2025-085/086/087 2026-001/002 Schaefer et al v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=AnVe07GqhtA). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Mhm. >> Mhm. Okay. >> Yes, I am. >> Thank you. We can't see everyone on screen, so >> Yeah, no worries. There's a lot of us. >> Good morning still. This is the time set for all argument in Schaefer versus Marion County Luba numbers 2025-085, 086, 087, and 2026-001 and 002. I'm board chair Smudio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision. Uh this oral argument is being recorded in live live stream, so please mute your audio when you are not speaking and that will help with our recording. And as pending matters, we have petitioner Schaefer's motion to take official notice and a motion to file an amended decision for review and uh responsive oppositions to those motions are pending and the board will resolve those in our final opinion and order. Uh by an order, we extended oral argument in this matter to a total of 1 hour. The petitioners will have a total of 30 minutes. Um have you decided to share your time differently than what we set out in our order? >> Um yes, uh Joseph Schaefer, petitioner here. Um I will go first and take five or six minutes. Uh then Mr. Mulkey will follow and then uh Ms. Gail Hinman will follow. Uh we propose to take 20 minutes for our initial argument to reserve 10 for rebuttal if that works for Luba. Uh perhaps it goes without saying, but Mr. Robinson and Ms. Rodenfield as I understand it are planning to waive oral argument. >> That's correct. Aurora will waive oral >> Sorry, can you say that again, Counsel Robinson? That was cracking up on our end. >> Aurora will waive it's time for you, man. >> Okay. Uh I I understood that Aurora, City of Aurora will waive their oral argument. And petitioner, um Rodenfield, are you here and are you also waving your oral argument? >> I am and I'm waving oral argument. >> Okay, and if the board has any questions specific to you two, we will ask those. Um, our rules provide for up to 5 minutes for rebuttal, but given the number of parties and appeals here, I'm okay with the way that the parties have decided to submit their time, so we'll proceed um with that. Ask you to keep track of your own time. I will keep track of the entire 20 minutes, but won't uh intervene to divide your time. So, please ask that you be mindful of that. And then, intervener respondent's attorney and respondent, you'll have a total of 30 minutes for your responsive argument. Um, have you decided how you'll share your time? >> Yes. Uh, your honor, Wendy Killington representing all of the intervener respondents. We will be presenting the oral argument entirely. We're not splitting our time with the county. >> Okay, thank you. So, um I think county is present if we have questions. Otherwise, intervener respondent will respond on behalf of all intervener respondents. >> Um, that's correct. >> Which is no no small thing, counsel Killington. You have a large job in front of you here. >> Thank you. I know this. >> Um, so with that, uh petitioner Shafer, you could go ahead and state your name for the record again and begin, please. >> Joseph Shafer, petitioner. >> Go ahead. >> The governing The governing precedents for airport-related commercial and industrial uses on EFU land are all in place in county ordinances, LUBA orders, and Court of Appeals opinions. The response briefs allege failure to challenge all findings, but the findings rely on three false premises which were repeatedly challenged. Number one, this was approved in 1976. Number two, this is a public use airport Number three, there are no commercial industrial or manufacturing uses. >> [clears throat] >> First, nothing was approved in 1976. The HTS ordinance said the properties are not within the 1976 boundary. That's record 6077. The court of appeals said that at 318 or app at 620. LUBA's three prior orders for this site do not even mention the 1976 plan. The only comprehensive plan designation is primary agriculture. And you can see that in finding number Second, >> [clears throat] >> for the HCS heliport, the county refused to apply 3N to a private development because it was not a transportation improvement. Such as the public runway in Lentz. That's also record 6077. This decision is also a private heliport without public airport improvements. LUBA must give effect to the open to the flying public definition of a public use airport. The actual findings do not cite any evidence or explain how evidence shows this heliport is open to the public or any other aspect of this site is open to the public. To analogize, if you have friends over for dinner, they are itinerant diners. That does not make your house a restaurant open to the dining public. This site is not open to the flying public and 3N does not apply. Third, respondents insist there are no commercial or industrial uses, expressly describes the uses as aviation-related commercial, industrial, and manufacturing uses. Just because the uses are allowed at an airport does not mean they are not commercial or industrial uses. The statutory definition of through-the-fence operation also defines the uses as commercial and industrial. The decision misconstrues applicable law by conflating private through-the-fence commercial and industrial development with expansion of a public-use airport that is open to the flying public. LUBA and the Court of Appeals have always distinguished these two uses. In Lance, LUBA emphasized that no commercial or industrial uses were proposed. That's 38 Or LUBA at 669, excuse me, 669 at page 675 from 2000. In Brockman, LUBA noted the county took a goal four exception for the airport-related industrial use. That's uh Brockman versus Columbia County, 59 Or LUBA 302 at page 304. And the Court of Appeals distinguished through-the-fence development of this site from an airport boundary expansion. That's 318 Or App at 628 note nine. Nothing authorizes private commercial and industrial uses on EFU land merely because they are related to a transportation facility. LUBA reversed the approval of railroad branch line-related uses in Thousand Friends of Oregon versus Columbia County, LUBA number 22-039 at slip up slip up at 23 to 25. This case is the same and LUBA should reverse again. >> Okay. >> Uh Andrew Mulkey uh on behalf of petitioners 1000 Friends for Oregon and Friends of French Prairie. I want to emphasize as I mentioned in uh the petitioners' brief that this this case is about um simply putting the cart before the horse. That the applicant um is not authorized under the airport planning statute or rule to um submit an application for an airport boundary expansion and facilitate um all the coordination and planning that is required. And so simply I want to focus my argument today on emphasizing what the Court of Appeals has already said about this process and has already uh frankly explained why the applicants um proposed uh process in this in this case is is simply So the first is that again the Court of Appeals says that the airport boundary expansion process is the end product of the airport planning process. And they say that at Shafer TLM at um page 625. And so the thing that the LUBA needs to understand or or or should understand is that uh where does the through-the-fence process fit into that? Um and it is not where the applicant has proposed it now. So the Court of Appeals also goes to great lengths to explain that the through-the-fence boundary expansion or the through-the-fence boundary is distinct from a boundary expansion process provided by the airport planning statute and really the airport planning rule. And so again, the court of appeals has stated that the definition of airport boundary in the through the fence statute, and I'm paraphrasing here, does not apply to the airport planning rule. Um and so whatever the effect of the new definition of airport boundary has on the site plan approval requirement, it does not change the fact that the through the fence provisions do not modify the airport boundary expansion process. Again, I'm I'm roughly paraphrasing there. Um and so the the court then goes on to explain what the through through the fence process is and how that process begins. And it begins when um the Department of Aviation receives an applicant an application for a site plan um for the through the fence site plan um that the applicant submits uh to the Department of Aviation, in this case the airport sponsor, for review and approval. And so the court of appeals has stated that that process ensures that the airport sponsor will be well-positioned to incorporate the property into the airport boundary and coordinate the operation with other aspects of the airport master plan in the course of the airport planning process established by the airport planning rule. Um and so I want to emphasize that again, the court of appeals has stated that the airport boundary expansion process necessarily occurs after an applic- applicant has already submitted an application a through the fence site plan application to the airport sponsor. That hasn't happened here. Um and and petitioner has explained that in the brief and the the county um has included that as a condition of a of in its decision. Uh and so I also want to point out that the court of appeals recognized that the site plan process happens first. They say that the airport sponsors later use of the site plan to incorporate the property into the airport boundary and coordinate the operation with the other aspects of the airport master plan must take place through the airport planning process. So correct that it does engage in the airport planning process except that the approval of the through the fence process has to occur first um and that's not what happened. >> What is What is the statutory or rule basis? I appreciate that you're describing the court of appeals decision and their narrative explanation of how they understand this process to work, but what rule or statute requires the sequence that you propose is required? >> Well, I think the rule and it's cited in um the petition for review at page uh 23 lines 17 through 24 lines nine is is going to be the