Schaefer v. Marion County

                                      390

       Submitted October 6, reversed and remanded December 29, 2022


                        Joseph SCHAEFER,
                             Petitioner,
                                  v.
                        MARION COUNTY
                      and TLM Holdings, LLC,
                            Respondents.
                     Land Use Board of Appeals
                         2020108; A179153
                                 

    TLM Holdings, LLC applied for, and Marion County approved, a comprehen-
sive plan map amendment, a zoning map amendment, exceptions to Statewide
Land Use Planning Goals 3 and 14, and a conditional use permit, all to allow
industrial and commercial development on a 16.54-acre parcel adjacent to the
Aurora State Airport. In the proceeding at issue on judicial review, LUBA con-
sidered the county’s conclusion that, if goal exceptions were required, they were
justified by the presence of the airport. LUBA rejected petitioner’s challenge to
the county’s reasoning regarding the Goal 3 exception raised in his first assign-
ment of error before LUBA. Held: OAR 660-012-0060(5) prohibited the county
from basing the Goal 3 exception, which was taken under OAR 660-004-0022, on
the presence of the airport. Because the county’s reasoning was contrary to OAR
660-012-0060(5), LUBA erred in rejecting petitioner’s first assignment of error
before LUBA.
    Reversed and remanded.



    Joseph Schaefer filed the brief pro se.
   Alan M. Sorem and Saalfeld Griggs PC filed the brief for
respondent TLM Holdings, LLC.
    Scott A. Norris filed the brief for respondent Marion County.
   Andrew Mulkey filed the brief amicus curiae for 1000
Friends of Oregon.
   David James Robinson filed the brief amicus curiae for
City of Aurora.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
Cite as 

 (2022)   391

  JAMES, P. J.
  Reversed and remanded.
392                                       Schaefer v. Marion County

          JAMES, P. J.
          This is the second time we have addressed this land-
use dispute involving TLM Holdings, LLC’s application to
Marion County for a comprehensive plan map amendment, a
zoning map amendment, exceptions to Statewide Land Use
Planning Goals 3 and 14, and a conditional use permit, all
to allow industrial and commercial development on a 16.54-
acre parcel adjacent to the Aurora State Airport. In our first
opinion, we agreed with petitioner that the Land Use Board
of Appeals (LUBA) erred in affirming the county’s determi-
nation that the applied-for development constituted “expan-
sion * * * of [a] public use airport[ ]” and thus was “consistent
with Goals 3, 4, 11, and 14” as a matter of law. OAR 660-
012-0065(3)(n); Schaefer v. Marion County, 

, 

 (2022). On remand, LUBA considered the
county’s alternative reasoning in the same county order—
specifically, the county’s conclusion that, if goal exceptions
were required, they were justified by the presence of the
airport—and rejected petitioner’s challenge to the county’s
reasoning regarding the Goal 3 exception raised in his first
assignment of error before LUBA.1
          Petitioner again seeks review, and, again, he is
joined by amici 1000 Friends of Oregon and the City of
Aurora. In his first assignment of error, he contends that
LUBA erred in concluding that the county could base its
goal exceptions on the fact that the proposed uses need to
be sited adjacent to an airport. In his view, that justifica-
tion for an exception is prohibited by OAR 660-012-0060(5),
which provides, “The presence of a transportation facility or
improvement shall not be a basis for an exception to allow
residential, commercial, institutional, or industrial develop-
ment on rural lands under this division or OAR 660-004-
0022 and 660-004-0028.” As explained below, we agree with
petitioner that OAR 660-012-0060(5) prohibited the county
from basing the Goal 3 exception on the presence of the
airport. We also agree with petitioner and LUBA that the
county based the exception on the presence of the airport.
Thus, we reverse and remand.
    1
      LUBA also addressed petitioner’s other assignments of error, sustaining
some assignments and subassignments and denying others. Those issues do not
affect our analysis and, accordingly, we do not describe them.
Cite as 

 (2022)                                           393

         In his second assignment of error on judicial review,
petitioner contends that the county erred in approving the
applications without also taking an exception to Goal 11. In
light of uncertainty about what further proceedings in this
case will bring given our holding in this opinion, we decline
to address that assignment of error at this point. See, e.g.,
Moore v. Coos County, 

, 197 & n 1, 

 (1996) (declining to address a second assignment of
error and noting that, “[i]n the event that subsequent review
by this court takes place, petitioners and the county are not
foreclosed from again raising” the issue that the court did
not address (citing Beck v. City of Tillamook, 

, 

 (1992)). Schaefer is not foreclosed from raising that
issue again in a subsequent review proceeding.
                         I. BACKGROUND
        The background facts are set out in our previous
opinion. Schaefer, 

