Schaefer v. Marion County

617

Submitted January 7, reversed and remanded March 30, 2022

Joseph SCHAEFER,

Petitioner,

v.

MARION COUNTY

and TLM Holdings, LLC,

Respondents.

Land Use Board of Appeals

2020108; A177262

509 P3d 718

TLM Holdings, LLC (TLM) applied for, and Marion County approved, a com-

prehensive plan map amendment, a zoning map amendment, exceptions to state-

wide land use planning Goals 3 and 14, and a conditional use permit for a variety of

uses on a 16.54-acre parcel adjacent to the airport. Land Use Board of Appeals con-

cluded that, pursuant to OAR 660-012-0065(3)(n), the development that TLM pro-

poses for the parcel is consistent with Goals 3, 4, 11, and 14 without a goal exception.

Held: OAR 660-012-0065(3)(n) provides that “[e]xpansions or alterations of public

use airports that do not permit service to a larger class of airplanes” are con-

sistent with Goals 3, 4, 11, and 14. An expansion of a public use airport occurs

when, pursuant to OAR chapter 660, division 13, a local government adopts a

map showing an airport boundary that includes a larger area than the boundary

shown on the previously adopted map of the airport. Requests for comprehensive

plan amendments and zone changes, like the ones at issue here, sought by pri-

vate parties without corresponding expansion of the airport boundary through

the airport planning process are not expansions of public use airports within the

meaning of OAR 660-012-0065(3)(n).

Reversed and remanded.

Joseph Schaefer filed the briefs pro se.

Scott A. Norris filed the brief for respondent Marion

County.

Alan M. Sorem and Saalfeld Griggs PC filed the brief for

respondent TLM Holdings, LLC.

Andrew Mulkey filed the brief amicus curiae for 1000

Friends of Oregon.

Emily Gilchrist filed the brief amicus curiae for City of

Aurora.

Before James, Presiding Judge, and Lagesen, Chief Judge,

and Kamins, Judge.

618 Schaefer v. Marion County

KAMINS, J.

Reversed and remanded.

Cite as 318 Or App 617 (2022) 619

KAMINS, J.

This case presents a dispute about compliance with

statewide land use planning goals on land near the Aurora

State Airport. Petitioner Schaefer seeks review of an order

of the Land Use Board of Appeals (LUBA) affirming Marion

County’s approval of TLM Holdings, LLC’s (TLM’s) appli-

cation for a comprehensive plan map amendment, a zoning

map amendment, exceptions to statewide land use planning

Goals 3 and 14, and a conditional use permit for a variety

of uses on a 16.54-acre parcel adjacent to the airport. LUBA

concluded that, pursuant to OAR 660-012-0065(3)(n), the

development that TLM proposes for the parcel is “consistent

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

660-012-0065(1).

OAR 660-012-0065(3)(n) provides that “[e]xpan-

sions 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 14.1 In Schaefer v. Oregon Aviation Board,

312 Or App 316, 345, 495 P3d 1267, adh’d to as modified on

recons, 313 Or App 725, 492 P3d 782, rev den, 369 Or 69

(2021), we interpreted the phrase “permit service to a larger

class of airplanes” in that rule provision. Here, we interpret

the phrase “[e]xpansions * * * of public use airports.”2 OAR

660-012-0065(3)(n). As explained below, we conclude that

an expansion of a public use airport occurs when, pursuant

to OAR chapter 660, division 13, a local government adopts

1

We recently explained as follows:

“[The Land Conservation and Development Commission] has promulgated

OAR 660-012-0065 to ‘identif[y] transportation facilities, services and

improvements 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 consistent 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[.]’ ”

Schaefer v. Oregon Aviation Board, 312 Or App 316, 338, 495 P3d 1267, adh’d to

as modified on recons, 313 Or App 725, 492 P3d 782, rev den, 369 Or 69 (2021)

(brackets in Schaefer).

2

As LUBA noted, the parties agree that TLM’s proposal would not permit

service to a larger class of airplanes.

620 Schaefer v. Marion County

a map showing an airport boundary that includes a larger

area than the boundary shown on the previously adopted

map of the airport. Requests for comprehensive plan amend-

ments and zone changes, like the ones at issue here, sought

by private parties without corresponding expansion of the

airport boundary through the airport planning process are

not expansions of public use airports within the meaning of

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

Accordingly, LUBA erred in affirming the county’s

determination that TLM’s proposal to develop its parcel

adjacent to the airport qualifies as an expansion of a pub-

lic use airport under OAR 660-012-0065(3)(n) and, conse-

quently, is “consistent with Goals 3, 4, 11, and 14 without a

goal exception,” OAR 660-012-0065(1). Thus, we reverse and

remand.

“[O]ur 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).” Schaefer,

312 Or App at 321 (brackets in original). Here, the question

is whether LUBA’s order was “unlawful in substance,” that

is, whether “it represented a mistaken interpretation of the

applicable law.” Mountain West Investment Corp. v. City of

Silverton, 175 Or App 556, 559, 30 P3d 420 (2001).

I. FACTS

The relevant facts are undisputed. The Aurora

State Airport is located in Marion County and operated by

the Oregon Department of Aviation. All of the land that is

currently developed for airport-related uses is zoned Public (P).

Some of that land is owned by the state and some of it is

privately owned.

