to demonstrate that it did

not apply.

15

“ ‘Through the fence operation’ means a customary and usual aviation-

related activity that * * * [i]s conducted by a commercial or industrial user of

property within an airport boundary; and * * * [r]elies, for business purposes, on

the ability to taxi aircraft directly from the property employed for the commercial

or industrial use to an airport runway.” ORS 836.640(5).

16

That statutory implication is in some tension with the Master Plan, which

notes that, in the Oregon Aviation Plan, the statewide plan promulgated by the

ODA, the Aurora State Airport is categorized as an Urban General Aviation

Airport serving the Portland metropolitan area.

Cite as 312 Or App 316 (2021) 333

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 pro-

posed 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 ORS 836.642 does address land use, its provisions

unambiguously demonstrate that the legislature did not

intend its implied categorization of the Aurora State Airport

as a “rural airport” to affect the question of whether exist-

ing or new land uses at the airport are urban or rural.

ORS 836.642(4) is the only subsection of the statute

that addresses land use. It provides:

“The Department of Land Conservation and Devel-

opment [(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 regula-

tions, including airport zoning classifications pursuant to

ORS 836.600 to 836.630, facilitate through the fence opera-

tions and support the development or expansion of the pilot

site consistent with applicable statewide land use planning

requirements.”

(Emphasis added.) Thus, ORS 836.642 establishes a pilot

program encouraging “through the fence programs” at cer-

tain “rural airports”—airports serving small cities or met-

ropolitan areas—including Aurora State. It tasks DLCD,

the county, and a city with working with ODA to ensure

that the applicable comprehensive plans and land use reg-

ulations “support the development or expansion of the pilot

site consistent with applicable statewide land use planning

requirements.” ORS 836.642(4) (emphasis added). The text

does not suggest that the legislature intended any section of

ORS 836.642 to affect how land use requirements apply to

the programs or uses of land at the identified airports; to the

contrary, it explicitly makes the programs subject to “appli-

cable statewide land use requirements.” ORS 836.642(4).

334 Schaefer v. Oregon Aviation Board

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 pro-

grams should be categorized for land use purposes. As

noted above, in ORS 836.642, “rural airport” is a defined

term describing airports serving smaller cities and metro-

politan statistical areas. Whether the land uses that exist

or are proposed for a “rural airport” are rural or urban is

an entirely separate question, one that the statute does not

purport to address.

Because private respondents appear to argue that

the provisions of ORS 836.600 to 836.630 indicate that ORS

836.642 affects the classification of airport uses as rural

or urban, we also briefly address those provisions. In 1995

and 1997, the legislature acted to protect and support exist-

ing airports, including by modifying land use laws within

airport boundaries. Or Laws 1995, ch 285; Or Laws 1997,

ch 859. ORS 836.600 sets out state policy regarding airports:

“In recognition of the importance of the network of air-

ports to the economy of the state and the safety and recre-

ation of its citizens, the policy of the State of Oregon is to

encourage and support the continued operation and vital-

ity of Oregon’s airports. Such encouragement and support

extends to all commercial and recreational uses and activ-

ities described in ORS 836.616(2).”

For purposes of ORS 836.600 to 836.630, airport is defined

as

“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.”

ORS 836.605(2).

ORS 836.616(2) provides that, “[w]ithin airport

boundaries established pursuant to [LCDC] rules, local gov-

ernment land use regulations shall authorize” a variety of

airport uses. ORS 836.625(1) clarifies that “[t]he limitations

on uses made of land in exclusive farm use zones described

Cite as 312 Or App 316 (2021) 335

in ORS 215.213 and 215.283 do not apply to the provisions of

ORS 836.600 to 836.630 regarding airport uses.”

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 OAR

660-013-0040 (the airport boundary, for purposes of ORS

836.616(2), is shown on a map “adopted by a local govern-

ment” pursuant to “comprehensive plan and land use regu-

lation requirements”).17 As explained above, the provisions

of ORS 836.600 to 836.630 allow airport uses and supersede

ORS 215.213 and ORS 215.283 “[w]ithin airport boundar-

ies.” ORS 836.616(2); see also OAR 660-013-0100 (requiring

local governments to “adopt land use regulations for areas

within the airport boundaries” that authorize the airport

uses enumerated in ORS 836.616).

The provisions of ORS 836.600 to 836.630 are inde-

pendent from ORS 836.640 and ORS 836.642, and they do

not suggest that we should understand the latter provisions

to have a greater effect on land use than their text indi-

cates. Nor do the provisions of ORS 836.600 to 836.630 apply

directly to the airport development that the Master Plan

proposes outside the airport boundaries.