. On remand after
our decision, LUBA decided the assignments of error that it
had previously declined to address, including assignments
related to the county’s determinations that the applied-
for development satisfied the requirements for exceptions
to Goal 3, which governs agricultural lands, and Goal 14,
which governs urbanization. Many of the county’s findings
in support of the exceptions are not relevant to the issue
before us; we summarize only the findings and conclusions
that are relevant to our analysis.
        For its Goal 3 exception, the county relied on OAR
660-004-0022, which governs goal exceptions for uses on
resource land that are based on justifying reasons. ORS
197.732(2)(c);2 Statewide Planning Goal 2: Part II (Exceptions);
   2
     ORS 197.732(2)(c) provides as follows:
       “A local government may adopt an exception to a goal if:
       “* * * * *
       “(c) The following standards are met:
       “(A) Reasons justify why the state policy embodied in the applicable
   goals should not apply;
       “(B) Areas that do not require a new exception cannot reasonably accom-
   modate the use;
       “(C) The long term environmental, economic, social and energy conse-
   quences resulting from the use at the proposed site with measures designed
394                                        Schaefer v. Marion County

OAR 660-004-0020; see also 1000 Friends of Oregon v.
Yamhill County, 

, 

 (2005)
(“When, as here, the exception sought involves a use on
resource land not allowed under the goals, OAR 660-004-
0022 describes types of reasons that may be used.”). Those
exceptions are known as reasons exceptions. 1000 Friends
of Oregon v. Jackson County, 

, 

 (2018), rev dismissed, 

 (2019). The county
found that reasons justified an exception for the applied-for
commercial uses under OAR 660-004-0022(1) and that rea-
sons justified an exception for the applied-for industrial uses
under OAR 660-004-0022(3).
         We begin by briefly explaining the county’s reason-
ing as to the applied-for commercial uses. OAR 660-004-
0022(1) addresses reasons for uses not otherwise specifically
provided for in other rules. The reasons for exceptions for
such uses
   “include but are not limited to the following: There is a
   demonstrated need for the proposed use or activity, based
   on one or more of the requirements of Goals 3 to 19; and
   * * *:
       “* * * * *
       “(b) The proposed use or activity has special features
   or qualities that necessitate its location on or near the pro-
   posed exception site.”
         The county found that there was a demonstrated
need for the applied-for uses under Goals 9 and 12. Then,
beginning from the premise that “[a]irport-related uses, gen-
erally, require locations proximate to airports,” the county
found that the proposed commercial uses have “special fea-
tures or qualities that necessitate” their location adjacent to
the airport because they rely on access to the airport. OAR
660-004-0022(1)(b).
         We turn to the county’s reasoning as to the applied-
for industrial uses. OAR 660-004-0022(3) provides reasons

   to reduce adverse impacts are not significantly more adverse than would typ-
   ically result from the same proposal being located in areas requiring a goal
   exception other than the proposed site; and
        “(D) The proposed uses are compatible with other adjacent uses or will be
   so rendered through measures designed to reduce adverse impacts.”
Cite as 

 (2022)                                  395

that can justify “the siting of industrial development on
resource land outside an urban growth boundary.” Under
that rule,
  “appropriate reasons and facts may include, but are not
  limited to, the following:
     “(a) The use is significantly dependent upon a unique
  resource located on agricultural or forest land. Examples
  of such resources and resource sites include geothermal
  wells, mineral or aggregate deposits, water reservoirs, nat-
  ural features, or river or ocean ports;
      “(b) The use cannot be located inside an urban growth
  boundary due to impacts that are hazardous or incompati-
  ble in densely populated areas; or
      “(c) The use would have a significant comparative advan-
  tage due to its location (e.g., near existing industrial activ-
  ity, an energy facility, or products available from other rural
  activities), which would benefit the county economy and cause
  only minimal loss of productive resource lands. Reasons
  for such a decision should include a discussion of the lost
  resource productivity and values in relation to the county’s
  gain from the industrial use, and the specific transportation
  and resource advantages that support the decision.”
         Again, the county began from the premise that the
“[p]roposed airport-related uses, including industrial uses,
generally require location proximate to an airport.” The
county reasoned that the applied-for industrial uses meet
the requirements of both OAR 660-004-0022(3)(a)—they are
significantly dependent on a unique resource on agricultural
land, i.e., the airport—and OAR 660-004-0022(3)(c)—the
uses would have a significant comparative advantage due to
their location near the airport. The county explained:
     “The design, repair, and manufacturing of aircraft,
  parts, and other aerospace and aerodynamic uses described
  above, all need to occur as part of an airport cluster and
  require access to airfields for testing. If these uses were
  located outside of an airport, they would be severely
  restricted from accessing their customers’ primary use of
  transportation—air service. Therefore, the evidence in the
  record supports both the conclusion these uses depend on
  the Aurora Airport and they would have a significant com-
  parative advantage due to [their] location ([i.e.], near the
  Aurora Airport).”
396                                          Schaefer v. Marion County