through the fence rule itself. Um uh it's it states that uh it's OAR 738 uh division 14 section 50 subsection two. And so it states that the through the fence operation in cooperation with the airport sponsor um you know, after the government uh excuse me, after the sponsor has received the application and reviewed it for compliance um they then um in cooperation with the airport sponsor may proceed to act seek any necessary land use approval from the appropriate local government. Um and any such >> The term may sounds permissive to me in terms of what's prescribed by that rule. Why is it that the county can't do and the applicant can't do what they did here which is to do the county's part in this and then condition that approval on completing what's required by the rules that you cite. What is it that makes that prohibited? >> Well, I think that um first that this and if I may really quick just say the next part of that rule which it says after submission and review then the facility site plan shall be incorporated into the local government's airport plan and that airport boundaries. So, I think that is the the process there that's actually described in the rule is that first there's an applicant that goes to an airport sponsor, seeks approval then they go to seek uh county land use approval and after that process then it's incorporated. That's how um the >> I understand what you're saying is you're describing steps. I what I understand the county and interveners respondents to both advocate for and to then I say yes, these steps are prescribed, but there's nothing that requires it to go in a particular order and so any you know, non-compliance with this rules set up of order is is essentially legally insignificant. And so, why is it that they what they've done is prohibited other than the rule sets establishes a sequence of events. Why can't they go out of order and still satisfy the rule? >> Well, I think because uh and again probably this is getting into what Mr. Shafer was talking about is that the applicant here has conflated the statutory requirements between the through the fence provisions and the airport planning rule and they're simply picking and choosing uh in the most favorable favorable aspects of each part of the rule for their arguments. And so, I think that's why it needs to proceed um again as a cart as a horse pulls a cart with the TLM uh through the fence application happening first to ensure compliance with the through the fence site plan rules and then >> I I understand the position you're taking. I'm trying to understand why it's required by law. I think intervener respondents position is so long as all of the rule requirements are satisfied which are conditions of this approval. I think the way they put it is as long as the cart and the horse arrive at the same place then things are okay there. Substantively and legally why is that not permitted? And if it's just if your answer is because the rule prescribes an order and that's what they put forward that's the answer. But I'm trying to understand really why it matters as a matter of law cuz here I understand the decision is requiring those steps. I don't think there's any argument that the decision has failed to require steps that are required by the statute or the rule. So why does the sequence why is the sequence so critical? >> And so I think that the issue here is that the the airport has its own planning responsibility and so the airport has to adopt its own facility plan or airport master plan and it is it is really the airport's responsibility to look at kind of the economic growth and let me see you know look at areas needed for the planned airport operations and buildings and expansions of uses based on the projected needs for such uses over the planning period. So that that's quoting from the airport planning rule but that is the really the sponsor's responsibility here and in this case the sponsor has not taken the steps that it needs to do to adopt that facility plan prior to then going to the to the county and saying here we have an approved facility plan based on our economic needs. Here's the data. Now amend your airport boundary in your comprehensive a so that all of this can go forward. So, I I think those are the those are the steps that are required there and it is really uh an airport planning process from the airport facility planning side that requires that um the airport to do it first because until that until the airport makes this decision until ODAB makes this decision to approve its airport facility plan all of this is hypothetical. So, I think that's why that's why that order needs to be in the way um that it's prescribed or or discussed in in uh the court of appeals decision and also in Dissent's briefs. Um with that I've I've gone well over my time so I will turn it over to um Ms. Gile Hammond. Good morning. Amanda Gile Hammond for intervener petitioner City of Wilsonville. Deference does not give a governing body cart blanche to ignore the express terms of its land use regulations and traffic analysis is not a basis to determine design capacity. So, this morning I'm going to first start with Wilsonville's third assignment of error before moving to our first and second assignments of of error um time permitted. So, on Wilsonville's third assignment of error uh it demonstrates that Marion County misconstrued its regulations governing the effective date of the conditional use permit. So, there's two provisions at play here. The first is MCC 17 119 180. That's the provision that establishes the effective date. In simple terms, what it says is the effective date for the conditional use permit is when the action by the Board of Commissioners is taken. MCC 17 119 190 provides the time frame in which the applicant has the ability to exercise the right to that conditional use permit. It sets out a two-year time frame from the effective date which is established under 180 to exercise that that conditional use permit. That provision also allows the extension of that two-year period upon a request from the applicant. Rather than use the 190 the subsection 190 to extend the time frame for the applicant to exercise their right to the conditional use permit, here the county used that provision 190 to set an indefinite and indeterminate effective date, authorizing a quote delayed effective date pending final decisions and quote from other entities. However, 190 as I mentioned isn't what controls the establishment of the effective date. Subsection 180 does. And nothing in subsection 180 allows an effective date other than what is expressly provided therein. I think that respondents are aware that this is an issue because their main argument in responses to argue preservation. However, as pointed out in both of the petition Wilsonville's petition for review and our reply briefs, Aurora objected to the extension, noting that it was unreasonable and unfair. It raised this issue. The county provided findings in response, demonstrating it had adequate notice to address this issue. As further pointed out in in Wilsonville's replies, Wilsonville is entitled under Oregon law to make new arguments on issues that were raised. Where there's an issue on looking at specificity, that generally comes into play when you're looking at appellate review under ORS 5.45. That's not at play here. So, I'll refer again the board to my to Wilsonville's replies for further response on the preservation issue. So, deference is not appropriate here because the interpretation by the county directly contradicts MCC 17.119.180 on the establishment of the effective date. Now, turning to Wilsonville's first and second assignments of error, those really focus on the design capacity of structures to be built on EFU land within 3 miles of an urban growth boundary. Now, the policy purpose of this is to limit urbanized development outside of UGBs and to protect EFU land. And to ensure that this limitation to ensure that this limitation is in place, what that regulation requires is that if there's a design capacity of all structures over 100 people, a goals exception is required. So, the decision claims that there's only 47 people in the design capacity of one structure is 47 people. And intervener respondents argue that this is a typo, but the decision is pretty clear on how the math was arrived at. So, the decision talks about a three people per 1,000 square feet of office ratio and then looks at the office space in the headquarters at 15,658 square feet of office. That math, the 15,658 applied to the ratio of the three people per 1,000 square feet, equals 46.97 people, rounded up to 47. Now, the three per 1,000 ratio is in line with the ratio from the ITE trip generation ratio of 3.3 employees per 1,000 square feet of office. Now, the traffic engineer said that the ITE manual should not be relied upon to estimate the number of employees for a given land use or building size. So, assuming that the 47 number is incorrect, the decision also says, "Well, if there is a design capacity of over 100 people, no goals exception is required." Now, this interpretation directly It basically creates a new third alternative in that regulation. One, have a design capacity of less than 100 people. Two, have a design capacity of over 100 people with a goals exception. And now a new third unwritten alternative of have a design capacity of over 100 people, but you don't need a goals exception. That interpretation renders this regulation essentially meaningless and superfluous. And that is not entitled to deference when it's contradicting the expressed terms of the and also not meeting the policy objectives of the regulation. So for that reason, reversal or remand is appropriate to address these improper facts and interpretations in the >> Thank you. Uh, you will have your full 10 minutes for your rebuttal and we will turn to intervener respondent for your And you're you're on mute, Counsel Kellington. >> Thank you, Mayor. Please the board, Wendy Kellington representing all interveners respondents. First, a mea culpa, our interveners joint response to 1000 Friends, Friends of French Prairie brief at page 36, lines 17 to 18 refers to the