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HomeMy WebLinkAboutCity-County Docs - Leading EdgeMarch 4, 2014 Deschutes County Land Use Hearings Officer c/o Deschutes County Planning Division PO Box 6005 117 NW Lafayette Avenue Bend, OR 97708-6005 Re: File No SP -13-7 Leading Edge Aviation -- Applicant Hearings Officer: 710 NW WALL STREET PO BOX 431 BEND, OR 97701 [541] 693-2124 TEL [541] 385-6676 FAX www.bendoregon.gov The City of Bend owns and operates the Bend Municipal Airport and was responsible for preparation of the Bend Airport Master Plan. The City relies on the Bend Airport Master Plan to guide the development of the airport. The Hearings Officer previously approved Leading Edge Aviation's Site Plan application for a fueling facility at the Bend Municipal Airport. On appeal, the Land Use Board of Appeals held that the 1994 Bend Airport Master Plan, as amended, is applicable to the site plan review. This memorandum addresses provisions of the Bend Airport Master Plan relevant to the siting of the fueling facility that is the subject of Leading Edge's site plan application. The Proposed Fueling Facility Is Not Inconsistent With The Bend Airport Master Plan Nothing in the 1994 or the 2002 Bend Airport Master Plan Text expressly requires any private development to be in any particular location nor prohibits any development from any location within the areas where private development is allowed. 1994 Plan The text of the 1994 Bend Airport Master Plan (1994 Plan) provides: "The building area of an airport encompasses all of the airport property not devoted to runways, major taxiways, required clear areas, and other airfield related functions." 1994 Plan 34. The 1994 Plan further includes "[f]uel storage and dispensing equipment" as facilities found at general use airports. 1994 Plan 34. The only limitations on private development found in the 1994 Plan are the limitation that the private development be in the "Building Area" as described above, and that any development comply with the design standards. 1994 Plan 35. The fueling facilities that are the subject of this proceeding are within the Deschutes County Land Use Hearings Officer March 4, 2014 Page 2 of 4 building area as described in the 1994 Plan —they are not within any runway, taxiway, required clear areas or other area used for airfield related functions. They comply with all setback standards. The only Design Factors listed in the 1994 Plan as potentially limiting development within the Building Area are the Setback Distance Factors. Those factors include non - penetration into transitional surfaces, a 66 foot setback from taxiway centerlines to aircraft parking positions, and a 58 foot setback from internal taxilane centerlines. 1994 Plan 35. The fueling facility does not penetrate into transitional surfaces or provide for parking within the taxiway or taxilane setback areas. 2002 Plan The 2002 Bend Airport Master Plan Amendment (2002 Plan) notes that the majority of the airport is zoned Airport Development (AD) and that "Iu]ses permitted outright in the zone include: Airport and non-structural uses such as fuel storage." 2002 Plan 12. The fueling facility is within the AD zone. The City notes that fueling facilities are permitted outright in all airport subzones. Like the 1994 Plan, the 2002 Plan includes a BRL and an APL. 2002 Plan 32-33. "Present" and "future" lines are shown on the maps because the lines are based on setbacks from runways and taxiways and the 2002 Plan included a plan for runway relocation. The runway has been moved over 100 feet to the east, and the "future" lines apply. The fueling facility is not located within the area protected by the future BRL or future APL. The 2002 Plan contains a more detailed discussion of the ALPs than the 1994 Plan. The relevant portion is the text discussing Drawing 6 — On -Airport Land Use Plan. 2002 Plan 80. That text describes four primary use categories: Airfield Operations (A), Aviation Support (AS), Aviation -Related Industrial (Al), and Open Space. The text describing the A area states that the "area is defined by the required clearances and setbacks associated with the runway, runway approaches, parallel taxiway, and parallel taxiway reserve." 