          Before the county, and again before LUBA, peti-
tioner contended that the county’s reasoning was impermis-
sible under OAR 660-012-0060(5), part of the transporta-
tion planning rule. That provision states, “The presence of a
transportation facility or improvement shall not be a basis
for an exception to allow residential, commercial, insti-
tutional, or industrial development on rural lands under
this division or OAR 660-004-0022 and 660-004-0028.” A
“transportation facility” is “any physical facility that moves
or assist[s] in the movement of people or goods including
facilities identified in OAR 660-012-0020 but excluding elec-
tricity, sewage, and water systems.” OAR 660-012-0005(46).
OAR 660-012-0020(2)(e) identifies “public use airports” as
transportation facilities.3
         Petitioner contended that, by its terms, OAR 660-
012-0060(5) prohibits the county’s reasoning, because the
airport is a transportation facility and the presence of the
airport was the sole basis for the county’s determination
that an exception to Goal 3 was justified under OAR 660-
004-0022 for the applied-for commercial and industrial
development.
          LUBA agreed with petitioner that the airport is a
transportation facility and that the county’s reasoning was
based on its presence. However, LUBA held that petitioner’s
proffered interpretation of OAR 660-012-0060(5)—his view
that “[t]he presence of a transportation facility or improve-
ment shall not be a basis for an exception to allow residen-
tial, commercial, institutional, or industrial development
on rural lands under * * * OAR 660-004-0022” means that
the presence of the airport, concededly a transportation
facility, cannot be the basis for an exception for commer-
cial and industrial development on rural lands under OAR
660-004-0022—was precluded by LUBA’s previous inter-
pretation of OAR 660-012-0060(5) in Columbia Riverkeeper
v. Columbia County, 78 Or LUBA 547, 577-81 (2018),

     3
        OAR 660-012-0020 provides requirements for transportation system plans,
one of the elements of which is “[a]n air, rail, water and pipeline transporta-
tion plan which identifies where public use airports, mainline and branchline
railroads and railroad facilities, port facilities, and major regional pipelines and
terminals are located or planned within the planning area.” OAR 660-012-0020
(2)(e).
Cite as 

 (2022)                                               397

aff’d, 

, 

, rev den, 

(2019).4
         As explained above, OAR 660-004-0022(1) and (3)
both set out specific reasons that can justify a reasons excep-
tion and also state that the reasons on which a local govern-
ment may rely “include but are not limited to” those specifi-
cally stated in the rule. OAR 660-004-0022(1), (3). Thus, the
rule divides the universe of potentially permissible reasons
that justify exceptions into two categories: specified reasons,
each of which is listed in its own subsection of the rule, and
unspecified reasons, which are addressed only by the catch-
all “but are not limited to” language of the rule. In this case,
LUBA relied on its holding in Columbia Riverkeeper to con-
clude that OAR 660-012-0060(5) does not prohibit exceptions
based on the presence of a transportation facility for the
specified reasons; it prohibits only exceptions based on the
presence of a transportation facility for unspecified reasons.
LUBA stated, “OAR 660-012-0060(5) is intended to prohibit
only an exception based on the existence of a transportation
facility and not otherwise appropriate for an exception for
reasons set out in OAR 660-004-0022.”
         Thus, as a textual matter, LUBA concluded that,
when OAR 660-012-0060(5) prohibits the presence of a
transportation facility as the basis for “an exception for
residential, commercial, institutional, or industrial devel-
opment on rural lands under * * * OAR 660-004-0022”
(emphasis added), it means an exception under OAR 660-
004-0022 that is based on the catchall language, not an
exception under OAR 660-004-0022 that is based on any
of the reasons specified in the rule. Here, LUBA explained,
the county had determined that the applied-for development
met the requirements of OAR 660-004-0022(1)(b)—it “has
special features or qualities that necessitate its location on
or near the proposed exception site” (because it is airport-
related development that must be sited near an airport)—

