Oregon Aviation Watch Challenges City of Hillsboro Decision to Repeal Municipal Code Regulating Aircraft

By Miki Barnes
January 1, 2013

Hillsboro, Ore: On December 26, 2012 Oregon Aviation Watch (OAW) and several individual petitioners filed a Notice of Intent to Appeal Ordinance No. 6037 with the Oregon Land Use Board of Appeals (LUBA). This decision was in response to the December 4, 2012 passage by the Hillsboro City Council of Ordinance No. 6037 which repealed Subchapter 8.32 of the Hillsboro Municipal Code related to aircraft. As a result, there is now virtually no code whatsoever in place within the city to regulate the impacts of aviation activity on the community. The Port of Portland owned and operated Hillsboro Airport (HIO), the busiest general aviation airport in Oregon, is located in Hillsboro. Numerous residents both within Hillsboro and in surrounding communities are routinely adversely affected by the noise, pollution, safety and security risks generated by this facility and other airport activity within the area.

In his public and oral comments, Oregon Aviation Watch Vice-President, Dr. James Lubischer, informed the council that "The Hillsboro Airport emits nearly a ton of lead into our community each year." He further pointed out that, "ADHD and lower IQ's have been associated with lead pollution" and noted in this regard that, "Recent research is showing that even very, very low levels of lead in a child's blood contribute to ADHD."

The City opted to characterize Ordinance 6037 as a legislative housekeeping measure rather than a land use issue. As a result no public hearing was held. Oregon Aviation Watch disagrees with the City's interpretation and does believe that this is a land use matter that should have included a public hearing.

Unlike Hillsboro, other jurisdictions have taken a more proactive stance towards protecting communities from the encroachment of aviation activity. For instance, the City of Portland's municipal code sets limitations on expansion at Portland International Airport (PDX), the largest commercial airport in Oregon, by including a provision prohibiting additional runways at PDX. Similarly, Santa Monica Airport (SMO), a general aviation facility with less than half as many annual operations as HIO, has taken steps to protect their community from adverse aviation impacts by banning all helicopter training, placing restrictions on noise levels, and limiting hours of operations. SMO's noise regulations are enforceable rather than voluntary in nature. Sanctions for violating the code include fines ranging from $2,000 to $10,000. Repeat offenders risk losing their privileges and permits.

The above examples clearly demonstrate that local jurisdictions have the ability to protect area residents from the adverse impacts of airport activity. Nonetheless, the City of Hillsboro has intentionally chosen to relinquish its authority rather than advocate on behalf of the greater good.

Local Control vs. Federal Preemption

The City of Hillsboro's "Legal Analysis" on Ordinance No. 6037 claimed that, "federal law has preempted regulation by local governments with respect to airspace use and management, traffic control, safety and the regulation of aircraft noise." A review of case law and other legal documents on the federal preemption issue, however, reveals that local jurisdictions do have the authority to enact noise and environmental regulations intended to protect the health and well-being of their citizenry.

In a 5/22/01 U.S. Court of Appeals for the Second Circuit decision - SeaAir NY, Inc., v. City of New York, et al (Docket No. 00-9096), SeaAir argued that their air tour operations were preempted by federal statute. The court, however, disagreed. According to the Second Circuit Court's ruling, federal preemption does not apply to flights unless they are engaged in "interstate air transportation." "Interstate air transportation" is defined as the movement of passengers or mail between one state and another. The Court determined that a sightseeing tour that begins and ends in the same place without crossing state boundaries does not meet these criteria.

This ruling is directly applicable to the Hillsboro Airport where the vast majority of the 220,000 annual take-offs and landings are flight training operations. As such they originate and end at the same airport just as a sightseeing tour does. Additionally, they do not cross state boundaries. Thus federal preemption does not apply. The City of Hillsboro does indeed have legal authority to regulate flight training activity at the Hillsboro Airport to improve the quality of life for residents of Hillsboro and Washington County.