AIRPORT NOISE LAW
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Revised January 7, 2017



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STATE SUPREME COURTS

Alevizos v. Metropolitan Airports Commission [Alevizos I], Minn. 1974 — Held: a property owner may have an action in inverse condemnation where airflights constitute a direct and substantial invasion of property rights; the invasion is of such a magnitude that the owner of the property is deprived of its practical enjoyment; and the invasion results in a definite and measurable loss in market value that the property-owning public in general does not suffer. To justify an award of damages, invasions of property rights must be repeated, aggravated, and not of an occasional nature, and there must be a reasonable probability that they will be continued into the future. In addition, the court held that the action in this case was not maintainable as a class action because the issues raised by individual property owners were too various. See the later related case Alevizos II (1982), below. (298 Minn. 471, 216 N.W.2d 651)

Alevizos v. Metropolitan Airports Commission [Alevizos II], Minn. 1982 — This decision focuses on the evidence required to support an action for inverse condemnation of an avigational easement. Held: Questions as to how loud airport noise was, if noise levels were in dispute, and what diminution in market value was and whether it was caused by airport noise were factual issues to be resolved by the jury, while questions whether noise of a specified decibel level constitutes loss of practical enjoyment of property over and above inconvenience suffered by the average city dweller and whether specific change in market value constitutes such a change are legal questions to be decided by the court. Case remanded to trial court for retrial (see Ario v. Metropolitan Airports Commission, 1985, below). (317 N.W.2d 352)

Arapahoe County Public Authority v. Centennial Express Airlines, Colo. 1998 — Centennial Airport, a general aviation airport built in 1967, had never permitted scheduled passenger flights. Nevertheless, Centennial Express Airlines peremptorily began passenger service on December 20, 1994. The next day the airport filed suit for an injunction prohibiting Centennial Express from conducting passenger flights out of the airport. The trial court granted the injunction, and the Supreme Court upheld the injunction.

At issue in the case was whether, under FAA regulations, the airport could prohibit an entire class of aircraft. The court held that the airport's prohibition is not preempted by federal law. Specifically, the airport's authority in this case was not preempted by the Airline Deregulation Act of 1978, which states that a political subdivision of a state "may not enact or enforce a law, regulation, or other provision having the force of and effect of law related to a price, route, or service of an air carrier." Nor was it preempted by the terms of an FAA grant to the airport in which the airport operator agreed to "make its airport available as an airport for public use on fair and reasonable terms and without unjust discrimination, to all types, kinds, and classes of aeronautical uses." The court refused to construe the terms "so broadly that airport proprietors must accomodate every possible aeronautical use." Instead, the court interpreted the terms of the grant to mean that the airport could not discriminate among operators of one class of aircraft. (956 P.2d 587)

Ario v. Metropolitan Airports Commission, Minn. 1985 — The issue in this decision is whether multiple plaintiffs in an action for damages from airport noise could be certified as a class action. See the earlier decisions in this case: Alevizos I and Alevizos II, above. (367 N.W.2d 509)

Aviation Cadet Museum v. Hammer, Ark. 2008 — Owners of property near a private, public-access airport filed a claim against the airport as a nuisance. The trial court determined the airport was a nuisance and ordered that the airfield not be used for take off and landing. It said the injunction was to remain in effect until such time, if any, that the airport owners could demonstrate to the court that it could operate the airfield in a manner that would not constitute a nuisance, would not trespass on the plaintiffs' property, and would otherwise be operated in conformity with the law. The state supreme court upheld the decision.

Banner Advertising Inc. v. People of City of Boulder, Colo. 1994 — A city ordinance banning commerical signs towed by aircraft is preempted by the Federal Aviation Act. (868 P.2d 1077)

Note: In Skysign International, Inc. v. City and County of Honolulu (2002) the 9th Circuit Court of Appeals concluded that federal law does not preempt a Honolulu ordinance banning aerial advertising and distinguishes Banner (see FN 6).

Bormann v. Board of Supervisors in and for Kossuth County, Iowa 1999 — A state statute creating immunity from nuisance actions results in a taking of private property for public use without just compensation, thus violating the U.S. and Iowa constitutions. The statute authorizes County Boards of Supervisors to designate property as an "agricultural area" in order to protect agricultural land from nonagricultural development. The statute includes an immunity provision that gives property owners in a designated "agricultural area" the right to create or maintain a nuisance over neighboring property, in effect creating an easement. The court's opinion includes a nice overview of takings jurisprudence. (584 N.W.2d 309).

