HomeMy WebLinkAboutDoc 479 - Leading Edge DecisionDeschutes County Board of Commissioners
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of September 29, 2014
DATE: September 18,2014
FROM: Will Groves CDD (541) 388-6518
TITLE OF AGENDA ITEM:
Consideration and Signature of Document No. 2014-479, Decision Of The Board Of County
Commissioners Of Deschutes County in A-14-2 (SP 13-7, A-13-4)
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
On August 18,2014, the Board conducted deliberations on an appeal filed by The Flight Shop and Aero
Facilities (Appellant). The appeal was submitted in response to a Deschutes County Hearings Officer's
decision on remand from LUBA that a fueling station proposed by Leading Edge Aviation Inc.
(Applicant) at the Bend Airport complies with all applicable regulations. On August 18,2014, the
Board decided to approve the application, adopt the Hearings Officer's decision with specified changes,
and provided direction to Staff to work with the applicant to develop a findings document in accordance
with the Board deliberation.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Motion: Approve signature of Document No. 2014-479.
ATTENDANCE: Will Groves, Laurie Craghead
DISTRIBUTION OF DOCUMENTS:
Will Groves, Legal, Parties to SP-13-7 (A-14-2, A-13-4).
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For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY
FILE NUMBER: SP 13-7 (A-14-2, A-13-4) (LUBA 2013-073)
APPLICANT: Leading Edge Aviation, Inc.
63048 Powell Butte Highway
Bend, Oregon 97701
PROPERTY OWNER: City of Bend
710 NW Wall Street
Bend, Oregon 97701
REQUEST: Site Plan approval for a fueling station in the Airport
Development Zone on remand from LUBA.
PROPERTY: City of Bend Municipal Airport; Deschutes County
Assessor’s Map 17-13-20, tax lot 200
STAFF CONTACT: Will Groves, Senior Planner
HEARING DATE: N/A
I. SUMMARY OF DECISION:
In this decision, the Board of County Commissioners of Deschutes County, Oregon
(“Board”) is asked to decide an appeal filed by The Flight Shop and Aero Facilities
(“Appellant”) of the April 30, 2014 decision on remand by the County Hearings Officer
concerning a fueling station at the Bend Airport proposed by Leading Edge Aviation Inc.
(“Applicant”). The Hearings Officer approved the Applicant’s site plan.
The Hearings Officer's decision was in response to a remand from LUBA (LUBA No.
2013-073), who had reviewed a prior approval of the fueling station site plan by the
Hearings Officer in a decision dated July 19, 2013. The prior site plan approval was
appealed to the Board by the Appellant (A-13-4), but the Board declined review (Order
2013-038). The appellants then sought review by LUBA asserting two assignments of
error. LUBA sustained one assignment of error, did not reach the other assignment of
error, and remanded the decision to the county for further proceedings on the following
questions:
1. Whether the airport master plan includes any applicable standards or
requirements with respect to the proposed fuel storage facility?
REVIEWED
______________
LEGAL COUNSEL
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2. Whether the airport master plan precludes approval of a fueling station on the
west side of the runway in the proposed location?
The Board agreed to hear the appeal of the decision on remand on the record under
Order No 2014-015. On the issues presented by this appeal, the Board decides as
follows:
Neither the Comprehensive Plan nor the Bend Municipal Airport (AMP) include
any standards and criteria applicable to the Applicant's site plan;
Neither the Comprehensive Plan nor the AMP preclude approval of the
Applicant's fueling station on the subject property;
Policy 16.2(h) of the Deschutes County Comprehensive Plan and TSP is properly
interpreted as not prohibiting development that is not specifically designated on
the Airport Layout Plan (“ALP”);
Deschutes County has not revised or approved revisions of the Airport Layout
Plan since the 2002 AMP update in order to reflect actual development at the
Airport, but the Hearings Officer statement to this effect is harmless error;
The Airport Development Zone Purpose Statement in DCC 18.76.010 refers to
consistency between the zoning regulations in DCC Chapter 18.76 and the
Comprehensive Plan AMP. It does not establish those documents as mandatory
approval criteria or elevate non-mandatory elements of the Comprehensive Plan
or AMP to approval criteria applicable to Applicant’s site plan; and
The AMP and ALP are intended to describe recommended airport developments
to meet identified needs and accommodate unforeseen development needs and
thus do not contain any site-specific approval criteria for the Applicant’s fueling
station.
