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HomeMy WebLinkAboutLeading Edge Appeal - Staff Docs MEMORANDUM DATE: July 15, 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 (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. The Board agreed to hear this matter on the record under Order No 2014-105 and extended the record period under Order Number 2014-018. The record is closed as of July 9, 2014. REMAND FROM LUBA: The remand from LUBA identified the scope of issues before the Hearings officer and now the BOCC to as follows: 1) Whether the airport master plan includes any applicable standards or requirements with respect to the proposed fuel storage facility, and 2) Whether the airport master plan precludes approval of a fueling station on the west side of the runway in the proposed location. The Hearings Officer found that the airport master plan (AMP) does not include any standards and criteria applicable to the applicant’s site plan, and that the AMP does not preclude approval of the applicant’s fueling station on the subject property. Staff notes that the AMP includes the Airport Layout Plan (ALP), a depiction of the preferred alternative to airport development, as exhibit 1. The Appellant’s notice of appeal describes several assignment of error in the Hearings Officer’s decision on remand. These are listed below in bold below, followed by a summary of the legal argumentation presented to the Board. The Appellant argues that the Hearings Officer erred: a. By finding that the Bend Municipal Airport (AMP) does not include any standards and criteria applicable to the Applicant’s site plan; File No.: A-14-2 (A-13-4 and SP-13-7) Page 2 of 5 Hearings Officer: The Hearings Officer extensively reviewed language in the Comprehensive Plan, TSP, AMP, and ALP and concluded that the AMP does not include any standards and criteria applicable to the applicant’s site plan. Applicant: The applicant concurs with the Hearings Officer’s findings, noting that the airport master plan (AMP) is aspirational and is a “guide” as described in the County Transportation System Plan (TSP). The Comprehensive Plan, of which the AMP is a part, states that it is “not intended to be used to evaluate specific project developments”. Appellant: Although the Comprehensive Plan states that it is not intended to be used to evaluate specific development projects, that language is simply a statement of general intent, and does not rule out that some portions of the Comprehensive Plan might be made to apply as independent criteria, for example, if an ordinance such as DCC 18.76.010 imposed it, or where the Comprehensive Plan itself imposes another document such as the Airport Master Plan as a planning document to be applied. The Transportation System Plan incorporated in that Comprehensive Plan allots a specific function to the 2002 AMP update. Staff Recommendation: Adopt the Hearing’s Officers Findings on this issue and include specific code interpretations as described below. b. By finding that the AMP does not preclude approval of the Applicant’s fueling station on the subject property; Hearings Officer: The AMP does not preclude approval of the applicant’s fueling station on the subject property. Applicant: The AMP would only preclude the fueling station if it contained relevant criteria. It does not. Appellant: The LEA fuel station is not consistent with the AMP and does not comply with it. The 2002 AMP update and its incorporated ALP designate future fuel storage for the east side of the Airport, not the west side. The 2002 AMP and ALP adopted by the County specifically designate a location on the east side of the Airport for a new fuel station. It designates the subject property for the LEA fuel station for small hangar space. The plain language of the 2002 AMP and ALP rebut the Hearings Officer’s conclusion that those documents allow for ad hoc development that blatantly deviates from the AMP and ALP, such as the Leading Edge application. Staff Recommendation: Adopt the Hearing’s Officers Findings on this issue and include specific code interpretations as described below. The remaining assignments of error discuss detailed points that are used to reach the conclusions in (a) and (b), above. File No.: A-14-2 (A-13-4 and SP-13-7) Page 3 of 5 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: Policy 16.2 encourages the county to adopt AMPs for the county’s public-use airports, and requires the county to designate on any such plans “proposed airport facility relocations or expansions.” It is not clear to what extent Policy 16.2(h) applies to the applicant’s private development proposal. Policy 16.2(h) could be interpreted to apply only to relocations and expansions of airport infrastructure and not to private development such as the applicant’s fueling station. The Hearings Officer found that this more limited interpretation is consistent with the purpose of the ALP. Applicant: Policy 16.2(h) is ambiguous. The Applicant requests that the Board adopt the Hearings Officer’s findings on this policy and expressly interpret policy 16.2(h) that private development does not “constitute and airport facility” in this context. Also, that this policy does not require designation on the AMP or ALP prior to approving otherwise compatible private development. The subsequent to an ALP after private development