Cite as: 525 S.E.2d 383
COURT OF APPEALS OF GEORGIA
BENTON et al.
SAVANNAH AIRPORT COMMISSION
Nov. 16, 1999
Reconsideration Denied Dec. 16, 1999
Certiorari Denied May 5, 2000
Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, Atlanta, for appellants.
Rebecca C. Benton, pro se.
Fincher & Hecht, Steven M. Fincher, Marrow, Brennan & Wasden, Joseph P. Brennan, Savannah, for appellee.
Rebecca Cone Benton and Mary Elizabeth Cone Benton sued the Savannah Airport Commission for damages to their property allegedly caused by increased air traffic and noise from the Savannah Airport. In an order entered on September 26, 1996, the trial court dismissed the Bentons' 42 USC § 1983 claim without prejudice because it was not ripe for adjudication and granted summary judgment against the Bentons on their claims under the state and federal Relocation Acts. In an order entered on September 16, 1998, the trial court granted summary judgment to the Commission on the Bentons' claims for inverse condemnation and nuisance. The Bentons appeal both orders. We affirm the trial court's grant of summary judgment to the Commission on the state and federal Relocation Act claims and the claims for inverse condemnation and nuisance. We reverse the trial court's dismissal of the § 1983 claim.
The Bentons own approximately 200 acres of unimproved real property located in Chatham County. In 1947 or 1948, the property was acquired by the father of Rebecca Cone Benton, who was also the husband of Mary Elizabeth Cone Benton. In 1962, Mr. Benton conveyed an interest in some or all of the property to his wife. Mr. Benton died in 1979. Mary Elizabeth Cone Benton conveyed an interest in some of the property to Rebecca Cone Benton in 1983.
On November 28, 1994, the Bentons served the Commission with an ante litem notice under OCGA § 36-33-5. On January 3, 1996, the Bentons filed a complaint, alleging that the air traffic and noise in the immediate vicinity of their property had increased significantly during the period in which they owned the property, leaving them with property that can be put to no productive use. The Bentons sought monetary damages for each of their claims.
The Commission operates the Savannah International Airport in Chatham County. The Savannah Airport has two main runways, identified as Runway 9/27 and Runway 18/36. Runway 9/27 has been in operation since 1941, when it had an operational length of 2,939 feet and served military aircraft. In 1964, Runway 9/27 was extended to its current length of 9,351 feet. Runway 18/36 became operational in 1967 and is 7,001 feet long.
The Bentons' property is west of Runway 9/27. The aircraft that fly over or near their property predominately use Runway 9/27 for takeoff and landing. According to the Executive Director of the Commission, there has been no change in the patterns or paths of aircraft since prior to 1992. Based on airport traffic records maintained by the Federal Aviation Administration air traffic control tower, the number of flight operations at the Savannah Airport decreased by 39 percent between 1992 and 1996.
Aircraft operating in the United States are subject to strict noise certification requirements. They are certified as meeting Stage 2 or Stage 3 noise requirements, with Stage 3 aircraft being quieter. From August 1992 to August 1996, the number of Stage 2 operations at the Savannah Airport decreased from 45.13 percent of all airport operations to 24.61 percent. During that same period, the number of Stage 3 operations increased from 54.87 percent to 75.39 percent.
1. The Bentons contend the trial court erred by dismissing their § 1983 claim, which was based on an alleged taking of their property by the Savannah Airport. The Commission responds that the trial court correctly dismissed the § 1983 claim because it was not yet ripe for adjudication.
The Fifth Amendment to the United States Constitution precludes the taking of private property for public use without just compensation. If a state provides an adequate procedure for seeking just compensation, a property owner cannot assert a claim under the Just Compensation Clause until it has used the state procedure and has been denied just compensation. [FN 1]
Based on our holding in Division 3, infra, we reverse the trial court's dismissal of the Bentons' § 1983 claim and remand the case for consideration of that claim.
2. The Bentons claim the trial court erred in granting summary judgment against them on their claims under the Uniform Relocation Assistance & Real Property Acquisition Policies Act (the URA) [FN 4] and the Georgia Relocation Assistance & Land Acquisition Policy Act. [FN 5] The trial court ruled that the Commission was entitled to judgment on both claims because the Bentons had failed to exhaust the appropriate administrative remedies.
[FN 5] OCGA § 22-4-1 et seq.
[FN 7] Id.
OCGA § 22-4-9 does not create a private right of action in favor of a landowner, but merely addresses policies that should guide state agencies when they acquire real property for federal-aid projects. The Bentons have no cause of action under this section. Nor can the Bentons seek compensation under OCGA § 22-4-8 because they have not prevailed in their inverse condemnation action. See Division 3, infra. We affirm the grant of smnmary judgment to the Commission on this issue.
3. The Bentons challenge the trial court's grant of summary judgment to the Commission on their inverse condemnation claim. The Commission argues that the trial court correctly determined that the inverse condemnation claim was barred by the statute of limitation.
The Bentons' inverse condemnation claim is subject to the four-year statute of limitation set forth in OCGA § 9-3-30. [FN 8] The complaint was filed on January 3, 1996; therefore, to avoid the statute of limitation bar, the cause of action must have accrued after January 3, 1992.
The Bentons did not submit any evidence to contradict the evidence presented by the Commission. The Commission's evidence regarding
[FN 9] Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 667-668(1), 472 S.E.2d 499 (1996).
[FN 11] Id.; Southfund, supra at 668, 472 S.E2d 499.
To address this claim, we must first determine if the operation of an airport constitutes a continuing or permanent nuisance. A continuing nuisance "is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it." [FN 12] If the operation of the Savannah Airport is a continuing nuisance, every continuance of the nuisance is a fresh nuisance for which a new action will lie. [FN 13] The damage caused by a permanent nuisance is complete at the time the nuisance is created and gives rise to only one cause of action, which accrues immediately upon the creation of the nuisance. [FN 14]
[FN 13] Id.
[FN 14] Id.
POPE, P.J., and ELDRIDGE, J., concur.