    4
      Although we affirmed LUBA’s opinion in Columbia Riverkeeper, LUBA’s
interpretation of OAR 660-012-0060(5) was not at issue on review, and we do not
understand our previous opinion to have created any precedent on its meaning.
Later in this opinion, we summarize and discuss LUBA’s analysis of OAR 660-
012-0060(5) in that case; the purpose of that discussion is to provide context for
LUBA’s reasoning and our analysis in this case.
398                                         Schaefer v. Marion County

and, accordingly, it was “appropriate for an exception for rea-
sons set out in OAR 660-004-0022.” Thus, it did not rely on
the catchall language of OAR 660-004-0022. Consequently,
under LUBA’s interpretation of OAR 660-012-0060(5), an
exception for the applied-for development was not prohibited.5
          LUBA also reasoned that OAR 660-012-0060(5)
could not be interpreted, consistently with its text, to apply
to both specified and unspecified reasons under OAR 660-
004-0022—as petitioner asserted it should be—because,
if petitioner’s interpretation of OAR 660-012-0060(5) were
correct, no reasons exceptions under OAR 660-004-0022
would be permitted for expansions of public use airports
on rural land. LUBA reasoned that an exception for the
expansion of a public use airport is necessarily based on
the presence of the existing airport, a transportation facil-
ity, so, under petitioner’s interpretation, reasons exceptions
would not be allowed for public use airport expansions. That
would be problematic, LUBA noted, because goal exceptions
are required for certain expansions of public use airports—
expansions that permit service to a larger class of airplanes.
See OAR 660-012-0065(3)(n) (no exceptions are required for
“[e]xpansions or alterations of public use airports that do not
permit service to a larger class of airplanes”). Thus, LUBA
concluded, “Consistent with our reasoning and conclusion
in [Columbia Riverkeeper], we conclude that OAR 660-012-
0060(5) does not prohibit a reasons exception for airport-
related uses that need to be located proximate to the Airport
for purposes allowed under OAR 660-004-0022(1)(b).”
               II. ARGUMENTS AND ANALYSIS
         Petitioner seeks judicial review, again pointing to
the plain text of OAR 660-012-0060(5) and contending
that the provision applies here and unambiguously prohib-
its the county’s reasoning in support of the exception. He

     5
       As described above, the county found that the applied-for commercial
uses were justified under OAR 660-004-0022(1)(b), but it also found that the
applied-for industrial uses were justified under OAR 660-004-0022(3)(a) and (c).
Although petitioner’s first assignment of error before LUBA applied to both parts
of the county’s analysis, LUBA did not expressly address the latter group of uses.
Because we are reversing LUBA’s order as to petitioner’s first assignment of error
before LUBA, on remand, LUBA will have the opportunity to address both parts
of the county’s reasoning.
Cite as 

 (2022)                             399

asserts that LUBA misinterpreted the rule provision and,
accordingly, that its order is “unlawful in substance.” ORS
197.850(9)(a); see Mountain West Investment Corp. v. City of
Silverton, 

, 

 (2001) (a LUBA
order is unlawful in substance if “it represent[s] a mistaken
interpretation of the applicable law”).
A. TLM’s Procedural Argument
         TLM responds, first, that the fact that petitioner
has assigned error to LUBA’s reasoning regarding OAR
660-012-0060(5), rather than challenging LUBA’s eval-
uation of the county’s reasoning that the requirements of
OAR 660-004-0022 are satisfied—which appears in a dif-
ferent part of LUBA’s opinion and does not address OAR
660-012-0060(5)—renders petitioner’s assignment of error
unreviewable. We reject that contention. Petitioner’s argu-
ment before LUBA, and again before us, addresses the
relationship between OAR 660-004-0022 and OAR 660-
012-0060(5). More specifically, petitioner argues that OAR
660-012-0060(5) prohibits the county from taking excep-
tions under OAR 660-004-0022 based on the presence of the
airport regardless of the correctness of its determination
that the applied-for development meets the textual require-
ments of OAR 660-004-0022 based on the presence of the
airport.
        Regardless of whether petitioner could have raised
the same underlying issue in a slightly different way by
arguing that, in light of OAR 660-012-0060(5), the county
erred in finding the textual requirements of OAR 660-004-
0022 to be satisfied, the argument he makes on review is a
legitimate way of raising the issue. Petitioner did not need
to assign error to LUBA’s evaluation of the county’s reason-
ing about the textual requirements of OAR 660-004-0022.
         TLM’s argument is premised, to some extent, on
its assertion that the county based the exceptions on more
than just the presence of the airport. Thus, it contends, peti-
tioner’s failure to challenge the county’s reasoning about
the textual requirements of OAR 660-004-0022 means that
his argument fails to address some factual predicate for the
county decision beyond the presence of the airport.
400                               Schaefer v. Marion County