As set out below, the Board affirms the Hearings Officer’s decision on remand in part
and makes additional findings.
II. APPLICABLE CRITERIA:
The Board adopts the Hearings Officer’s findings in Section I of her decision and
incorporates them herein as its own findings. The Board notes that DCC 18.76.010 is
not applicable, because it contains no standards or criteria, but is addressed below as
part of resolving the issues presented in this appeal.
/ / /
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III. FINDINGS OF FACT:
The Board adopts the findings made by the Hearings Officer in Sections II of the
decision on remand as its findings of fact as amended below.
A. Procedural History: The procedural history submitted by the Hearings Officer in
Section II(F) is amended to add the following:
The Hearings Officer’s decision on remand was mailed on April 30, 2014. The
Appellant appealed the Hearings Officer’s decision on May 12, 2014, which was
within the 12-day appeal period required by State Law and Deschutes County
Code 22.32.015(B). On May 13, 2014, the Applicant agreed to toll the 90 day
requirement for action on remand imposed by ORS 215.435 to allow the Board to
hear the appeal. With that extension, the deadline for the decision would h ave
been August 17, 2014.
The Board agreed to hear the appeal of the decision on remand on the record
under Order No. 2014-015 dated May 19, 2014. Appellant and Applicant filed
their respective legal arguments on June 18, 2014, which was consistent with the
briefing schedule established in Order No. 2014-015.
On June 23, 2014, the Applicant filed a request to dismiss the appeal as
unperfected on account of Appellant’s failure to timely submit a transcript of the
proceedings below as required by DCC 23.32.024. Appellant filed a response to
the motion to dismiss on June 25, 2014 and Applicant submitted a counter-
response on June 26, 2014. By Order Number 2014-018 dated June 30, 2014,
the Board extended the record period to allow for submission of the transcript
and to reset the briefing schedule. Applicant submitted its rebuttal argument and
the record closed on July 9, 2014.
The Board was briefed on the appeal at its August 6, 2014 Work Session.
Deliberations on the appeal occurred at the August 13, 2014 Business Meeting.
On August 27, 2014, Applicant submitted a letter extending the 90-day clock to
October 1, 2014, retroactive to August 17, 2014.
IV. FINDINGS OF FACT AND CONCLUSION OF LAW SPECIFIC LEGAL ISSUES:
CHAPTER 22.32 APPEALS
22.32.010. Who may appeal.
A. The following may file an appeal:
1. A party;
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FINDINGS: This appeal was filed by Appellant, who appeared in the proceedings below
by providing oral testimony and written argument. As a party, Appellant is eligible to
appeal under DCC 22.32.01 0(A)(1).
22.32.015. Filing appeals.
A. To file an appeal, an appellant must file a completed notice of appeal on a
form prescribed by the Planning Division and an appeal fee.
B. Unless a request for reconsideration has been filed, the notice of appeal
and appeal fee must be received at the offices of the Deschutes County
Community Development Department no later than 5:00 PM on the twelfth
day following mailing of the decision.
If a decision has been modified on reconsideration, an appeal must be
filed no later than 5:00 PM on the twelfth day following mailing of the
decision as modified. Notices of Appeals may not be received by
facsimile machine.
C. If the Board of County Commissioners is the Hearings Body and the
Board declines review, a portion of the appeal fee may be refunded. The
amount of any refund will depend upon the actual costs incurred by the
County in reviewing the appeal. When the Board declines review and the
decision is subsequently appealed to LUBA, the appeal fee may be
applied toward the cost of preparing a transcript of the lower Hearings
Body's decision.
D. The appeal fee shall be paid by cash or check or money order, except
that local, state or federal governmental agencies may supply a purchase
order at the time of filing.