The 1976 Aurora State Airport Master Plan, includ-

ing its airport layout plan, which is a map of the airport, is

part of the Marion County Comprehensive Plan. The 1976

airport layout plan shows the subject property outside what

it refers to as the “ultimate airport property”—that is, the

boundary of the property proposed, in the 1976 Master Plan,

to be used as an airport. The “ultimate airport property” on

that plan includes the state-owned airport property and, in

Cite as 318 Or App 617 (2022) 621

addition, some privately owned property. The plan includes

the following note on the subject property:

“THIS AREA ACCEPTABLE FOR

AIRPORT RELATED DEVELOPMENT

UNDER PRIVATE OWNERSHIP”

The privately owned land that is part of the “ulti-

mate airport property” on the 1976 airport layout plan is

zoned P and is developed for airport-related uses. The sub-

ject parcel is adjacent to some of that property; however it

is in a Primary Agriculture (PA) comprehensive plan des-

ignation and is zoned for Exclusive Farm Use (EFU). The

subject parcel is benefited by an easement that allows its

owners use of a paved taxi lane on adjoining property, which

provides access to the airport runway.

TLM applied to Marion County for a comprehensive

plan map amendment to change the comprehensive plan

designation from PA to public and semi-public; a zoning map

amendment to change the zoning from EFU to P with a lim-

ited use overlay; exceptions to Goals 3 and 14; and a condi-

tional use permit “to authorize the future development of

ten categories of airport-related uses” on the subject parcel.

Although the application included a site plan and a descrip-

tion of development, it noted that the site plan and descrip-

tions were “conceptual only.”

The county approved the application with condi-

tions, reasoning that (1) under OAR 660-012-0065(3)(n), the

comprehensive plan and zoning changes did not require goal

exceptions because the application was for an “[e]xpansion[ ]

* * * of [a] public use airport[ ] that does not permit service to

a larger class of airplanes,” and (2) in the alternative, goal

exceptions were justified. Petitioner appealed to LUBA, and

LUBA agreed with the county’s first conclusion and, con-

sequently, declined to address petitioner’s assignments of

error directed at the county’s second line of reasoning.3

3

Our summary in the text is limited to the parts of the county’s decision

and LUBA’s order that are relevant to the issue that we decide. On another issue,

LUBA determined that the county’s findings regarding Goal 6 were inadequate

in one respect and remanded for the county to reconsider its decision on that

issue.

622 Schaefer v. Marion County

On judicial review, petitioner, joined by amici 1000

Friends of Oregon and the City of Aurora, contends that

LUBA erred in a variety of ways. In his first assignment

of error, he argues that TLM’s application was not for an

expansion of a public use airport within the meaning of

OAR 660-012-0065(3)(n), and that LUBA erred in conclud-

ing that the rule applies to situations like this one. TLM and

Marion County respond that LUBA correctly interpreted

the rule.

“ ‘When interpreting an administrative rule, we

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

essentially the same framework that we employ when inter-

preting a statute. Under that analytical framework, we

consider the text of the rule in its regulatory and statutory

context.’ ” Schaefer, 312 Or App at 336-37 (quoting Noble v.

Dept. of Fish and Wildlife, 355 Or 435, 448, 326 P3d 589

(2014) (internal citation omitted)). “ ‘In construing statutes

and administrative rules, we are obliged to determine the

correct interpretation, regardless of the nature of the par-

ties’ arguments or the quality of the information that they

supply to the court.’ ” Id. at 337 (quoting 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)).

Here, as explained above, we must determine the

meaning of “[e]xpansions * * * of public use airports” in

OAR 660-012-0065(3)(n). As LUBA observed, the Land

Conservation and Development Commission (LCDC) origi-

nally adopted a rule using that phrase in 1991, OAR 660-

012-0065(4)(o) (May 8, 1991), and adopted OAR 660-012-

0065(3)(n) in its current form in 1995. LUBA held that LCDC

intended “ ‘public use airports’ to mean airports that are

‘[o]pen to the flying public considering performance and

weight of the aircraft being used. May or may not be attended

or have services available.’ ” (Quoting OAR 738-020-0015

(2)(b) (Sept 20, 1989).). LUBA rejected petitioner’s argument

that the proposed development was not an expansion of a

public use airport, explaining that “OAR 660-012-0065(3)(n)

applies to the proposed comprehensive plan map and zoning

Cite as 318 Or App 617 (2022) 623

map amendments to expand the Airport because the Airport

is a ‘public use airport.’ ”

We agree with LUBA that the Aurora State Airport

is a public use airport as contemplated by the rule. Indeed,

petitioner has never disputed that point. Rather, the argu-

ment that petitioner raised before the county, reiterated

before LUBA, and renews on judicial review is that the

requested land use actions and proposed development do not

constitute an expansion of a public use airport. As explained

below, we agree with petitioner.

II. ANALYSIS

As LUBA noted, the initial question here is what

LCDC intended by “[e]xpansions * * * of public use airports”

in 1995, when it adopted the current version of the rule. As

noted above, it is undisputed that the Aurora State Airport

is a public use airport. And “expansion” had then, and con-

tinues to have, a straightforward meaning here: “Expansion”

means “the act or process of increasing in extent, size, num-

ber, volume, or scope : enlargement, growth.” Webster’s Third

New Int’l Dictionary 798 (unabridged ed 2002); see also id.

(“expand” means “to increase the extent, size, number, vol-

ume, or scope of : enlarge”).4 Thus, we conclude that LCDC

intended the phrase to refer to the act or process of increas-

ing the size or extent of a public use airport.5

That leaves the question of what act or process

increases the size of a public use airport. That turns on

sources of law other than LCDC’s rule, and those sources

of law have changed significantly since the rule’s adoption.