         However, TLM does not explain, nor do we—nor
did LUBA—perceive, that the county identified any reason
independent of the airport to site the development on the
subject parcel. It is true that, in the course of addressing
the textual requirements of OAR 660-004-0022, the county
made further determinations necessary under that rule and
OAR 660-004-0020—for example, that there was a need for
airport-related development under Goal 9 and Goal 12 and
that the subject parcel is uniquely well suited for airport-
related development because of its location next to the airport
and because of a runway access easement. However, none of
the further determinations are independent of the airport;
their relevance to the analysis is based on the county’s ini-
tial premises that the applied-for development is airport-
related and, consequently, has to be sited near the airport.
The county’s reasoning does not depend on any attribute of
either the applied-for development or its proposed location
that is not directly tied to the airport. Stated differently,
when the airport is removed from the calculus, the county’s
reasoning collapses entirely.
        Given that, petitioner’s legal contention—that OAR
660-012-0060(5) prohibits reliance on the presence of the
airport—if correct, completely undermines the county’s rea-
soning. Thus, there is no factual predicate for the county’s
decision that is outside the scope of his challenge.
B.    Interpretation of OAR 660-012-0060(5)
         TLM and the county’s remaining arguments go to
the merits of the rule construction issue that LUBA decided
and that petitioner raises on review. We review interpre-
tation of administrative rules for legal error. Boatwright v.
Dept. of Human Services, 

, 

(2018); see also Mountain West Investment Corp., 

 (a mistaken interpretation of the law makes a LUBA
order unlawful in substance). In construing an administra-
tive rule, absent a controlling construction by the author-
ing agency, “we apply the same analytical framework that
applies to the construction of statutes.” State v. Hogevoll,

, 

 (2010). That is, “we seek
to divine the intent of the rule’s drafters” by considering
“the text of the rule in its regulatory and statutory context.”
Cite as 

 (2022)                              401

Noble v. Dept. of Fish and Wildlife, 

, 

 (2014). The text of a rule “is the starting point for inter-
pretation and is the best evidence of the [enacting body’s]
intent.” PGE v. Bureau of Labor and Industries, 

, 

 (1993).
    1.   Text
         Thus, we begin with the text of OAR 660-012-
0060(5), which was enacted by the Land Conservation and
Development Commission (LCDC). As set out above, it pro-
vides, “The presence of a transportation facility or improve-
ment shall not be a basis for an exception to allow residen-
tial, commercial, institutional, or industrial development on
rural lands under this division or OAR 660-004-0022 and
660-004-0028.”
         As described above, in this case, LUBA understood
that text “to prohibit only an exception based on the exis-
tence of a transportation facility and not otherwise appro-
priate for an exception for reasons set out in OAR 660-004-
0022.” That is, LUBA understood OAR 660-012-0060(5) not
to apply to exceptions under OAR 660-004-0022 that are
based on the reasons specified in the rule. Initially—and, as
we will explain, conclusively—we note a fundamental incon-
sistency between the text and that interpretation of it: The
text does not state or imply that it applies to only a subset of
the exceptions that can be taken under OAR 660-004-0022.
By its terms, it prohibits exceptions “under * * * OAR 660-
004-0022” based on the existence of a transportation facility
for the listed types of development on rural lands. If LCDC
had intended the rule not to apply to exceptions based on
the specified reasons in OAR 660-004-0022, as LUBA con-
cluded, it seems to us that LCDC would have included that
limitation in the text of the rule, rather than leaving it to
LUBA or a court to insert a major limitation that is not evi-
dent from the text itself. The text of the rule does not sup-
port LUBA’s interpretation of it.
        We agree with petitioner that it is more likely that
LCDC intended the rule to mean what it says: “The pres-
ence of a transportation facility or improvement shall not
be a basis for an exception to allow residential, commercial,
402                                      Schaefer v. Marion County

institutional, or industrial development on rural lands under
this division or OAR 660-004-0022 and 660-004-0028.”6 In
this context, we understand “an exception * * * under * * *
OAR 660-004-0022” (emphasis added) to mean any excep-
tion under OAR 660-004-0022 (for the specified types of
development on rural lands), not just a subset of possible
exceptions under OAR 660-004-0022. See Webster’s Third
New Int’l Dictionary 1 (unabridged ed 2002) (one meaning
of the indefinite article is “any, each—used with a following
restrictive modifier <A man guilty of kidnaping wins scant
sympathy.> <A man who is sick can’t work well.>”). Stated
differently, the rule indicates that no exception under OAR
660-004-0022 for the listed types of development on rural
land shall be based on the presence of a transportation
facility.
      2. LUBA’s holding in Columbia Riverkeeper
         Our understanding of the rule is consistent with
the outcome in Columbia Riverkeeper. In that case, LUBA
reviewed a Columbia County decision that took reasons
exceptions to allow port-related industrial development on
837 acres of land zoned for exclusive farm use adjacent to
a river port, one of five deepwater ports in the state. 78 Or
LUBA at 550. The port, a natural feature of the river, was
already developed with a dock facility and rail connections.