Cheyenne Airport Board v. Rogers, Wyo. 1985 — Landowners near the airport challenged a municipal zoning ordinance limiting the height of objects in a noninstrument approach zone to the airport, claiming that the ordinance constituted an uncompensated taking of property. Plaintiffs had a tree that exceeded the height limit. Held: No compensable easement was taken since the impact of the height limitation on plaintiffs' property was not significant enough to counterbalance the public interest in protecting the airport traffic pattern. (707 P.2d 717; cert. denied 90 L.Ed.2d 647, 106 S.Ct. 1961)

City of Atlanta v. Watson, Ga. 1996 — Owner of apartment buildings sued the city-owner of an airport for nuisance and inverse condemnation arising from overflights. Plaintiff challenged the city's "noise compatibility" program in which the city purchased single-family homes next to the airport and razed them, but did not buy out multifamily residences, creating a "wasteland" around the remaining residential buildings. The city believed that multifamily residences were not as noise sensitive as single-family residences. The state supreme court reversed the ruling of the Court of Appeals. Held: the distinction between single- and multifamily residences does bear a rational relationship to the stated goals of the program and thus the city was not liable to the plaintiffs. (267 Ga. 185, 475 S.E.2d 896)

County of Westchester, New York v. Town of Greenwich, Conn. 1993 — County-owned airport cannot acquire avigation easements by prescription over adjacent residential land because overflights as a matter of law can never be adverse. (629 A.2d 1084, 227 Conn. 495)

Culley et al. v. County of Elko, Nev. 1985 — Plaintiffs' brought an action for nuisance and inverse condemnation, alleging that extension of the county airport's runway caused increased levels of noise, dust, fumes, and vibration, with consequent diminution of property values. The state supreme court held that the trial court erred in dismissing plaintiffs' actions. (In this case the trial court had improperly excluded from evidence documents that showed the county board of supervisors approved the runway extension in part to shift the noise impact of airport operations from downtown Elko onto the plaintiffs' properties!) (711 P.2d 864, 101 Nev. 838)

Fiese v. Sitorius, Neb. 1995 — The owner of land adjacent to a private airstrip built a pile of hay that prevented safe use of the airstrip. The airstrip owner sought to enjoin construction of hay piles, claiming he had acquired an avigation easement by prescription. Held: avigation easement cannot be acquired by prescription since use of airspace is permissive and therefore cannot satisfy the legal requirements for easement by prescription. Permissive use of airspace is granted by federal law, under which freedom of transit through navigable airspace is, in effect, a license. (247 Neb. 227, 526 NW2d 86)

Fitzgarrald v. City of Iowa City, Iowa 1992 — Owners of land next to a municipal airport brought a mandamus action to compel condemnation of an avigation easement on their property ("inverse condemnation"). As a result of expansion of the airport, their property now lay within a "clear zone". Plaintiffs alleged these circumstances resulted in (1) a physical invasion of their property due to noise and vibration of overflying aircraft, and (2) restrictions on their ability to develop their land and thus a regulatory taking of their land. Held: As a matter of law, aircraft overflying designated land do not constitute a physical invasion of the property if the property owner cannot prove a measurable decrease in market value of the property, and in this case the plaintiffs did not meet the burden of proof. In addition, in this case the loss of development potential was not severe enough to rise to the level of a compensible regulatory taking. (492 N.W.2d 659)

Fullerton v. Knox County Commissioners, Maine, 1996 — If the trial court finds that an air easement amounts to a "direct and immediate" interference with plaintiff's land, plaintiff is entitled to interest from the date of the takings judgment. (672 A.2d 592)

Jackson v. Metropolitan Knoxville Airport Authority, Tenn., 1996 — Residential property owners sued airport for inverse condemnation, alleging that, because of runway extension, noise, vibration, and pollutants had increased from aircraft that flew near but not over their properties. Held: inverse condemnation is proper even if flights have not occurred directly over the property at issue, so long as the flights constitute a direct and substantial interference that is repeated and peculiarly affects the property. The court relied on the 1962 Thornburg decision from Oregon (see below). (922 S.W.2d 860)

Krueger v. Mitchell, Wisc. 1983 — Neighboring property owners sued owners of a private airport for damages due to aircraft noise. Held: An airport operating in conformance with state and federal law may nevertheless constitute a nuisance, and the Federal Aviation Act does not preempt damages for unreasonable noise from an airport. Holding an airport proprietor liable for damages caused by unreasonable noise levels does not hamper national policy on aviation noise abatement. In addition, plaintiffs may recover for inconvenience, annoyance, and discomfort caused by nuisance as long as the interference with use and enjoyment of their property is unreasonable and substantial. (112 Wis.2d 88, 332 N.W.2d 733)

Long v. City of Charlotte, NC, 1982 — Landowners near city-owned airport sued for damages from aircraft flights over their property, alleging trespass and nuisance. Held: inverse condemnation is the sole remedy for harm caused by overflights. (293 S.E.2d 101)