However, as the parties appear to recognize, the rule does

not purport to preserve permanently the statutory and reg-

ulatory scheme that governed increases in the size of public

4

As the Supreme Court has noted, “ ‘any version of Webster’s Third—regardless

of its copyright date—provides a relevant source of ordinary meaning for statutes

enacted any time after 1961.’ ” Jones v. Four Corners Rod & Gun Club, 366 Or

100, 114, 456 P3d 616 (2020) (quoting State v. Eastep, 361 Or 746, 751 n 2, 399

P3d 979 (2017)).

5

In these circumstances, we understand “size” and “extent” to be synony-

mous. Webster’s at 805 (defining “extent” as “the amount of space which some-

thing occupies or the distance over which it extends : the length, width, height,

thickness, diameter, circumference, or area of something : dimensions, propor-

tions, size, magnitude, spread”).

624 Schaefer v. Marion County

use airports when the rule was adopted. Rather, the rule

simply provides that an act or process that increases the

size of a public use airport (that does not permit service to

a larger class of airplanes) is consistent with Goals 3, 4, 11,

and 14, and it is up to the legislature and, as directed by the

legislature, administrative agencies, to specify the acts or

processes that increase the size of a public use airport. Thus,

we look to current statutes and rules to determine what acts

or processes increase the size of a public use airport.

A. Airport Boundaries

In 1995, the legislature acted to integrate exist-

ing airports into Oregon’s land use system. Or Laws 1995,

ch 285. The bill defined “airports” 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.” Or Laws 1995, ch 285, § 3. Thus, although the bill did

not refer to airport boundaries, it effectively created airport

boundaries by defining which land qualified as “airports.”

The bill also required LCDC to enact rules establishing per-

missible uses on airports and instructed local governments

to amend their comprehensive plans and land use regula-

tions to include airports and allow the uses set out in the

rules. Or Laws 1995, ch 285, §§ 4, 5.

In 1997, the legislature amended the provisions

that it had enacted in 1995. Or Laws 1997, ch 859. It did not

amend the 1995 definition of “airports,” which remains in

the statute today. ORS 836.605(2). Among other things, the

1997 bill specified that LCDC “shall adopt rules for uses and

activities allowed within the boundaries of airports identi-

fied in ORS 836.610(1).”6 Or Laws 1997, ch 859, § 5. It also

required LCDC to adopt rules establishing airport bound-

aries: “Within airport boundaries established pursuant to

commission rules, local government land use regulations

6

Airports identified in ORS 836.610(1) include “[p]ublicly owned airports reg-

istered, licensed or otherwise recognized by the Department of Transportation

on or before December 31, 1994, that in 1994 were the base for three or more air-

craft.” ORS 836.610(1)(a). The Aurora State Airport meets those specifications.

OAR 738-090-0030(1)(a) (Exhibit 1).

Cite as 318 Or App 617 (2022) 625

shall authorize the following uses and activities[.]” Id. Those

provisions remain in effect. ORS 836.616(1), (2).

The rules that LCDC adopted pursuant to those

sections are OAR chapter 660, division 13, entitled “Airport

Planning.” OAR 660-013-0010(1) (“This division implements

ORS 836.600 through 836.630 and Statewide Planning Goal

12 (Transportation).”). Similar to ORS 836.605(2), those

rules define “airport” as “the strip of land used for taking off

and landing aircraft, together with all adjacent land used

in connection with the aircraft landing or taking off from

the strip of land, including but not limited to land used for

existing airport uses.” OAR 660-013-0020(1).

OAR 660-013-0040 requires local governments to

adopt detailed airport plans, which include a variety of maps

and data about current airport uses and facilities, as well as

future needs. The “economic and use forecast information”

necessary for an airport plan is provided by the airport’s

sponsor, which, in the case of publicly owned airports like

Aurora State, is the Oregon Department of Aviation.7 OAR

660-013-0040(9).

The first planning requirement that the rule estab-

lishes is

“[a] map, adopted by the local government, showing the

location of the airport boundary. The airport boundary

shall include the following areas, but does not necessarily

include all land within the airport ownership:

“(a) Existing and planned runways, taxiways, aircraft

storage (excluding aircraft storage accessory to residential

airpark type development), maintenance, sales, and repair

facilities;

“(b) Areas needed for existing and planned airport

operations; and

“(c) Areas at non-towered airports[8] needed for exist-

ing and planned airport uses that:

7

“Sponsor” means “the owner, manager, other person, or entity designated

to represent the interests of an airport.” OAR 660-013-0020(6).

8

For purposes of the rule, the Aurora State Airport is a non-towered airport.

See OAR 660-013-0020(4) (“ ‘Non Towered Airport’ means an airport without an

existing or approved control tower on June 5, 1995.”).

626 Schaefer v. Marion County

“(A) Require a location on or adjacent to the airport

property;

“(B) Are compatible with existing and planned land

uses surrounding the airport; and

“(C) Are otherwise consistent with provisions of the

acknowledged comprehensive plan, land use regulations,

and any applicable statewide planning goals.

“(d) ‘Compatible,’ as used in this rule, is not intended

as an absolute term meaning no interference or adverse

impacts of any type with surrounding land uses.”

OAR 660-013-0040(1) (emphasis added).

