AIRPORT NOISE LAW
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Revised July 17, 2016



CALIFORNIA COURTS OF APPEAL

Aaron v. City of Los Angeles (1974) -- There is no federal preemption in the field of noise control for jet aircraft. Federal control of airspace is no defense for airport proprietor's failure to purchase adequate air easements and does not preclude landowners from seeking damages from municipal operators of airports for overflights that constitute a taking of property. (Ct. App. 2nd Dist.; 40 Cal.App.3d 471, 115 Cal.Rptr. 162; cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822)

Andrews v. County of Orange (1982) -- Fifty four homeowners near John Wayne Airport filed actions for inverse condemnation against the county as owner of the airport, claiming jet overflights had diminished the market value of their homes. In addition, six plaintiffs sued for personal injury and emotional distress. The court upheld the right of plaintiffs to introduce evidence about what the county could have done to alleviate aircraft noise. In addition, the case is interesting because it provides insight into one jury's biased consideration of diminution of market value of homes caused by aircraft noise. (Ct. App. 4th Dist.; 130 Cal.App.3d 944)

Baker v. Burbank-Glendale-Pasadena Airport Authority (1990) -- The court affirms the judgement of the trial court that applicable statutes of limitation bar the plaintiffs' actions for inverse condemnation and nuisance based on noise, smoke, and vibration of overflying aircraft. (Ct. App. 2d Dist.; 220 Cal.App.3d 1602, 270 Cal.Rtr. 337).

Bakman v. Department of Transportation (1979) -- Residents near an airport alleged a number of procedural defects in the process of granting an operating permit to the airport. The court found no such defects. Of note in this case is the court's interpretation of the legal effect of the state's standard for the "acceptable" level of aircraft noise. The State Aeronautics Act requires the state Department of Transportation (DOT) to adopt aircraft noise standards "based upon the level of noise acceptable to a reasonable person residing in the vicinity of the airport" (Public Utilities Code § 21669). The court said: "The standard of noise acceptable to a reasonable person is established by the regulations, not by the homeowners' subjective testimony at the hearing or by expert testimony concerning human reaction to noise." (Ct. App. 3d Dist.; 99 Cal.App.3d 665, 160 Cal.Rptr. 583)

Note: It should be stressed that this case dealt with procedures DOT must follow in deciding whether to grant an operating permit to an airport. Thus the court's statement that the state's aircraft noise standard is the de jure standard is potentially misleading. The DOT standard is not exclusive; it is the standard required only in deciding whether to grant an operating permit to an airport and only when the airport has not adopted another, more stringent standard. The court stated: "Public Utilities Code section 21669.5 specifically states that the noise regulations adopted by DOT do not create a duty of care in favor of any person, and may not be deemed to create a presumption of damage to, or taking of, property. (Cal. Admin. Code, tit. 21, § 5004.) Thus the homeowners may not use the regulations to attempt to impose more stringent noise standards on [the airport] than those provided in the regulations." This reasoning is erroneous. First, section 21669.5 was void at the time of the court's decision. By its own terms section 21669.5 lapsed following the 1974 regular session of the legislature (see Stats.1971, c. 1734, p. 3689, § 2). To reinforce this, in 1979 the legislature repealed section 21669.5 (see Stats.1979, c. 373, p. 1364, § 265). Second, the court cited Cal. Admin. Code, title 21, § 5004 (now Cal. Code Regs., title 21, § 5005). This section states that noise standards adopted by DOT "are not intended to set levels applicable in litigation arising out of claims for damages occasioned by noise. Nothing herein contained in these regulations shall be construed to prescribe a duty of care in favor of ... any person or entity other than the State of California, counties and airport proprietors in the enforcement of these regulations." (Emphasis added.) Finally, the court did not cite section 5003 (now § 5004), which states: "The noise limits specified herein are not intended to prevent any local government to the extent not prohibited by federal law or any airport proprietor from setting more stringent standards."