occurs satisfies this policy since it does not require the update before the private improvement occurs and is consistent with the ALP acting as a guide for development that needs to be flexible to adapt to changing market conditions. Appellant: There is nothing in the TSP that would limit airport facilities to runways, taxiways, and runway and taxiway service lighting, as found by the Hearings Officer. The County is required to apply an airport master plan map to development projects at the Bend airport. Whether Deschutes County has in fact allowed private development to occur in deviation of the 2002 AMP update and ALP is irrelevant. The Comprehensive Plan, AMP, and the AD zone ordinance indicate a clear intent to use the adopted ALP map as a criterion to guide future development, whether private or public. Staff Recommendation: Policy 16.2(h) requires the County to, “Specifically designate any proposed airport facility relocations or expansions within County jurisdiction on an airport master plan or airport layout plan map, as amended.” Staff recommends that the Board: 1) interpret “airport facility relocations or expansions” to apply to airport infrastructure elements provided by the airport owner, in this case the City, and not to private development such as the applicant’s fueling station; and 2) interpret this policy as contemplating that the ALP will be updated after development occurs thus functioning as an “as-built” map. 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; Hearings Officer: The ALP has been revised by the city and county, and approved by the FAA, several times since 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. File No.: A-14-2 (A-13-4 and SP-13-7) Page 4 of 5 Applicant: Opponent is correct that the Hearings Officer made a harmless misstatement. Although the City has updated the ALP several times and the FAA has approved those updates, the last County approved ALP revision was in 2002. Appellant: The Hearings Officer’s finding that “the ALP has been revised by the City and County, and approved by the FAA several times since 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,” is simply wrong. It is irrelevant whether the City of Bend or the FAA have approved revisions, because Deschutes County hasn’t. Staff Recommendation: Correct the Hearings Officer’s harmless error to say, “While Deschutes County has not completed adoption of any revisions to the ALP into the Comprehensive Plan since adopting the 2002 update, it is in the process of adopting the 2013 update, which depicts 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 Hearings Officer: The Hearings Officer did not address this issue. Applicant: Recommends that the Board include a finding interpreting the purpose statement as relating to consistency between the development code and the Comprehensive Plan, AMP, and ALP not consistency between those overarching planning documents and site-specific development. Furthermore, the Board should not interpret the purpose statement as elevating aspirational language in the identified planning documents to mandatory approval criteria. Appellant: DCC 18.76.010 separately references the 2002 AMP update as a plan for airport growth and is an indication of intent to apply and enforce the 2002 AMP and ALP for any development in the AD zone. By failing to address and consider that code provision as an independent source for mandatory approval criteria for the application, the Hearings Officer decision was in error. Staff Recommendation: Make a Board finding that the language of the purpose statement in DCC 18.76.010 is somewhat ambiguous and requires interpretation to guide development review at the Bend Airport. Then, adopt the following findings: DCC 18.76.010 is intended to signify that the code language of Chapter 18.76 is consistent with the planning goals and objectives outlined in the Comprehensive Plan and the 1994 Airport Master Plan (as amended by a 2002 supplement) (the “AMP”). The purpose statement in DCC 18.76.010 is not intended to establish the Comprehensive Plan or the AMP as criteria for evaluating a specific development proposal or to otherwise elevate the aspirational language contained in those planning documents to mandatory approval criteria. Chapter 18.76 fully implements those planning documents as they relate to development File No.: A-14-2 (A-13-4 and SP-13-7) Page 5 of 5 in the Airport Development Zone and there is no need for a consistency analysis for individual development proposals except where otherwise expressly required by the Code. In summary, the Board interprets DCC 18.76.010 as simply a purpose statement and not and not as approval criteria for a development proposal such as the Applicant’s fuel facility. 