petition page uh 19 and that reference should be to 18. It's a small thing, but I want to get it right. So apologies. The appeal should be The decision should be affirmed really for one central reason, and that is that petitioners are attacking a decision that is not the one the county made. The petitioners repeatedly mischaracterize the county board's decision and assert the approval approves commercial and industrial uses, but that's not what the county decision approves. The approval is expressly limited to specific uses that state law characterizes as something different as airport uses that are expressly authorized by ORS 836-616 subsection 2 and OAR 660-13-100 and expressly over many different times as it does not authorize any commercial or industrial uses under 616-3 or Record 14 through 17 105 106 condition 7 at record 114 to 115. I'll say this in different ways. Petitioners ignore those findings. They don't challenge those findings at all. They're inconvenient. They challenge a decision that the county didn't make. The county did not approve a private industrial park. It didn't approve airport-related commercial and industrial uses. It didn't approve manufacturing for sale to the public. And it didn't approve a freestanding private heliport divorced from the Aurora State Airport. It also didn't approve hundreds of thousands of square feet of offices that approved 15,856 square feet of offices. This is plain from findings at finding 25 the site plan at record 7052 and the table at 7053 and by condition 7 that limits the approval as shown in the submitted site plan exhibit 1B and is described in the application materials submitted on supplemented on March 6th, 2026. So, the condition plainly limits the proposal to 15,658 thousand square feet of office space, imposes space limits on other types of uses authorized in each of the buildings. Petitioner doesn't demonstrate how, given that condition and the findings, office space could be developed more than that without additional land use approval. In addition to challenging a decision the county didn't make, they assert that the decision's wrong because we started with conditional land use approval dependent on ODAB doing its work rather than the converse. But the county board's decision was just as good a place to start as anywhere. There's nothing that prevents starting there. It was strongly coordinated with ODAB. In fact, ODAB's director wrote a two-page letter strongly supporting the proposal and urging its approval. And there can be no question that had we started with ODAB, these opponents would have asserted that there's no showing that land use approval is feasible, and ODAB is frankly poorly equipped to deal with land use issues, as we saw in its master plan decision at issue in OR 312 ORAP. So, nothing says that sequence is wrong. And probably it's the only sequence that could make any sense. So, what did this decision actually do? The decision approves two things. First, it conditionally approves an expanded airport boundary map for the Aurora State Airport. Second, it approves a conditional use permit limited to those specific airport uses authorized by 836-616-sub-2 and 660-13-100 within that expanded airport boundary. That matters because OAR 660-12-0065-sub-3-sub-n expressly identifies both expansions or alterations of public use airports that do not permit service to a larger class of air airplanes as transportation facilities and improvements that are deemed to be consistent with goals 3, 4, 11, and 14 so long as they meet the farm impact test. The county decision does exactly that following the code of a court of appeals road map. It expands and alters the Aurora State Airport. It does not permit service to a larger class of airplanes. It satisfies the farm impacts test. No one claims otherwise. And that means as a matter of law no goal exceptions of 3, 4, 11, or 14 are required and the board should affirm as a result. So to shine a finer point on it, OAR 660-12-0653N authorizes expansions or alterations of public use airports that do not provide service to a larger class of airplane. And those are then deemed to be consistent with the goals subject to meeting the farm impacts test. So here, first, there can be no serious claim that the airport to be expanded, the Aurora State Airport, is not a public service public use airport. In the Shafer case at 318 Or App says that the we agree with Luba that the Aurora State Airport is a public use airport as contemplated by the rule. Petitioners don't challenge the county findings that Aurora is a public use airport and if they did, that would be a loser. That means as a matter of law the first prong of the rule is satisfied. We're talking about an expansion of a public use airport boundary. Note, the point of a public use airport is that it's open to the flying public, but that doesn't mean every square foot is open in every part to everyone. It means the airport is available as an air as an airport to the class of aviation users whose aircraft can safely and lawfully use that. We see that from the ORS definition of a public use airport in The county's unchallenged findings explain that airport expert Aaron Feigley testified and was deemed to be credible as an expert that public use airports don't depend on all parts of the airport being open to the public. That's at record 19, 24, 28, 31, 62 and one of his letters at record 1228 to 1229. Explains that many parts of airports are not open public use airports are not open to the public. They are traffic control center, the sheriff's hangars, private hangars, but they're still a part of the public use airport. And that's supported by ORS 836.640.1 that defines private airport boundaries at Aurora Airport specifically to be the public and private lands. That's also supported by other parts of the record. Record 13216, the Billy Chinook Airport privately owned. 13217, Sisters Airport privately owned. 13218, Sun River privately owned. Roseburg 13224, all privately owned public use airports with private uses. Mr. Feigley's expert testimony is also supported and the findings are supported by the acknowledged 1976 master plan that is a part of the county's own comprehensive plan. And again, it's acknowledged that plan's findings state that the Aurora Airport has existing public and private facilities and the airport is quote owned in two parts, the runway by Oregon Aeronautics while all quote unquote revenue producing areas are owned by private interests, that's a It recognizes that operational management and complexity of the state and private ownership as an air traffic uh airport uh and the competition between private interests is a complexity that is increased by the fact that there are state and private interests in this public use airport. That master plan expressly and specifically designates the subject property as being suitable for airport-related development under private ownership. And in fact, it says that 107 177 acres of the airport are held in private ownership and only 113 acres are held by The decision approves the expansion of a public use airport. And the Court of Appeals explained the same thing in its 318 OR app Aurora Airport decision, in which it recognized that the Aurora Airport is composed of both public and private uses, all zoned P. I want to note that the petitioners' attempt to bootstrap the Court of Appeals 318 OR app footnote 9 to say a public use airport boundary expansion under 0653N the 3N rule cannot approve airport uses, but that fails. What the footnote 9 did, it doesn't limit what can be approved in a lawful airport boundary expansion. The court simply rejected the applicant's position that an ordinary comprehensive plan zoning approval for airport-related development is itself an expansion under the rule under the 065 rule, but it did not reject that a proper airport boundary expansion can be accomplished by the use authorizations for the airport uses that the statutes and rules expressly contemplate. The operative holding that case is that the expansion must occur through the division 13 airport planning process, which was fully vetted and experienced here. When that process is used, OAR 13-00-40 expressly requires planning for existing and planned airport uses, just as was done here. And then ORS 836-616-2 directs local governments to authorize specific airport uses within the resulting airport boundary. Thus, footnote 9 is not about a private development approval um being inappropriate or unlawful within an airport boundary. It's about a private development approval not being a substitute for an airport boundary expansion. It doesn't say it would make no sense to say that approval of a 616-2 use is part of or in implementation of a proper boundary expansion that state law requires be approved in an airport boundary can't be approved in an airport boundary, which is what petitioners argue. >> I'm curious about why there is uh the need here for a boundary expansion and the through-the-fence approval you described that that one of the petitioners' arguments is that those >> Well, uh the Court of Appeals said so. So, the Court of Appeals in its uh 318 ORAP decision said that the way you go go about approving airport uses, including through-the-fence uses, at a public use airport is to initiate the airport boundary expansion process in OAR 660-13, and that private applicants can do that, but you better do it because that's how you go about expanding a boundary. And so, that's exactly what >> Are there airport uses or airport-related uses that are approved by the through-the-fence approval that aren't listed in ORS 836 uh 0.6 6 16 2? >> No, this this approval approves only but approves all of the OAR ORS 830 6 16 sub two uses as the findings explain in detail between the pages of record 14 and record 17. It explains everything that is allowed and why it's allowed as a sub two use, which are findings that petitioners do not challenge. >> Okay, so I'm still and I think this is just because that I'm not as versed in this as everyone on this call is, why do you also need a through-the-fence approval? Is that just because it's private ownership and some of the operations will be