FINDINGS: On May 12, 2014 Appellant filed a completed notice of appeal on the
Planning Department's prescribed form, which contained the information required by DCC
22.32.020, and paid the appeal fee. This occurred within twelve days of the mailing of the
Hearings Officer's Decision on April 30, 2014. Therefore, the appellant complied with the
above appeal application requirements. The provisions regarding modifying a decision
on reconsideration and the Board declining review are not applicable to this appeal.
22.32.020. Notice of Appeal.
Every notice of appeal shall include:
A. A statement raising any issue relied upon for appeal with sufficient
specificity to afford the Hearings Body an adequate opportunity to
respond to and resolve each issue in dispute.
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B. If the Board of County Commissioners is the Hearings Body, a request
for review by the Board stating the reasons why the Board should review
the lower Hearings Body's Decision.
C. If the Board of County Commissioners is the Hearings Body and de novo
review is desired, a request for de novo review by the Board stating the
reasons why the Board should provide de novo review as provided in
DCC 22.32.030.
FINDINGS: The notice of appeal presented the issues constituting the bases for appeal
with sufficient specificity that the Board was able to adequately respond and resolve each
issue raised. The notice of appeal also contained a request for a de novo review, which
was denied by the Board in Order No. 2014-015, and the Board chose to the hear the
appeal on the record. The appeal, therefore, met the requirements of DCC 22.32.015
and 22.32.020.
22.32.024. Transcript Requirement.
A. Except as otherwise provided in DCC 22.32.024, appellants shall provide
a complete transcript of any hearing appealed from, from recorded
magnetic tapes provided by the Planning Division.
B. Appellants shall submit to the Planning Division the transcript no later
than the close of the day five days prior to the date set for a de novo
appeal hearing or, in on-the-record appeals, the date set for receipt of
written arguments. Unless excused under DCC 22.32.024, an appellant's
failure to provide a transcript shall cause the Board to decline to consider
the appellant's appeal further and shall, upon notice mailed to the parties,
cause the lower Hearings Body's decision to become final.
C. An appellant shall be excused from providing a complete transcript if
appellant was prevented from complying by: (1) the inability of the
Planning Division to supply appellant with a magnetic tape or tapes of the
prior proceeding; or (2) defects on the magnetic tape or tapes of the prior
proceeding that make it not reasonably possible for applicant to supply a
transcript. Appellants shall comply with the maximum extent reasonably
and practicably possible.
FINDINGS: As an on the record review, the transcript was due on June 18, 2014, which
was the date established in Order No. 2014-015 for the submission of legal argument.
Although the transcript was not initially submitted in the time prescribed by DCC
22.332.024, the Board reset the briefing schedule to have legal argument, and, thus, the
transcript was due on July 3, 2014 pursuant to Order No. 2014-018. Appellant submitted
the transcript on June 25, 2014, which is prior to the rescheduled date for the submission
of legal argument.
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22.32.027. Scope of Review.
A. Before Hearings Officer or Planning Commission. The review on appeal
before the Hearings Officer or Planning Commission shall be de novo.
FINDINGS: This provision is not applicable to this appeal.
B. Before the Board.
1. Review before the Board, if accepted, shall be on the record except as
otherwise provided for in DCC 22.32.027.
2. The Board may grant an appellant's request for a de novo review at its
discretion after consideration of the following factors:
a. Whether hearing the application de novo could cause the 150-day
time limit to be exceeded; and
b. If the magnetic tape of the hearing below, or a portion thereof, is
unavailable due to a malfunctioning of the recording device during
that hearing, whether review on the record would be hampered by
the absence of a transcript of all or a portion of the hearing below;
or
c. Whether the substantial rights of the parties would be significantly
prejudiced without de novo review and it does not appear that the
request is necessitated by failure of the appellant to present
evidence that was available at the time of the previous review; or
d. Whether in its sole judgment a de novo hearing is necessary to
fully and properly evaluate a significant policy issue relevant to the
proposed land use action. For the purposes of DCC 22.32.027, if
an applicant is an appellant, factor DCC 22.32.027(B)(2)(a) shall not
weigh against the appellant's request if the applicant has
submitted with its notice of appeal written consent on a form
approved by the County to restart the 150-day time clock as of the
date of the acceptance of applicant's appeal.