Berkeley Keep Jets Over the Bay Committee et al. v. Board of Port Commissioners (2001) -- The court affirmed the trial court's decision concerning various deficiencies in the environmental impact report (EIR) for the Oakland International Airport's long-range development plan. Notably, the court found the analysis of the airport's noise impacts on the surrounding population inadequate. A key feature of the airport's development plan was expansion of air cargo facilities; most cargo carriers fly at night. The noise analysis in the EIR relied entirely on annual-average measurements of noise, the prevailing measure used in analyses of airport noise. The court ordered a new noise analysis based on an accurate estimate of the number of additional nighttime flights and the frequency of those flights. The analysis must focus on the potential interference of this additional nightttime traffic on sleep, including physiological responses and annoyance. See the Revised Writ of Mandate from the Superior Court. (The state supreme court denied the Port of Oakland's petition for review of this decision.) (Ct. App. 1st Dist.; 91 Cal.App.4th 1344, 111 Cal.Rptr.2d 598)

Bethman V. City of Ukiah (1989) -- Heirs of a pilot killed in a plane crash after a failed instrument landing sued the city-owner of the airport for damages for wrongful death. The court held that where a claim of a dangerous condition of property is based on airport navigation facilities that, as a matter of law, are regulated by the Federal Aviation Act of 1958 (49 U.S.C. 1301 et seq.) and corresponding federal regulations, such claim is preempted by the Act. (Ct. App. 1st Dist.; 216 Cal.App.3d 1395, 265 Cal.Rptr. 539)

California Aviation Council v. City of Ceres (1992) -- Each county in California has an Airport Land Use Commission charged with responsibility for regulating land use near airports. A city or county may overrule a commission's decision if it makes specific findings that the proposed action is consistent with the purposes stated in Public Utilities Code section 21670. In this case the Stanislaus ALUC barred development of 450 acres near the Modesto airport, and the City of Ceres overruled the commission's decision. Plaintiff (now the California Pilots Association) challenged the city's action. The appellate court ruled that the city's findings in support of its decision to overule ALUC were not fact-specific but merely declared a general conclusion and thus fell far short of the statutory requirement. (Ct. App. 5th Dist.; 9 Cal.App.4th 1384, 12 Cal.Rptr.2d 163)

City and County of San Francisco v. Small Claims Div., Municipal Court of San Mateo Co. (Eisenberg) (1983) -- The City of San Francisco, owner of S.F. International Airport, was sued by more than 170 individuals in separate actions in Small Claims Court, alleging that aircraft noise was a nuisance. The court consolidated the actions for hearing. After another 183 complaints were filed, the City filed a petition in Superior Court for a writ of mandamus, seeking to enjoin the Small Claims Court from hearing the claims. The Superior Court ruled that the Small Claims Court did have jurisdiction to hear the plaintiffs' cases together, and denied the City's arguments that all the claims amounted to a class action or that the total amount of the claims made Small Claims Court an inappropriate forum.

The Court of Appeal affirmed, holding that small claims courts have jurisdiction to hear claims that raise complex issues. Moreover, the jurisdictional limit on damages applies to individual plaintiffs, not the aggregate amount of consolidated suits. Finally, the court held that consultations with attorneys by claimants in small claims court was constitutionally protected by the First Amendment of the U.S. Constitution (right to petition for redress of grievances) and thus Code of Civil Procedure s. 117.4 (prohibiting attorneys or nonclaimants from taking part in small claims court litigation) has no effect to the extent it conflicts with the fundamental rights of citizens to act collectively in court actions. (Ct. App. 1st Dist.; 141 Cal.App.3d 470, 190 Cal.Rptr 340)

Note: By the time of this appeal the City had spent over $800,000 defending itself from the lawsuits. In exchange for the citizen group's pledge not to file any more lawsuits, the City agreed to citizen representation in a serious program of noise abatement, which included banning Concorde jets from using the airport. For a detailed history of the small claims actions in this case see "Grassroots Impact Litigation: Mass Filing of Small Claims", Andrew D. Freeman and Juli E. Farris, University of San Francisco Law Review, Vol. 26 (1991-1992), pp. 261-281. See also 1982 Moratorium on Small Claims Actions Against Airports, which the California Legislature enacted specifically in response to the actions against San Francisco.