2002 Plan 80. Provisions in text prevail over maps. Flying J, Inc. v. Marion County, 201 Or App 99 (2005); Turner v. Jackson County, 2010 WL 4902478 (Or LUBA 2010). When the runway was relocated, the A area as defined by the text moved with the runway. The On -Airport Land Use Map shows the dividing line between the A and AS areas as the BRL; so when the runway moved, the A area, as defined by the text, moved east and its western boundary is the "future" BRL. The "required clearances and setbacks" moved with runway, effectively relocating the boundary between the A and AS zones under the text of the 2002 Master Plan. Because the fueling facility meets the required clearances and setbacks, it is not within the A area as defined by the text of the 2002 Plan but is within the AS area. Deschutes County Land Use Hearings Officer March 4, 2014 Page 3 of 4 Professional Air, which appealed the original decision to LUBA, also operates a fueling facility. Professional Air's fueling facility is located within the A area as shown on the 2002 On -Airport Land Use Map, and its facility is shown as being on the Building Restriction Line, even closer to the runway and taxiway than the facility that is the subject of this proceeding. Even if the proposed facility were located in the A area, the fact that the 2002 On -Airport Land Use Plan shows the pre-existing fueling facility as being within the A area demonstrates that fueling facilities are not required to be located within the AS area, but may be located within the A area. This is consistent with DCC 18.76.080 (which is acknowledged as being in compliance with the Comprehensive Plan) that lists "fuel storage and sales" as being allowed in the Airport Operations District, which corresponds to the A area as described in the 2002 Plan. History of Development The maps included in the Airport Master Plan need to be considered in the context of reality. Actual development often differs from plans. Facilities have been developed at the airport other than as anticipated in the 2002 maps, including: (1) a single unit hangar located on a site shown as FBO reserve; (2) a taxiway located in a location where 24 tie -downs are shown on the 2002 maps; (3) the AWOS facility located in a location different than shown on the 2002 ALP; and (4) the Aero Facilities development, while located in the same general area as shown on the 2002 maps, was not built as shown and the phasing is inconsistent with the 2002 maps. This does not mean that any of these items were illegally located. Rather, it is a demonstration that specific improvements do not have to be as shown on the Airport Plan maps. One of the maps included in the Master Plan is the Airport Layout Plan (ALP). The ALP is a document required by the FAA. ALPs are periodically updated, with review and approval of the FAA. The ALP included with the 2002 Plan is no longer in effect for FAA purposes, it was updated in 2003, 2007 and 2013, with FAA approval. The 2013 ALP, approved by the FAA, shows the fueling facility that is the subject of this proceeding in its actual location. Part of the argument by opponents has been based on the inclusion of a fuel storage reserve location on the 2002 ALP and 2002 On -Airport Land Use Plan. The City originally leased an area to Leading Edge at, or at least very near, the location shown on the 2002 maps. However, Professional Air and Aero Facilities both objected to the location, threatened and eventually brought legal action against the City claiming that the City could not lease that location to Leading Edge. Among their arguments was that use of that location would cause a trespass onto areas leased to Aero Facilities. While the City disagrees with the legal challenges threatened or brought by Professional Air and Leading Edge, the location of Leading Edge's fueling facility was changed to its current west side location in an attempt to avoid litigation, or at least limit the legal issues. Having objected to the east -side location, Professional Air and Aero Facilities should not now be able to claim that the fueling facility can only be located in the location shown on the 2002 maps. Deschutes County Land Use Hearings Officer March 4, 2014 Page 4 of 4 The airport is strictly controlled by federal laws, regulations and grant agreements. The Airport Master Plan has to be considered in the context of the federal control and regulation. Under federal law, as enforced through grant agreements, the City cannot unjustly discriminate against an aeronautical service provider that seeks to offer services at the airport. 49 USC 40103(e); see also FAA Grant Assurances 2Z 23 (copy attached as Exhibit A). If a third, fourth, or fifth entity approached the City about offering fueling services as part of an FBO operation, the City would have to accommodate them, regardless of whether additional fueling facilities were shown on the Master Plan. To avoid suppressing competition and to provide for development of airport facilities and services, the City cannot refuse any entity seeking to lease land for a permitted (aviation related) use so long as the space is available and any development will meet applicable setbacks. This space was available, is a permitted use, and meets all setback standards. Relevant Code Provision DCC 18.76.010, a purpose statement, refers to development "consistent with" the Airport Master Plan. The proposed fueling facility is consistent with applicable code provision, which themselves are acknowledged to be consistent with the Airport Master Plan. The fueling facility is located outside all setback areas in an appropriately zoned and designated area. Nothing precludes the siting of a fueling facility that meets applicable setback standards. The inclusion of a specific facility on the master plan maps does not require that the facility be built in that location or preclude the siting of a similar facility in a different location. For these reasons, the City requests approval of the site plan for Leading Edge's fueling facility at the Bend Municipal Airport. Sincere) z‘e Gary Firestone Assistant City Attorney EXHIBIT A — FAA GRANT ASSURANCES 22. Economic Nondiscrimination. a. It will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport. b. In any agreement, contract, lease, or other arrangement under which a right or privilege at the airport is granted to any person, firm, or corporation to conduct or to engage in any aeronautical activity for furnishing services to the public at the airport, the sponsor will insert and enforce provisions requiring the contractor to - 1) furnish said services on a reasonable, and not unjustly discriminatory, basis to all users thereof, and 2) charge reasonable, and not unjustly discriminatory, prices for each unit or service, provided that the contractor may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. c. Each fixed -based operator at the airport shall be subject to the same rates, fees, rentals, and other charges as are uniformly applicable to all other fixed -based operators making the same or similar uses of such airport and utilizing the same or similar facilities. d. Each air carrier using such airport shall have the right to service itself or to use any fixed -based operator that is authorized or permitted by the airport to serve any air carrier at such airport. e. Each air carrier using such airport (whether as a tenant, non tenant, or subtenant of another air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers which make similar use of such airport and utilize similar facilities, subject to reasonable classifications such as tenants or non tenants and signatory carriers and non signatory carriers. Classification or status as tenant or signatory shall not be unreasonably withheld by any airport provided an air carrier assumes obligations substantially similar to those already imposed on air carriers in such classification or status. f. It will not exercise or grant any right or privilege which operates to prevent any person, firm, or corporation operating aircraft on the airport from performing any services on its own aircraft with its own employees [including, but not limited to maintenance, repair, and fueling] that it may choose to perform. g. In the event the sponsor itself exercises any of the rights and privileges referred to in this assurance, the services involved will be provided on the same conditions as would apply to the furnishing of such services by commercial aeronautical service providers authorized by the sponsor under these provisions. 23. Exclusive Rights. It will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aeronautical services to the public. For purposes of this paragraph, the providing of the services at an airport by a single fixed - based operator shall not be construed as an exclusive right if both of the following apply: a. It would be unreasonably costly, burdensome, or impractical for more than one fixed - based operator to provide such services, and b. If allowing more than one fixed -based operator to provide such services would require the reduction of space leased pursuant to an existing agreement between such single fixed -based operator and such airport. It further agrees that it will not, either directly or indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to conduct any aeronautical activities, including, but not limited to charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales and services, sale of aviation petroleum products whether or not conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft, sale of aircraft parts, and any other activities which because of their direct relationship to the operation of aircraft can be regarded as an aeronautical activity, and that it will terminate any exclusive right to conduct an aeronautical activity now existing at such an airport before the grant of any assistance under Title 49, United States Code. March 21, 2014 Deschutes County Land Use Hearings Officer c/o Deschutes County Planning Division PO Box 6005 117 NW Lafayette Avenue Bend, OR 97708-6005 Re: File No SP -13-7 Leading Edge Aviation — Applicant City of