3. Notwithstanding DCC 22.32.027(B)(2), the Board may decide on its
own to hear a timely filed appeal de novo.
4. The Board may, at its discretion, determine that it will limit the issues
on appeal to those listed in an appellant's notice of appeal or to one or
more specific issues from among those listed on an applicant's notice
of appeal.
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FINDINGS: In its May 12, 2014 notice of appeal, Appellant requested a de novo review of
the decision on remand. By Order 2014-015, the Board denied the request for de novo
review.
22.32.030. Hearing on Appeal.
A. The appellant and all other parties to the decision below shall be mailed
notice of the hearing on appeal at least 10 days prior to any de novo
hearing or deadline for submission of written arguments.
B. Except as otherwise provided in DCC 22.32, the appeal shall be heard as
provided in DCC 22.24. The applicant shall proceed first in all de novo
appeals.
C. The order of Hearings Body shall be as provided in DCC 22.24.020.
D. The record of the proceeding from which appeal is taken shall be a part
of the record on appeal.
E. The record for a review on the record shall consist of the following:
1. A written transcript of any prior hearing;
2. All written and graphic materials that were part of the record below;
3. The Hearings Body decision appealed from;
4. Written arguments, based upon the record developed below,
submitted by any party to the decision;
5. Written comments submitted by the Planning Commission or
individual planning commissioners, based upon the record developed
below; and
6. A staff report and staff comment based on the record. No oral
evidence, argument or comment other than staff comment based on
the record shall be taken. The Board shall not consider any new
factual information.
FINDINGS: As an on the record review, no public hearing before the Board was
scheduled. A public hearing was held before the Hearings Officer in accordance with
DCC 22.32.030 and DCC Chapter 22.34 as discussed below.
CHAPTER 22.34 PROCEEDINGS ON REMAND
22.34.020. Hearings Body.
The Hearings Body for a remanded or withdrawn decision shall be the
Hearings Body from which the appeal to LUBA was taken, except that in
voluntary or stipulated remands, the Board may decide that it will hear the
case on remand. If the remand is to the Hearings Officer, the Hearings
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Officer's decision may be appealed under DCC Title 22 to the Board, subject
to the limitations set forth herein.
FINDINGS: The decision of the Hearings Officer following remand from LUBA was
appealed to the Board under DCC Title 22.
22.34.030. Notice and Hearings Requirements.
A. The County shall conduct a hearing on any remanded or withdrawn
decision, the scope of which shall be determined in accordance with the
applicable provisions of DCC 22.34 and state law. Unless state law
requires otherwise, only those persons who were parties to the
proceedings before the County shall be entitled to notice and be entitled
to participate in any hearing on remand.
B. The hearing procedures shall comply with the minimum requirements of
state law and due process for hearings on remand and need comply with
the requirements of DCC 22.24 only to the extent that such procedures
are applicable to remand proceedings under state law.
C. A final decision shall be made within 90 days of the date the remand
order becomes effective.
FINDINGS: The hearing on appeal was conducted before the Hearings Officer in
accordance with the applicable provisions of DCC Chapters 22.24 and 22.34 and the
requirements of due process and state law. All parties to the proceedings on Applicant’s
application prior to remand were given adequate notice of, and were allowed to
participate in the remand and on appeal thereof. The objections regarding the untimely
submission of the transcript were resolved by Order No. 2014-018. A final decision is
being made within 90 days of the date the remand order became effective, as extended
by Applicant pursuant to ORS 215.435(2)(b).
22.34.040. Scope of Proceeding.
A. On remand, the Hearings Body shall review those issues that LUBA or
the Court of Appeals required to be addressed. In addition, the Board
shall have the discretion to reopen the record in instances in which it
deems it to be appropriate.
FINDINGS: The Hearings Officer reviewed those issues required by LUBA. In Order No.
2014-015, the Board found no need to reopen the record to resolve the remand or the
appeal of the decision on remand.
B. At the Board's discretion, a remanded application for a land use permit
may be modified to address issues involved in the remand or withdrawal
to the extent that such modifications would not substantially alter the
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proposal and would not have a significantly greater impact on
surrounding neighbors. Any greater modification would require a new
application.