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”. Hearings Officer: The AMP and ALP are intended to describe recommended airport improvements to meet identified needs and to accommodate development that may not have been foreseen at the time the update was adopted – such as the applicant’s proposed fueling station. Applicant: The AMP and ALP are “guiding documents” that offer “recommendations” for meeting forecasted aviation demand. Accordingly, they are not intended to provide site-specific approval criteria for airport development such as the Applicant’s fueling station. This is evident from the express language of the AMP cited by the Hearings Officer. The AMP and ALP will continue to serve their intended function of identifying goals and objectives for the airport that in turn guide legislative code language. Appellant: It is hard to imagine that an airport master plan and airport layout plan that specifically designates and projects areas for future growth after careful consideration of alternative plans would then undermine itself by “accommodating future development” that is contrary to that plan, as the hearings officer suggests. Rather than using the adopted 2002 AMP update and ALP as the guiding document for airport planning, as required by the Comprehensive plan and DCC 18.76.010, the Hearings Officer decision would relegate that document to a meaningless guess as to future development, with no planning function at all. Staff Recommendation: Adopt the Hearings Officer’s findings on this issue. Attachments 1. Hearing Officer’s decision on Remand (File no. SP-13-7) 2. Arguments submitted by parties during this “on the record” appeal. 3. Summary matrix. 1 LEADING EDGE AVIATION DECISION MATRIX The remand from LUBA identified the scope of issues before the Hearings officer and now the BOCC to as follows: 1) Whether the airport master plan includes any applicable standards or requirements with respect to the proposed fuel storage facility, and 2) Whether the airport master plan precludes approval of a fueling station on the west side of the runway in the proposed locati on. The Appellant’s notice of appeal describes several assignment of error in the Hearings Officer’s decision on remand. These are summarized in the matrix below. Issue Information in Record Board Options Staff Comment 1. Does the Deschutes County Comprehensive Plan say that the Bend Municipal Airport Plan (AMP) includes standards and criteria applicable to the Applicant’s site plan? Hearings Officer: The Hearings concluded that the AMP does not include any standards and criteria applicable to the applicant’s site plan. Applicant: The applicant concurs with the Hearings Officer’s findings and adds that that the AMP is aspirational and is a “guide” Also, the Comprehensive Plan, , states that it is “not intended to be used to evaluate specific project developments”. Appellant: In this case, the Comp Plan imposes the AMP as standards and criteria for all development at the airport and, thus, is applicable to the Applicant’s site plan. a. Adopt Hearings Officer’s findings, with or without modification. b. Find that the Hearings Officer erred and AMP does have standards and criteria applicable to the Applicant’s site plan. Staff Recommendation: Adopt the Hearing’s Officers Findings on this issue and include specific code interpretations as described below. Sample motion for BOCC: “Move that the Board adopt the Hearings Officer’s findings.” 2. Does the AMP preclude approval of the Applicant’s fueling station on the subject property Hearings Officer: The AMP does not preclude approval of the applicant’s fueling station on the subject property. Applicant: The AMP would only preclude the fueling station if it contained relevant criteria. It does not. Appellant: The LEA fuel station is not consistent with the AMP and does not comply with it. a. Adopt Hearings Officer’s findings, with or without modification. b. Find that Hearings Officer erred and the AMP precludes fueling on the subject property. Staff Recommendation: Adopt the Hearing’s Officers Findings on this issue and include specific code interpretations as described below. Sample motion for BOCC: “Move that the Board adopt the Hearings Officer’s findings.” 3. Should policy 16.2(h) of the Deschutes County Comprehensive Plan and TSP be interpreted to prohibit development except as specifically designated on the Airport Layout Plan? Hearings Officer: It is not clear to what extent Policy 16.2(h) applies to the applicant’s private development proposal. The Hearings Officer found that Policy 16.2(h) could be interpreted to apply only to relocations and expansions of airport infrastructure and not to private development such as the applicant’s fueling station. Applicant: Policy 16.2(h) is ambiguous. The Applicant requests that the Board adopt the Hearings Officer’s findings on this policy and expressly interpret policy 16.2(h) that private development does not “constitute an airport facility” in this context. The Applicant also that the Boar d find that this policy does not require designation on the AMP or ALP prior to approving otherwise compatible private development. Appellant: There is nothing in the TSP that would limit airport facilities to runways, taxiways, and runway and taxiway service lighting, as found by the Hearings Officer. The Comprehensive Plan, AMP, and the AD zone ordinance indicate a clear intent to use the adopted ALP map as a criterion to guide future development, whether private or public. a. Adopt Hearings Officer’s findings, and Staff’s recommended interpretation. b. Find that the Hearings Officer erred. Staff Recommendation: Policy 16.2(h) requires the County to, “Specifically designate any proposed airport facility relocations or expansions within County jurisdiction on an airport master plan or airport layout plan map, as amended.” Staff recommends that the Board Provide an interpretation through the following motion. Sample