In short, nothing about the statutory text or con-

text suggests that LUBA’s construction of ORS 836.642 is

correct. LUBA erred by relying on ORS 836.642 to conclude

that existing and new uses at the Aurora State Airport are

rural.18

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

OAR 660-012-0065(3)(n) excused the board’s decision from

complying with Goals 3, 11, and 14. The board reasoned

17

The map of the Aurora State Airport that has been adopted by Marion

County is the 1976 Master Plan ALP, which is part of the Marion County

Comprehensive Plan.

18

Petitioners Schaefer and City of Aurora also provide legislative history

supporting their view of the statute’s meaning. However, because the text of the

statute unambiguously demonstrates that it has no bearing on whether a use is

urban or rural for land use purposes, we need not continue our analysis. Gaines,

346 Or at 172.

336 Schaefer v. Oregon Aviation Board

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, peti-

tioners disputed that contention.

In its order, LUBA adopted the reasoning in the

response briefs and concluded, without elaboration, that “the

improvements contemplated by the 2012 Airport Plan do not

permit service to a larger class of airplanes.” The response

briefs whose arguments LUBA adopted construe “a larger

class of airplanes” to mean a class made up of larger air-

planes as measured by their wingspan or tail height.

On judicial review, petitioner 1000 Friends disputes

that construction and contends that the development pro-

posed 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 OAR 660-012-0065(3)(n)

conflicts with numerous statutes and the goals because,

under LUBA’s construction, the rule allows airport devel-

opment on EFU land without an exception to the goals and

without applying the farm-impacts test required by ORS

215.213(10)(b) and ORS 215.283(3)(b).20

“When interpreting an administrative rule, we

seek to divine the intent of the rule’s drafters, employing

19

As an alternative to its conclusion that OAR 660-012-0065(3)(n) applied,

the board reasoned that OAR 660-012-0065(3)(a), (b), or (d) applied to some of the

challenged airport improvements. It urges us to rely on its alternative reasoning

as a ground for rejecting petitioners’ challenge to LUBA’s interpretation of OAR

660-012-0065(3)(n).

OAR 660-012-0065(3)(a) and (b) address transportation uses that are either

allowed by ORS 215.213 or ORS 215.283 or that are accessory to uses allowed

under those statutes, subject to the farm-impacts test. See ORS 215.213(10)(b);

ORS 215.283(3)(b). OAR 660-012-0065(3)(d) allows “[r]ealignment of roads not

otherwise allowed under subsection (a) or (b) of this section,” subject to applica-

tion of the farm-impacts tests and the alternatives test set out in OAR 660-012-

0065(5). Before LUBA, the board was silent about its alternative reasoning, and

it has never identified what airport-related use or uses are allowed, in its view,

under ORS 215.283.

LUBA did not acknowledge or address the board’s alternative reasoning.

Under these circumstances, we leave it to LUBA to consider, on remand, the sig-

nificance of that alternative reasoning.

20

Schaefer also raises additional arguments about the rule’s validity.

Cite as 312 Or App 316 (2021) 337

essentially the same framework that we employ when inter-

preting a statute. Under that analytical framework, we con-

sider the text of the rule in its regulatory and statutory con-

text.” 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 con-

struing 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 OAR 660-012-0065(3)(n)

applies to the development proposed in the Master Plan.

We begin by considering the statutory and regula-

tory context of OAR 660-012-0065(3)(n). ORS 215.213 and

ORS 215.283 govern uses allowed on EFU land.21 In sub-

sections (1) and (2), both statutes set out lists of allowed

farm and nonfarm uses. Airport development is not one of

the uses identified in subsections (1) or (2) of either statute.

ORS 215.283(3) and ORS 215.213(10), which have the same

text, set out a framework for transportation facilities and

improvements that are not addressed in earlier subsections.

They provide as follows:

“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

21

ORS 215.213 applies in counties that adopted a marginal lands system

prior to 1993, and ORS 215.283 applies in nonmarginal lands counties. Each con-

tains the same provision, set out in the text, regarding transportation facilities

and improvements. ORS 215.213(10); ORS 215.283(3). ORS 215.283 applies in

Marion County, where the airport is located.

338 Schaefer v. Oregon Aviation Board

[(LCDC)] as provided in section 3, chapter 529, Oregon

Laws 1993.”22

ORS 215.296 sets out the farm-impacts test, which

requires assessment of whether a proposed nonfarm use on

EFU land would “ ‘[f]orce a significant change’ in accepted

farm practices or ‘[s]ignificantly increase the cost’ of those

practices on surrounding agricultural lands.” Stop the

Dump Coalition v. Yamhill County, 364 Or 432, 434, 435 P3d

698 (2019) (quoting ORS 215.296). Thus, under ORS 215.213

and ORS 215.283, establishing a transportation facility or

improvement that is not listed elsewhere in those statutes

on EFU land requires either (a) an exception to Goal 2 or,

(b) for uses identified by LCDC rule, application of the

farm-impacts test.