Martin v. Port of Seattle, Wash., 1964 — An action for inverse condemnation, seeking damages for a taking or damaging of property for public use caused by the noise of jets flying into and out of a nearby airport, is a legally cognizable claim. No overflight or direct physical invasion of the airspace of the land is necessary to maintain an action under the "taking" or "damaging" provisions of the state constitution. (391 P.2d 540, 64 Wash.2d 309)

McCarran International Airport v. Sisolak, Nev., 2006 — Sisolak owned property that was subject to an avigation easement granted by the previous owner as a condition for approval of a subdivision plan. The court held that the manner in which the avigation easement was exacted could not have created a permanent right for the county-owned airport. The court adopted the U.S. Supreme Court's ruling in Nollan v. California Coastal Commission (483 U.S. 825, 1987), that "to obtain easement of access across private property, the State must proceed through its eminent domain power." (137 P.3d 1110, 122 Nev. Adv. Rep. 58)

Note:The U.S. Court of Appeals 9th Circuit relied on this decision in Vacation Village v. Clark County, Nevada (2007) to determine that a county ordinance created a taking of property under the Nevada Constitution even though no taking occurred under the U.S. Constitution.

Melillo et al. v. City of New Haven Conn., 1999 — Plaintiff landowners, in an action to recover compensation for a taking of an avigation easement, failed to prove economic harm to their property. (732 A.2d 133)

Note: This decision is a good example of the "battle between experts". Different real estate appraisers testified for plaintiffs and defendant; the trial judge believed the testimony of the defendant's witness and expressly discredited that of the plaintiffs' witness.

Owen v. City of Atlanta, Ga. 1981 — City of Atlanta, as proprietor of airport, is subject to state tort liability if residents in the vicinity of the airport are injured by noise from aircraft using the airport. (157 Ga.App. 354, 122 S.E. 338)

Petersen v. Port of Seattle, Wash., 1980 — Plaintiff brought an action for inverse condemnation, claiming compensation for diminution in property value resulting from operation of the Seattle-Tacoma International Airport. The Port alleged it held a prescriptive avigation easement over plaintiff's property. The court concluded that evidence failed to establish the Port had acquired a prescriptive avigation easement, and thus the plaintiff's claim was not barred by the passage of time. (618 P.2d 67, 94 Wash.2d 479)

Riggs v. Burson, Tenn. 1997 — A state statute prohibiting use of land for a heliport within nine miles of a national park is not preempted by the Federal Aviation Act. (941 S.W.2d 44)

State of Minnesota v. Metropolitan Airports Commission, Minn. 1994 — Plaintiffs, nonprofit corporations acting on behalf of the state, sought a declaration that the airport proprietor was subject to state noise pollution standards. The court reversed the appellate court decision, holding that application of the state's standards to airport operations is preempted by federal law. The court distinguished this case from Crotti (U.S. Dist. Ct., N.D. Cal.) and Gianturco (9th Circuit U.S. Ct. App.). (520 N.W.2d 388)

Sticklen v. Kittle, W. Va. 1981 — An avigation easement is an easement of right to navigation in airspace over designated land and is to be distinguished from a clearance or obstruction easement. An avigation easement cannot be acquired by prescription. (168 W.Va. 147, 287 S.E.2d 148)

Thornburg v. Port of Portland, Ore., 1962 — A taking of private property may be trespassory or by nuisance. Landowners have a right to be free from unreasonable noise. A taking can occur if aircraft noise is not directly over the plaintiff's property and even if it is within the navigable airspace defined by law. (376 P.2d 100)

Village of Willoughby Hills v. Corrigan, Ohio, 1972 — Plaintiffs challenged a state law that permitted local jurisdictions to limit the height of structures under the approach path to airports, alleging that the law resulted in unconstitutional taking of property without compensation. The court upheld the law, but stated that the law did not preclude compensation for a taking in specific cases. 278 N.E.2d 658, 29 Ohio St.2d 39)

Note: The U.S. Supreme Court refused to review this decision (409 U.S. 919, 93 S.Ct. 218, 34 L.Ed.2d 181); see the dissent of Justice Douglas, in which he argues that the Ohio court's decision is contrary to the weight of precedent following the U.S. Supreme Court's decision in United States v. Causby (1946).


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COURTS OF APPEAL

Alevizos v. Metropolitan Airports Comm. of Minneapolis & St. Paul, Minn. Ct. App., 1990 — The state Pollution Control Agency's standards describing maximum levels of noise for various activities are, in the context of aircraft noise, preempted by federal authority over aviation. (452 N.W.2d 492)

Bakus v. Broward County, Fla. Ct. App., 4th District, 1993 — Residential property owners sued the county-owner of an airport for inverse condemnation based on the county's temporary use of an alternate runway during extension and repair of the main runway. Held: the evidence in the trial court supported the finding that the plaintiffs had not established either a temporary or permanent taking of their property. (Unpublished op., March 23, 1993, docket no. 91-03357; see 615 So.2 166 (table))

Barnes v. City of Hillsboro, Ore. Ct. App., 2010 — City of Hillsboro rezoned a large area near an airport, imposing various limitations on uses and new development, including the requirement of an avigation easement for new subdivisions. Some property owners who objected to the ordinance appealed to the Oregon Land Use Board of Appeals (LUBA). LUBA found the avigation easement to be an unconstitutional taking of property without compensation and reversed the rezoning ordinance. The court of appeals upheld LUBA's decision. (The link is to a list of LUBA decisions for 2010. Look under June for Barnes v. City of Hillsboro. The decision is a 3 MB PDF file.)