Bend — Land Owner Hearings Officer: 710 NW WALL STREET PO BOX 431 BEND, OR 97701 [541] 693-2129 TEL [541] 385-6676 FAX gfirestone@bendoregon.gov At the hearing on March 4, 2014, the opponents of the Leading Edge fueling facility made essentially one argument — that the location of the fuelling facility is inconsistent with the maps included as part of the 2002 amendments to the Bend Airport Master Plan. Master Plan Issues When land use master plans are intended to be binding, typically there is code language, language in the text of the master plan itself, or a condition of approval specifying the binding effect of the master plan. In contrast, the 2002 Master Plan contains the following statement regarding all the maps included in the plan: A set of plans, referred to as the Airport Layout Plans, have been prepared to graphically depict recommendations for airport layout. Land use, and possible disposition of obstructions located within the runway protections zones, approaches or other airfield imaginary surfaces. 2002 Plan 76 (emphasis added). The text of the 2002 Master Plan contains similar language relating specifically to Drawing 6 — On -Airport Land Use Plan: "The On -Airport Land Use Plan depicts the recommended uses of airport property associated with the ALP." 2002 Plan 80 (emphasis added). A recommendation is not a requirement or standard. The discussion of the maps concludes with: The distribution of airport land uses reflects the mixture of facilities and activities that currently exist or are planned for the airport. The primary purpose of the airport is to accommodate aviation related needs. The Deschutes County Land Use Hearings Officer March 21, 2014 Page 2 of 4 updated airport plan and associated drawings likewise illustrate that the long-term aviation needs of the airport are addressed with the added protection of aviation -related development reserves to accommodate a wide range of unforeseen development needs. (Emphasis added.) This paragraph reflects the overall purpose of the Master Plan, which is to provide for and allow development, not to restrict it. The 2002 Maps Do Not Preclude Siting A Fueling Facility Where Proposed By Applicant The City does not agree that the maps are controlling as to specific location for the reasons stated at the hearing and in the City's previous submission. Furthermore, use of dotted lines shows only potential development and do not preclude other development. Few of the dotted -line structures shown on the 2002 ALP have been built as anticipated. For example, the future FBO shown as No. 16 on the map has not been built, and the approved land use site plan for the area shows the area as being reserved for hangars. If the dotted line structures and numbered areas precluded inconsistent development, the County would not have approved the Aero Facilities site plan for east - side development. The City requests that the application be approved. Assistant City Attorney cc: Michael McGean Sharon Smith 11 III 111 CDD COVER SHEET FOR SLB 05/07/2014 16:07:32 1 II 11 11 II PL 1 PAGES 1 11 11 11 i 1 1 1 11 i i i i II i 1 II III i 11 11 FILE ID 1713200000200PL20140507160732 TAXMAP 1713200000200 SERIAL 164835 DIVISION PL SITUS 63052 POWELL BUTTE HWY HOUSE# 63052 STREET POWELL BUTTE CONTENT SP137 Corresp. fr City of Bend RECORD ID SP137 LOCATED IN DATE FILE Cover Sheet Identifier A-JKMTWX i i 11 March 28, 2014 Deschutes County Land Use Hearings Officer c/o Deschutes County Planning Division PO Box 6005 117 NW Lafayette Avenue Bend, OR 97708-6005 Re: File No SP -13-7 Leading Edge Aviation — Applicant City of Bend — Land Owner Hearings Officer: VED sY: MAR 2 8 2014 DELIVERED BY: 710 NW WALL STREET PO BOX 431 BEND, OR 97701 [541] 693-2129 TEL [541] 385-6676 FAX gfirestone@bendoregon.gov The question on remand is "whether the airport master plan precludes approval of a fueling station on the west side of the runway in the proposed location." LUBA Opinion at 9. Opponents' post -hearing submittal dated March 21, 2014, does not address this issue, but only rehashes arguments regarding applicability of the airport master plan. Opponents have not pointed to anything in the text of the airport master plan that precludes approval of the fueling facility. In contrast, the City's March 4, 2014 submittal demonstrates that the airport master plan does not preclude the proposed development. In their post -hearing submittal, the Opponents of the Leading Edge fueling facility continue to misconstrue the meaning of "consistent" and confuse the different roles of the FAA in ensuring consistency with grant assurances and the County in regulating land uses and authorizing specific development. The Opponents quoted the following language from a letter from the City to the FAA written in the context of an