using the runway? Why do you need both? >> Because that's what OAR 660-13 requires. So, you I mean, there are just a whole lot of moving parts, there's a whole lot of things that you have to do. So, the through-the-fence statute requires and that uh through-the-fence uses be allowed within airport boundaries at the as at the Aurora Airport, and the court of appeals said, "And that's fine." And the way you go about invoking the through-the-fence statute is by undergoing the OAR 660-13 airport planning process, and when you do that, at the end of it, after the airport boundary is expanded, then you can have your airport uses. But until that time, until the airport boundary is expanded, you can't use the administrative rules 660-12-065 for expansions or alterations of a public use airport to authorize airport uses. >> Okay. And then for the one of the primary arguments here or disputes here is the character of the use. And I understand your position is that because this decision approves uses >> [clears throat] >> only approves uses that are described in ORS 836 .616 sub two, all of those uses are specific airport uses that are allowed under the three N rule, and that those uses cannot, as a matter of law, be characterized as commercial or industrial uses because even if, in the abstract, those uses could be aligned as commercial or industrial, they're allowed under the this rule and that sub one of that statute says that LCDC needs to adopt those rules um and that local governments have to allow those activities under this statutory scheme. >> That's exactly right. That's exactly right. So, sub uh 616 subsection two describes a category of airport uses that are differently described than subsection three. Subsection three says other commercial or industrial uses, you know, have this other far more complicated pathway, which is what the 318 and 323 OR app Court of Appeals cases were dealing with, with somebody applying for sub two and sub three uses. Here, the applicant and the only sought and the county only approved those sub-two uses which state law in its infinite wisdom have separately characterized as a special kind of airport use that shall be allowed within airport boundaries. And the through-the-fence statute picks up on that. The thing that makes this even more complicated, if it's possible to make it that, is that the the through-the-fence statute talks about commercial and industrial users as being the people who get the benefits of the through-the-fence statute. And of course the petitioners say, "Ah, we got you there, right? Because you must be seeking a commercial or industrial use. That means you can't get to yes from here because in order to use through-the-fence, you must be a commercial or industrial user." Uh who is there therefore necessarily um pursuing a commercial or industrial use. And the answer to that is no. And this is where harmonizing all this all the statutes and administrative rules is required under a property gains and PGE analysis. And that's also where particular attention to the words that are used in the relevant statutes and rules is really important. The relevant statute says, you know, talks about commercial or industrial users. And what that is is that's a proxy for the private sector because they're not, you know, they're not they're not public users. They're they're um commercial or industrial users who are undertaking this special class of use that state law elsewhere in 616 sub-two characterizes as a different kind of use even though probably underlying most of us would think of them as commercial industrial, but state law says no, those sub-two ones, those are airport uses that you have to allow within airport boundaries." So, you put it all together and what do you get? You get a decision here that does not approve one speck of something state law calls a commercial or industrial use. Only airport uses are approved here of the type that state law says must be allowed in airport boundaries. >> So, that through-the-fence statute, I would assume would allow a broader category of uses than those sub-two uses. >> It would, but we limited this use. The The county Board of Commissioners limited this use expressly to sub-two uses, 100 uses, and there are even findings that acknowledge that within sub-two there are categories of uses that the statute itself says, "This is This is not is okay, but this really would would be okay." And those are expressly called out in the decision at No, it's page 17. To say, "And we're just making sure everybody's clear here that anything that 616 sub-two says or 110 says would not be allowed as a that special kind of airport use isn't being approved here." The decision is so careful to say, "We are only approving those airport uses," which is why it's so offensive that the these opponents just completely ignore all those findings and choose to call the decision something completely different than it is and don't even address those findings. They don't even address it. >> Have the nature of the uses changed between this version and the earlier iterations of this of this proposal? >> Uh this proposal here or the previous TLM? >> The earlier savior decisions and the and the >> Yes. And I I I wasn't involved in in the earlier TLM decisions, so I'm not familiar with what that's all about and what that's all about and but I know that the the decision says the decision court of appeals decision and Luba's decision talk about sub two and sub three uses. And here we are only talking about sub two uses. So, the idea here was to be very different. The idea was to be faithful to the court of appeals roadmap, to do everything they told us to be do, to be extremely conservative and careful, to approve only airport uses. >> Thank you. >> I think I'm being a little dense here, but I'm still confused about the through the fence operations. Are those usually outside of an airport boundary and not all airport uses that are defined in that 616 sub two? >> So, if if there is an existing airport use that is ex- outside of an airport boundary under the through the fence pilot project, it would be non-conforming. Because the the court of appeals came down hard on taking the position that the through the fence statute allows you to put those uses that the through the fence statute says you can have. And it says, you know, sub two and sub three uses, they're all good. The court of appeals said, "No, that by itself is not enough. You've got to You've got to put the whole miasma together. You've got to put the airport planning rule together. Got to put 616 together. You've got to put the through the fence statute together. You've got to harmonize them." And here's how it works. If you want through the fence operations, sub two or sub three or both, you've got to go through the airport planning process provided by OAR 660-13, and if you do that, that's how you expand the boundary, and then you get to have your through the fence uses within that expanded boundary. So, that's just that's the court of appeals construct, and you know, we're not fighting it. We're just doing it the way they said. >> Thank you. I think I I now understand. Um moving on to the design capacity issue, how do parking spaces correlate to the building design capacity, and I know I'm shifting gears here, but I want to make sure we talk about this issue. >> Okay. Okay. So, the the operative decision pieces, the evidence relied on, are at record 7056, and that's the table, and the site plan is at record 7057, and then condition seven comply requires compliance with both of those and the the limiting documents submitted in the March 6, 2025 hearings officer proceeding. So, the you know, what what's a little unfair here, well, there's a preservation issue, and and we talked about that. So, um at record 26, the the county interpreted its rule to say, "Look, because state law would not require this design standard to apply, And our code provision implements that design standard. We interpret our standard the same way as state law, and we say it doesn't apply. And so far as I'm I can see, that would that determination is entitled to support and deference. But then there's also a whole bunch of findings at pages 25 and 26 of the of the decision record 25 and and 26 that talk about this 100-person design capacity. And that's at finding um 28. And the the the board says, "The evidence in the record demonstrates the enclosed structures here are primarily hangars for aircraft, maintenance shops for aircraft, and the vertiport headquarters with 15,658 square feet of offices. The rest of the buildings are devoted to industrial shops for aircraft and storing aircraft parts. Three people for every 100 square feet of offices out of that much square foot is 47 is actually 52. That's a mistake, which is less than 100. And it goes on to say, "The spaces are large because they're designed to accommodate aircraft, not people, and aircraft are big things. The same is true for maintenance areas." So, they and there was also a sensitivity check as you see in the um in the in the chart in the record where they took a look at the footprint of other sorts of uses at the airport that had private hangars and and looked at the parking uh that went along with it and the amount of people and and it was about the same, and so they thought it was right. And finally, the the county does have a parking standard for, you know, the the amount of you know parking that would go with particular kinds of uses and if you assume you know people drive cars in order to park that that would also be a sensitivity check a way to decide and the board said here it does decide that the you know the 100 person design capacity is met and those findings you know 25 and 26 I think were detailed and are entitled to support and deference and then to me at least more importantly are the findings that say regardless the 100% design standard implements state law and state law wouldn't apply here because um the state law table says transportation improvements on rural lands allowed under 065 um would not you know be subject to that that design standard. So I guess that's that's what I think and you know the board have