The airport boundary is expanded based on need,

demonstrated through data and forecasting: Additional

planning requirements include:

“(4) A projection of aeronautical facility and service

needs;

“(5) Provisions for airport uses not currently located at

the airport or expansion of existing airport uses:

“(a) Based on the projected needs for such uses over

the planning period;

“(b) Based on economic and use forecasts supported by

market data;

“(c) When such uses can be supported by adequate

types and levels of public facilities and services and trans-

portation facilities or systems authorized by applicable

statewide planning goals;

“(d) When such uses can be sited in a manner that

does not create a hazard for aircraft operations; and

“(e) When the uses can be sited in a manner that is:

“(A) Compatible with existing and planned land uses

surrounding the airport; and

“(B) Consistent with applicable provisions of the

acknowledged comprehensive plan, land use regulations,

and any applicable statewide planning goals.

“* * * * *

“(9) Local government shall request the airport spon-

sor to provide the economic and use forecast information

Cite as 318 Or App 617 (2022) 627

required by this rule. The economic and use forecast infor-

mation submitted by the sponsor shall be subject to local

government review, modification and approval as part of

the planning process outlined in this rule. Where the spon-

sor declines to provide such information, the local govern-

ment may limit the airport boundary to areas currently

devoted to airport uses described in OAR 660-013-0100.”

OAR 660-013-0040.

Those provisions clearly identify the act that

increases the size of a public use airport like Aurora State.

The airport boundary establishes the size of the airport. See

Webster’s at 260 (defining “boundary” as “something that

indicates or fixes a limit or extent : something that marks

a bound (as of a territory or a playing field) : a bounding or

separating line”). Thus, the local government’s act of adopt-

ing a map showing an airport boundary that is larger than

the boundary shown on the previously adopted map is the

act that increases the size of the airport. That act is the end

product of the airport planning process governed by OAR

chapter 660, division 13.

The parties dispute the role that the definition of

“airports” in ORS 836.605(2) plays in the analysis of what

act or process increases the size of an airport. That statute

defines an “airport” 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.” Petitioner contends

that the definition limits airport boundaries while respon-

dents reason that the definition expands them. As explained

below, that definition does neither; rather, it is consistent

with our understanding of the scheme described above.

Petitioner appears to be of the view that, given

that statutory definition of “airports,” airport boundaries

are frozen at their 1994 size and cannot be expanded. That

understanding overstates the significance of the statutory

definition. As we have explained, airport boundaries were

established by the definition of “airports” in ORS 836.605(2),

which identified which land constituted existing airports at

628 Schaefer v. Marion County

that time. In the same 1995 bill, the legislature required

LCDC’s rules to “allow for the reasonable growth of” “[p]er-

missible commercial and recreational airport uses and

activities.” Or Laws 1995, ch 285, § 5(2), (3). Thus, when the

statutory provision was enacted, it was not intended to pro-

hibit future expansion of airport uses, and, consequently,

airport boundaries. Subsequently, in 1997, the legislature

tasked LCDC with adopting rules that would establish

airport boundaries, ORS 836.616(2), and LCDC has done

that—including providing for how airport boundaries are to

be expanded—in OAR 660-013-0040(1). Given that scheme,

the definition of “airports” in ORS 836.605(2) does not limit

airport boundaries to their 1994 sizes.

On the other hand, respondents contend that, under

the statutory definition, all land adjacent to an airport run-

way (and apparently also all land, like the subject parcel,

adjacent to land adjacent to an airport runway) can be part

of the “public use airport” regardless of the location of the

airport boundary.9 That view ignores the significance—and

even the existence—of airport boundaries in the statutory

and regulatory scheme. As set out above, ORS 836.605(2)

defines an “airport” 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.” Respondents con-

tend that, by including the phrase “but not limited to land

used for the existing commercial and recreational uses and

activities as of December 31, 1994” in that definition, the

legislature included in its definition of “airports” an unspec-

ified amount of land that was not “used in 1994 in connec-

tion with the aircraft landing or taking off from the strip of

land.” They contend that we should understand that addi-

tional land to include land, like TLM’s parcel, that is near a

“strip of land used for taking off and landing aircraft” and

9

In our view, it is not a foregone conclusion that, if TLM’s parcel were,

by definition, part of the airport, the development TLM proposes would be an

expansion of the airport; if that were the case, the development would not expand

the size of the airport because the parcel would already be part of the airport.

However, because, as explained below, we reject respondents’ understanding of

the statutory definition of “airport,” we need not consider that question.

Cite as 318 Or App 617 (2022) 629

that could be used in connection with the aircraft using the

strip.

We need not consider respondents’ latter conten-

tion, because we disagree that the statutory definition of

“airports” includes any land that was not “used in 1994

in connection with the aircraft landing or taking off from

the strip of land.” ORS 836.605(2). In the 1995 bill, in addi-

tion to defining which land was “airports,” the legislature

instructed the Department of Transportation to draft, and

send to LCDC for enactment, rules specifying “[p]ermissi-

ble commercial and recreational airport uses and activities”

that would be allowed on the land that it had defined as

“airports.” Or Laws 1995, ch 285, §§ 4(1), 5(2). The “[p]er-

missible commercial and recreational airport uses and

activities” included “emergency medical flight services, law

enforcement and firefighting activities, search and rescue

operations, flight instruction and ground training, aircraft

maintenance, aircraft refueling, aircraft service and sales,

aircraft rental, aeronautic skills training, aeronautic rec-

reational and sporting activities, construction and mainte-

nance of airport facilities and crop dusting and other agri-

cultural activities.” Or Laws 1995, ch 285, § 5(2).