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 [ORS 215.213 and ORS 215.283]—

that is, if they do not allow more uses than the statutes.”

Lane County v. LCDC, 325 Or 569, 583, 942 P2d 278 (1997)

(emphases in original). Consistently with the statutory

scheme, LCDC has promulgated OAR 660-012-0065 to

“identif[y] transportation facilities, services and improve-

ments which may be permitted on rural lands consistent

with Goals 3, 4, 11, and 14 without a goal exception.” OAR

660-012-0065(1). OAR 660-012-0065(3) provides as follows:

“The following transportation improvements are consis-

tent 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 ser-

vice to a larger class of airplanes.”

22

Oregon Laws 1993, chapter 529, section 3, provided as follows:

“The Department of Transportation shall, by March 30, 1994, submit

to the Land Conservation and Development Commission proposed rules

identifying the other roads, highways and transportation facilities that may

be allowed pursuant to ORS 215.213(10)(b) and 215.283(5)(b). The Land

Conservation and Development Commission shall adopt rules implementing

ORS 215.213(10)(b) and 215.283(5)(b) by June 30, 1994.”

Cite as 312 Or App 316 (2021) 339

To understand the rule and the development pro-

posed 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 air-

port 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 ‘regu-

larly’ 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 criti-

cal aircraft determination takes into account the Aircraft

Approach Category (approach speed) and Airplane Design

Group (wingspan or tail height) of the aircraft that regu-

larly use the airport. Those classifications determine many

of the airfield design standards including runway and taxi-

way width and separation and the size of various areas at

the sides and ends of the runway that protect aircraft and

nearby land uses.

23

We take judicial notice of FAA Advisory Circular 150, 5000-17, Critical

Aircraft and Regular Use Determination (2017) (available at https://www.faa.gov/

documentLibrary/media/Advisory_Circular/AC_150_5000-17.pdf (last accessed

June 8, 2021)), and FAA Advisory Circular 150/5325-4B, Runway Length

Requirements for Airport Design (2005) (available at https://www.faa.gov/

documentLibrary/media/Advisory_Circular/AC_150_5325-4B.pdf (last accessed

June 8, 2021)). See, e.g., Thomas v. Wasco County, 284 Or App 17, 23 n 9, 392 P3d

741 (2017), rev den, 362 Or 666 (2018) (taking judicial notice in a LUBA case).

340 Schaefer v. Oregon Aviation Board

Determining runway length, however, requires ref-

erence to a potentially different critical aircraft: The “crit-

ical aircraft or grouping of aircraft for runway length” is

“the single aircraft, or grouping of aircraft with similar

operational requirements, that have the longest runway

length requirement that makes regular use of the runway.”

Id. at 3.2.1, 3-1. Generally, runway length requirements for

planes up to 60,000 pounds Maximum Certified Takeoff

Weight (MTOW) are determined by reference to a “family

grouping of airplanes having similar performance char-

acteristics and operating weights.” FAA AC 150/5325-4B,

Runway Length Requirements for Airport Design (2005),

¶ 102, 2 (emphasis omitted) (available at https://www.faa.

gov/documentLibrar y/media /Advisor y_Circular/AC_

150_5325-4B.pdf (last accessed June 8, 2021)). Those fam-

ily groupings depend on MTOW and, for small planes up

to 12,500 pounds MTOW, approach speed and number of

passengers. See id., Table 1-1, at 3. Runway length require-

ments for planes over 60,000 pounds MTOW are determined

by the needs of the particular aircraft, rather than a family

grouping. Id.

With that background in mind, we return to the

text of OAR 660-012-0065(3)(n), which, again, provides that

“[e]xpansions or alterations of public use airports that do not

permit service to a larger class of airplanes” are consistent

with goals 3, 4, 11, and 14 without goal exceptions. As we

understand LUBA’s reasoning, it concluded that the term

“class of airplanes” refers to the Airplane Design Group—

the wingspan or tail height. That is, it appears that LUBA

understood “larger” in “larger class of airplanes” to refer

to the size of the airplanes, and it looked to the physical

dimensions of the airplanes, as represented by the Airplane

Design Group, to determine airplane size.

The FAA does not use the term “class” to describe

airplane sizes.24 As set out above, however, the FAA groups

24

The FAA does sort airplanes into classes for pilot-licensing purposes.

14 CFR § 61.5(b) (2021). In the aircraft category “airplane,” the four classes

are “[s]ingle-engine land”; “[m]ultiengine land”; “[s]ingle-engine sea”; and

“[m]ultiengine sea.” 14 CFR § 61.5(b)(2). None of the parties proposes that that

sorting system is the one to which the rule refers, and we agree that that under-

standing is implausible.

