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Court of Appeals Agrees with LUBA: Hillsboro Airport’s Zoning Goes Back to the Drawing Board

Garvey Schubert Barer, representing Miki Barnes, is pleased to report the Oregon Court of Appeals issued a final order in Barnes v. City of Hillsboro, Court of Appeals No. A146145, issued November 24, 2010, upholding LUBA’s rejection of the zoning changes to over 7,000 properties in the vicinity of the Hillsboro Airport.  See also June 30, 2010 ruling.  Garvey Schubert Barer attorneys William Kabeiseman and Jennifer Bragar represented Ms. Barnes in the case.

The case began in January 2010, when the City of Hillsboro re-zoned every property within one mile of the airport to accommodate further airport uses.  Ms. Barnes sought review at the Land Use Board of Appeals (“LUBA”), arguing that the re-zoning violated both the federal and state constitutions, as well as transportation requirements.  The most contentious issue involved the requirement of developing property owners to provide an “avigation easement” to the Port of Portland (the “Port”) that would allow the Port to subject the neighboring land to overflight, pollution, noise and other impacts and would authorize the Port to enter the neighbors land to cut down trees or take other action if it deemed a matter an interference with aviation.  However, these avigation easement rights do not run to the public or even to the City; instead, a developing property owner must provide property rights to their neighbor, the Hillsboro Airport, whereby the neighbor gains substantial control over their land and gains the ability to inflict substantial damage, like noise impacts and tree removal, to that property without payment of compensation.   In addition, Ms. Barnes argued that the ordinance unlawfully delegates City powers to the Port to determine the scope of use at the airport and did not adequately analyze the transportation impacts from the re-zoning.  LUBA agreed with Ms. Barnes on all points and the City and Port appealed to the Court of Appeals.

The main argument at the Court of Appeals was that the appeal was filed at the wrong time.  The City and Port argued that the appeal should have been brought when the new zones were created, not when they were applied to the property.  Our position on appeal was that ultimately, this case involves a simple question – when a property is rezoned to impose new rights, obligations and duties, can the constitutionality of those new rights and obligations be challenged?  The straight forward answer is that, of course, when those obligations are changed is the appropriate time to bring such a challenge.

Ms. Barnes welcomed the Court of Appeals’ decision and hopes the City and Port will approach any attempt to redo the ordinance in a more open fashion “I hope this case drives home to the City and the Port that the neighbors and surrounding communities are significantly impacted by activities at the Hillsboro Airport and therefore must be treated with respect and be included in the decision making process.”  Ms. Barnes also expressed her gratitude to the attorneys in pursuing this case “Bill Kabeiseman and the other attorneys at Garvey Schubert Barer did a great job arguing this case and I am glad they are on my side.”

To read the opinion, follow this link

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