Thus, the 1995 bill contemplated that (1) land that

was, at the end of 1994, “the strip of land used for taking off

and landing aircraft” and “all adjacent land used in 1994

in connection with the aircraft landing or taking off from

the strip of land” would be airports and (2) going forward,

LCDC rules would enumerate the “[p]ermissible commercial

and recreational airport uses and activities” that would be

allowed on airports.

With that understanding, and at the risk of repe-

tition, we set out the disputed definition of “airports” from

ORS 836.605(2) one more time: “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 air-

port uses and activities as of December 31, 1994.” Given the

context that we have just described, the phrase “including

but not limited to” in that definition reflects a recognition

630 Schaefer v. Marion County

that the existing uses “in connection with the aircraft land-

ing or taking off from the strip of land” might include uses

beyond those enumerated as “[p]ermissible commercial and

recreational airport uses and activities.” That is, all adja-

cent land used in 1994 in connection with the aircraft land-

ing or taking off from the strip of land was part of the air-

port; although the uses affirmatively allowed on airports

were limited to the enumerated airport uses, the land that

made up the airport was not limited to the land occupied by

the enumerated uses.

Thus, the legislature’s inclusion of “but not limited

to” in the definition of “airports” does not indicate an inten-

tion to include land that was not “used in 1994 in connection

with the aircraft landing or taking off from the strip of land.”

ORS 836.605(2).10 Accordingly, we reject respondents’ con-

tention to the contrary. Nothing in that definition provides a

ground on which to conclude that development on land outside

the airport boundaries, as established and regulated by OAR

chapter 660, division 13, alone increases the size of a public

use airport within the meaning of OAR 660-012-0065(3)(n).

B. Through the Fence Operations

Next we consider the statutes that establish the

through the fence pilot program, ORS 836.640 and ORS

836.642. TLM contends that, in those provisions, the legisla-

ture has redefined the boundary of the Aurora State Airport

to include the subject property. As we will explain, those

provisions do not change our understanding that an airport

like Aurora State increases in size when the local govern-

ment, in compliance with OAR chapter 660, division 13,

adopts a map showing a larger airport boundary.

10

The county relied on a similar understanding of OAR 660-013-0020(1),

which defines “airport” as “the strip of land used for taking off and landing air-

craft, together with all adjacent land used in connection with the aircraft landing

or taking off from the strip of land, including but not limited to land used for

existing airport uses.” Although the rule’s definition omits the statute’s reference

to “adjacent land used in 1994 in connection with the aircraft landing or taking

off from the strip of land,” ORS 836.605(2) (emphasis added), that omission is

immaterial here; the rule’s definition of the relevant “adjacent land” is, like its

statutory counterpart, limited to adjacent land “used in connection with the air-

craft taking off or landing on the strip of land.” OAR 660-013-0020(1) (emphasis

added). It is undisputed that the subject parcel is not currently, nor has it ever

been, “used in connection with” the airport or aircraft.

Cite as 318 Or App 617 (2022) 631

In 2005, the legislature enacted ORS 836.640 and

ORS 836.642, which direct the Department of Aviation to

establish a pilot program to encourage “through the fence

operations.” ORS 836.642(1); Or Laws 2005, ch 820, § 3(1).

The Aurora State Airport is one of the program sites. ORS

836.642(2)(a); Or Laws 2005, ch 820, § 3(2) (“The pilot pro-

gram shall operate at * * * [t]he Aurora State Airport.”).

In simplified terms, a through the fence operation

is an airport-related business located on privately owned

land that relies on the ability to taxi a plane to or from the

airport runway. The statute defines “through the fence oper-

ation” as “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 indus-

trial use to an airport runway.” ORS 836.640(5); Or Laws

2005, ch 820, § 2(4). “Customary and usual aviation-related

activity” includes activities from two sources, both of which

are established outside of the through the fence provisions:

those “described in ORS 836.616(2)” and those “that a local

government may authorize pursuant to ORS 836.616(3).”

ORS 836.640(2); Or Laws 2005, ch 820, § 2(1).

ORS 836.616(2) contains a list of the uses and

activities that “local government land use regulations shall

authorize” “[w]ithin airport boundaries established pursu-

ant to commission rules.”11 We refer to those uses and activ-

ities as “airport uses.” ORS 836.616(3) provides as follows:

11

Those uses and activities are a more developed version of the list of airport

uses, set out above, that was originally enacted in 1995, Or Laws 1995, ch 285,

§ 5(2):

“(a) Customary and usual aviation-related activities including but not

limited to takeoffs, landings, aircraft hangars, tie-downs, construction and

maintenance of airport facilities, fixed-base operator facilities and other

activities incidental to the normal operation of an airport;

“(b) Emergency medical flight services;

“(c) Law enforcement and firefighting activities;

“(d) Flight instruction;

“(e) Aircraft service, maintenance and training;

“(f) Crop dusting and other agricultural activities;

“(g) Air passenger and air freight services at levels consistent with the

classification and needs identified in the State Aviation System Plan;

632 Schaefer v. Marion County

“All land uses and activities permitted within airport

boundaries, other than the uses and activities established

under subsection (2) of this section, shall comply with

applicable land use laws and regulations. A local govern-

ment may authorize commercial, industrial and other uses

in addition to those listed in subsection (2) of this section

within an airport boundary where such uses are consistent

with applicable provisions of the acknowledged comprehen-

sive plan, statewide land use planning goals and commis-

sion rules and where the uses do not create a safety hazard

or limit approved airport uses.”