 The proposed development was limited to five categories
of uses that “are intended to be significantly dependent on
the deepwater port.” Id. at 551.
          Opponents of the development argued before the
county that the reason for the exceptions was proximity
to the dock facility, and, thus, that the exceptions violated
OAR 660-012-0060(5) because docks are transportation
facilities. Id. at 577. The county disagreed. It noted that one
of the bases for the exceptions was OAR 660-004-0022(3)(a),
which, as set out above, 323 Or App at 394-95, allows a rea-
sons exception for industrial uses on rural land if “[t]he use
is significantly dependent upon a unique resource located
on agricultural or forest land. Examples of such resources
and resource sites include geothermal wells, mineral or
    6
      OAR 660-004-0028 governs exceptions for land “irrevocably committed to
uses not allowed by the applicable goal.” OAR 660-004-0028(1).
Cite as 

 (2022)                              403

aggregate deposits, water reservoirs, natural features, or
river or ocean ports.” OAR 660-004-0022(3)(a) (emphasis
added).
          The county reasoned that, regardless of the dock
facility, the exception was based, at least in part, “on the
natural upland and aquatic features of the port, with the
combination of flat developable upland in proximity to deep
water and self-scouring features, aspects of a deepwater
river port that is the ‘unique resource’ justifying an excep-
tion under OAR 660-004-0022(3)(a).” Columbia Riverkeeper,
78 Or LUBA at 578. In light of the fact that the text of OAR
660-004-0022(3)(a) referred specifically to “river * * * ports,”
the county decided, an exception could be taken based on the
port, without reliance on the dock facility—that is, the port
independently qualified as a “unique resource” on which
the proposed uses significantly depended. Given that, the
county reasoned that OAR 660-012-0060(5) did not prohibit
the exceptions. 

         Before LUBA, Columbia Riverkeeper, one of the
opponents, argued that there was no meaningful distinction
between the dock facility—a transportation facility, on which
an exception cannot be based under OAR 660-012-0060(5)—
and the port itself, the “unique resource” that expressly
justified the exception under OAR 660-004-0022(3)(a).
Columbia Riverkeeper, 78 Or LUBA at 578. Columbia
Riverkeeper contended that, as a result, the prohibition in
OAR 660-012-0060(5) should be understood to supersede
altogether OAR 660-004-0022(3)(c)’s express allowance of a
river port as the basis for an exception. Id. at 579. In support
of that view, it noted that, of the two rules, OAR 660-012-
0060(5) was enacted later, and it contended that that indi-
cated an intention for OAR 660-012-0060(5) to supersede
the older rule. Id.
         LUBA rejected Columbia Riverkeeper’s argument,
noting that understanding the river port—a “unique resource”
specifically listed in OAR 660-004-0060(5)—to be indistin-
guishable from the transportation facility of the dock unnec-
essarily brought the two provisions into direct conflict.
LUBA explained that it was not clear “that OAR 660-012-
0060(5), read in context, is properly interpreted to prohibit
404                              Schaefer v. Marion County

the establishment or expansion of an industrial area based
on an existing river or ocean port authorized under OAR
660-004-0022(3)(a), as [Columbia] Riverkeeper argues.”
Id. at 579.
          In our view, the remainder of LUBA’s reasoning in
Columbia Riverkeeper, 78 Or LUBA at 579-81, is not entirely
clear. It could be based on the fact that river ports are spe-
cifically listed as qualifying “unique resources” in OAR 660-
004-0022(3)(a). If that is the case, we understand LUBA’s
reasoning in Columbia Riverkeeper to be that an exception
based on the presence of a river port is not prohibited by OAR
660-012-0060(5) because it is not based on “the presence of
a transportation facility;” rather, it is properly understood
to be based on the presence of a specifically listed unique
resource that is conceptually separable from the transpor-
tation facility built on or near it—even if one value of that
unique resource is that it can be developed with a transpor-
tation facility.
         As we understand it, that reasoning rests on an
interpretation of OAR 660-012-0060(5) that is consistent
with the rule’s plain text. It does not use “[t]he presence
of a transportation facility” as “a basis for an exception,”
OAR 660-012-0060(5). Instead, by recognizing that the
specifically listed examples in OAR 660-004-0022(3)(a) are
not transportation facilities, even to the extent that their
resource value comes from their potential for development
with transportation facilities, that interpretation avoids
conflict between OAR 660-012-0060(5) and the examples of
unique resources listed in OAR 660-004-0022(3)(a).
         If that was LUBA’s reasoning in Columbia
Riverkeeper, then we agree. And if that was LUBA’s reason-
ing in Columbia Riverkeeper, then its holding in that case—
that an exception based on something specifically listed
in OAR 660-004-0022 that is conceptually separable from
a transportation facility is not subject to the prohibition of
OAR 660-012-0060(5)—does not prevent the prohibition
from applying in this case. That is so because, as we have
explained, here, the county’s reasoning was based solely
on the presence of the airport itself. The county did not
identify any “special features or qualities,” of the proposed
Cite as 