FINDINGS: The application was not modified. This provision is not applicable.
C. If additional testimony is required to comply with the remand, parties may
raise new, unresolved issues that relate to new evidence directed toward
the issue on remand. Other issues that were resolved by the LUBA
appeal or that were not appealed shall be deemed to be waived and may
not be reopened.
FINDINGS: In Order No. 2014-015, the Board found that no additional testimony is
required to comply with the remand. The Board finds that the issues raised by the
Appellant in its notice of appeal are not new issues, but are inherent in resolving the
remand and/or were unresolved by LUBA. Therefore, the Board may address all of the
issues presented by the Appellant, which are addressed below.
APPELLANT’S ASSIGNMENT OF ERROR:
The following addresses the assignments of error asserted by Appellant in its May 12,
2014 notice of appeal. Each assignment is addressed individually.
“a. By finding that the Bend Municipal Airport (“AMP”) does not
include any standards and criteria applicable to the Applicant's
site plan;”
FINDINGS: The Board finds that nothing in the Comprehensive Plan, AMP, or any
other document relied upon by the Appellant contain any standards or criteria applicable
to the Applicant’s site plan and adopts the finding of the Hearings Officer in this regard.
Furthermore, the Board finds that there is nothing in the code or the above cited
documents that assign any role to the AMP in evaluating site-specific development
proposals for uses permitted outright such as the proposed use . Because there are no
applicable standards or approval criteria applicable to Applicant’s fueling station in the
Comprehensive Plan, AMP, or any other overarching planning documents, no
amendment to these documents is required to approve Applicant’s fueling station.
In response to Appellant’s argument that the AMP and the incorporated Airport Layout
Plan (“ALP”) are meaningless if they do not contain approval criteria, the Board notes
that the these documents will continue to serve as “guiding documents” that allow the
County and other airport planners to identify those goals and characteristics worth
advancing, to plan for potential future development and to adopt any revisions to the
zoning criteria. In turn, these higher level planning documents inform legislative land
use regulations to evaluate site specific development.
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Concern was also raised regarding incompatible development if the AMP and ALP do
not play a role in evaluating site-specific development. DCC 18.124.060 requires all
development within the AD Zone to obtain site plan approval. The site plan approval
criteria contained in DCC 18.124 mandates that all development “relate harmoniously to
the natural environment and existing development” and that site plans “provide a safe
environment.” DCC 18.124.060(A) & (C). Areas for future runway expansions are
within the landing and take-off flight path and/or are too proximate to the existing
runway such that it would be unsafe for any development to occur in those areas . That
is ascertainable from examining existing development without any need to reference the
ALP. Furthermore, all development requires approval by the City (which owns the land
and, therefore, must authorize the application) and FAA approval (which evaluates
development within the context of runway safety and function). Accordingly, the County
could not approve a fueling station, or any other outright permitted use, in an area of
future runway expansion as suggested regardless of any map in the AMP . The FAA,
City approval, and the site plan approval criteria obviate the need to consult the AMP.
“b. By finding that the AMP does not preclude approval of the Applicant's
fueling station on the subject property;”
FINDINGS: The Board finds that nothing in the Comprehensive Plan, AMP, or any
other document relied upon by Appellant preclude approval of the Applicant’s fueling
station on the subject property and adopts the Hearings Officer’s findings in this regard.
No amendment to these documents is required to approve Applicant’s fueling station .
“c. By concluding that policy 16.2(h) of the Deschutes County
Comprehensive Plan and TSP should be interpreted to not prohibit
development except as specifically designated on the Airport Layout
Plan;”
FINDINGS: The Board finds that Policy 16.2(h) is ambiguous. Specifically, two aspects
of policy 16.2(h) require interpretation: (1) whether the designation must occur before a
proposed airport facility relocation or expansion occurs, and (2) whether the policy
applies to development such as the Applicant’s fueling station. The Board finds that the
designation need not occur before development occurs and that, regardless of when the
designation must occur, Policy 16.2(h) does not apply to development such as
Applicant’s fueling station.
