PORTLAND, OR – July 1, 2010. Garvey Schubert Barer, representing Michelle Barnes, is pleased to report the Oregon Land Use Board of Appeals (“LUBA”) issued a final order in Barnes v. City of Hillsboro, LUBA No. 2010-011 on June 30, 2010 in favor of petitioner’s appeal, reversing the City’s rezoning of over 7,000 parcels located within 6,000 feet of the Hillsboro Airport. Garvey Schubert Barer attorneys William Kabeiseman and Jennifer Bragar presented the case before LUBA. LUBA held that the City’s zone change decision violated the Takings Clause, the Fifth Amendment of the US Constitution and Art. 1, Sec. 18 of the Oregon Constitution in requiring that all new development within the new airport use and airport overlay zone grant an avigation easement to the Port of Portland without compensation.
In essence, the petitioner was able to prove that in all instances the requirement to grant an avigation easement to the Port of Portland would result in a takings without just compensation. Lead attorney on the case, William Kabeiseman explains, “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.” This case prevents the City from overreaching in its efforts to grant the airport widespread access to neighboring property to directly and adversely impact new development which may not even affect airport operations.
LUBA rarely grants reversals, instead favoring remand to allow local governments to fix problems associated with improper zone changes. However, in this instance, the takings claim along with Petitioner’s success in its argument of unlawful prospective delegation of authority from the City of Hillsboro to the Port of Portland supported LUBA’s decision to reverse this unconstitutional zone change.