Thus, the through the fence program concerns air-

port uses, and other uses allowed under certain circum-

stances within airport boundaries under ORS 836.616(3),

conducted by private users, that rely on the ability to taxi

aircraft directly to the runway. ORS 836.640(2), (5); Or Laws

2005, ch 820, § 2(1), (4).

The 2005 bill provided that the Department of

Aviation shall establish a pilot program “to encourage

development of through the fence operations” using, among

other things, “public-private partnerships” and required the

Oregon Department of Aviation to adopt “standards and guide-

lines for through the fence operations.” ORS 836.642(1), (3);

Or Laws 2005, ch 820, § 3(1), (3). It required DLCD and local

governments to

“coordinate with the Oregon Department of Aviation to

ensure that the applicable comprehensive plans and land

use regulations, including airport zoning classifications

pursuant to ORS 836.600 to 836.630, facilitate through the

fence operations and support the development or expansion

of the pilot site consistent with applicable statewide land

use planning requirements.”

ORS 836.642(4); Or Laws 2005, ch 820, § 3(4). It directed

a state business assistance program to assist pilot sites in

achieving objectives of the program. ORS 836.642(5); Or

Laws 2005, ch 820, § 5. And it imposed deadlines for the

“(h) Aircraft rental;

“(i) Aircraft sales and sale of aviation equipment and supplies; and

“(j) Aviation recreational and sporting activities.”

ORS 836.616(2).

Cite as 318 Or App 617 (2022) 633

Department of Aviation’s adoption of rules; coordination

with DLCD and local governments; and amendment of com-

prehensive plans and land use regulations. Or Laws 2005,

ch 820, § 4.

The bill did not modify land use statutes or rules.

Instead, the through the fence program worked within

the existing land use framework for airports. See Audio

Recording, Senate Committee on Transportation, Apr 27,

2005, SB 680, at 17:10, 38:10 (statement of Bob Rindy,

Department of Land Conservation and Development

(DLCD)), http://records.sos.state.or.us/ORSOSWebDrawer/

RecordHtml/4196707 (accessed Mar 15, 2022) (explain-

ing that a previous version of the bill would have required

changes to rules and statewide planning goals, but that the

amended version—which was ultimately enacted—did not

require any changes to the existing land use framework,

and, for that reason, DLCD was withdrawing its objections

to the bill); see also Schaefer, 312 Or App at 333 (“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).”).

The legislative intention not to modify the existing

land use framework for airports is evident in each section of

the bill that relates to land use: The coordination require-

ment of section 3(4) of the bill, set out above, Or Laws 2005,

ch 820, § 3(4), requires DLCD and local governments to

ensure that land use laws “facilitate through the fence oper-

ations and support the development or expansion of the pilot

site consistent with applicable statewide land use planning

requirements.” (Emphasis added.) The definition of “[c]ustom-

ary and usual aviation-related activity” in ORS 836.640(2)

relies on the airport uses allowed by ORS 836.616(2) and

additional uses that may be allowed under ORS 836.616(3);

thus, the group of uses that the bill addresses is the same

group of uses that was already allowed on airports. Finally,

in the provision requiring the Department of Aviation to

adopt rules, the single paragraph that tangentially relates

to land use recognizes the airport planning process gov-

erned by OAR chapter 660, division 13:

634 Schaefer v. Marion County

“The Oregon Department of Aviation, by rule, shall

provide standards and guidelines for through the fence

operations that * * * [r]equire submission, review, approval,

and, as appropriate, revision of a facility site plan for each

through the fence operation so that the real property cov-

ered by the site plan can be incorporated into the airport

boundary and coordinated with the other aspects of the air-

port master plan[.]”

ORS 836.642(3)(b); Or Laws 2005, ch 820, § 3(3)(b) (empha-

sis added).

We pause here to consider the function of the pro-

vision set out immediately above. That paragraph instructs

the Department of Aviation to adopt a rule requiring a pro-

cedure through which an entity that wants to establish a

through the fence operation submits a site plan to the air-

port sponsor, and the airport sponsor reviews it, may require

revisions, and, ultimately, can approve it. The purpose of

that process is to allow the real property covered by the

site plan to be incorporated into the airport boundary and

coordinate the through the fence operation with the other

aspects of the master plan.

For current purposes, that statutory paragraph

is most notable for what it does not do: The statute itself

does not modify the procedure for expanding the airport

boundary, which, as we have explained, the legislature has

committed to LCDC in ORS 836.600 to 836.630, and LCDC

has comprehensively addressed in OAR chapter 660, divi-

sion 13. Nor does the statute authorize the Department of

Aviation to modify the procedure for expanding the airport

boundary. Rather, the statutory text simply provides that

the Department of Aviation’s rule must require a procedure

through which the proponent of a through the fence oper-

ation submits a site plan to the airport sponsor, and the

airport sponsor reviews it, may require revisions, and, ulti-

mately, can approve it. Although the purpose of the site plan

approval requirement is related to land use—it is for the

purpose of allowing the real property on which the through

the fence operation is located to be incorporated into the air-

port boundary and coordinated with the other aspects of the

airport master plan—under the terms of the statute, neither

the statute nor the rule that the Department of Aviation is

Cite as 318 Or App 617 (2022) 635

authorized to adopt effectuates any change to the existing

land use framework for airports.

