Hillsboro Airport Zoning Revision Process Underway

Miki Barnes
June 26, 2011

Following a reversal by the Land Use Board of Appeals (LUBA) of its pro-aviation zone change, the City of Hillsboro announced plans to submit a revised Hillsboro Airport zoning ordinance. The Hillsboro Planning Commission is expected to initiate the process sometime during the summer of 2011.

Per Hillsboro City Planner, Debbie Raber, "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 [1]."

Hillsboro Airport Zoning Ordinance Review

Overview

In January of 2010 the Hillsboro City Council, at the urging of the Port of Portland (Port) and the Hillsboro Airport Issues Roundtable (HAIR), applied an Airport Use (AU) zone to 189 properties owned by the Port of Portland and six Airport Safety and Compatibility Overlay (ASCO) zones to approximately 5,862 properties within a 6,000 ft. radius of the airport runways [1].

In developing the zoning, the city engaged in a two-pronged process by first adopting the ordinance in October of 2009 then implementing it in January of 2010.

Subsequent to an appeal by Michelle (Miki) Barnes, the Land Use Board of Appeals (LUBA) ruled that since the ordinance was in violation of both the U.S. and Oregon constitutions, it was reversed [2]. In November 2010, the Oregon Court of Appeals upheld LUBA's decision [3].

LUBA's Ruling on the Avigation Easement

In their final order on Hillsboro Airport Zoning Ordinance Number 5935 [4], LUBA concluded "that at least the first two elements of the 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)." 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.

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."

• 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 (pg 16).

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 [5]."

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 [6], 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 Hillsboro Airport Issues Roundtable (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.

In regards to the avigation 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. Per Nagy and Gately "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." Establishing a requirement of this nature raises legitimate concerns that the city may intend to withhold building permits in the event that a property owner elects not to sign an avigation easement.

Regarding the unconstitutional delegation of authority issue, the letter 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."

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 [7]" 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 smaller flight training businesses at HIO along with 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 acknowledges that "Local operations (consisting largely of training activity) currently represents about 68 percent of total operations at HIO [8]" Local training operations are defined as aircraft that fly within 4.9 nautical miles of the HIO tower, up to 2,000 ft. above ground level. Based on the 2007 numbers, this translates into 157,923 take-offs and landings during that calendar year.

In addition, a substantial number of the training flights are categorized as itinerant - a term reserved for operations that fly beyond 4.9 nautical miles of the tower and above 2,000 ft. This category includes aircraft practicing in designated training areas, located over homes and neighborhoods throughout much of western Washington, more than five miles from the airport. A total of 78,207 itinerant operations were logged in 2007. Of the total number of itinerant flights logged, 7,008 which were jet operations [9]. After subtracting out the air taxi, commuter and military flights, it becomes clear that itinerant and local training operations combined account for nearly 90% of the take-offs and landings at HIO.

It is this small minority of airport users that will benefit by diminishing the property rights and livability of the greater good in favor of aviation activity.

Prohibition of Schools, Hospitals and Senior Convalescent Facilities

In an alarming display of indifference towards the traditional government responsibility to make provisions for 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 [10]. 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 [11], a document that considers siting of schools, hospitals, and nursing homes acceptable outside the area experiencing yearly Day-Night Average Sound levels greater than 65 dB (known as the "65 DNL"). In the case of HIO, the Port maintains that the entirety of the 65 DNL 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 reasons, Oregon Aviation Watch urges active, participatory citizen involvement as the revised Hillsboro Airport Zoning ordinance gets underway.

Sources

[1] Raber, Debbie. Memorandum re: Airport Zoning status update to Hillsboro City Council from Hillsboro Planning Department. January 27, 2011.

[2] Michelle Barnes vs. City of Hillsboro LUBA No. 2010-011, Final Order. (June 30, 2010) (http://www.oregonaviationwatch.org/docs/LUBA_decision_10011.pdf).

[3] Michelle Barnes vs. City of Hillsboro and the Port of Portland. In the Court of Appeals of the State of Oregon. Land Use Board of Appeals 2010-011, A146145. (November 24, 2010).

[4] Hillsboro Zoning Ordinance No. 1945. Section 135B Airport Overlay and Compatibility Zone (http://www.ci.hillsboro.or.us/Planning/AirportZoning/documents/ASCO_135B.pdf).

[5] Michelle Barnes vs. City of Hillsboro LUBA No. 2010-011, Final Order. (June 30, 2010), pg. 17.

[6] Nagy, Steve and Gately, Jason. Letter re: Port of Portland Input for Changes to the Hillsboro AU and ASCO Zone Ordinance addressed to Ribelia, Pat and Raber, Debbie in the City of Hillsboro Planning Department. (January 25, 2011).

[7] Michelle Barnes vs. US Department of Transportation and the Port of Portland. United States Court of Appeals for the Ninth Circuit Case Number 10-70718. (September 13, 2010). Answering Brief for the Intervenor-Respondent Port of Portland, pg 7. (http://www.oregonaviationwatch.org/docs/Port of Portland Answering Brief.pdf)

[8] Port of Portland. (October 2009). Hillsboro Airport Parallel Runway 12L/30R Draft Environmental Assessment, Volume 1, pg. 3-6. Report prepared by CH2MHILL.

[9] Ibid, pg. 5.1-5

[10] Hillsboro Zoning Ordinance No. 1945. Section 135B Airport Overlay and Compatibility Zone, (http://www.ci.hillsboro.or.us/Planning/AirportZoning/documents/ASCO_135B.pdf), pg 12.

[11] Oregon Department of Aviation. Airport Land Use and Compatibility Guidebook. Adopted by the Oregon Aviation Board, pg Appendix A-23. (January 29, 2003).