Benton et al. v. Savannah Airport Commission, Ga. App., 1999 — Property owners sued for damages to their property, allegedly caused by increased air traffic and noise. Plaintiffs based their claims on a number of statutory and common law grounds, including inverse condemnation and nuisance. The court affirmed the dismissal of the claims for inverse condemnation and nuisance on the grounds the claims were barred by the statute of limitation. The court characterized the airport noise as a permanent (rather than continuing) nuisance, and therefore the injury to the plaintiffs' property was "complete and capable of being fully compensated" at the time the airport's runway became operational at its present length. (525 S.E.2d 383).

Brenteson Wholesale v. Arizona Public Service Co., Ariz. Ct. App., 1990 — Arizona Public Service Co. received approval from the state to construct power lines next to plaintiff's private airstrip. Plaintiff sued to enjoin construction, and the utility countersued to enjoin plaintiff from using his airstrip. The trial court issued an injunction against use of the airstrip, and the appellate court held the injunction appropriate on the grounds that use of the airstrip, even without actual invasion of the utility's land, constituted a nuisance to the utility's transmission lines. The court rejected Brenteson's claim that the power lines constituted a public nuisance that differentially impacted Brenteson inasmuch as Brenteson was no longer permitted to use its land as an airstrip. (803 P.2d 930, 166 Ariz. 519)

Bryski et al. v. City of Chicago et al., Ill. App. Ct. 1986 — Residents near O'Hare International Airport, owned by the City of Chicago, brought an action against the city and six airlines alleging excessive noise, vibration, and pollution. Held: the nuisance and trespass claims were preempted by federal regulation of aviation. The court rejects the "proprietor exemption" to Burbank (U.S. Supreme Court) and instead follows Luedtke (7th Circuit U.S. Court of Appeals), holding that an airport cannot be charged with negligence or nuisance if it complies with federal regulations. (148 Ill.App. 556, 499 N.E. 162; cert. denied 113 Ill.2nd 572)

Christie v. Miller, Or. Ct. App. 1986 — Landowners sought to enjoin a private airstrip owner from allowing aircraft to take off or land at the airstrip in patterns causing overflight of plaintiffs' property and to recover nuisance damages. The appellate court affirmed the trial court's dismissal of the motion for injunction. It also affirmed the trial court's verdict in favor of defendant in the nuisance action, ruling there was no error in the verdict (based on grounds of (1) insufficient evidence to submit to a jury the question of unreasonable interference caused by noise and (2) defendant had acquired a prescriptive easement). Plaintiffs did not argue at trial or on appeal that, even if defendant had acquired an avigation easement, they would not be precluded from seeking damages for unreasonable interference with use and enjoyment of their property. (79 Or.App. 412, 719 P.2d 68)

Citizens for Quiet Skies v. Mile-Hi Skydiving Center, Colo. Ct. App. 2016 — Residents near airport sued skydiving service provider alleging noise nuisance and negligence among other causes of action. The court upheld the trial court's decision that the proof of noise did not rise to the level of a nuisance under the state's law. Likewise, the court affirmed the trial court's ruling that plaintiffs had offered no evidence that Mile-Hi was operating aircraft in a careless or reckless manner under state law, and thus it was proper for the trial court to look to federal regulations in assessing the allegation. (Unpublished opinion) (See trial court decision.)

City of Atlanta v. Starke, Ga. Ct. App., 1989 — Owners of residential property next to city-owned airport sued the city for trespass, nuisance, and inverse condemnation. Held: property owners could prevail on inverse condemnation even though the value of their properties had increased due to overall increases in property value in plaintiffs' neighborhood. (384 S.E.2d 419, 192 Ga.App. 267).

City of Bridgeton v. City of St. Louis, Mo. Ct. App., 2000 — Under the Missouri version of the Uniform Aeronautics Act, St. Louis is authorized to condemn land outside its boundaries for airport development, but the Act also states that no city can establish an airport in violation of restrictions adopted by another city or county. In its long-running battle with St. Louis over expansion of St. Louis International Airport, Bridgeton enacted a zoning ordinance that effectively barred expansion of the airport. The court found that it was in the public interest to allow St. Louis to go forward with airport development, despite the local disagreement. (18 S.W.3d 107) (See related case, City of Bridgeton v. Slater, 8th Cir., April 7, 2000, 212 F.3d 448.)