 (2022)                             405

uses, OAR 660-004-0022(1)(b), any “significant compar-
ative advantage due to [their] location (e.g., near existing
industrial activity, an energy facility, or products available
from other rural activities),” OAR 660-004-0022(3)(c), or any
“unique resource” like “geothermal wells, mineral or aggre-
gate deposits, water reservoirs, natural features, or river or
ocean ports” near which they had to be sited, OAR 660-004-
0022(3)(a)—that were conceptually separable from the air-
port, a transportation facility. In Columbia Riverkeeper, the
river port, a specifically listed “unique feature” under OAR
660-004-0022(3)(a), was conceptually separable from the
dock facility, a transportation facility, so an exception was
allowed based on the river port—even though the existing
dock facility would play some role in the analysis. Here, the
county did not identify, and we do not perceive, any aspect of
the airport or the applied-for uses that is conceptually sepa-
rable from the transportation facility and specifically listed
in OAR 660-004-0022.
         However, significant parts of LUBA’s opinion in
Columbia Riverkeeper suggest that its holding is much
broader, and, in its opinion in this case, LUBA appeared to
adopt that broader holding. In Columbia Riverkeeper, LUBA
stated its holding as being that “OAR 660-012-0060(5) is
intended to prohibit only an exception based on the exis-
tence of a transportation facility for reasons that are not
otherwise specifically listed as an appropriate reason for
an exception set out in OAR 660-004-0022.” 78 Or LUBA
at 580 (emphasis added). In this case, LUBA restated that
conclusion slightly differently, omitting the requirement
that the reason be “specifically listed” as an appropriate rea-
son: “OAR 660-012-0060(5) is intended to prohibit only an
exception based on the existence of a transportation facility
and not otherwise appropriate for an exception for reasons
set out in OAR 660-004-0022.” That is, in this case, LUBA
understood its holding in Columbia Riverkeeper to have been
that OAR 660-012-0060(5) applies only to exceptions taken
under the catchall “but not limited to” language of OAR
660-004-0022. Under that interpretation, an exception may
be based on the presence of a transportation facility as long
as, based on the presence of the transportation facility, it
can satisfy one of the reasons stated in OAR 660-004-0022.
406                                  Schaefer v. Marion County

         That interpretation is inconsistent with the text of
OAR 660-012-0060(5). However, as we have explained,
there is an interpretation of OAR 660-012-0060(5) that is
consistent with the rule’s text and leads to the same conclu-
sion on the facts of Columbia Riverkeeper. Regardless of how
we characterize LUBA’s reasoning in Columbia Riverkeeper,
then, the outcome in that case is compatible with our text-
based understanding of OAR 660-012-0060(5) in this case.
         In Columbia Riverkeeper, LUBA noted one textual
point, related to OAR 660-004-0022(3)(c), that bears further
discussion. Again, that rule provision, which is one of the
specified reasons for an exception for industrial develop-
ment on rural lands, provides as follows:
       “The use would have a significant comparative advan-
   tage due to its location (e.g., near existing industrial activ-
   ity, an energy facility, or products available from other
   rural activities), which would benefit the county economy
   and cause only minimal loss of productive resource lands.
   Reasons for such a decision should include a discussion
   of the lost resource productivity and values in relation to
   the county’s gain from the industrial use, and the specific
   transportation and resource advantages that support the
   decision.”
OAR 660-004-0022(3)(c). In Columbia Riverkeeper, LUBA
pointed out that the second sentence of that paragraph notes
that the county should discuss “the specific transportation
and resource advantages that support the decision,” and
stated that that text “presumably would allow the county
to consider advantages provided by proximity to an existing
transportation facility.” 78 Or LUBA at 580.
          Insofar as LUBA’s point was that transporta-
tion advantages of certain locations are not categorically
excluded from the county’s discussion of the reasons for
the exception, we agree. However, to the extent that LUBA
understood that text to override OAR 660-012-0060(5) and
expressly allow exceptions for industrial uses under OAR
660-004-0022(3)(c) based on their location near transporta-
tion facilities, we disagree. For our purposes here, the essence
of an exception justified by OAR 660-004-0022(3)(c) is that
“[t]he use would have a significant comparative advantage
Cite as 