City of Burbank v. Burbank-Glendale-Pasadena Airport Authority -- The City of Burbank and the Authority have been fighting for several years over the Authority's plans to expand the airport into Burbank, against the City's will. In this case the City of Burbank challenges the power of the Airport Authority to expand into the city without the city's approval. A number of appellate court decisions have been made in this case. (See the related case in federal court Burbank-Glendale-Pasadena Airport Authority v. City of Burbank.)

City of Burbank v. Burbank-Glendale-Pasadena Airport Authority I (Nov. 12, 1998) -- The trial court sustained the Authority's demurrer without leave to amend and the appellate court reversed the judgment. (Ct. App. 2nd Dist.; unpublished opinion)

City of Burbank v. Burbank-Glendale-Pasadena Airport Authority II (May 5, 1999) -- The trial court found that because the City had delegated its powers under Public Utilities Code section 21661.6 to the Authority, the City was without power to enforce the statute as against the Authority. The appellate court reversed the judgment. (Ct. App. 2nd Dist.; 72 Cal.App.4th 366, 85 Cal.Rptr.2d 28)

Burbank-Glendale-Pasadena Airport Authority v. City of Burbank (May 5, 1999) -- The trial court granted a petition for writ of mandate, based solely upon a conclusion of law that was found erroneous in a companion case. The appellate court reversed the judgment and rejected respondent's contention that there are alternate grounds upon which it may be affirmed. (Ct. App. 2nd Dist.; unpublished opinion)

City of Los Angeles v. Japan Airlines Co. (1974) -- City-owner of Los Angeles International Airport is liable for noise damages to nearby residents because a California statute provided a mechanism for the city to acquire air easements. Absent contractual agreements or a legislative mandate, air carriers do not have to indemnify the city. (Ct. App. 2nd Dist.; 41 Cal.App.3d 416, 116 Cal.Rptr. 69)

City of Oakland v. Nutter (1970) -- The City, owner of the Oakland International Airport, sought to acquire easements in the airspace over numerous residential properties to protect approaches to the airport. The City insisted that the easements were "clearance" easements only. The defendant-owners argued that the easements were in fact "avigation" easements and sought not only the fair market value of the easement to be condemned but also "severance damages" due to the interference and inconvenience that the remainder of the property suffers by reason of the air easement. The court ruled that landowners are entitled to recover for the diminution in the value of the subjacent land remaining after an air easement and that it is proper for a trial court to hear evidence of the effects of excessive noise, vibration, discomfort, inconvenience, and interference with the use and enjoyment of the land on the value of the subjacent land, to the extent such factors are occasioned by flights through the easement condemned. (Ct. App. 1st Dist.; 13 Cal.App.3d 752, 92 Cal.Rptr. 347)

City of San Jose v. Superior Court (San Jose Mercury News) (1999) -- Held: In this case, any public interest in disclosure of the names, addresses, and telephone numbers of airport noise complainants is clearly outweighed by the public interest in protecting the privacy of noise complainants and preventing a chilling effect on complaints of airport noise. (Ct. App. 6th Dist.; 74 Cal.App.4th 1008)

Note: This is apparently the first appellate court decision in the United States on the question of whether a city-owner of an airport must disclose the identities of airport noise complainants. The decision cites California Attorney General's Opinion 94-903, which answered the question of whether the identity of airport noise complainants was disclosable by outlining the same balancing test used by the court in this case.

