Update: May 20, 2010

Legal Challenges to Hillsboro Airport Expansion

At present there are two important citizen-initiated legal actions related to the Hillsboro Airport: a land use appeal and a third runway challenge.

Land Use Appeal

The Land Use Appeal is in response to Airport Zoning Ordinance #5935 passed by the City of Hillsboro on 1/19/10. This ordinance changes the zoning on approximately 7,100 properties within 6,000 feet of the Hillsboro Airport runways by applying the Airport Use Zone (AU) and the Airport Safety and Compatibility Zone (ASCO). To view the ordinance, go to Hillsboro Airport Use and Safety and Compatibility Overlay Zoning.

The LUBA hearing is scheduled for Thursday June 10, 2010 at 11:00 AM at 550 Capital St. NE, Salem, Oregon in the small meeting room on the second floor. The public is welcome to attend. Please note that this type of hearing does not allow for public comment or testimony.

The zone changes require all property owners in the ASCO zone to provide an "Avigation Easement" upon seeking a land use permit. The "avigation easement" gives the Port of Portland:

• The right to subject your property under specified circumstances to "Noise, vibrations, fumes, dust and fuel particle emissions,"
• The right to prohibit the growth of trees and erection of buildings over a certain height,
• The right to enter your property to mark or put lights on structures
• The right to prohibit you from installing certain lighting and electrical equipment

In his brief, Bill Kabeiseman, the Land Use attorney representing this case, states that requiring developing property owners to sign an Avigation Easement "violates provisions of the United States and Oregon Constitutions, including the Fifth Amendment Takings Clause, the Fourth and Fourteenth Amendment Due Process Clause, the doctrine of Unconstitutional Conditions and the Oregon Privileges and Immunities Clause," and further notes that it is a taking without due compensation.

He further explains that the adoption of the airport zoning Ordinance 5935 "unlawfully delegates legislative authority to the Port of Portland" including decisions on the possibility of future commercial passenger and cargo activity at the Hillsboro Airport. In addition he contends that the City of Hillsboro erred in failing to perform a State required transportation study on the impacts related to the new zoning.

Third Runway Challenge

In the second legal challenge, due to serious concerns about the environmental, social, and economic impacts of expanding this airport, three citizens, represented by Environmental Attorneys Sean Malone and Andrew Orahoske, filed a petition for review before the U.S. Court of Appeals for the Ninth Circuit in San Francisco (Barnes vs. USDOT, Case No. 10-70718) challenging the Federal Aviation Administration's (FAA) 1/8/10 decision to approve a third runway at the Hillsboro Airport. The residents requested that the court set aside the FAA's Environmental Assessment Finding of No Significant Impact and direct the agency to comply with federal environmental law by preparing an Environmental Impact Statement. Since the FAA could try to sneak the project through and build the runway before the court can even hear the case, on 4/9/10 the residents asked the FAA to issue a voluntary stay of the order approving the new runway until the Court of Appeals makes a decision.

The bullet points below list the violations to the National Environmental Protection Act (NEPA) in the Federal Aviation Administration's (FAA) Hillsboro Airport Environmental Assessment on the Third Runway proposal.

• Failure to Prepare an Environmental Impact Statement. Under NEPA, the FAA must prepare an Environmental Impact Statement (EIS) when the project will result in significant environmental effects. Here, the FAA has only prepared an Environmental Assessment (EA), which is a document that analyzes environmental effects but is shorter and less comprehensive than an Environmental Impact Statement.
• Failure to Consider Indirect Effects. Under NEPA, a federal agency must consider the indirect effects of the project. Here, the project is the construction of the runway, and the direct effects of the project will include the construction activities associated with the construction of that runway. The indirect effects include effects that will occur later in time. Here, the increase in air traffic with its associated increase in air pollutants, noise, and greenhouse gases must be considered before the construction of the runway can occur.
• Failure to Consider Cumulative Impacts. Under NEPA, a federal agency must consider the cumulative impacts of a project. Cumulative impacts are the impact on the environment when added to other past, present, and reasonably foreseeable projects, regardless of the origin of the various impacts. Here, several questionable land use changes are occurring simultaneously with the construction of the third runway. The FAA must analyze the cumulative impact on the environment.
• Failure to Consider a Reasonable Range of Alternatives. Under NEPA, a federal agency must consider a reasonable range of alternatives for the project. The agency is required to consider an alternative where no action will commence in order to represent the baseline for the environmental analysis. Here, the FAA only considered the no action alternative and two environmentally indistinguishable alternatives, which only differ in the location of a helipad. The must consider a reasonable range of alternatives.
• Failure to Include Public Participation. Public Participation is a key element of the National Environmental Policy Act. Here, the FAA failed to properly include adequate public participation. The FAA must consider the public's input on the third runway project.

The new runway, which will increase the capacity for arrivals and departures at the Hillsboro Airport in conjunction with the zoning changes, may be a precursor to bringing commercial passenger and air freight operations to Hillsboro. The airport complex already encroaches on adjacent residential neighborhoods, established farms, a cherished fairground, wildlife habitat, and surrounding communities.

Pollution and Negative Health Impacts

Also of serious concern is a February 2010 study regarding pollution and negative health impacts associated with the Santa Monica Airport which like Hillsboro, serves as a general aviation reliever airport. According to the findings of this report, airport operations, particularly exhaust generated by jet take-offs and landings contain dangerous compounds including black carbon, particle-bound polycyclic aromatic hydrocarbons, and ultrafine particles. Black carbon, which has the ability to persist in the environment for days to weeks, has been linked to respiratory and cardiovascular disease, asthma, bronchitis, and increased risk for sudden death, irreversible decrease in lung function in children, and an increased exposure to carcinogens. Hillsboro Airport currently logs 7,000 jet operations annually and expects that number to increase to 12,000 by 2012. By contrast Santa Monica's jet operations have declined from a high of 18,000 to around 16,000.

Please Help

I will gladly give presentations to neighborhood groups or meet with individuals over a cup of coffee or tea to discuss this endeavor. Feel free to contact me at 503-324-0291 or via email at info@oregonaviationrevealed.org. Your questions, comments, and suggestions are very welcome. Volunteer support is also needed.

There are mounting legal fees and related costs associated with both of these actions. Your help would be greatly appreciated. Donations can be sent to:

Oregon Aviation Revealed
PO Box 838
Banks, Oregon 97106

You can also give on-line at a secure Pay Pal account by clicking the "Donate" button on the home page. Though non-profit status is currently under consideration, at present, donations are not tax exempt.

If you are interested in signing a petition or gathering signatures from people in your neighborhood who are opposed to a third runway at the Hillsboro Airport, please contact us.

Join us in generously supporting these important and worthy efforts.