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MEMORANDUM
DATE: May 12, 2014
TO: Board of County Commissioners
FROM: Will Groves, Senior Planner
RE: The Flight Shop and Aero Facilities Appeal / Hearings Officer’s Decision (File
Nos. SP-13-7, A-14-2 and A-13-4).
Before the Board of County Commissioners (Board) is an appeal filed by The Flight Shop and
Aero Facilities. The appeal is submitted in response to a Deschutes County Hearings Officer’s
decision on remand from LUBA that a proposed fueling station at the Bend Airport complies with
all applicable regulations. The appellant requests the Board formally reconsider the decision.
BACKGROUND
The applicant, Leading Edge Aviation, requested site plan approval to establish an aviation
fueling station at the Bend Airport. The property is owned by the City of Bend. The Hearings
Officer issued a decision on July 19, 2013 finding that the proposal complies with all applicable
regulations.
On July 26, 2013 opponent appealed the decision to the Board. By Order 2013-038 dated
August 7, 2013, the board declined to hear the appeal. On November 12, 2013 opponent
appealed the Hearings Officer’s decision to LUBA (LUBA No. 2013-073). The appeal raised two
assignments of error. By a decision dated January 10, 2014, LUBA sustained one assignment
of error, and remanded the decision to the county for further proceedings. The Hearings Officer
approved the site plan review on remand from LUBA on April 30, 2014. Opponent filed a timely
appeal on May 12, 2014. The 90-day period for issuance of a final local decision on remand
under ORS 215.435 expires on May 19, 2014. However, the applicant has provided a letter
May 13, 2014 providing ninety extra days and any additional time reasonably necessary for the
Board to hear this matter.
APPEAL
The notice of appeal describes several assignment of error. This is summarized below, with
references to those pages within the decision where the Hearings Officer addressed the issue.
File No.: A-14-2 (A-13-4 and SP-13-7) Page 2 of 3
a. By finding that the Bend Municipal Airport AMP does not include any standards
and criteria applicable to the Applicant’s site plan;
b. By finding that the AMP does not preclude approval of the Applicant’s fueling
station on the subject property;
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;
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;
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
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”.
The appellant requests de novo review. If the Board decides to hear the appeal, the review
shall be on the record unless the Board decides to hear the appeal de novo because it finds 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 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 (See: DCC 22.32.027(B)(2)(c) and (d)). The Board may, at its
discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal
or to one or more specific issues from among those listed on the notice of appeal (See: DCC
22.32.027(B)(4)).
DECLINING REVIEW
If the Board decides that the Hearings Officer’s decision shall be the final decision of the county,
then the Board shall not hear the appeal and the party appealing may continue the appeal as
provided by law. The decision on the land use application becomes final upon the mailing of the
Board’s decision to decline review. In determining whether to hear an appeal, the Board may
consider only:
1. The record developed before the Hearings Officer;
2. The notice of appeal; and
3. Recommendations of Staff (See: DCC 22.32.035(B) and (D)).
File No.: A-14-2 (A-13-4 and SP-13-7) Page 3 of 3
STAFF RECOMMENDATION
Staff recommends that the Board hear this matter. While Staff concurs with the Hearings
Officer’s code interpretation, the Board has the ultimate ability to interpret the County Code and,
if this matter is appealed to LUBA again, the Board’s interpretation of the Code will be given
deference. Staff also recommends this matter be heard on the record. This will allow the
parties to submit written legal arguments in advance of a Board deliberation in this matter, but
preclude submissions of new evidence. Staff believes that all relevant documents are presently
in the record and that substantial rights of the parties would not be significantly prejudiced
without de novo review.
