Update: March 5, 2011

Revised Hillsboro Airport Zoning Ordinance Process Underway

Following reversal by LUBA and the Oregon Court of Appeals of its pro-aviation zoning plan, the City of Hillsboro is moving forward with a revised Hillsboro Airport zoning ordinance. Towards this end, two city of Hillsboro Planning Commission meetings have been scheduled. Both will be held at the Hillsboro Civic Center located at 150 E. Main St. in Hillsboro. There is a limited window for public input in this process.

Public Meetings

March 9th (Wednesday) following their 6:30 PM meeting, the Planning Commission will hold a joint work session in Conference rooms 113 B and C with the Hillsboro Airport Issues Roundtable (HAIR), a Port appointed aviation advocacy group.

March 23 (Wednesday) at 6:30 PM in the Civic Center Auditorium, the Planning Commission will make a determination as to whether or not they intend to initiate the ordinance process on this matter. If they decide to move forward, public hearings are likely to be scheduled in April or May.

Port of Portland/City of Hillsboro Correspondence on the Airport Zoning Ordinance

A 1/25/11 letter to the City of Hillsboro authored by Steve Nagy and Jason Gately from the Port of Portland, and subsequently adopted by the Hillsboro Airport Issues Roundtable (HAIR) at their 2/2/11 meeting, conveyed "the Port of Portland's (Port) recommendations regarding how to proceed." This correspondence acknowledges that a HAIR approved Land Use subcommittee composed of representatives from the City of Hillsboro, Metro, Washington County, the Port and HAIR actively participated in formulating the unconstitutional airport zoning ordinances, 5926 and 5935.

A 1/27/11 letter to the Hillsboro City Council from Planning Project Manager, Debbie Raber, stated that "the revisions will address only very limited portions of the Zoning Ordinance language which LUBA [Land Use Board of Appeals] and Court of Appeals rulings found objectionable."

Avigation Easement

The Port letter asserts that avigation "easements are a constitutional and effective tool in protecting safe airport operations." At the same time they recognize that "each easement could be challenged on an as applied basis" that could prove to be "both costly and time consuming to the City." As such, the Port has determined there are other means to reach the intended goal of the easement requirement.

In one breath, they recommend removing the easement requirement as currently defined in the Airport Safety and Compatibility (ASCO) zone, then sharply veer away from this position in suggesting "that City code include a provision in the development review process that requires applicants to consult with the Port prior to issuance of a building permit or land use decisions in ASCO Zones 2-5...Through the consultation process, the Port can review development proposals on a case by case basis and negotiate easements where it deems warranted and necessary."

In regards to the easement, they note that LUBA ruled only on the first two of the five elements included in the avigation easement in making their decision on the unconstitutionality of this requirement.

Review of LUBA's Avigation Easement Ruling

In their final order on the previous zoning ordinance (5935), LUBA concluded "that at least the first two elements of an avigation easement required under HZO 135B are facially inconsistent with the state and federal Takings Clauses, under the reasoning in Nollan and Dolan, and are incapable of any constitutionally permissible application" (pg 16, LUBA No. 2010-011, Final Order). These elements were as follows:

• A right-of-way for free and unobstructed passage of aircraft through the airspace over the property at any altitude above a surface specified in the easement
• A right to subject the property to noise, vibrations, fumes, dust, and fuel particle emissions associated with normal aircraft activity

Per LUBA's 6/30/10 final opinion:

...granting the Port an easement to physically invade private property would do nothing to actually reduce conflicts between the Airport and surrounding land uses. The same conflicts (noise, etc.) would exist to the exact same degree, with or without the easement. The only arguable effect of requiring property owners to grant such an easement as a condition of land use approval is to make it more difficult for property owners to advance a successful inverse condemnation or other legal action against the Port, based on trespass or the externalized impacts of the airport operations on surrounding land uses. We think it highly doubtful that taking private property for that purpose constitutes a legitimate government objective.

Moreover, requiring an easement to allow for passage of aircraft over the property and the right to subject the property to airplane noise, etc., appears to have no connection whatsoever to the development of property surrounding the airport or the impacts of development. (pg 15-16, LUBA No. 2010-011, Final Order)

In regards to the remaining easement requirements listed below, LUBA stated "If the avigation easement requirement included only these three elements, we might well conclude that it would survive a facial challenge, and could be challenged only on an as-applied basis" (pg 16, LUBA No. 2010-011, Final Order).