Cite as 312 Or App 316 (2021) 341

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 under-

stand why LCDC would have intended to consider only wing-

span or tail height, rather than also including airplanes

that are larger by weight.

However, we think it is more likely that, by plac-

ing “larger” immediately before “class,” rather than imme-

diately before “airplanes,” LCDC indicated an intention to

refer to a larger—that is, a more inclusive—class of air-

planes, rather than merely referring to larger airplanes.

With that understanding, and considering that the FAA’s

method of determining critical aircraft includes consider-

ation 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 empow-

ered LCDC to allow certain transportation improvements—

improvements that the legislature has not considered import-

ant enough to list in sections (1) and (2) of the statutory

provisions—on EFU land without exceptions to goals 3, 4,

11, and 14. ORS 215.213(10)(b); ORS 215.283(3)(b). The

uses allowed under those provisions necessarily represent

LCDC’s balancing of goal 12 transportation needs against

goals 3, 4, 11, and 14. See ORS 197.340(1) (requiring LCDC

to “give the goals equal weight in any matter in which the

goals are required to be applied”). The considerations that

might be relevant to that balancing process are numerous.

However, we perceive no reason that LCDC would focus its

rule exclusively on the physical dimensions of the wings or

tails of airplanes that serve the airport.

The board, and the response briefs whose reasoning

LUBA adopted, also reasoned that the development that the

Master Plan proposes for the airport does not “permit ser-

vice” to a larger class of airplanes because, when the Master

342 Schaefer v. Oregon Aviation Board

Plan was created, the airport’s ARC could already have

been C-II; that is, it was already serving many of the larger

planes that the airport expansion would accommodate.

To assist in our consideration of that argument,

we set out additional facts about the airport expansion pro-

posed 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 con-

strain 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 meet-

ing 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

25

Although the airport’s planned ARC was B-II, it met C-II design stan-

dards in some respects, including in runway and taxiway width. In addition,

larger planes can use airports with shorter runways and other lower-level design

standards by employing constrained operations. The Master Plan explains that

“[a] constrained operation is one that must reduce payload for takeoff, or stop

en route for fuel, for example.”

Cite as 312 Or App 316 (2021) 343

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 classifi-

cation 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 recom-

mended lengths for larger aircraft exceed the current run-

way length.” The development option that the Master Plan

proposed included a runway expansion of 1,000 feet, yield-

ing 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 exten-

sion [(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.” Webster’s Third New

Int’l Dictionary 1683 (unabridged ed 2002). Thus, the rea-

soning goes, because it is already possible for a larger class

of airplanes to use the airport, the expansion does not “per-

mit” service to those airplanes.

“Permit” also has another meaning: “to give (a per-

son) 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,

344 Schaefer v. Oregon Aviation Board

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 exist-

ing 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 air-

ports 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 ser-

vice 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 expan-

sion 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, OAR 660-012-0065(3)(n)

Cite as 312 Or App 316 (2021) 345

represents LCDC’s decision on how to balance goal 12

transportation needs against goals 3, 4, 11, and 14. In that

context, LCDC likely intended the rule to focus on airport

design and space needs, not whether it is possible for larger

and faster planes to use runways that are designed for

smaller, slower planes.

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 expan-

sion 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 air-

planes 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 air-

planes” 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. OAR 660-012-0065(3)(n). The

Master Plan proposes increasing the airfield design stan-

dards from ARC B-II to ARC C-II and increasing the length

of the runway to accommodate airplanes that approach

the runway faster and airplanes that have an MTOW over

12,500 pounds. Accordingly, the Master Plan proposes an

alteration or expansion of the airport that permits service

to a larger class of airplanes.26

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

26

In light of our conclusion that OAR 660-012-0065(3)(n) does not cover the

airport expansion proposed in the Master Plan, we need not consider petitioners

1000 Friends’ and Schaefer’s contentions that the rule is invalid. We do note,

however, that nothing in the text of the rule suggests that LCDC intends to

allow any transportation improvements on EFU land without applying the farm-

impacts test; the rule does not purport to supersede the statutory requirement that

“[r]oads, highways and other transportation facilities and improvements” not

otherwise addressed in ORS 215.213 and ORS 215.283 can be allowed without a

goal exception only if they are also “subject to” “ORS 215.296,” the farm-impacts

test. ORS 215.213(10); ORS 215.283(3).

346 Schaefer v. Oregon Aviation Board

that the 2012 Master Plan did not propose airport develop-

ment on EFU land; in relying on ORS 836.642 to conclude

that proposed new uses at the Aurora State Airport are

rural uses for land use purposes; and in determining that

OAR 660-012-0065(3)(n) applied.

Reversed and remanded.