decided they decide but I think that's pretty solid. >> Thank you. >> Yeah. >> You have about 3 minutes left. >> Of course I do. >> [cough] >> You [clears throat] you can take it or you don't have to. I don't think I have >> No no I mean I need all of it so um gosh >> [sighs] >> So this effective date business I I want to touch that a little bit you know nobody really raised that you can only extend time after the effective date begins they just didn't we would have responded I mean here there's what 114 pages of of findings and had they raised this with sufficient specificity to allow reasonable person to respond we would have but here's the thing. The the finding at page 34 condition six is entitled support and deference. The period was extended as the code allows so that these people keep appeals going that the as they surely will that the approval doesn't expire before the the use can even start and I think that that's completely entitled to deference. The the exception intensification issue, petitioners attempt to use 664-18 to nullify 0653N and that's just a legal non-starter for all the reasons that we described in our brief, but I guess the thing I want to talk about is in addition that their intensification rule doesn't even apply to the 1980 exception. Petitioners can't repackage the same airport expansion as an intensification of existing exception lands and force the county back into an exception process that the 0653N rule says isn't required. That's just completely wrong. Here the to kind of close things up, there's several things that the board I really hope understands. Nobody charge challenges at all the decisions limitation to 6162 100 airport uses. They don't challenge the finding that the Aurora State Airport's a public use airport. They don't challenge the finding that it doesn't permit service to a larger class of airplanes. They don't challenge the farm impacts findings. They don't challenge transportation, storm water, any of the traditional land use things. They ask this board to create sort of a hyper-technical um you know, way of looking at these rules that really just forecloses any airport from ever expanding anywhere and the board just shouldn't let them get away with it. County's decision faithfully follows the the court of appeals road map. They strongly coordinated with ODOT. They gained their enthusiastic support. They conditionally adopted an expanded boundary. They altered it with uses that are shall be allowed within the airport boundary and gosh, they just the the decision really deserves uh to be affirmed. If you have any other questions, let me know, but according to my timer, I'm out. >> Thank you. Uh that was felt like an endurance sport, so appreciate >> [laughter] >> your argument and uh all of the parties' thorough briefing. And we will return to petitioners. You have 10 minutes for >> Uh Mr. Shafer, I believe you're going to kick us off. >> Oh, okay. I thought I was going last. >> I can go. >> I thought you wanted me to go last. >> Okay, thank you. I will go really quickly. I apologize for that mix-up. Um I do want to say I I think that um the interveners' uh presentation has highlighted why um the order is important. And the And the first And the first thing is is that if you look at ODAV's um the Oregon Department of Aviation's, you know, uh draft plans that are in the record, they have not proposed expanding the airport boundary um uh in this case. And so I And then that leads me to my next point, which is that this proposal is outside the Oregon Department of Aviation's proposed boundary for its upcoming facility plan. Um And that that brings me to the point which was highlighted by the Court of Appeals. And I I said it in my opening and I'll say it again is that the definition of airport boundary in the through-the-fence statute does not apply to the boundary definition in the airport planning rule. And so when um Ms. Kellington is directing uh the board to the uses in ORS 836 uh 616 and saying, "You know, these are allowed within the boundaries of the airport." That is the airport planning statute. And there, as the Court of appeals has stated, they're talking about a different boundary. So, why it's important for the order of operations to occur here is because um the applicant has not applied for a traditional sponsor-sponsored airport boundary application. That that subscribed in A3, it's A36616. The applicant has applied for through-the-fence um uh proposal site plan proposal that would then, after the fact, result in a change in the airport boundary rules. But, what they're doing is mix and matching um the standards here. So, the traditional uh boundary expansion described in the airport planning rule um has all sorts of procedures and rules applied to it. The through-the-fence boundary expansion is different. And so, and this is getting a little bit into probably what Mr. Shaffer's presentation is, but you know, why this isn't a uh expansion of a public use airport pursuant to 3N because it's actually uh through the site plan. And it's and it's a through-the-fence site plan proposal, and it's entirely governed by that. And only after that process occurs, can you then go talk about, "Well, okay, we've we have this, you know, through-the-fence um uh site plan that's been approved. Um there's it's all it's subject to its own boundary definition and its own statute. Um now, let's go back and and conform the um the the county's comprehensive plan." >> the What are the statutory citations for those disparate boundary definitions? >> Um I don't have them at the ready, but I believe the first definition is in A36 somewhere along 600, or it I think it's 605. And then the other boundary definition is in um it should be in A36640, which is the through the fence provisions. And so the the court of appeals discusses both of those definitions in its case. And with that I will turn it over to Mr. Mr. Shafer. >> Thank you. >> Or or if Amanda has something, sorry. >> Thank you. I just want a very very brief couple points that I just wanted to make on the parking analysis. Uh Wilsonville's contention is that the design capacity analysis is not based on parking, but even if it is that still is not appropriate design capacity analysis. Um and then the second thing that I just wanted to touch on is on the issue of preservation again referring back to Wilsonville's appeal reply briefs about that it's regarding the issue has to be raised for an adequate opportunity to respond. The county did respond and made findings and Wilsonville is proposing additional argument on those issues. Thanks. >> So Wilsonville is arguing that the I think Wilsonville is arguing that the county's design application of the design capacity is based on an ITI, is that correct? >> On the ITE manual trip generation ratio for traffic for office use, which is the 15,000 square foot office for the headquarters. >> And your position is that both the ITE and parking spaces are not evidence of the design capacity for the building. >> Correct. And even more so on the ITE analysis is that the traffic engineer themselves said that it is not an appropriate way to evaluate the number of employees that will use for land use or for a building size. >> Uh Uh, hello again, Joseph Shafer, petitioner. I think what's getting lost in this is the subject property is in the EFU zone. There is no uh, nothing in the airport planning rule that's talks about what zones you can do an airport in. This is an urban scale airport. It has been for over 30 years. There's nothing in ORS 836 or 660.13 that say you can expand an urban scale airport onto new EFU land. If you look at ORS 836.600 to 630 uh, and in 605 it expressly defines an airport as limited to the 1994 boundary as the court of appeals described. The exemption that allows airport uses on EFU land, which is found in 836.625 only applies to the airport as it existed in 1994 within that boundary. There is no basis for expanding an urban airport onto EFU land. This is why my first assignment of error so much emphasizes that the uses whatever you call them, call it a heliport, call it commercial, call it industrial, none of those are allowed on EFU land in any county and certainly there's nothing in this county's code to allow them. Respondents gloss over the statutory and rule text to argue context and I would just underline what Mr. Mulkey says, you know, they're completely cherry-picking and it's my uh, third sub assignment of my second assignment of error that goes into that in some detail because uh, the more specific airport planning rules and statutes govern over the more general transportation uh provisions in 215-283-3 and the 3N rule. Which does not apply uh Remember, OAR 660-12 does not implement the ORS 836 statutes that Ms. Kellington relies so heavily on. Okay? It Um uh Finally, um you know, they argue context, especially in their briefs, but they omit the context of Goal 3. They omit the purpose statement of the EFU zone. They omit the legislative policies in ORS 215-243, including subsection 3, which expressly warns about expansion of urban development into rural areas. They omit the context of Goal 14, which discourages urban development outside UGBs, and they omit ORS 197-713, which prohibits rural industrial development in the Willamette Valley. Once again, describes the airport-related commercial and industrial and manufacturing uses. Those are Those are the terms in the rule. Those are not my terms. The the through-the-fence definition defines the uses as commercial and industrial. You can't just disappear those things because those uses occur at an airport. This is commercial and industrial use. It's the size of a Walmart Supercenter on a EFU-zoned parcel. No one's ever even attempted it before. All the prior cases like Lance and the prior decisions for this site and HTS, the adjacent heliport, which is essentially indistinguishable, all included a zone change. Because you can't do this in EFU. Finally, if you look at the county's decision for this property for the last application, it expressly said the uses are not allowed. They're only allowed in the public zone. And that kind of says it all. The flip-flops should be reversed under Alexanderson and Beavis. And with that, I'll wrap it >> Okay. Thank you. Uh thank you to all of the parties for your oral argument today. That will conclude oral argument. Our statutory due date for a decision in this appeal is June 17th. We'll ask the parties to agree to an extension so that we issue our decision by July 8th. But I will just say in advance with uh the number of issues and novel issues here, >> [clears throat] >> we may have to extend that, but we will shoot for July 8th with the parties' agreement. Is that okay with these parties? >> Yes. >> And I will hold my breath. >> Yes. Yes, for Wilsonville. >> Thank you. Uh