Policy 16.2(h) provides:
Deschutes County shall:
…
Specifically designate any proposed airport facility relocations or
expansions within County jurisdiction on an airport master plan or
airport layout plan map, as amended, and establish the appropriate
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airport zoning designation to assure a compatible association of airport
growth with surrounding urban or rural development[.]
The Board adopts the Hearings Officers rationale regarding the timing of designations of
proposed airport facility relocations or expansions on airport master plans or airport
layout plans. There is nothing in language requiring the designations to precede
development and the County has not historically imposed such a requirement.
As to the second ambiguity, the Board finds that p olicy 16.2(h) does not apply to user
development such as Applicant’s fueling station because such development is not a
“facility” for purposes of policy 16.2(h). The term “facilities” is not defined in either the
TSP or the AMP. The Board finds that the 2002 AMP update and the purpose of ALP
provide the most relevant context for interpreting this term .
The subchapter entitled “Airport Facilities” within the 2002 AMP update identifies
“facilities” as airport infrastructure elements provided by the city (the owner of the
airport) – i.e., runways (paved and dirt), taxiways, runway and taxiway surface lighting,
instrument landing and navigational lighting, lighted wind cone, and rotating b eacon.
This interpretation is consistent with the purpose of the ALP , which the Appellant
alleges prohibits the Applicant’s fueling station. The ALP is a document required by the
FAA and periodically updated with the FAA’s review and approval to support federal
grant allocations for airport improvements, namely to those improve ments identified by
the 2002 AMP update as “facilities.” Because the AMP and ALP’s purpose are to plan
for infrastructure improvements provided by the airport owner, the reference to
“facilities” in policy 16.2(h) refers to infrastructure provided by the airport’s owner and
not to development of users of the airport such as the Applicant’s fueling station .
“d. By finding that Deschutes County has revised, or has approved
revisions, of the Airport Layout Plan several times since the 2002
version in order to reflect actual development at the Airport, most
recently in 2013 with the addition of the Applicant's fueling station on
the subject property;”
FINDINGS: The Appellant is correct that while the City and FAA have revised the ALP
several times, including the 2013 update that shows the Applicant’s fueling station on
the subject property, the County has not updated or approved any revisions to the ALP
by incorporating it into TSP. However, the Board finds that this is harmless error
because it finds that the ALP does not provide criteria or standards for development
such as the Applicant’s fueling station and does not preclude development such as the
Applicant’s fueling station.
“e. By concluding to not consider the Airport Development Zone Purpose
Statement (DCC 18.76.010) in connection with the issues on remand,
including whether the AMP or any of its contents must be applied as an
approval criterion because of the purpose statement; and”
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FINDINGS: The Board finds that the purpose statement contained in DCC 18.76.010
should be considered in addressing the remand and that the significance of the purpose
statement was unresolved by LUBA. The Board concludes that the purpose statement
in DCC 18.76.010 does not contain any approval criteria and does not convert non-
mandatory provisions in the Comprehensive Plan, TSP, AMP, or any other document
identified by the Appellant into approval criteria.
DCC 18.76.010 states:
18.76.010. Purpose.
The purpose of the Airport Development (AD) Zone is to allow for
development compatible with ongoing airport use consistent with the
Deschutes County Year 2000 Comprehensive Plan and the 1994 Bend
Airport Master Plan (as amended by a 2002 supplement), while providing for
public review of proposed development likely to have significant impact on
surrounding lands. The AD Zone is composed of three separate zoning
districts, each with its own set of allowed uses and distinct regulations, as
further set forth in DCC 18.76.
In their briefs to LUBA, the Appellant and Applicant presented competing constructions
of DCC 18.76.010. The Appellant essentially argued that the purpose statement
requires all development in the AD Zone be consistent with the Comprehensive Plan
and the AMP. The Applicant argued that the purpose statement merely signifies that
the AD Zone code section is consistent with the comprehensive Plan and AMP . In its
decision, LUBA summarized the arguments of the parties, but did not expressly indicate
a preference for either interpretation.
