OAW LUBA v City of Hillsboro: LUBA Hearing Announcement

By Miki Barnes
March 6, 2013

Oregon Aviation Watch et al v. City of Hillsboro LUBA No. 2012-098

The oral argument for Oregon Aviation Watch et al v. City of Hillsboro LUBA No. 2010-098 is scheduled for:

Date:

March 14, 2013

Time:

11:00 AM

Location:

Land Use Board of Appeals PUC Building
550 Capitol Street NE, Suite 235
Salem, Oregon 97301-2552
Small Hearing Room - 2nd Floor
Phone - 503-373-1265

The public is welcome, though no testimony will be accepted. If you do plan to attend, call in advance to confirm time and date in the event of a scheduling change.

To help Oregon Aviation Watch cover the cost of legal fees, please use the Donate button on this page or mail your contribution to the address at the end of this article. Oregon Aviation Watch is a certified non-profit, 501(c)3, all donations are tax deductible.

Summary

(All references are to page numbers in the brief, Oregon Aviation Watch v. City of Hillsboro. Luba No. 2012-098.)

The City of Hillsboro's Municipal Code (HMC) contained one brief subsection, 8.32, on Aircraft, which set forth some restrictions on aviation activity within the city limits. On December 4, 2012, the City Council passed Ordinance No. 6037, which repealed this subsection in its entirety, claiming that the City has no authority to regulate aircraft within its jurisdiction. The City claimed that the ordinance was a legislative housekeeping matter rather than a land use issue, thus did not hold a public hearing.

In their legal analysis on HMC 8.32, the City maintained 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 (pg.1)."

Oregon Aviation Watch (OAW) disagreed with the City's conclusions. Sean Malone, the attorney representing OAW et al in this case, submitted a brief on behalf of the Petitioners enumerating the errors of the City's decision. He argues that Ordinance No. 6037 "is a land use decision subject to LUBA's (Land Use Board of Appeals) jurisdiction because it amends by repeal, land use regulations that implement Hillsboro's comprehensive plan...related to transportation, public facilities, and air, water, and land resources (pg.1)." As explained in Malone's summary, "Ordinance No. 6037 will have significant impacts on present and future uses of land. The repeal of HMC subchapter 8.32 will allow unregulated intrastate airport-related uses to contribute more lead pollution to the City and decreases safety by abdicating any authority to regulate low altitude flying, acrobatic flying, and dropping articles from aircraft. In addition, repealing HMC subchapter 8.32 will remove the City's authority to approve new airports, which have significant impacts on future uses of land (pg.2)."

City Out of Compliance with Comprehensive Plan

The law requires a City's municipal code to comply with its comprehensive plan. In repealing 8.32 the City failed to address various parts of their comprehensive plan having to do with transportation, health and safety including:

• Section 13, Requires that the City "build, maintain and/or support a well-defined and safe transportation within the City for pedestrian, bicycle, transit, motor vehicles, air and rail travel (pg. 13)."
• Section 13, "The airports shall be maintained and used as, but not expanded beyond the capability of a 'general aviation reliever facility.' The City shall encourage and work with airport authorities to decrease airport-related problems to a level compatible with surrounding land uses and the urban area. (pg. 13)."
• Section 13, "Develop and maintain a safe City transportation system (pg. 14)."
• Section 12, "Provide a safe and healthy living environment."
• Section 7, "To maintain and improve the quality of the air, water, and land resources, the total waste and process discharges from all developments and activities in the planning area shall not degrade resources or threaten resource availability."

Federal Preemption vs. Local Control

The brief on behalf of Oregon Aviation Watch also challenges the City's claim that their authority as a local government to regulate aviation activity is federally preempted. In this regard, Malone states that federal preemption "does not regulate an airport's ability to approve future uses of land for airports, and it does not preempt intrastate aviation activities (pg. 2-3)." Under federal law, interstate air transportation is defined as "the transportation of passengers or property by aircraft as a common carrier for compensation, or the transportation or mail by aircraft (p.24)." By contrast, the vast majority of flights at the Hillsboro Airport are training operations that never leave state boundaries and that begin and end at the Hillsboro Airport. "...if aviation activity at the Hillsboro Airport does not travel from state to state, then it follows that regulation of the activity is not federally preempted (pg. 25)." In addition, "...interstate air transportation is a prerequisite for federal preemption, but numerous aviation activities, including pilot training, sightseeing, personal flying, agricultural spraying and seeding, and emergency medical services are intrastate aviation activities (pg. 26)."

Please Donate

Oregon Aviation Watch (OAW), a 501(c)(3) nonprofit organization whose primary purpose is to research, educate and advocate on behalf of the public interest and public welfare, relies on contributions from members of the public to cover legal costs and related expenses.

The mission of OAW is to enhance and protect the quality of life for Oregon residents by eliminating the adverse impacts of aviation activity. Issues of concern include noise intrusions, environmental pollution, climate change, health risks, social injustice, property devaluation, safety hazards, security threats, land use restrictions, and fiscal inequities.

Our vision is to achieve a transparent, accountable, and sustainable aviation system that neither disregards nor diminishes the environment, livability, health, or well-being of current and future generations of Oregon residents.

Our current fund-raising goal is $3,000 for existing legal expenses. Oregon Aviation Watch continues to develop materials to educate the public, as well as identifies future projects and potential legal challenges that support the organization's mission and protect our communities and the Hillsboro neighborhoods. Any donations raised above the current goal of $3,000 will go towards these ongoing mission-related activities.

Please support our efforts by sending your tax deductible donation to:

Oregon Aviation Watch
PO Box 838
Banks, Oregon 97106

You can also contribute through Paypal by clicking the Donate button on this page.