Summary: Mhm. >> Mhm. Okay. >> Yes, I am. >> Thank you. We can't see everyone on screen, so >> Yeah, no worries. There's a lot of us. >> Good morning still. This is the time set for all argument in Schaefer versus Marion County Luba numbers 2025-085, 086, 087, and 2026-001 and 002. I'm board chair Smudio. Board member Basham is also present. Board member Wilson is not present and will not be participating in the final decision. Uh this oral argument is being record…


Oral Argument 2025-002 Stadeli et al v. Marion County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=Y5i6DtskLY8). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

Mhm. >> Good morning. >> This is the time set for oral argument in LUBA number 2025-002 Stadeli versus Marion County. Uh I'm Board Chair Smudja. Board Member Basham is also present. Board Member Wilson is not present and will not be participating in the final decision. Please keep your audio muted when you're not speaking. That will help with the recording. We are recording and live streaming this argument. I'm not aware of any pending motions or matters in this appeals or anything the parties need to bring to our attention? >> Not from the petitioner. >> Okay. Not from the county. Okay. All right, members, the total of 30 minutes. Petitioners, you have a total of 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? >> Yes, I'd like to reserve 4 minutes. >> All right, I will keep track of time on my end and ask that you also keep track of your time and just note that the clock that's on the screen is just for reference. It is not keeping exact time. Uh respondent and intervener, you have a total of 15 minutes and may uh and share that time. Have you decided how you'll share that time? >> Uh yes, the uh county has graciously allowed uh the applicant to take the 15 minutes. Um I think the I can't see if if the county's uh attorney is on >> We can. We can see Marion County uh attorney Mendorf is on our screen. >> Okay, there he is right there. Okay. >> Okay, thank you. Um so, with those preliminaries, petitioner, please state your name for the record and begin. >> Good morning and may it please the board. Mike Keen on behalf of petitioners Dan and Jennifer Stadley, who are joining me today. And appreciate your time. This case involves a non-farm dwelling that was approved on a triangular 2.17 acre parcel surrounded on all three sides by active farming operations in an EFU zone. The decision also approved for reduced setbacks of 50 feet on all three sides down from the required 200 feet. And this is not the first time this uh matter and this property and a non-farm dwelling has come before an appeal on a land use hearing. As noted, when the county denied the non-farm dwelling application back in 1991, this area is actively farmed. It is commercial farming uh operations that have been ongoing. The area has remained stable and devoted to agriculture consistent with goal three, which provides for the maintenance and preservation of agricultural lands as stated in the goal for farm use, consistent with existing and future needs for agricultural products, forest, and open space. This area has remained stable since that time because the EFU zone's purpose and intent and the Marion County Code's strict provisions on non-farm dwellings have been observed up until this position and this decision. Uh the as noted in the 1991 decision, but also this decision, it is one non-farm dwelling, but there is a cumulative effect if these are allowed in contravention of the code. This will not remain a stable agricultural um location and area if these dwellings are permitted drip by drip over time. This is to prevent and pre- uh preserve future needs as well as the current EFU zone and farm purposes. The decision at the county level misconstrued the law and which is grounds for outright reversal, while also failing to make required findings, reaching conclusions not supported by substantial evidence, and violating required procedures, all of which are require reversal, remand, and a rehearing. For the grounds for reversal, the hearing officer, which was affirmed by the Board of County Commissioners, misconstrued the in harmony requirement. And to our knowledge, in harmony only appears twice in the Marion County Code. There's no case law that we could find on the non-farm dwelling provision. However, this board and Brandt v. Marion County considered it in a uh industrial commercial zone, where this board interpreted the in harmony standard in a situation with similar lack of context, but again, a different code. Um the board said that in those circumstances, the correct test is whether a proposed use is similar to and produces no significant impacts different from those for produced by use permitted outright in the IC zone. Again, this is EFU zone rather than IC, but that that phrase is key. Similar to, not just whether or not it produces significant impacts, but whether the use is similar to. A non-farm dwelling, especially on this parcel with only a 50-ft setback, which brings um just regular residential home within 50 ft of ongoing egg operations, cannot be in harmony with the surrounding area. The hearing officer also based the non-farm dwelling as um and approving it as being unlikely to cause disharmony, which is not the standard. That's um that phrase, unlikely to cause disharmony, inherently acknowledges that there will be conflict. It cannot be in harmony. That was also recognized by the 1991 decision, and I realize the '91 decision is does not um uh result in binding precedent, but the conclusions and the analysis holds in this case. And I think it is worth uh detailed review. Respondents try to reframe all of this by saying the board should accept whatever decision was made if it was plausible. Again, that is not the standard. That is uh subject um that this case is subject to. The in harmony standard is also unconstitutionally vague as it does not and cannot provide reasonably clear and objective standards, and it prevents the state entities from knowing what uh what the standard really is even on appeal. Um I think you'll uh from review of the record, uh the hearing in front of the hearing officer, uh the hearing officer's decision, the '91 decision, um and the parties' respective arguments, no one can quite point to what in harmony means. So, how can anyone even challenge it? How can you comply with it? It means whatever someone says it means. And that is the definition of vague without clear and objective standards and subject to arbitrary decisions that um simply um how do you comply with it? The decision on the reduced setback also misapplies the law and can't be satisfied. They can't meet the which is likely why the findings were frankly incomplete, which I'll get to in a minute. Um the adverse impacts cannot be minimized here. The setback was reduced to 50 ft on all three sides, which brings a residential non-farm dwelling within 50 ft of ongoing egg agricultural um operations. As you'll see from the record, there was evidence of the neighbors uh burning their grass fields right up to the property line. Again, that places this dwelling within 50 ft. There is agricultural spray. Again, I'll get into that in just a minute. But those are the grounds for outright reversal based on the record for us. For a reversal and a remand for a new hearing, the decision on the non-farm dwelling being in harmony was not supported by substantial evidence. In Futornick versus Yamhill County, the this board reviewed case law for approving non-farm dwellings and stated it required the approach to be accompanied by detailed findings and explaining what each factor contributes to the conclusion and that the prerequisites um to be met are stringent, and I believe stringent was the uh direct quote. Here, the hearing also relied on conclusory statements from the applicant, didn't make required findings, and ignored voluminous evidence from the petitioners as well as neighbors. The decision on the reduced setback also just outright failed to make the required findings and cannot be sub- sort sub- excuse me, supported by substantial evidence as a result. The hearing officer made no finding that the site will have the least impact on nearby egg operations, that the site ensured adverse impacts on farming practice would be minimized, and did not state that the amount of agricultural lands used to site access roads, service corridors, the dwelling and structures are minimized. There was a reference to a potential satisfaction that the risk of wildfire will be minimized simply by stating that the parcel is part of the Silverton Suburban Fire District and is not located in a forest, but that doesn't meet the requirements here. It is cited next to ongoing uh routine um summer uh post-harvest burns. It is um surrounded on all sides by either grass seed or ongoing orchard operations. Here, the hearing officer relied simply on the conclusory statement that the dwelling complied with the code's intent. The petitioners were also denied due process when the Board of County Commissioners considered and then denied the appeal, as well as when the hearing officer used the wrong standard of review. The Board of County Commissioners felt it could not accept the appeal because of the timing of the hearing officer's uh decision, which took almost 11 months. Uh when you look at the um the minutes from the board's hearing, as well as uh listen to the audio that's in the record, the board clearly felt it could not take up the appeal without