City of Statesville v. Credit and Loan Co., NC Ct. App., 1982 — City did not have a prescriptive avigation easement over defendant's farmland because it had not shown that planes from its airport overflew defendant's property at heights that interfered with existing use of the land. (294 S.E.2d 405, 58 N.C.App. 727)

Cochran v. Charlotte, N.C. Ct. App. 1981 — Plaintiffs brought an action for inverse condemnation against the owner-operator of a municipal airport for flight easements over their homes after extension of the airport's runway created landings and take-offs over their homes for the first time. The trial court granted judgment for the plaintiffs, and ordered that the city was now deemed vested with perpetual easements over plaintiffs' properties "permitting the low, regular and frequent flight of heavy aircraft, both jet powered and propeller driven, commercial and military, of all types...." The appellate court held this order erroneous insofar as it unconstitutionally precluded plaintiffs from seeking damages for any future takings due to noise from new types of aircraft. (53 N.C.App. 390, 281 S.E.2d 179), pet. denied NC 1981 (304 NC 725, 288 S.E.2d 380)

Emerald Development Co. v. McNeill, Ark. Ct. App. 2003 — Court affirms injunction against building an airport close to another another airport on the grounds that the new airport would be a nuisance. The court finds no federal preemption of its ability to issue an injunction since it is not engaged in regulation of airspace but in the regulation of land use. That is, the location of the new airport interferes with the rights of the owners of the existing, nearby airport. (120 S.W.3d 605)

In re. Flowers, Commonwealth Ct. Pa. 1999 — Petitioners bought a home near an airport in 1960. In 1996 they filed an action for inverse condemnation, alleging that the noise from flights of larger aircraft since 1992/93 had deprived them of the beneficial use and enjoyment of their property and therefore the Airport Authority (a public agency) had effected a taking of property for which they should be compensated. The trial court entered judgement for the petitioners. On appeal the Authority argued that the trial court erred in applying a 21-year statute of limitations (for property taken without compensation) rather than a five-year statute of limitation (for injury to property without a taking). The appellate court upheld the trial court's judgement: "Aircraft flights over private property result in a de facto taking of the property when their frequency and noise level result in owners being deprived of the beneficial use and enjoyment of their property...." (Published on the court's website.)

Greater Baton Rouge Airport District v. Hays, La. Ct. App., 1st Cir. 1976 — Airport sought an avigation easement on property adjacent to the airport, a condition for FAA funding of the extension of a runway. The court held that the diminution of property value resulting from an avigation easement was a "taking," not "damaging," of property. Thus the statute of limitation on claims for damages to property did not apply. The court's opinion also offers detailed insight into the evaluation of property for the purpose of calculating compensation for the easement. (339 So.2d 431)

Harrison v. Schwartz, Md. Ct. App., 1990 — Several conditions were attached to a conditional use permit for a privately owned airport. One condition limited the frequency of take-offs of glider-towing aircraft, another established a curfew for the operation of those aircraft. Held: Both conditions were invalid because preempted by federal law on aviation. (319 Md. 360, 572 A.2d 528)

Maryland Aviation Administration v. Newsome, Md. Ct. App. 1995 — A developer's application for a variance to build homes within an airport's noise zone was denied by the state Board of Airport Zoning Appeals. The developer argued that because the property was zoned by the county for residential use, he was entitled to a noise variance. The court of appeals held that state regulations on airport noise override local zoning laws. (337 Md. 163, 652 A.2d 116)

Northeast Phoenix Homeowners Assn. v. Scottsdale Municipal Airport, Ariz. Ct. App. 1981 — The trial court dismissed plaintiffs' claims for injunctive relief (based on trespass, nuisance, and violation of statutes regarding flight operations) against airport whose flight paths extended over plaintiffs' homes within 1,000 feet of the airport. Held: the power of state courts to grant injunctive relief in such matters is totally preempted by federal statutes and regulations because the federal law so pervasively regulate airport operations. Courts cannot regulate aircraft operations through injunctive powers. Moreover, courts cannot require the city, as owner of the airport, to do what it chooses not to do, i.e., lessen noise impacts (cf. Crotti, N.D. Cal.). (130 Ariz. 487, 636 P.2d 1269)

Parachutes, Inc. v. Township of Lakewood, N.J. Super. Ct. App. Div. 1972 — The township adopted an ordinance prohibiting sound over 50 decibels at night and 60 decibels during the day. Plaintiffs operated a sport parachuting center at an airport within the township. This operation required pilots to stop the airplane's engine in mid air over the airport just before a parachutist jumps, and to restart the engine after the jump. The noise from the repeated starting of engines, which continued from morning until dark, violated the township's ordinance. Parachutes, Inc. challenged the ordinance, claiming it was vague and overly broad and also was preempted by federal law. The trial court ruled the ordinance was lawful and the appellate court affirmed. (121 N.J. Super. 48, 296 A.2d 71).

