Cole et al. v. City of Santa Monica
Unpublished opinion


ALICE J. COLE, etc., Plaintiffs
CITY OF SANTA MONICA and DOES 1 - 100, Inclusive, Defendants

CASE NO. SC 055 183


On September 20,2001, at a hearing before the Honorable James A. Albracht, Superior Court Judge presiding, the plaintiffs Alice J. Cole, et al. appearing by their counsel of record Andrew R. Henderson and Pamela Koslyn, and defendant City of Santa Monica appearing by its counsel of record Lance S. Gams and Martin T. Tachiki, and after consideration of all the evidence, testimony and arguments presented by the parties in this action, the Court ruled on the following issues:

1. Plaintiffs' Inverse Condemnation Cause of Action.

Under the test set forth in Aaron v. City of Los Angeles, (1974) 40 Cal.App.3d 471, 115 Cal.Rptr. 162, the Court finds that the Plaintiffs failed to prove that the City of Santa Monica's operation of the Santa Monica Municipal Airport resulted in a taking of private property in violation of the United States and California Constitutions. The Court finds that no diminution in value of any of the plaintiffs' properties has been shown. In reaching this conclusion, the Court considered the testimony and evidence from all witnesses bearing on the issue of alleged diminution in value, including but not limited to that presented by Plaintiffs' expert witness Nancy Mueller, and Defendant's expert witness Frances Wolfe Mason.

The Court finds that Ms. Mueller's testimony was not persuasive at all, nor were her analyses and opinions much of which lacked' factual foundation. In fact, the lack of rationality tainted all of her testimony for the Court. For example, Ms. Mueller stated that it would not be feasible for any family to purchase and then live in the residence of plaintifls Dan and Kristen Cole, despite the fact that the Coles have been living in their home and using their property continuously through the years. Ms. Mueller therefore set the value of the property at $125,000.00, without sufficient support for the valuation. She also failed to use comparable sales of homes that had recently sold nearby.

Further, the Court finds Ms, Mueller's position not persuasive in any way as to the five homes located further from the airport than the Dan Cole property. Because she believed those plaintiffs were not using their backyards, Ms. Mueller compared their properties to condominiums. This is an unorthodox valuation technique and erroneous since the evidence showed that those plaintiffs did use the outdoor areas of their properties. Ms. Mueller also concluded that the plaintiffs could only have "passive use" of the outdoor areas of their properties. This also was not persuasive. For example, Mrs. Kanji, who is not mandated to do so, runs a daycare center and thus actively uses her back yard everyday.

In evaluating the values of all plaintiffs' properties, Ms. Mueller chose to ignore comparable sales on Sardis Avenue, Clarkson Avenue, Armacost Avenue and Westgate Avenue, which further undercut her credibility.

Finally, in evaluating the evidence, a very important distinction involved the appraisers' respective applications and definitions of "fair market value". Ms. Mueller's concept of fair market value was controlled by her interpretation of the phrase "full knowledge", which she said requires a prospective purchaser to reside in the property for thirty (30) days. This is a never previously used definition of "fair market value", which does not find support in law, history or common sense.

Conversely, the Court finds Ms. Mason's testimony to have been quite persuasive. Ms. Mason performed a study of residential sales over a twelve (12) year period. Her testimony was comprehensive, objective and credible. She engaged in multiple forms of analyses to confirm her findings, including re-sales and paired sales. She also considered some 450 sales in support of her opinions. The proximity of the homes near the Santa Monica Municipal Airport has not changed during the study period and far many years prior to the study period. The diminution in the value of the homes, if any, in the subject area near the Santa Monica Municipal Airport would have occurred long ago. Her findings demonstrated that all home sales tracked the market and each other, and proved that there was no evidence of a diminution of value in plaintiffs' properties as a result of increasing jet aircraft operations at the Santa Monica Municipal Airport. (See, e.g., Nestle v. City of Santa Monica (1972) 19 Cal.App.3d 869, 97 Cal.Rptr. 235.)

The Court makes no finding on the issue of whether there was a substantial interference with the use and enjoyment of plaintiffs' properties.

2. Additional Issues

Although the Court believes that its decision on plaintiffs' inverse condemnation cause of action renders other issues of liability and affirmative defenses moot, the Court also makes the following findings:

A. Defendant's Statute of Limitations Defense During the course of the trial the Court fully considered the Statue of Limitations issue and if the Court were to reach the issue of defendant's statute of limitations defense, the Court finds that defendant did not sustain its burden of proof on this issue.

The Court finds that, pursuant to the rationale of Pierpont Inn, Inc. v. State of Cal. (1969) 70 Cal.2d 282 and U.S. v. Dickinson (1947) 311 U.S. 745, where an interference with a property's use is generally increasing, a limitations period does not commence running until the interference with the property's use reaches a state of stabilization, which is not when there is first a substantial interference with the use and enjoyment of the property. There is a requirement of some level of stabilization of the interference. The interference with the use and enjoyment of property stabilizes when the extent of the interference is reasonably known by the property owner. In this case the Court found that the level of interference was increasing each year and thus there was no such stabilization more than five years before plaintiffs filed their lawsuit.

B. Plaintiffs' Claim of Estoppel

The Court further finds that if the statute of limitations applied, the Defendant would be estopped from asserting the statute of limitations defense because all the elements of equitable estoppel have been met, although some of the elements must be implied. Based upon the offers to mitigate impacts, and the formation of the roundtables and working groups with residents, it can be implied that plaintiffs were induced to forebear bringing their actions.

The Court further finds that even though plaintiff Virginia Ernst may have been the plaintiff most personally aware of the City's aotions and ststements, her role in the ongoing dealings with the Defendant City regarding the interference from the aircraft operations is sufficient for the operation of an estoppel as to all plaintiffs because Ms. Ernst acted as an emissary from the airport to the other plaintiffs and as the spokesperson for the other plaintiffs.

C. Prescriptive Easement.

The Court finds that Defendant City has failed to show that it has acquired any prescriptive easement that would entitle it to burden plaintiffs' properties with the impacts of jet-powered aircraft. This was not a close issue. To prevail under this affirmative defense, Defendant City needed to show by clear and convincing evidence that all of the elements of the defense were met. The Defendant City failed to present any sufficient evidence that had asserted or otherwise effectively implied any "claim of right" necessary to obtain a prescriptive avigation easement at plaintiffs' properties in connection with jet-powered aircraft. To the contrary, the evidence presented plainly shows that Defendant City often recognized plaintiffs' ongoing property rights, while promising to minimize interference with the use and enjoyment of the property caused by the jet-powered aircraft operations.

3. Costs:

Costs to be determined after hearing on noticed motion.

Dated: October 25, 2001

Honorable James A. Albracht
Judge of the Superior Court