creating additional procedural issues. And in fact, uh there was statements saying that they were relying on the board to hear the appeal on this board to heal the hear the appeal on the merits to to remedy that. The hearing officer also apparently used a preponderance of evidence standard, again accepted by the Board of County Commissioners. Uh while respondents argue that there's uh basically no harm, no foul on this, uh there is very uh uh, harm and foul in that the petitioners lost. They don't know on what standard they lost or on what standard should have been appealed to the Board of County Commissioners. Because it was, uh, the hearing officer's decision was just outright accepted across the board. Um, the preponderance of evidence of evidence standard is not the standard of review with substantial evidence as detailed through numerous, um, Luba opinions. Um, Finally, uh, the decisions that farming practices are almost, uh, second to last here. Decision that farming practices were not adversely impacted is not supported by substantial evidence as the hearing, uh, contains factual errors. There was substantial testimony from the Steadleys as well as multiple neighbors that their farming practices would be adversely impacted without any, uh, corresponding rebuttal evidence. Uh, the respondents focus on whether or not the Steadleys used a particular pesticide and future use, uh, cannot be an adverse impact. However, Year King v. Clackamas, um, that decision, the board stated that the petitioners future use was not speculative because petitioner was able to identify the farming practices that will be employed on the property and was developing plans for use and the use was therefore properly reviewable. Even if the, uh, our argument was limited to the, uh, aerial exclusion zone and the use of that one pesticide, there was clear evidence of adverse impact. Finally, the decision that the groundwater is not adversely impacted is not supported by substantial evidence. Essentially, the previous attorney argued that there was a good well on the property and that was without actually providing evidence. The decision of the hearing officer relied on the argu- this argument and the fact that the property was not located in a sensitive groundwater overlay. But again, that's not the standard. The standard is whether or not there is a negative impact of groundwater. And the only evidence at the hearing there was that there are groundwaters in this area with the neighbors testifying that they've had to deep deepen their wells in recent years. I believe one of them had to double the the depth. Um again, this these issues on groundwater uh were noted in the 1991 decision. And it's noted that this area is uh has a fragile groundwater system, even if it's not in a sensitive groundwater overlay. So, with that, I'm right at 11 minutes, and I will reserve the rest of my time for rebuttal unless there's any questions. >> Just a quickie, Mr. Cain. Uh you mentioned that uh plausibility is not the standard of review we would apply to uh review any of the hearings officer's interpretations. What is the the correct standard of review and why? >> Well, plausibility is a part of it, but the the issue is um whether or not uh It's ordinary um construction of ordinances. So, um first of all, I couldn't find a Luba case that used plausible as the standard, but a review of um the case cited by uh respondent supporting the Medford um Whether an interpretation is plausible according to that case for purpose of review is simply whether it's in the range of conclusions that a rational person could reach when applying the the Oregon standards of statutory construction of the ordinance, which incorporates all the things. Does it comply with the terms uh express provisions of the of the code or the statute? And then uh you look beyond that on plain meaning and regular statutory interpretation. Just saying that it's plausible result doesn't give it cart blanche, you know, just doesn't give it blanket approval and you have to approve whatever the hearing officer says. >> Okay, thank you. >> All right, and you'll have about uh 3 minutes for your rebuttal. So, we will turn to uh intervener respondent for >> Uh good morning, may it please board. My name's Andrew Stamp, uh here for the applicant, uh intervener respondent. So, I probably won't get through all six assignments of error, but I wanted to focus a little bit on the first assignment of error. Um I found that the the assignment of error was presented in a confusing way. It was written as a substantial evidence argument, but it actually had, you know, an undeveloped fi- uh inadequacy of findings uh challenge, and a lot of it really boiled down to uh an interpretational question, uh which is why the Siporin deference was mentioned in my brief, cuz this is a local code provision. Um So, Siporin deference would apply because the Board of Commissioners made the final decision. Um >> Did the Board of Commissioners adopt the underlying decision as their own in order for Siporin to apply? >> I believe so. They they denied the appeal. Um I I I would think that that would apply in that case where they deny the appeal. >> Okay. >> Um In any event, I I don't think the standard review is whether it was Siporin deference or not. I don't think it's critical here. Um What is important is uh a non-farm the way that the petitioner uh interprets uh the standard of in harmony with the purpose and intent of the zone, they they said basically that we have to support ag and expand its practice. But, there's not there's no non-farm dwelling that would do that. You know, non-farmed dwellings were added into the statute um not not to support agricultural. It was It was intended as an escape valve, as Hector McPherson famously said back in 1973, "It's a little escape valve whereby we can allow a small amount of single-family residential dwellings within an exclusive farm use zone." And the test is rather stringent, but it's it's focused on picking properties that really have no ability to be farmed, number one, and unsuitability for farm use, and then it has uh impact analysis. You know, the farm impact test is applied and compatibility analysis is complied. And then there's the materially alter the stability of the land use pattern test, which is really saying, "Hey, if there's a bunch of these lands that that are uh difficult to farm, that we won't allow any of them to have non-farmed dwellings because, you know, if you had too many of them, that would create a land use pattern that would change what is there now." So, what they're looking for is the unique property that is not farmable, but where everything else around it's farmable, and where the applicant shows that having one more dwelling at that location will will not have significant impacts on uh neighboring farm operations. And the hearings officer, you know, said that the purpose of the zone was to promote and protect agriculture commercial agricultural, and then applied essentially a negative uh version of that to to non-farm dwellings and said, "Y- uh a non-farm dwelling achieves those purposes if if it does not cause disharmony." And I don't see anything wrong with that because both the farm impacts test and the materially alter the stability of the land use pattern test are stated in the negative as well. They're they're saying you won't have significant impacts on on neighboring farm operations. You won't alter the material stability of the land use pattern. So, I don't see anything from a interpretational standpoint that would uh it is reversible here. Um I you know, I think that was fine. Now, I don't think there's any meaningful difference between the way saying something's in harmony and it's unlikely to cause disharmony. Um So, and I think the applicant turning the substantial evidence does not at apply the correct test. He repeatedly refers to the weight of the evidence being in their favor. Well, that's begging LUB to re-weigh the evidence. And obviously, that's not within LUB's purview to do so. Uh So, I I think I I think that's enough said on the first assignment error. Turning to the second assignment error, the special setback. The the county has a 200-ft setback, which obviously we can't meet cuz our property is not even 400-ft wide. So, um So, then they have an alternative that says, "Well, if you can't meet the setback, there's an adjustment process." And they essentially borrowed that from state law. Uh so, you know, some provisions in the uh uh forestry section of of the administrative rules that are sighting standards. And I think what's critical here about the second assignment of errors that petitioner views them as approval standards. In other words, go no-go standards. And does not consider them to be sighting standards. And the test is really about where should we put the dwelling, not if we should put the dwelling there or not. And and that's a key distinction. All of the uh terms in the code talk about uh least impact on nearby farming and forest operations and that it'll minimize impacts. Well, you know, I guess my question is you know, it it if if we can't put the dwelling based on that standard of minimization, if we can't put it in the dead center of the property, then where would we put it? You know, because the closer you get to any of the three sides, you're you're putting it closer to farm zoning, which would in theory increase impacts. Um here there was no evidence in the record that any one type of farming would have would be more sensitive to a dwelling than others. So, I don't think it was very difficult for the hearings officer to say, "Okay, well, all things being equal, put it in the center of the property." Um so, I think that was you know, I think normally that criteria, if it wasn't a a triangle, you know, if it was a weird shaped property, you might have to do an alternatives analysis to say, "Well, compare various points on the property and say, you know, what are the advantages and disadvantages of putting it in various places?" But here, where it's a triangle, very small parcel, you got surrounded on all three sides by farming activities, it it under the under that