Dhuyvetter v. City of Fresno (1990) -- Owners of property adjacent to Fresno Municipal Airport filed a class action, which was later decertified. Later, plaintiffs amended the complaint to include their children as plaintiffs. The appellate court held that the amended complaint was timely (relating back to the original complaint) and that decertification of the action as a class action did not affect the sufficiency of the plaintiffs' claims. (Ct. App. 5th Dist.; 110 Cal.App.3d 659)

Finley et al. v. Superior Court (Third Laguna Hills Mutual et al.) (2000) -- Homeowners' association can donate funds to ballot measure to stop airport development. (Ct. App. 4th Dist.; 80 Cal.App.4th 1152, 96 Cal.Rptr.2d 128)

Institoris v. City of Los Angeles (1989) -- Lessee of property near the city-owned L.A. International Airport sued the city to recover property damages due to airport noise, alleging that aircraft noise was a continuing public nuisance. The parties agreed that the noise levels created by aircraft using the airport constituted taking of property by government action (avigation easement). The court relied on "well settled law" that a property owner has an inverse condemnation remedy for property damages arising from airport operations, and a common law or statutory remedy based on nuisance for personal injuries arising from airport operations. Recovery for property injury is available under either a public or private nuisance theory (while recovery for personal injury under a nuisance theory is available only if plaintiff alleges and proves a public nuisance). The court held that plaintiff was barred from recovering inverse condemnation (property) damages because he did not own the property interest at the time of the taking. The city's acquisition of a prescriptive avigation easement over plaintiff's property interest precluded recovery for property damages, whether based on a public or private nuisance theory. (Ct. App. 1st Dist.; 210 Cal.App.3d 10, 258 Cal.Rptr. 418)

Los Angeles United School District v. City of Los Angeles (1997) -- The City of Los Angeles adopted a plan to develop a 1.5 square mile area in which two schools existed. The school district alleged the schools would be adversely affected by increased traffic noise and air pollution resulting from the development. The EIR responded to these issues by finding that additional traffic noise near the schools would be "insignificant" and that additional air pollution would occur throughout the project area despite any feasible mitigation measures. In view of the latter findings, the city declared that the benefits of the plan outweighed the unavoidable effects of increased air pollution. The city certified the EIR and approved the plan.

The city argues that the noise impact is "insignificant" because, even though traffic noise from the new development will make things worse, the noise level around the schools is already beyond the maximum level permitted under Department of Health guidelines. The court held that "the relevant issue to be addressed in the EIR ... is not the relative amount of traffic noise resulting from the project when compared to existing traffic noise, but whether any additional amount of traffic noise should be considered significant in light of the serious nature of the traffic noise problem already existing around the schools. We do not know the answer to this question but, more important, neither does the City and because the City does not know the answer, the information and analysis in the EIR regarding noise levels around the schools is inadequate.

Furthermore, the court said, the EIR fails to take into account that the significance of an activity may vary with the setting. "It does not necessarily follow, and the EIR does not establish, an increase in the decibel level from 72.1 to 75.4 would have the same effect on a hearer trying to study in a classroom as a hearer waiting for a bus on a street corner." (Ct. App. 2nd Dist.; 58 Cal.App.4th 1019, 68 Cal.Rptr.2d 367)

San Diego Unified Port District v. Superior Court of San Diego County (Britt et al.) (1977) -- Homeowners sued the operator of the San Diego International Airport for damages from airport noise under nuisance and negligence theories. The court held that because federal laws and regulations had preempted local control of aircraft in flight, flights that complied with such laws and regulations could not be classified as negligent, nuisance, or trespass, and the airport operator could not be held liable for tort damages alleged to arise from them. If, however, the airport operator had tortiously managed and maintained the airport facilities to the harm of some or all homeowners, the action would not be precluded by federal supremacy. This case is one of only a few in which the airport proprietor was shielded from liability. (Ct. App. 4th Dist.; 67 Cal.App.3d 361, 136 Cal.Rptr. 557)

San Francisco Ecology Center v. City and County of San Francisco (1975) -- Plaintiffs petitioned for an order compelling the city to set aside adoption of an environmental impact report and approval of expansion of its airport. The report acknowledged the expansion would have significant adverse effects on the environment, but concluded that these effects were outweighed by the overall economic benefits of the expansion. The court denied the petition, noting that the law does not require disapproval of a project when an environmental impact report shows the project may have significant adverse effects. (Ct. App. 1st Dist.; 48 Cal.App.3d 584, 122 Cal.Rptr. 100)