Pennsylvania v. Rogers, Pa. Super. Ct. 1993 — Rogers erected a 95-foot sign at his Dairy Queen Restaurant; the sign penetrated the airspace comprising the approach zone to a nearby airport. Rogers was found guilty of violating a state statute requiring prior approval of such signs and compliance with FAA regulations. He appealed, challenging the validity of the statute. The court noted that the statute enforces provisions of the Federal Aviation Act. The Act requires that a person who proposes to construct a structure in close proximity to an airport notify the FAA so that the FAA can determine whether the proposed structure constitutes a hazard to aviation. However, this determination is not legally enforceable -- the FAA cannot prohibit or limit proposed construction it deems dangerous to aviation. Instead, such regulation has been left to the states. The court rejected the claim that the statute effected a taking of property for which compensation was due. (634 A.2d 245, 430 Pa.Super. 253)

St. Lucie Co. v. Town of St. Lucie Village et al., Fla. Ct. App. (4th Dist.), 1992 — Plaintiffs (town and individuals) are not entitled to an injunction restraining expansion of county airport. Plaintiffs failed to prove there was an immediate and certain plan for expansion, and operation of current airport does not violate existing law. Plaintiffs have a remedy in a "takings" claim if airport operations result in diminution or destruction of value of their property. (603 So.2d 1289; state sup. ct. review denied, Dec. 30, 1992, 613 So.2 12 (table))

Sharp v. Howard County Board of Appeals, Md. Ct. Spec. App. 1993 — A number of property owners operated a grass airstrip on a portion of their residential properties in a rural area. The county zoning board granted a special zoning exception to the owners of the airstrip, finding that the noise impacts of the airstrip were inherent in the operation of an airstrip anywhere in the area designated "rural district" and were not atypical because of the airstrip's specific location. Owners of nearby properties sued to have the special exception overturned as arbitrary and capricious. The court held that the zoning board did not abuse its discretion in granting the exception after finding that the airstrip would have some adverse impacts on nearby residents. The court deferred to the board's conclusion that the adverse impacts were not "atypical." (632 A.2d 248)

Shipp v. Louisville and Jefferson County Air Board, Ct. App. Ky. 1968 — Defendants refused to permit the county to shorten two trees on their residential property, which the county claimed presented a hazard to operations at its airport. County sued for declaration that it had a prescriptive right to a "clear zone" approach to the airport. "The Air Board has no prescriptive right for the simple reason it has not exercised adverse rights in the space involved for fifteen years...." In any event, the county must proceed by condemnation since defendants' right to enjoy their trees was acquired before federal statute established the public right to navigable airspace, i.e., before the right of the Air Board was fixed in law. (431 S.W.2d 867)

Southfund Partners v. City of Atlanta, Ga. App., 1996 — An airport is a permanent, not a continuing, nuisance because damage to residential property was complete once construction of a runway was completed, i.e., the nuisance could not be abated without closing down the airport. Therefore, in the absence of any increase in the nuisance, the statute of limitations for filing a nuisance complaint began to run from the time the runway was completed. (472 S.E.2d 499)

Thul v. State of Minnesota, Minn. Ct. App., 2003 — Helicopter pilot was cited for flying to and from his own property in violation of a city ordinance prohibiting helicopter operations in residential districts. The court upheld the ordinance, concluding that it saw no conflict between the city's regulatory power over land use and federal regulation of airspace.

Township of Hanover v. Town of Morristown, N.J. Super. Ct., Appellate Div., 1975 — The Township sought to enjoin planned alteration and extension of facilities at the Morristown Municipal Airport, owned by the Town of Morristown but located in the Township of Hanover, and to curtail the use and operation of the airport. Plaintiffs claimed that improvement of the airport would violate its zoning ordinance and that use of the improved airport, particularly by jet aircraft, would create noise and other hazards detrimental to the residents of the Township. The Superior Court judge ordered that one runway be the preferred runway for take off and also limited the hours that jet aircraft could land and take off. Later, at the request of the Town of Morristown, he vacated the order. The appellate court upheld the vacation of judgement on the grounds that local regulation of aircraft noise is preempted by federal law. (135 N.J. Super. 529, 343 A.2d 793)

Township of Readington v. Solberg Aviation, N.J. Super. Ct., Appellate Div., 2009 — The Solberg family owned a large tract of land that included a small airport owned and operated by them. The Township sought to acquire, through condemnation, title to the portion of Solberg's property lying outside of the 102-acre airport facility. It also sought, through condemnation, development rights to the airport area. Solberg claimed the taking was pretextual in an attempt to limit the use of airport property and eventually drive the airport out of business, as the Township had for years opposed improvements or expansion of the airport. In this legally and factually complex case, the court ruled that the Township's power of eminent domain over the airport was constrained by state law designed to protect airports. (409 N.J. Super. 282)