sighting standard, it made sense to put it in the middle. Uh I'm going to skip over the third and fourth uh assignments of error because I think I'm >> leave the Before we leave the assignment of error, the petitioner argues that you there's no findings actually addressing the three criteria set back for that address the setback standard. Do you think the findings actually address those criteria? >> No, I don't I don't think they go through those uh you know, the the the criteria, but I don't think those criteria would lead to any different result here. Uh, you know, the there's there's only one place to put the house under any of those criteria. And that's on the dead center of the property. But yeah, I agree the findings could have been better. >> Okay. >> Um, I'm going to turn to the fifth assignment error cuz I think the third and fourth assignments error don't don't amount to anything. Uh, I mean, feel free to tell me if you think otherwise, but we can talk about it, but other than that, I think I'm just going to skip over them. Uh, with the fifth assignment error, this is really about the uh, farm impact test. And we cited Dirking versus Clackamas County. And uh, Mr. Dirking's a client of mine, so it was kind of fun to read this case. I didn't represent him on this particular case, but in that case the the the Luba said they generally agree with the hearings officer's reasoning that future impacts farm practices aren't really considered. And he says, "Not only would that expansive interpretation compel an applicant to in effect prove a negative for something that does not yet exist, but that grammatical context of the language makes it fairly plain, at least to the hearings officer, that the phrase farm practices on surrounding land devoted farm use and cost of accepted farming practices uh, necessarily envisions a present tense assessment of actual implemented farm practices." Now, it in in Dirking Mr. in Mr. Dirking in that case was setting up his farm, which was called the Oregon Lavender Farm, and he hadn't quite got it set up yet, but he was in the process of doing it. So, he said, "Hey guys, I actually have plans, you know, concrete plans to build this lavender farm." And in that case Luba said, you know, it's not just hypothetical. He's got those plans, and and therefore his farming practices that he is, you know, in the process of you know, creating need to be addressed. Well, that's different here because there's no there's there's no farming practice future farming practices that is anything other than hypothetical. What petitioner data here is just picked some chemical out of thin air that they don't even use, but which happens to have a nice big fat buffer requirement and says, "Oh, yeah, we you know, we don't use it, but if we did, we would have to apply this big buffer." And to me that's entirely hypothetical and does we don't need to consider that under ORS 215-296 sub 1. Um then the the other thing is >> Trying to figure out where the boundaries of that kind of gen general rule would be, and I'll just admit I haven't reviewed Durkin yet, but my understanding of the evidence here is that petitioners do have an extant filbert farm, and they do spray chemicals. They submitted evidence that there are chemicals that are used on filbert farms to pesticides that do have a large spray area exclusion area. Your argument is they would have to say, "And we use these pesticides in order for that to fall within the farm impact analysis." >> Yes, I think so. I don't think >> they said What if they said What if the evidence was, "We don't currently use this, but in years where there's high pest pressure, we would need to use this." Would that be enough? >> I think that's getting closer to the facts of Durkin. Uh you know, and I guess I'll leave it to you to draw the line. That's That's That's where you get paid the big bucks, but uh uh you know, I I I don't That's not the facts of this case though. They didn't say >> Fair enough. Fair enough. Thank you. >> Okay. Um So, the other thing that I found a little bit dishonest about this was cuz the petitioner said at one point they point to this OAR that deals with a narrow set of chemicals called uh chloro uh Let me see. What the heck's it? Chlorpyrifos, which I'd never heard of before, but I did uh read it and study up on it, and it's a It's a different type of chemical than Vapam HL. It's a chemical that's used on grass seed and uh Christmas trees, apparently, but it's a pretty nasty chemical. Uh uh And but they cite to that and say under that rule for that particular chemical you don't exclude you exclude the houses that are used by the farmer. And then they seek to apply that rule to a different chemical. And I I you know, I I I guess there's to me that seemed a little disingenuous to me. Um All right. I I think I think that you know, I don't want to say a whole lot more about the fifth assignment error in the interest of time, but other than say I didn't >> about the Let me ask you about the the math problem with the 120 ft versus 100 ft. You Your Your brief seems to to suggest that that is a problem, that there is a math irregularity there. >> Yeah, this is on the setback one. We skipped over that, but >> Fair. >> Uh Yeah, there is the math problem is there. Uh because she adds she says 120 ft, but then if you add up her numbers, it's only 100 ft. Um you know, that was an unfortunate error, but I'm not I'm not seeing anything in the evidence in the record that makes it critical that there's a you know, that there's some buffering requirement that would make a difference between 100 ft and 120 ft. I think at one point they say that they need 102 ft buffer, but even that isn't correct cuz it doesn't take into account the credits that you get when you calculate the buffer that we pointed out is in the record. And and the way they calculated the 100 ft buffer, that was using the drench method, uh which they'd never even cite that they used the drench method of chemical application. So, you know, I I think there's a lot more complexity to how you apply these buffer requirements. And the And the opponents didn't really say that they need 120 ft buffer. Um and and I also take issue on that with the idea with other chemicals, LUB has been clear that you you can't just use other people's property for overspray. You know, in the Van Dyke case, that was the argument made uh by the trail advocates and uh and you know, LUB has said, you don't have a right to overspray. You know, you have to keep your spray within the limits of the AEZ rules. And uh here the the applicant I mean, excuse me, the opponents are basically saying, "Hey, we're using uh the Perez property kind of as an overspray. We can be sloppy because no one's there. Uh no house is there." But Ms. Perez says that, "Hey, we're here every day. We're here with our with our animals and we're here we have a shop here and uh we use this property. So, I don't I don't think the evidence in the record supports the idea that anything different will occur because uh you know, that if there's a house there versus what's there now in terms of the opponent's ability to overspray. >> And we we've reached our time. Thank you for questions from the board. No. All right. So, uh thank you for your argument. We will return to petitioners. >> Uh unmute, but just want to address a couple things. Um >> Mr. Dunn, uh petitioners is Mr. Dunn on the line? >> the Um >> Just for the record, I don't think the petitioner can hear us and we cannot see him. >> States that states that there are requirements and they have to be addressed at the time of the land use application just by its own terms. These aren't citing requirements of where to put the house. These are um these are code requirements that need to be uh need to be met to allow um any reduction in a 50-ft setback. The other piece I would like to um bring up is that the the intent of this piece for a reduced setback is to be able to shift the house away from ag ag operations. The fact that this is a triangular piece means it can't happen. They reduced the the setback on all three sides bringing the house closer. Whatever direction it goes, it's bringing it closer to ag operations. And the fact that it is a triangular piece doesn't give uh applicant Perez any additional rights. Um a non-farm dwelling is not an outright use. You have to check the boxes. You have to meet the requirements um to be able to Mr. Dunn, can you hear us? Can you hear us, petitioner? And I apologize. I can't hear you. Can you hear us now? Test, test. >> Sound is not coming through now all of a sudden. My volume's up, but I'm >> Can you hear us? >> Okay. Uh >> I apologize. I was hearing you just fine previously. >> So, we have reached our time. Uh petitioners cannot hear us, but we will conclude oral argument. And the statutory due date for our decision in this appeal is June 16th. Uh we will ask the parties to agree to an extension so that we issue our decision no later than July 7th. And since petitioners cannot hear us, we will have uh staff follow up with petitioners. >> I apologize. Uh somehow our camera fell asleep. So, uh we have sound back on. Um I don't know if I can have just another minute or two just to wrap it up. >> Can you hear us now? >> I can. >> Okay. Um no, we've exceeded the time now. So, we will we will conclude oral argument. Thank you for your argument. The statutory due date for our decision is June 16th. Uh we'll ask the parties to agree to an extension so that we issue our decision by July 7th. Is that okay with these parties? >> Yes. >> by petitioners. >> Okay. Thank you all for your time and your argument today and have a good remainder of your day. >> Thank you very much.

Summary: Mhm. >> Good morning. >> This is the time set for oral argument in LUBA number 2025-002 Stadeli versus Marion County. Uh I'm Board Chair Smudja. Board Member Basham is also present. Board Member Wilson is not present and will not be participating in the final decision. Please keep your audio muted when you're not speaking. That will help with the recording. We are recording and live streaming this argument. I'm not aware of any pending motions or matters i…