In a stunning move, the Oregon Land Use Board of Appeals, which reviews citizen challenges to zoning and other local land-use decisions, has ruled that a zoning code in the Portland suburb of Hillsboro is unconstitutional. The decision applies to an zone that required that all owners of land within 6,000 feet of the Hillsboro Airport give an avignation easement in order to get a permit to improve or change their land. Such an easement would prevent them from protesting any airport activities and would have to be given without compensation.
LUBA’s ruling concluded that this taking of property without compensation was unconstitutional under both the fifth amendment to the U.S. Constitution and a similar provision in Oregon’s constitution. Of course, the question this raises is: if forcing someone to give up an easement without compensation is unconstitutional, how could be constitutional to downzone someone’s property from, say, 10-acre lot sizes to 40-acre lot sizes? The first involves an easement while the second is simply taking away someone’s right to use their property, but both are takings.
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Naturally, Hillsboro and the airport are appealing the ruling. If it stands, no doubt many other Oregon property owners will raise similar arguments in their own cases.