Thus, the 2005 bill authorized the Department of

Aviation to adopt a rule requiring a process through which

the proponent of a through the fence operation submits a site

plan to the airport sponsor, and the airport sponsor reviews

it, may require revisions, and, ultimately, can approve it.

Because neither the identified paragraph nor any other part

of the through the fence statutes modifies, or authorizes

modification of, the land use framework for airports, the

airport sponsor’s later use of the site plan to incorporate the

property into the airport boundary and coordinate the oper-

ation with the other aspects of the airport master plan must

take place through the airport planning process established

in OAR chapter 660, division 13.

In 2009, the legislature amended the 2005 through

the fence provisions, including by providing, for the first

time, a definition of “airport boundary,” which is specific to

the through the fence provisions. “As used in this section

and ORS 836.642: * * * ‘Airport boundary’ includes the com-

bined public and private properties that are permitted to

have direct access to the airport runway by aircraft.” Or

Laws 2009, ch 398, § 1(1); ORS 836.640(1).

As enacted, the 2009 bill did not add the term “air-

port boundary” to the through the fence provisions except in

the definition section. Or Laws 2009, ch 398. As introduced,

the bill included a section that explicitly relied on that

definition of “airport boundary”; however, that section was

not enacted. SB 170 (2009), § 3 (proposing to amend ORS

197.713 to allow “a county or its designee” to consider “for

industrial development under this section” “[l]and within an

airport boundary, as defined in ORS 836.640, of a public use

airport participating in the pilot program established under

ORS 836.642 to encourage development of through the fence

operations”); SB 170 (2009), Senate Amendments (Feb 26,

2009) (removing section 3). Thus, the definition’s only effect

was to create a new meaning for the term “airport bound-

ary” in the original 2005 through the fence provisions. See

Audio Recording, House Committee on Transportation,

SB 170, May 20, 2009, at 1:04:50 (statement of Dan Clem,

636 Schaefer v. Marion County

director, Oregon Department of Aviation), https://olis.oregon-

legislature.gov (accessed Mar 15, 2022) (noting that the air-

port boundary would be expanded “for purposes of this bill”

but not for all purposes).

As we have explained, the 2005 bill did not modify

the existing land use framework for airports. We conclude,

for two interrelated reasons, that the new definition of “air-

port boundary” added in 2009 likewise did not modify the

existing land use framework for airports.

First, the definition of “airport boundary” in ORS

836.640 does not apply to ORS 836.600 to 836.630 or LCDC’s

airport planning rule, OAR chapter 660, division 13, which

is required by and implements ORS 836.600 to 836.630. ORS

836.600 to 836.630 govern land use at airports; as explained

above, ORS 836.640 and ORS 836.642 are free-standing pro-

visions that do not. See also Schaefer, 312 Or App at 333; id. at

335 (“The provisions of ORS 836.600 to 836.630 are indepen-

dent 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 indicates.”).

Second, the new definition of “airport boundary”

does not remove or modify the land use limitations, described

above, that the legislature included in the through the fence

provisions in 2005. The new definition expands the reach of

“through the fence operations”: The new definition of “air-

port boundary” means that through the fence operations

now include customary and usual aviation-related activities

that are conducted by a commercial or industrial user of

property on “the combined public and private properties that

are permitted to have direct access to the airport runway by

aircraft,” ORS 836.640(1), rather than just such activities

conducted on the area encompassed by the actual airport

boundary established by OAR 660-013-0040(1).12

12

As set out above, “[t]hrough the fence operation” means

“a customary and usual aviation-related activity that:

“(a) Is conducted by a commercial or industrial user of property within

an airport boundary; and

“(b) Relies, 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).

Cite as 318 Or App 617 (2022) 637

That broader meaning of “through the fence opera-

tions” means that the through the fence pilot program now

encourages development of through the fence operations on

private properties outside the airport boundary established

by OAR 660-013-0040(1) that are permitted to have direct

access to the airport runway by aircraft. The Department

of Aviation must adopt standards and guidelines for those

operations. ORS 836.642(1), (3). Further, DLCD and local

governments must consult with the Department of Aviation

to “ensure that the applicable comprehensive plans and land

use regulations * * * facilitate [that larger group of opera-

tions] and support the development or expansion of the pilot

site consistent with applicable statewide land use planning

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

As the text emphasized immediately above indi-

cates, the 2009 amendments did not change the textual

limitations on the land use effect of the original through

the fence provisions. Nor does the new definition of “airport

boundary” give new meaning to ORS 836.642(3)(b), the pro-

vision that directs the Department of Aviation to adopt a

rule that requires a process for approval of a through the

fence operation. Again, that paragraph provides:

“The Oregon Department of Aviation, by rule, shall

provide standards and guidelines for through the fence

operations that * * * [r]equire submission, review, approval,

and, as appropriate, revision of a facility site plan for each

through the fence operation so that the real property cov-

ered by the site plan can be incorporated into the airport

boundary and coordinated with the other aspects of the

airport master plan.”

ORS 836.642(3)(b).

Whatever effect the new definition of “airport bound-

ary” has on the site plan approval requirement, it does not

change the fact that, as explained above, ORS 836.642(3)(b)

neither directly modifies the procedure for expanding the

airport boundary nor authorizes the Department of Aviation

to modify the procedure for expanding the airport boundary.