Santa Fe Partnership v. ARCO Products Co. (1996) -- This case is not about aircraft noise or airport nuisance, but it contains a good discussion of the distinction under California law between continuing nuisance and permanent nuisance, a distinction that is fundamental to recovery of damages for airport nuisance. (Ct. App. 2nd Dist.; 46 Cal.App.4th 967, 54 Cal.Rptr.2d 214)

Smart v. City of Los Angeles (1980) -- For purposes of fixing the date of accrual of a cause of action for inverse condemnation, the taking or damaging of property from aircraft overflight noise does not necessarily occur at the point at which the noise from the aircraft has "stabilized". Plaintiff in this case owned property in the immediate vicinity of residential property that was the subject of Aaron v. City of Los Angeles (see above). However, plaintiff's property was a vacant parcel, and the court held that the overflight noise did not cause a substantial interference with plaintiff's use and enjoyment of the vacant parcel until he attempted to sell it. (Ct. App. 2nd Dist.; 112 Cal.App.3d 232, 169 Cal.Rptr. 174)

Smith v. County of Los Angeles (1989) -- There is no constitutional bar to assessment of costs against an unsuccessful plaintiff in an action for inverse condemnation. (Ct. App. 2d Dist.; 214 Cal.App.3d 266, 262 Cal.Rptr. 754) (See also Lochlin v. City of Lafayette, Cal. Sup. Ct. 1994.)

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CALIFORNIA SUPERIOR COURTS

Burbank-Glendale-Pasadena Airport Authority v. Hughes Air Corp. (1980) -- Airport proprietor can sue an airline or aviation group to enjoin violations of airport proprietary rules designed to maintain current level of airport noise or reduce it. (Sup. Ct. Los Angeles Co., Case No. NC C 17926B)

California Pilots Association v. County of Butte (1999) -- The Butte County Airport Land Use Commission determined that proposed construction of several homes near the Chico Airport was inconsistent with the commission's plan for orderly coexistence of airports and surrounding areas. The county board of supervisors overruled the commission. Plaintiff challenged the county's approval of the development, alleging that the county abused its discretion in overruling the commission. Held: the county's decision was supported by substantial evidence and thus consistent with the law. (Sup. Ct. Butte Co., Case No. 122720)

Cole et al. v. City of Santa Monica (2001) -- An action for inverse condemnation was unsuccessful because the judge discredited the testimony of the plaintiffs' expert witness on the diminution in the value of their property due to aircraft noise. The court also denied the city's claim of a prescriptive easement in the air above plaintiffs' properties, on the grounds in part that the city had often recognized plaintiffs' property rights by promising to minimize aircraft noise. (Sup. Ct. Los Angeles Co., Case No. SC 055 183)

PAH/Stanley Ranch v. County of Napa (1999) -- The Napa County Airport Land Use Commission determined that a housing development plan was inconsistent with the commission's airport land use plan. The developer challenged the commission's decision. Held: the commission's decision was supported by substantial evidence and procedural due process was not violated in arriving at the decision. (Sup. Ct. Napa Co., Case No. 26-04804)

People v. Valenti (1984) -- Defendant flew his airplane 20 feet above a party on a beach and was convicted in Municipal Court of various violations of a state statute penalizing unsafe operation of aircraft. On appeal, the court held that statutes prohibiting unsafe operation of aircraft do not (1) improperly delegate power to prescribe penalties for violation of prohibited conduct, despite incorporation by reference of federal law, or (2) violate federal supremacy, since the federal scheme permits states to impose criminal sanctions for unlawful operation of an aircraft above its land and waters. (App. Dept., Sup. Ct. Ventura Co.; 153 Cal.App.3d Supp. 35) [EDITOR'S NOTE: This case is published in an official reporter and is therefore citable.]

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