informal FAA review of the airport: The City has ensured, and continues to ensure, that development at the Airport remains consistent with the Master Plan and the ALP, and, as needed, it has conferred with and received approval from FAA of any necessary amendments to reflect changes in operational demands and actual development. The Master Plan the City was referring to in the letter was the new Master Plan that has been reviewed by the FAA and the new ALP that has been approved by the FAA and shows Leading Edge's fueling facility in its actual location on the east side of the airport. The importance of the quoted sentence is that it demonstrates the flexibility with which the airport operates under the Master Plan and the FAA approved ALP. As stated in the letter to the FAA, the Master Plan and the ALP are flexible documents that allow amendments to reflect changes in operational demands and actual develo Deschutes County Land Use Hearings Officer March 28, 2014 Page 2 of 2 fact that amendments may be made to show "actual development" demonstrates that "consistency" accommodates variations in specific development and does not prohibit development of structures that are not shown on the ALP. Objectors also state that the City told them that the Airport Master Plan and ALP are binding and may preclude development. As noted in Objector's letter, the City denies this. The City informed the Objectors that the County might not allow a fueling facility in Phase 1. This is not because no fueling facility is shown in the Phase Area. The 2002 ALP actually does show a fueling facility in Phase 1. However, the County had approved a site plan application by Aero Facilities for Phase 1 that did not include the fueling facility, and the City's position was that the County might deny a fueling facility as being inconsistent with the site plan, or might require a modified site plan. The discussion in Objectors' letter of the City's position regarding the Master Plan quotes statements by the City out of context. The main purpose of the Master Plan and ALP is to have a document that shows projects that are fundable by FAA grants: runways, taxiways, and other public improvements that are part of the airport infrastructure. Public improvements that are part of the airport infrastructure must be planned and will be funded only if on the Master Plan and ALP. However, the same level of detail does not apply to private improvements. As described in the City's previous submissions, as to private development, the Master Plan and ALP show zones where development may occur and have height limitations and restricted parking areas based on distance from runways and taxiways, but otherwise do not set absolute standards or criteria. The Opponents' discussion of the purpose statement also mischaracterizes the purpose statement. The purpose statement proved that the purpose of the code provisions is to allow for development consistent with the master plan. That is the purpose of the code provisions — they implement the master plan. The final argument made by the Opponents is that ORS 636.610(1) requires that planning for airports includes a map or description of the "the general location of existing and planned buildings and facilities." Emphasis added. The Airport Master Plan does show the general location of existing and planned buildings and facilities. However, it is not required to and does not show the specific location of all buildings and facilities that may be built. Sincefely, Gar'irestone Assistant City Attorney cc: Michael McGean Sharon Smith June 16, 2014 VIA EMAIL & FIRST CLASS MAIL Board of County Commissioners of Deschutes County c/o Deschutes County Community Development Department PO Box 6005, Bend, OR 97708-6005 117 NW Lafayette Avenue Bend, OR 97701-1925 Email: board(a deschutes.orq Re: Review of Hearing Officer's Decision in File No SP -13-7 Leading Edge Aviation — Applicant City of Bend — Land Owner Commissioners: 710 NW WALL STREET PO BOX 431 BEND, OR 97701 [541] 693-2124 TEL [541] 385-6676 FAX gfirestone@bend oregon. gov The City of Bend respectfully requests the Board affirm the Hearing Officer's decision in this matter. The City further requests that the County Board expressly interpret applicable provisions of the Deschutes County Comprehensive Plan, including the Bend Municipal Airport's Airport Master Plan (AMP), and the Deschutes County Code as providing that the AMP does not include any standards or criteria that preclude approval of the applicant's fueling station on the subject property. The City's position is further explained in the materials submitted by the City to the Hearings Officer and included in the record. Sincere Gary Firestone Assistant City Attorney G F/nf cc: Michael McGean (via email) Sharon Smith (via email)