Rather, that paragraph simply provides that the Department

of Aviation’s rule must require a process through which an

638 Schaefer v. Marion County

entity that wants to establish a through the fence operation

submits a site plan to the airport sponsor, and the airport

sponsor reviews it, may require revisions, and, ultimately,

can approve it. That process ensures that the airport spon-

sor will be well positioned to incorporate the property into

the airport boundary and coordinate the operation with the

other aspects of the airport master plan in the course of the

airport planning process established in OAR chapter 660,

division 13.13

In sum, considering the through the fence provi-

sions in the context of the statutory and regulatory scheme

establishing airport boundaries, it remains clear that an

increase in the size of a public use airport like Aurora State

occurs when the local government, in compliance with OAR

chapter 660, division 13, adopts a map showing an expanded

airport boundary. Compliance with OAR chapter 660, divi-

sion 13, is a necessary prerequisite to any “expansion[ ] * * *

of [a] public use airport[ ]” within the meaning of OAR 660-

012-0056(3)(n).

TLM applied to Marion County for, as relevant

here, a comprehensive plan map amendment and a zoning

map amendment to allow airport-related development on

the subject parcel. It is undisputed that the application was

not part of the airport planning process established in OAR

chapter 660, division 13. Thus, the application was not for

an “expansion[ ] * * * of [a] public use airport[ ]” within the

meaning of OAR 660-012-0056(3)(n). LUBA erred in holding

otherwise. We therefore reverse on petitioner’s first assign-

ment of error on judicial review and remand to LUBA.

13

Our conclusion that the 2009 bill did not modify the existing land use

framework for airports is also consistent with the provision’s legislative history,

which demonstrates that the purpose of the bill, as enacted, was to allow the pilot

program to expand to more sites and to change the definition of “rural airport,”

not to change the operation of the statewide land use planning system. See, e.g.,

Staff Measure Summary, House Committee on Transportation, HB 170 B (2009),

May 20, 2009.

The proponents of the bill never suggested, nor did the legislature intend,

that the bill would affect land use at airports with established pilot programs.

If it had, DLCD’s original objections to the 2005 bill—that changes to the land

use framework for airports would require LCDC to amend the statewide plan-

ning goals and other rules, and would require legislative changes to ORS chapter

215—would likely have resurfaced.

Cite as 318 Or App 617 (2022) 639

Next, we briefly address petitioner’s third and

fourth assignments of error. In the third assignment, peti-

tioner contends that LUBA erred in rejecting, as insuffi-

ciently supported, his contention that 2004 goal exceptions

did not extend to cover the proposed development, which, he

argued, would increase the intensity of uses and facilities on

the adjacent parcel. LUBA reasoned that petitioner failed to

argue or identify evidence in the record showing that “the

uses and public facilities approved in the 2004 Exception

were limited to any particular intensity.”

Petitioner’s argument before the county, and again

before LUBA, was that, as a matter of law, the uses and

public facilities approved in any exception are limited to

the intensity necessary for the development for which the

exception is taken. See OAR 660-004-0018(4)(b) (“When a

local government changes the types or intensities of uses or

public facilities and services within an area approved as a

‘Reasons’ exception, a new ‘Reasons’ exception is required.”).

It is undisputed that, when the exception for the adjacent

parcel was taken in 2004, no development was contemplated

on the subject parcel. Thus, under petitioner’s legal theory,

as a matter of law, the 2004 exception did not encompass

any increase in intensity that will result from development

of the subject parcel.

Under those circumstances, petitioner did not need

to identify evidence that the 2004 exception was limited

to a particular intensity; instead, his legal argument fully

addressed that point. LUBA erred in declining to consider

that issue. If, on remand, LUBA concludes that the goal

exceptions are justified, it should consider petitioner’s argu-

ment about new exceptions for the adjacent parcel.

In his fourth assignment on judicial review, peti-

tioner argues that LUBA incorrectly reasoned that peti-

tioner failed to sufficiently raise before the county his con-

tention, made before LUBA in the third subassignment of

the sixth assignment of error, that the county erred in rely-

ing on the provisions of ORS 836.600 to 836.630 to approve

the requested land use actions without goal exceptions. As

explained in petitioner’s brief, petitioner raised that issue

before the county sufficiently to allow the decision-maker

640 Schaefer v. Marion County

and TLM an adequate opportunity to respond: Petitioner

described the applicant’s reasoning, cited the relevant stat-

utes, and explained that those statutes did not apply. See

Boldt v. Clackamas County, 107 Or App 619, 623, 813 P2d

1078 (1991) (“ORS 197.763(1) does not simply require ‘suffi-

cient specificity,’ but goes on to define what the objective of

the requisite specificity is, i.e., to afford the decision-maker

and the parties ‘an adequate opportunity to respond to each

issue.’ The plain thrust of that language is that the stat-

ute requires no more than fair notice to adjudicators and

opponents[.]”). Thus, to any extent that the issues underly-

ing petitioner’s fourth assignment are not resolved by this

opinion, LUBA should consider them on remand.14

Our disposition obviates the need for us to address

petitioners’ second assignment of error, in which petitioner

contends that LUBA’s application of OAR 660-012-0065(3)(n)

is not supported by substantial evidence.

Reversed and remanded.

14

As we understand it, the county relied on ORS 836.600 to 836.630 to

support its determination that OAR 660-012-0065(3)(n) applied. As we have

explained, under a proper interpretation of OAR 660-012-0065(3)(n), that was

erroneous. However, to any extent that the county relied on ORS 836.600 to

836.630 independently of OAR 660-012-0065(3)(n), petitioner’s argument that

those statutory provisions do not apply to the development proposed on the sub-

ject property preserved an argument that the county erred in that respect.