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.
This airport has been around since the late 1920’s.
In other words, don’t buy a house near an airport then complain about the planes!
It is an interesting example of how once government has the power to control something for one reason, it will often seek to use that power to coerce the regulated people into giving something in return for its approval.
So, despite the ululating fantasy of a headline, zoning isn’t unconstitutional. Got it.
DS
“despite the ululating fantasy of a headline…”
No doubt. A bit sensationalist, and then no pay off. A portion of a zoning ordinance that amounts to a taking is in violation. I thought we were in for good ole’ antiplanner debate. You suckered me O’Toole 😉
Surprised to see planner Dan here again, especially given his suburban lifestyle.
The argument was not that zoning was unconstitutional on its face, but that its provision which allowed for an uncompensated taking violated the 5th Amendment. Sounds correct to me.
Add “ordinance” behind “zoning” in the headline and you get more clarity but a lengthy headline. Dan’s grasping here and throwing stones while living in a
glasssuburban house.Frank,
That would have done it. But a closer look shows us that it’s not even the whole ordinance. The headline could have been “Oregon Land-Use Board Says Portion of Zoning Ordinance Applying to a Small Portion of Town is Unconstitutional.”
Unfortunately, an accurate headline wouldn’t have gotten me all riled up to read the post. I am surprised that the authors of the code missed that ever so important part of land use law. Back to the drawing board for them.
I don’t think Dan’s grasping. The difference between Zoning in all its glory and an apparently poorly written zoning ordinance in suburban OR is vast. I’m not sure if the omission by Mr. O’Toole was intentional or not, but the resulting headline is wacky.
Maybe a more appropriate headline for the Antiplanner would have been “Oregon Land-Use Board Does the Right Thing???”
Speaking of grasping…Desperate Frank, it should be clear to all but the desperate that the point of #3 was ‘misleading headline’, and the undesperate may remember I’ve said here before I don’t care for this neighborhood. As soon as we can sell we’re gone. Keep trying, tho.
DS
If zoning is unconstitutional then SimCity is unconstitutional. The new version will play itself. You sit there and watch the free market work, haha.
While it felt intrusive to post this, I have to say I’m a bit confused. Most of use feel we have to make compromises to our ideals in our every day lives. I didn’t expect that Dan would make a big one like that and choose to live out in the the nether regions of Aurora south of Buckley where the closest bus stop is a mile and half away. It’s not a walkable neighborhood unless you consider a 3 1/2 mile round trip walk to Taco Bell a walkable neighborhood.
I would assume though that he has other things to take into consideration when choosing where to live. It’s probably not just about how nice of a place for how much money but also what schools his kids go to, what his spouse wants for housing, crime issues facing the area, future appreciation – if any – on the value of the home he’s buying, etc, etc. And with Dan having a relatively specialized job – something a lot of professionals have – the opportunities for it are limited. So it’s probably not easy to live close to work.
So I would’ve blame him for living where he does. But I am quite curious as to how it all came about. He’s about the last person I’d expect to find living on the sprawl’s bleeding edge.
@Dan, if you don’t mind, how did you end up buying out there half way to Kansas in the first place?
The school staff and Principal were very highly recommended by a professional staff development person who knew them, the house was a steal and easy for a young kid to walk to school, the placement of the house made it easy for a veggie garden. If the economy hadn’t tanked, we’d be gone by now, thinking we could take it here for a couple years tops then trade up. Ah, well.
DS
Land Use Board is going to get tourched in court. Why?
Willoughby Hills v. Corrigan 1971
US v. Causby 1946
What abunch of morons.
“…the house was a steal…If the economy hadn’t tanked, we’d be gone by now…”
Precisely why I rent. Some view housing as an investment, while some view it as an expense. Good luck getting out. Seriously. Maybe you could rent it out?
Yup. That’s the plan. I mostly rented too until I got married (given a great deal once when single).
DS
That is a good point, Spokker, about SimCity. When you play SimCity, you are a total dictator more powerful than Stalin. You never face election or even a mild revolt (though SimZoo has animal revolts).
And you are right that watching the free market work would be boring. Which suggests that most government planners might not want to stand by and watch the free market work. Much more interesting to play DM.
There are riots in some versions of SimCity.
However, success in SimCity seems to be based on cars and sprawl, anyway. Add-on modifications created by fans added real mass transit to SimCity 4.
PlanesnotTrains said:
Land Use Board is going to get tourched in court. Why?
Willoughby Hills v. Corrigan 1971
US v. Causby 1946
What abunch of morons.
THWM: Thanks, I don’t like moronic NIMBY’s as well.