motion for BOCC: “Move that the BOCC: 1) interpret “airport facility relocations or expansions” to apply to airport infrastructure elements provided by the airport owner, in this case the City, and not to private development such as the applicant’s fueling station; and 2) interpret this policy as contemplating that the ALP will be updated after development occurs; thus, functioning as an “as-built” map.” 2 Issue Information in Record Board Options Staff Comment 4. Has Deschutes County revised or 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? Hearings Officer: The ALP has been revised by the city and county, and approved by the FAA, several times since 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. Applicant: Opponent is correct that the Hearings Officer made a misstatement as to the versions adopted by the County but the error is harmless. Appellant: The Hearings Officer erred in finding that “the ALP has been revised by the City and County, and approved by the FAA several times since 2002 version. It is irrelevant whether the City of Bend or the FAA have approved revisions, because Deschutes County hasn’t. a. Modify the Hearings Officer’s findings to correct this factual error but find that the error is a harmless error. b. Modify the Hearings Officer’s findings but find that the error is not harmless. Staff Recommendation: Correct the Hearings Officer’s harmless error to say, “While Deschutes County has not completed adoption of any revisions to the ALP into the Comprehensive Plan since adopting the 2002 update, it is in the process of adopting the 2013 update, which depicts the Applicant’s fueling station on the subject property”. Sample motion for BOCC: “Move that the BOCC find that while Deschutes County has not completed adoption of any revisions to the ALP into the Comprehensive Plan since adopting the 2002 update, it is in the process of adopting the 2013 update, which depicts the Applicant’s fueling station on the subject property.” Additionally, the Hearings Officer’s findings regarding the adoption of versions subsequent to the 2002 ALP was harmless error. 5. Must the AMP or any of its contents be applied as an approval criterion because of the Airport Development Zone Purpose Statement (DCC 18.76.010)? Hearings Officer: The Hearings Officer did not address this issue. Applicant: Recommends that the Board include a finding interpreting the purpose statement as relating to consistency between the development code and the Comprehensive Plan, and, therefore, merely aspirational and not mandatory approval criteria. Appellant: The language of DCC 18.76.010 applies the AMP as mandatory criteria because that zoning code provision purpose statement separately references the 2002 AMP update as a plan for airport growth and is an indication of intent to apply and enforce the 2002 AMP and ALP for any development in the AD zone. a. Adopt Staff’s recommended interpretation. b. Adopt other findings and/or interpretation. Staff Recommendation: Make a Board finding that the language of the purpose statement in DCC 18.76.010 is somewhat ambiguous and requires interpretation to guide development review at the Bend Airport. Then, adopt the following findings: Sample motion for BOCC: “Move that the BOCC find that DCC 18.76.010 is intended to signify that the code language of Chapter 18.76 is consistent with the planning goals and objectives outlined in the Comprehensive Plan and the 1994 Airport Master Plan (as amended by a 2002 supplement) (the “AMP”). The purpose statement in DCC 18.76.010 is not intended to establish the Comprehensive Plan or the AMP as criteria for evaluating a specific development proposal or to otherwise elevate the aspirational language contained in those planning documents to mandatory approval criteria. Chapter 18.76 fully implements those planning documents as they relate to development in the Airport Development Zone and there is no need for a consistency analysis for individual development proposals except where otherwise expressly required by the Code. In summary, the Board interprets DCC 18.76.010 as simply a purpose statement and not and not as approval criteria for a development proposal such as the Applicant’s fuel facility.” 6. Are the AMP and ALP 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? Hearings Officer: The AMP and ALP are intended to describe recommended airport improvements to meet identified needs and to accommodate development that may not have been foreseen at the time the update was adopted – such as the applicant’s proposed fueling station. Applicant: The AMP and ALP are “guiding documents” that offer “recommendations” for meeting forecasted aviation demand and are not intended to provide site-specific approval criteria for airport development such as the Applicant’s fueling station. Appellant: The Hearings Officers’ interpretation could result in “accommodating future development” contrary to the AMP. Thus, the Hearings Officer decision would relegate that the AMP to a meaningless guess as to future development, with no planning function at all. a. Adopt Hearings Officer’s findings, with or without modification. b. Find that the Hearings Officer erred. Staff Recommendation: Adopt the Hearings Officer’s findings on this issue. Sample motion for BOCC: “Move that the Board adopt the Hearings Officer’s findings.”