Author: Daniel Himebaugh
The Oregon Land Use Board of Appeals has ruled that a City of Hillsboro ordinance requiring property owners to dedicate an avigation easement as a condition on property development is facially unconstitutional. The ruling affects over 7,000 parcels located near the Hillsboro Airport, according to the weekly newsletter Airport Noise Report.
The City's ordinance required property owners to dedicate an easement allowing the City to expose the property owners to noise, vibrations, fumes, dust, and fuel particle emissions associated with airport activity. Instead of compensating the property owners for the interference, however, the ordinance required property owners to give up the easements in exchange for permission to engage in normal development activities.
The board ruled that the easement failed to meet the test set out in the U.S. Supreme Court case Nollan v. California Coastal Commission, which provides that development conditions must be related to alleviating an identified public problem caused by the impact of the proposed development. This is known as the "essential nexus" rule and keeps government from extorting property owners to obtain property interests that the government would normally have to purchase.
PLF principal attorney Meriem Hubbard, who litigated a similar case involving an avigation easement in California, is quoted in Airport Noise Report:
The problem in this case is that the government tried to take a short cut by saying that, if you want a building permit or other land use approval, you need to give us an avigation easement free of charge. That can only be done if the proposed development creates the problem that will be solved by the dedication of an avigation easement. . . . [T]he City is probably requiring these easements in order to avoid being sued for a physical taking of property due to noise, light, emissions, etc., created by aircraft flying overhead. If a property owner brings such a lawsuit, and wins, then the government will have to purchase the property outright. An easy way to avoid such lawsuits is to get an easement from the property owner. Government knows that property owners won't give an easement (a property right) willingly, so they make it a condition of a permit allowing you to do something on your property (for example, build a house or pool, remodel, put in a new air conditioner).
The City has appealed the board's ruling to the Oregon Court of Appeals.
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