Barnes v. City of Hillsboro
239 Or. App. 73
| Or. Ct. App. | 2010Background
- City adopted Ordinances 5925 and 5926 creating Airport Use (AU) and Airport Safety and Compatibility Overlay (ASCO) zones around Hillsboro Airport.
- Ordinance 5926 required avigation easements for ASCO subzones 2–6 as a development condition.
- Ordinance 5935 amended the zoning map to apply AU and ASCO zones to properties; LUBA reversed Ordinance 5935.
- Respondents challenged petitioner's constitutional claims as arising from Ordinance 5926, not the appealed Ordinance 5935.
- LUBA held petitioner could challenge the avigation easement and related AU provisions, declining Butte Conservancy's collateral-attack rationale.
- On judicial review, court held respondents did not preserve their constitutional challenges for review in this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LUBA had jurisdiction to review constitutional challenges in the Ordinance 5935 appeal. | Barnes contends LUBA may review because challenges concern the applicable zoning regulations. | Port of Portland/Hillsboro argue challenges are collateral attacks outside LUBA's scope. | LUBA had jurisdiction to review the constitutional challenges. |
| Whether petitioner's constitutional challenges were preserved for judicial review. | Barnes maintains challenges were properly raised before LUBA. | Respondents contend the issues were not preserved due to focus on Ordinance 5935 and reliance on Butte Conservancy. | Issues were not preserved; court affirms on preservation grounds. |
| Whether the constitutional challenges could be reviewed in this appeal despite reliance on Butte Conservancy. | Barnes argues LUBA properly rejected collateral-attack limits and allowed review. | Respondents rely on Butte Conservancy and statutory framework to limit review. | Issues not preserved; Butte Conservancy-based arguments not preserved in this appeal. |
Key Cases Cited
- Butte Conservancy v. City of Gresham, 195 Or.App. 763 (2004) (collateral attack limitations in appeal of land use decisions)
- Just v. City of Lebanon, 193 Or.App. 155 (2004) (preservation requirements for issues on appeal to LUBA)
- State v. Taylor, 198 Or.App. 460 (2005) (preservation of issues and arguments on appeal)
- Peeples v. Lampert, 345 Or. 209 (2008) (contention requirements before trial/appeal bodies)
- Beall Transport Equipment Co. v. Southern Pacific, 186 Or.App. 696 (2003) (principles about developing arguments for appellate review)
- Hammer v. Clackamas County, 190 Or.App. 473 (2003) (notice and argument requirements on appeal)
- Estremado v. Jackson County, 238 Or.App. 93 (2010) (discretion in reviewing LUBA opinions)