Ursin v. New Orleans Aviation Board, La. Ct. App., 1987 — Residents and property owners of an area surrounding a municipal airport sought damages for nuisance and inverse condemnation due to excessive noise from aircraft using the airport. The suit was originally filed as a class action, which was dismissed, and then refiled as individual actions. Later the trial court granted a plaintiffs' motion to declare all residents within the 65 dB noise contour surrounding the airport of the lawsuit as indispensible parties to the action. These residents were notified that they could join the lawsuit. As a result, about 6,500 "postcard plaintiffs" were added. The appellate court upheld the joinder as proper. In addition, defendants had insisted that plaintiffs' exlusive remedy for damages due to aircraft noise was inverse condemnation. Held: Plaintiffs' remedies could also include damages under state nuisance law. (506 So.2d 947)

Young v. Palm Beach County, Fla. Ct. App., 1984 — In action for inverse condemnation of avigation easement, property owner's allegation that frequency of flights over his property had steadily increased over time adequately met the requirement that he plead that conditions complained of were reasonably expected to continue. The plaintiff's complaint stated a cause of action for inverse condemnation nothwithstanding the trial court's finding that the air or navigational easements allegedly taken were not adequately described. (443 So.2d 450)


TRIAL COURTS

Citizens for Quiet Skies v. Mile-Hi Skydiving Center, Dist. Ct., Boulder Co., Colo., 2015 — Residents near airport sued skydiving service provider alleging noise nuisance and negligence among other causes of action. The court ruled that the proof of noise did not rise to the level of a nuisance under state law. As for negligence, the court found no evidence that Mile-Hi was operating aircraft in a careless or reckless manner under state law "and therefore only applies the federal regulations in assessing this matter." (See appellate court decision, Dec. 22, 2016.)

Kupster Realty Corp. v. State of New York, Ct. Claims NY, 1978 — This was the first New York case to evaluate appropriations of avigation easements. The court dismissed plaintiff's claims for compensation for avigation easements, concluding that the market values of the subject properties were the same before and after the easements were declared. This opinion is an excellent discussion of appraisal of property damages due to overflight; it also includes an extensive discussion of plaintiff's expert testimony on noise, which the court found inadequate. (404 N.Y.S.2d 225)

State of Minnesota et al. v. Metropolitan Airports Commission, Superior Ct., Hennepin County, Minn., 2007 — Court denies summary judgment on the grounds that issues are complex and present a case of first impression that is suitable for review by appellate court. Action brought by various cities to require MAC to provide noise insulation first identified in the 1996 Noise Mitigation Program for homes near Minneapolis/St. Paul Airport. At issue is state policy expressed in Minnesota Environmental Rights Act. (Included here are the statement of decision and petitioners' memorandum of law, incorporated by the court in its judgment.)


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ADMINISTRATIVE

Barnes v. City of Hillsboro, Oregon Land Use Board of Appeals, 2010 — City of Hillsboro rezoned a large area near an airport, imposing various limitations on uses and new development, including the requirement of an avigation easement for new subdivisions. Some property owners who objected to the ordinance appealed to the Oregon Land Use Board of Appeals (LUBA), a nonjudicial forum and the first of its kind in the United States. LUBA found the avigation easement to be an unconstitutional taking of property without compensation and reversed the rezoning ordinance. LUBA's decision was upheld by the state court of appeals.

Burbank-Glendale-Pasadena Airport Authority, Federal Aviation Administration, 2009 (FAA Docket No. FAA–2009–0546) — The Airport Authority applied to the FAA for flight curfews at Bob Hope Airport, complying with the FAA's Part 161 requirements (which implement the Airport Noise and Capacity Act of 1990, or ANCA). Because the curfew would restrict operations of stage-3 jet aircraft, ANCA requires FAA approval. The airport's application was disapproved by the FAA, which found that it did not satisfy four of six conditions in ANCA. (See FAA Denies Nighttime Noise Curfew at Burbank Airport.)

Centennial Express Airlines v. Arapahoe County Public Airport Auth., Federal Aviation Administration, 1998-1999 — After Arapahoe Airport, a general aviation airport near Denver, Colorado, banned commercial passenger operations, Centennial Express filed a complaint with the Federal Aviation Administration. In this series of hearings the FAA ordered the airport to accomodate scheduled passenger service by Centennial; if the airport did not comply, it would be ineligible for new FAA grants. One interesting issue was whether the FAA had to respect the decision of the Colorado Supreme Court upholding a permanent injunction against commercial passenger service at the airport (Arapahoe County Public Airport Auth. v. Centennial Express Airlines). The FAA's decision was upheld by the 10th Circuit Court of Appeals in 2001 (Arapahoe County Public Airport Auth. v. FAA).