 (2022)                             407

due to its location (e.g., near existing industrial activity,
an energy facility, or products available from other rural
activities).” Like the examples of “unique resources” listed
in OAR 660-004-0022(3)(a), the listed uses and resources
in OAR 660-004-0022(3)(c)—industrial activity, an energy
facility, or products available from other rural activities—
are not transportation facilities. Necessarily, analysis of the
extent to which a use will have a comparative advantage
based on a location near one of those other uses or resources
will involve consideration of how the location interacts with
the transportation system. However, in light of OAR 660-
004-0060(5), the county cannot decide that a transportation
facility is the other use or resource from which the compar-
ative advantage arises.

    3. LUBA’s reasoning regarding transportation facility
       expansions

          Finally, we consider LUBA’s concerns, expressed
both in Columbia Riverkeeper and in this case, about expan-
sions of transportation facilities on rural land. In this case,
LUBA noted that its decision avoided concerns about the
effect of OAR 660-012-0060(5) on expansions of transporta-
tion facilities. However, as amicus 1000 Friends points out,
the effect of OAR 660-012-0060(5) on expansions of trans-
portation facilities is not directly at issue in this case. As
we explained in our previous opinion, the applied-for devel-
opment is not part of the airport. Schaefer, 

 (“Requests for comprehensive plan amendments and
zone changes, like the ones at issue here, sought by pri-
vate parties without corresponding expansion of the air-
port boundary through the airport planning process are
not expansions of public use airports within the meaning
of OAR 660-012-0065(3)(n).”). And neither the county nor
LUBA suggested that the proposed development itself—
that is, the applied-for commercial and industrial uses,
independent of the airport—qualifies as a transportation
facility. OAR 660-012-0005(46) (A transportation facility is
“any physical facility that moves or assist[s] in the move-
ment of people or goods including facilities identified in OAR
660-012-0020 but excluding electricity, sewage, and water
systems.”).
408                                         Schaefer v. Marion County

         To any extent to which our interpretation might
indirectly affect expansion of transportation facilities, we
are not persuaded that any such effects require us to reach
a different conclusion about the meaning of OAR 660-012-
0060(5). First, we question, but need not decide, whether
OAR 660-012-0060(5) even applies to exceptions for trans-
portation facilities themselves. See OAR 660-012-0060(5)
(prohibiting certain exceptions for “residential, commercial,
institutional, or industrial development”). Second, and dis-
positively, the text of OAR 660-012-0060(5) is not suscepti-
ble to any reading that would support LUBA’s view that the
rule should be construed narrowly based on concerns about
expansion of transportation facilities. See State v. Gaines,

, 

 (2009) (“[T]here is no more
persuasive evidence of the intent of the legislature than the
words by which the legislature undertook to give expression
to its wishes.” (Internal quotation marks omitted.)).
                          III.    CONCLUSION
          We conclude that OAR 660-012-0060(5) means what
it says: “The presence of a transportation facility or improve-
ment shall not be a basis for an exception to allow residen-
tial, commercial, institutional, or industrial development on
rural lands under this division or OAR 660-004-0022 and
660-004-0028.” If an exception is based on a use, resource,
or characteristic that is specifically listed in OAR 660-004-
0022 and is conceptually separable from a transportation
facility—as was the case in Columbia Riverkeeper—then it
is not prohibited by OAR 660-012-0060(5).7
          In this case, the county reasoned that the uses
at issue have “special features or qualities that necessi-
tate [their] location on or near the proposed exception site”
because the uses are airport related and must be located
near a public-use airport. OAR 660-004-0022(1)(b). It is
undisputed that public-use airports are “transportation
facilities.” Thus, the exception was based on “the presence

    7
      This case does not require us to decide whether it would be possible to base
an exception on a use, resource, or characteristic that, unlike the river port in
Columbia Riverkeeper, is not specifically listed in OAR 660-004-0022, but that
nevertheless is conceptually separable from a transportation facility. We reserve
that question for a case in which it is presented.
Cite as 

 (2022)                           409

of a transportation facility,” in violation of OAR 660-012-
0060(5). Accordingly, LUBA’s rejection of petitioner’s first
assignment of error before LUBA was unlawful in substance.
        Reversed and remanded.