• A right to prohibit the erection or growth of any structure, tree, or other object that would penetrate the imaginary surfaces as defined in this ordinance.
• A right-of-entry onto the property, with proper advance notice, for the purpose of marking or lighting any structure or other object that penetrates the imaginary surfaces as defined in this ordinance.
• A right to prohibit electrical interference, glare, misleading lights, visual impairments, and other hazards to aircraft flight as defined in this ordinance from being created on the property.

Unconstitutional Delegation of Authority

LUBA also ruled that Hillsboro's airport zoning ordinance violated the Oregon Constitution which "prohibits any law 'the taking effect of which shall be made to depend upon any authority, except as provided in the Constitution.' Article I, Section 21 has been construed to prohibit laws that delegate the power of amending legislation to another governmental entity." (LUBA, Final Order, pg 17).

The 1/25/11 Port letter to the city noted that the "Port and City are in general agreement" on a number of points including that "The City will remove those provisions LUBA found to be an improper delegation of authority and the Port and City shall find more appropriate means to address those issues."

That being said, the Port's recommendation as brought forth above in the discussion on avigation easements, "that City code include a provision in the development review process that requires applicants to consult with the Port prior to issuance of a building permit or land use decisions in ASCO Zones 2-5...Through the consultation process, the Port can review development proposals on a case by case basis and negotiate easements where it deems warranted and necessary" raises legitimate concerns that the city may once again attempt to forfeit their responsibility in capitulating to the Port's attempt to unlawfully assume control over the rights of neighboring property owners.

Who Benefits from the Airport Zoning Change?

In light of the Port's claim that "The FAA does not anticipate Hillsboro Airport (HIO) changing from a reliever general aviation airport to a commercial service airport in the future" (pg 7, Port Answering Brief in HIO Third Runway challenge, 9/13/10), it becomes increasingly clear that Hillsboro's airport zoning changes are designed to promote private aviation business interests over those of neighboring property owners. Hillsboro Aviation's for-profit flight training school, which recruits students from around the globe, will be a major beneficiary as will the general aviation hobbyists whose comfortable lifestyle allows them to own or rent private aircraft for their personal pleasure.

The FAA/Port Draft Environmental Assessment on the proposed HIO third runway (pg 3-6) acknowledges that "Local operations (consisting largely of training activity) currently represents about 68 percent of total operations at HIO." Based on the 2007 numbers, this translates into 157,923 take-offs and landings during that calendar year.

By contrast this same EA (pg 5.1-6) notes that there were 7,008 jet operations in 2007 which equates to less than 3% of the total.

It is the special interests of this small minority that will benefit by diminishing the rights and livability of the greater good.

Prohibition of Schools, Hospitals and Senior Convalescent Facilities

In an alarming display of indifference towards the traditional tasks of educating children and providing for the care and treatment of the sick, infirm and elderly, the city and the Port have stated their intent to prohibit the construction of new schools, hospitals and senior convalescent care centers within a 1.136 mile (6,000 ft) radius of HIO runways. This is an area that encompasses approximately 2,396 acres, 3.74 square miles, outside HIO boundaries.

The Port and city maintain that their airport zoning is based on recommendations set forth in the Oregon Department of Aviation Airport Land Use Compatibility Guidebook, a document that considers schools, hospitals, and nursing homes compatible in areas located below the yearly 65 Day-Night (dB) Average Sound levels. However, in the case of HIO, the Port maintains that the entirety of the 65 dB falls on airport property. This then brings into question why the Port and the city are going well beyond state recommendations in disallowing time-honored community facilities that serve the greater good.

Concluding Remarks

The city of Hillsboro and the Port of Portland have demonstrated time and again their support for aviation, corporations, and industrial development over schools, children, health care, the environment, livable neighborhoods, protecting rural farmland, and preserving the constitution. Vigilance and active participation are essential in insuring that the fundamental democratic principles, upon which this country was founded, remain intact despite their zealous and misguided efforts.

For these reason, I urge you to attend and participate in these meetings to the greatest extent possible.