Naples (Florida) Municipal Airport, Federal Aviation Administration, 2001 - 2003 (FAA Docket No. 16-01-15) — The Naples Airport Authority instituted a ban on stage-2 aircraft after complying with the FAA's Part 161 requirements (which implement the Airport Noise and Capacity Act of 1990). The ban was challenged in U.S. District Court and upheld (see National Business Aviation Assn. v. City of Naples Airport Authority, 162 F.Supp.2d 1343, Aug. 8, 2001). The FAA then issued a notice of investigation into whether the stage-2 aircraft ban was consistent with "assurances" given by the airport when it received Airport Improvement Program (AIP) funds. The FAA issued its final decision on Aug. 25, 2003, the first formal interpretation by the FAA of its Part 161 requirements. The Naples Airport Authority challenged the decision in federal court. In 2005 the court vacated the FAA's decision, ruling that the Authority had produced ample evidence to justify the ban.

New York North Shore Helicopter Route, Federal Aviation Administration, 2010 - 2013 (FAA Docket FAA-2010-0302) — In 2008 the FAA published a flight path for helicopter pilots flying near residential centers in Long Island, New York. The path was intended to avoid noise over populated areas of Long Island and was voluntary. On July 6, 2012 the FAA adopted a final rule changing the status of the path from voluntary to mandatory. The path will be mandatory until 2014, when the FAA will review whether to continue the path as mandatory or revert to voluntary compliance by pilots. The Helicopter Association International challenged the rule but the court denied the petition for review. The court ruled that the FAA's power to "prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for ... protecting individuals and property on the ground” (49 U.S.C. 40103(b)(2)) was broad enough to include the power to require specific flight patterns for the sole purpose of reducing the impact of aircraft noise on residential communities.


FOREIGN COURTS

Sutherland v. Vancouver Int. Airport Authority, Court of Appeal for British Columbia, 2002 — More than 300 residents near the airport filed an action for nuisance arising from operation of a new runway, i.e., noise from air traffic. Their application for certification as a class was denied by the trial court (see Sutherland: denial of class proceeding). Three of the plaintiffs went forward with their case as a test, hoping to resolve issues common to all plaintiffs. The trial court found the airport liable for a noise nuisance (see Sutherland: trial court judgment for plaintiffs). The appellate court, however, reversed on the grounds that construction of the runway was authorized by statute. Under Canadian law, an activity does not give rise to liability for nuisance if it is authorized by statute and the defendant proves that the nuisance is an "inevitable result" or consequence of exercising that authority. That is, if a statute authorizes an act that causes injury to a private person, and is silent respecting compensation for the injury, no compensation for the injury is payable.


INTERNATIONAL COURTS

Hatton v. United Kingdom, European Court of Human Rights (Third Section), 2001 — Residents near Heathrow Airport in London alleged violation of the European Convention on Human Rights after the government relaxed restrictions on nighttime flights in 1993. The court held that the government "failed to strike a fair balance between the United Kingdom’s economic well-being and the applicants’ effective enjoyment of their right to respect for their homes and their private and family lives," thus violating Article 8 of the Convention. Other, related issues were resolved in favor of the plaintiffs by the court's judgment. Notably, the court concluded that the scope of review of the nighttime restrictions by the U.K. courts did not provide an effective remedy and therefore was a violation of Article 13 of the Convention. The scope of review by the domestic courts focused exclusively on traditional English law and did not allow consideration of whether the increase in night flights under the 1993 scheme represented a justifiable limitation on the right under the Convention to respect for the private and family lives or the homes of those who lived in the vicinity of Heathrow airport.

Hatton v. United Kingdom, European Court of Human Rights (Grand Chamber), 2003 — On appeal (see above), the court held that the British government's relaxation of restrictions on nighttime flights at Heathrow Airport did not violate Article 8 of the European Convention on Human Rights but did violate Article 13. The court further held that the mere finding of a violation of Article 13 constituted sufficient satisfaction to the plaintiffs.

Powell and Raymer v. The United Kingdom, European Court of Human Rights, 1990 — People bothered by noise from air traffic at Heathrow Airport asked the court "to find that they have been the victims of a violation of Articles 6 and 8 (art. 6, art. 8) of the Convention [for the Protection of Human Rights and Fundamental Freedoms] and that the lack of any effective remedy before a national authority itself violates Article 13 (art. 13) of the Convention". Article 8 of the Convention concerns a right to respect for private life and home; Article 6 a right of access to the courts in civil matters; and Article 13 a right to an effective remedy under domestic law for alleged breaches of the Convention. The court ruled it has no jurisdiction on grievances under Articles 6 and 8 independently of their relevance within the context of Article 13. It then ruled there had been no violation of Article 13 in respect of either applicant.


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