Attachments
1. Hearing Officer’s decision on Remand (File no. SP-13-7)
2. Notice of Intent to Appeal (File no. A-14-2)
3. Draft Orders to hear this matter de novo and, alternatively, on the record.
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DESCHUTES COUNTY PLANNING DIVISION
* * LAND USE APPLICATION * *
A142 Taxmap 17 13-2000 200 SERIAL 151469 13:27:52 12 MAY 2014
Request APPEAL OF SP-13 7 HEARINGS OFFICER DECISION ON REMAND
AERO FACILITIES LLC, c/o MICHAEL MCGEAN, FRANCIS HANSEN & MARTIN
Location 63132 POWELL BUTTE HWY,BE
Zone AD AS
Other affected property NONE
Submitted date 05/12/14 Accepted date Assigned planner NONE
Expiration date 120th day _____ Counter Person WWG
Applicant AERO FACILITIES LLC, c/o MICHAEL MCGEAN, FRANCIS HANSEN & MARTIN Own
Address 1148 NW HILL STREET Phone (541) 389-5010
City BEND, OR 97701
Receipts 476926 Amount Paid 2801.00
Status P Status date 05/12/14 Other Permit's 134 Permits
TN Due to staff Due in mail Mailed
Notice Due to staff Due j n maj] Mailed
Admn decision due Due plan Dir
Admn dec Admn decision mailed Admin decision appealed
HO Hearing date Staff rpt due Staff rpt mailed.----HO decision HO Decision mai Appealed
BOC hearing BOC decision ----,...,,---::-BOC decision mailed BOC decision appealed
OTHER LAND USE APPLICATIONS ON THIS PROPERTY LIMITED TO FIRST 10 OF 66
LUA ID ACCPT DATE REQUEST
A134 07/29/13 APPEAL OF SP137
V124 10/15/12 VARIANCE TO THE FRONT SETBACK
SP1119 11/28/11 SITE PLAN FOR MODULAR BUILDING FOR OFFICE/DISPATCH CENTER
TU0918 08/04/09 TEMPORARY USE FOR SIX AIRCRAFT HANGARS
SP0925 07/27/09 SITE PLAN FOR 6 NEW HANGARS AT BEND AIRPORT.
SOP072 08/17/07 NOISE PERMIT FOR BEND MUNICIPAL AIRPORT
CU0767 07/03/07 CUP FOR AVIATION RELATED BUSINESS
SOP071 06/18/07 NOISE PERMIT
S078 06/11/07 SIGN PERMIT (GROUND MOUNTED) FOR THE BEND AIRPORT
S071 01/16/07 SIGN PERMIT FOR CAFE AT THE BEND AIRPORT
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DESCHUTES COUNTY COMMUNITY DEVELOPMENT
117 NW LAFAYETTE
BEND, OREGON 97701
(541) 388-6575
* * RECEIPT * RECEIPT * RECEIPT * RECEIPT * RECEIPT * RECEIPT * RECEIPT * *
RECEIPT# 476926 BATCH 6857 INIT WWG 13:27:43 12 MAY 2014 Page 1
TRANSIT# A142
Taxmap# 17-13-2000 200 Serial# 151469
Situs: 63132 POWELL BUTTE HWY,BE
DESCRIPTION FEE
PLANNING FEE 2801.00
CHECK NUMBER 14966 AMOUNT APPLIED 2801.00 PROFESSIONAL AIR
TaTAr. AMOUNT RECEIVED 2801. 00
This is a receipt and does NOT constitute a permit or license
Community Development Department
PlanninIJDMsion Building Safety DM.Jon =nvirom".ntal Solis Division
P.O. Box 6005 117 MN Lafayette AVenue Bend, Oregpn 97708-6005
(S41)388~6575 FAX (541)385-1764
http://www.co.deschutes.or.iJs/cdd/
APPEAL APPLICA TION
FEE: $2 / 801
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. 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 the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County
Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete
all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant Is eligible to file an appeal (DCC Section
22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those Issues.