The Board finds that the purpose statement indicates consistency between the AD Zone
code language and the Comprehensive Plan and AMP and does not impose a
requirement for consistency between development and the Comprehensive Plan and
AMP. Appellant’s interpretation ignores the opening words “The purpose of the Airport
Development (AD) Zone,” finds a mandate where none exists, and overlooks the
generally aspirational wording of the purpose statement . Although the language is not
particularly precise and somewhat ambiguous, the Board finds that DCC 18.76.010
does not contain any approval criteria and notes that, even if it did, Applicant’s fueling
station is consistent because there are no applicable approval criteria within the
Comprehensive Plan, AMP, or any other document relied upon by Appellant for the
fueling station to be consistent with.
For additional context, the Board notes t hat DCC 18.76.100(A) requires the Planning
Director or Hearings Body to find that a conditional use is “in compliance” with the
Comprehensive Plan and the Bend Airport Plan. The Board finds that there is no
meaningful distinction between “consistency” and “compliance” in regards to a land use
proposal and an overarching planning document such as a comprehensive plan . This is
consistent with LUBA case law. See Friends of Hood River Waterfront, 2013 Ore. Land
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Use Bd. App. LEXIS 33 (2013) (LUBA No. 2012-050, March 13, 2013, slip op. at 6)
(“Whatever nuanced difference there might be between the words ‘consistency’ and
‘compliance’ is of no importance here.”). As DCC 18.76.100(A) expressly calls for
compliance between conditional uses and the Comprehensive Plan and the AMP, this
language would be superfluous if DCC 18.76.010 required consistency between the
Comprehensive Plan and AMP and all AD zone development . Because the proposed
use is a use permitted outright and not a conditional use, the specific language in DCC
18.76.100(A) lends additional support for the Board’s interpretation that DCC 18.76.010
does not impose a consistency requirement for all uses within the Bend Airport zoning
districts. To require a finding of compliance with the Comprehensive Plan and the AMP
converts the uses permitted outright to conditional uses.
As a secondary argument on page 9 of its written legal argument on appeal, the
Appellant appears to argue that the purpose statement elevates the Comprehensive
Plan and AMP to mandatory approval criteria. There is no basis for this argument. The
Applicant addressed this argument in its Second Supplemental Burden of Proof on
remand and the Board concurs in its reasoning. Specifically, if DCC 18.76.010 sought
to impose non-mandatory elements of the Comprehensive Plan, AMP, or ALP as
approval criteria, or otherwise intended to assign those documents a role in evaluating
site-specific development, this code provision would include express, precise language
to that effect. The Board finds that the DCC 18.76.010 contains no such express
language, lacks sufficient specificity to convert any non-mandatory language or map in
the Comprehensive Plan, AMP or any other document relied upon by Appellant into
approval criteria for Applicant’s fueling station, and does not otherwise assign those
planning documents a role in evaluating site-specific development. Appellant’s reliance
on other language in the Comprehensive Plan and TSP referring to the AMP as a
“guiding document for airport plan ning and development” is similarly misplaced. Such
language does not expressly establish the AMP as approval criteria and is insufficiently
precise to assign the AMP a role in evaluating site-specific development proposals as
the term “guiding document” is aspirational. The purpose statement merely indicates
that the code provisions that follow it are “consistent” with Comprehensive Plan and
AMP.
“f. By finding that the ‘AMP and ALP are intended to describe
recommended airport developments to meet identified needs and to
accommodate development that may not have been foreseen at the
time the update was adopted’.”
FINDINGS: The Board concurs with this finding of the Hearings Officers and adopts the
rationale supporting this finding as its own.
/ / /
V. DECISION:
Based on the findings of fact and conclusions of law set out above, the Board concludes
that the Applicant has met all applicable approval criteria for the requested site plan
approval and that no amendment to the Deschutes County Code, Comprehensive Plan,
AMP, or any other planning document is required. The Board upholds the Hearings
Officer's decision except as otherwise provided herein.
DATED this _ day of September, 2014.
MAILED this _ day of September, 2014.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, CHAIR
ANTHONY DEBONE , VICE CHAIR
ATTEST:
Recording Secretary ALAN UNGER, COMMISSIONER
THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE
DATE ON WHICH THIS DECISION IS FINAL.
Page 14 of 14 -DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF
DESCHUTES COUNTY A-14-2 (SP 13-7, A-13-4), DC Document No. 2014-479