Schaefer v. Marion County

Where a county’s approval of a Statewide Planning Goal 3 exception is based solely on proximity to a transportation facility, LUBA will reverse the county’s decision.

Petitioner appealed the board of county commissioners’ approval of an application for, inter alia, an exception to Statewide Planning Goal 3 (Agricultural lands) for property adjacent to the Aurora State Airport (the Airport). Schaefer v. Marion County, __ Or LUBA __ (LUBA No. 2020-108, Mar 14, 2023). This is the second remand from the Oregon Court of Appeals (the Court).

OAR 660-012-0060(5) provides that “[t]he presence of a transportation facility or improvement shall not be a basis for an exception to allow residential, commercial, institutional, or industrial development on rural lands under this division or OAR 660-004-0022…” Petitioner argued that the County erred in relying on OAR 660-004-0022 to approve the exception to Goal 3 because OAR 660-012-0060(5) precluded the County from doing so. LUBA originally rejected Petitioner’s argument and Petitioner appealed to the Court. Petitioner argued, and the Court agreed, that the exception to Goal 3 based on access was prohibited under OAR 660-012-0060(5) because the sole basis of the County’s decision under OAR 660-004-0022 was the presence of the Airport. The Court determined that LUBA should address the County’s justification of industrial uses under OAR 660-004-0022(3)(a) and (c). LUBA reasoned that because the Court held that the County’s decision was based solely on the Airport’s proximity to the proposed use and the Court held that the Goal 3 exception was prohibited under OAR 660-012-0060(5) because the Airport was a transportation facility (OAR 660-012-0005(46)), the County’s justification under OAR 660-004-0022(3)(a) and (c) could not support a Goal 3 exception. Accordingly, LUBA sustained Petitioner’s first assignment of error.

Reversed.