Michael H. McGeanl Francis Hansen & Martin LLP obo
Appellant'sName(print):The Flight Shop & Aero Facilities Phone:Q±Jj389-5010
Mailing Address: 1148 NW Hill Street City/StateJZip: Bend 1 OR 97701
Land Use Application Being Appealed: File No. SP-13-71 Leading Edge Aviation
Properly Desaiption: Town.~13 Section . ...:2=...;0:.-_ Tax Lot 2 ° °
Appellant's Signature: ......,
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DMSION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DMSION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON-THE-RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
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3/13 f
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Statement on Appeal by Opponents The Flight Shop Inc. and Aero Facilities
LLC (collectively "Appellants") of Decision of Deschutes County Hearings
Officer on Remanded Application A-13-4 and SP-13-7, Leading Edge
Aviation Inc.
1. Standing.
Appellants have standing to appeal because they are an interested party, and
filed comments and appeared in proceedings on the Application with the
Planning Division.
2. Statement of Issue.
Appellants COl rtelld tllat tile Hear il19 Officer Decision dated April 30, 2014 is in
error for each and all of the following grounds:
a. By finding that the Bend Municipal Airport AMP does not include
any standards and criteria applicable to the Applicant's site plan;
b. By finding that the AMP does not preclude approval of the
Applicant's fueling station on the subject property;
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 (Hearings Officer Decision on Remand, p. 14);
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 (Decision on Remand at p. 14);
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
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" (Decision on Remand at p. 16).
Page 1 of2 STATEMENT ON APPEAL
3. Request for Review.
For the foregoing reasons, The Flight Shop, Inc. and Aero Facilities, LLC
therefore request review by the Board of County Commissioners.
Appellants request de novo review by the Board because the matter requires the
interpretation of a significant policy issue and the Deschutes County
Comprehensive Plan and zoning ordinance.
Dated this 12th day of May 2014.
FRANCIS HANSEN &MARTIN LLP
Martin E. Hansen, aSB #800526
Michael H. McGean OSB #004734
Attorneys for The Flight Shop, Inc. &
Pro Air, LLC
Page 2 of 2 STATEMENT ON APPEAL
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings Officer's *
Decision in File No. SP-13-7 (A-14-2, A-13-4) * ORDER NO. 2014-015
and Ordering the Review be on the Record. *
WHEREAS, Appellant, The Flight Shop and Aero Facilities, appealed the Hearings Officer's decision
in application number SP-13-7; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application on appeal;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section l. The Board will hear the appeal for application number SP-13-7 (A-14-2, A-13-4) pursuant to
Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. The appeal shall be on the record pursuant to DCC 22.32.030(E) that allows for written
arguments from the parties based upon the record developed below but no new evidence and no "oral evidence,
argument or comment other than staff comment."
Section 3. The deadline for submittal of written arguments shall be:
June 18,2014 -written arguments from all parties;
July 2,2014 -rebuttal arguments from the applicant.
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Page 1 of2-ORDER NO. 2014-015
Section 4. Staff shall mail notice to persons or parties entitled to notice pursuant to DCC 22.32.030(A)
no later than May 21, 2014.
Dated this ___of _____" 2014 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, Chair
ATTEST:
ANTHONY DEBONE, Vice Chair
Recording Secretary ALAN UNGER, Commissioner
Page 2 of2-ORDER NO. 2014-015
REVIEWED
--~~~----
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings Officer's *
Decision in File No. SP-13-7 (A-14-2, A-13-4). * ORDER NO. 2014-015
WHEREAS, Appellant, The Flight Shop and Aero Facilities, appealed the Hearings Officer's decision
in application number SP-13-7; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application on appeal;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Sectio!Ll. The Board will hear the appeal for application number SP-13-7 (A-14-2, A-13-4) pursuant
to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. The appeal shall be heard de novo.
Section 3. Staff shall set a hearing date and cause notice to be given to persons or parties entitled to
notice pursuant to DCC 22.32.030.
Dated this ___of _____., 2014 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, Chair
ANTHONY DEBONE, Vice Chair
ATTEST:
Recording Secretary ALAN UNGER, Commissioner
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PAGE 1 OF I-ORDER No. 2014-015
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