Ursin v. New Orleans Aviation Board (concluded)


There is no dispute that plaintiffs are entitled to be compensated if a court determines that airport noise has damaged their property to such an extent as to comprise a "taking" by the public body that owns the airport. The defendants contend, however, that plaintiff's exclusive remedy is in inverse condemnation. That was the basis for their motion for partial summary judgment, in which they argued that any claims for other damages have been preempted by the enactment of the Federal Aviation Act of 1958, 49 U.S.C. Sec. 1301, as amended.

They proffer four arguments in support of this proposition: that real property owners who claim damages for noise from aircraft flying in accordance with regulations are limited to the constitutional remedy of inverse condemnation, that claims for tort damages by noise from aircraft in lawful flight are preempted by federal law, that claims for nuisance damages caused by noise at the airport are barred by the doctrine of legalized nuisance, and that any claims for trespass damages are also barred because the aircraft operations are in the public domain.

Preemption of the field of aviation noise control was addressed by the United States Supreme Court in the case of City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). In that case the City of Burbank enacted an ordinance that made it unlawful for jet aircraft to take off from the Hollywood-Burbank Airport between the hours of 11:00 P.M. and 7:00 A.M. The Court, holding that Congress had impliedly preempted the field of aviation noise control, struck down the city ordinance.

Defendants contend that the preemption recognized in Burbank extends to all actions concerning excessive aircraft noise except those for inverse condemnation. Their interpretation of Burbank is erroneous, however. The decision plainly precludes regulation by state and local governments pursuant to their police power. It does not reach the issue of the rights and obligations of a proprietor to control aircraft noise levels. In Footnote 14 of the Burbank opinion, the court specifically limited its holding to regulation of aircraft noise under police power:

"[W]e are concerned here not with an ordinance imposed by the City of Burbank as 'proprietor' of the airport, but with the exercise of police power. * * * Thus, authority that a municipality may have as a landlord is not necessarily congruent with its police power. We do not consider here what limits, if any, apply to a municipality as a proprietor." 411 U.S. at 636, n. 14, 93 S.Ct. at 1861, n. 14.
The Supreme Court clearly did not intend its holding preempting the police power of a local government in this field to be extended to the proprietarial power of an airport owner. The Court expressly stated that it was not deciding the issue of the application of the preemption doctrine to regulation by airport proprietors.

As recognized by the Burbank court, the Federal Aviation Act of 1958 and its amendments do not expressly preempt the area of aviation noise control. Therefore, we must review the relevant federal and state laws to determine "whether under the circumstances of this particular case, [damage remedies under state law stand] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).

The Federal Aviation Act of 1958 was amended by the Noise Control Act of 1972, which provides that the Federal Aviation Administration, after consulting with the Environmental Protection Agency, shall provide "for the control and abatement of aircraft noise and sonic boom, including application of such standards and regulations * * *." Sec. 611(b)(1), 86 Stat. 1239, 49 U.S.C. Sec. 1431(b)(1) (1970 Ed., Supp. II).

In Burbank, the Court quoted the Senate Report concerning Sec. 611:

" 'States and local governments are preempted from establishing or enforcing noise emission standards for aircraft unless such standards are identical to standards prescribed under this bill. This does not address responsibilities or powers of airport operators, and no provision of the bill is intended to alter in any way the relationship between the authority of the Federal government and that of State and local governments * * *.' " Burbank, 411 U.S. at 634, 93 S.Ct. at 1860, citing S.Rep. No. 92-1160, pp. 10-11, U.S.Code Cong. & Admin.News 1972, p. 4663.
This legislation also was described in a written opinion by the Secretary of Transportation to the Senate, quoted in Burbank, as follows:
"'[T]he proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.' " (Emphasis added.) 411 U.S. at 635, n. 14, 93 S.Ct. at 1861, n. 14.
In approving this letter, the Senate Report stated that it was "'not the intent of the committee in recommending this legislation to effect any change in the existing apportionment of the powers between the Federal and State and local governments.'" Burbank, 411 U.S. at 635, 93 S.Ct. at 1860.

Previous U.S. Supreme Court cases concerning preemption do not provide "precise guidelines in the present controversy, for each case turns on the peculiarities and special features of the federal regulatory scheme in question." Burbank, 411 U.S. at 638, 93 S.Ct. at 1862. With this in mind, after a thorough examination of the pertinent legislation, we are convinced that Congress did not intend to preempt the entire area of aviation noise control.

Although, as stated in Burbank, Congress preempted regulation of noise levels by the exercise of State and local government police powers, Congress clearly did not intend to eliminate the ability of airport proprietors to maintain reasonable levels of aircraft noise through regulation. Airport proprietors, in determining the air services they will offer, bear the responsibility of insuring that those services do not hinder the adjoining landowners' enjoyment of their property. Failure to adequately control aviation noise necessarily results in compensible injuries. See Griggs v. County of Allegheny, Pennsylvania, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962).

We find that state actions by property owners alleging damages due to excessive noise are neither exclusive remedies nor are they federally preempted. See Baker v. Burbank-Glendale-Pasadena Airport, 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866 (1985); Krueger v. Mitchell, 112 Wis.2d 88, 332 N.W.2d 733 (1983); Northeast Phoenix v. Scottsdale Mun. Airport, 130 Ariz. 487, 636 P.2d 1269 (App.1981); Greater Westchester v. City of Los Angeles, 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329 (1979).

Our conclusion is buttressed by Section 1506 of the Federal Aviation Act, which provides, "Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies."

Our remaining task is to determine whether, under the laws of our State, plaintiffs have any remedies other than an action for inverse condemnation.

Defendants argue that the case of Reymond v. State, Department of Highways, supra, held that the appropriate and exclusive remedy for damages from a public improvement is inverse condemnation. Defendants strenuously object to any recovery under LSA-C.C. art. 667 (the basis of Louisiana nuisance law), which states,

"Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him."
LSA-C.C. art. 669 has often been treated in parity with Art. 667 as a source of Louisiana nuisance law. Art. 669 states,
"If the works or materials for any manufactory or other operations, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place."
Article 669 has been interpreted as limiting the activities upon and uses of an estate to "those which will not cause insufferable inconvenience to others." Reymond, supra, 231 So.2d at 382, n. 6.

In the Reymond case, a homeowner sued the State for damages to her property resulting from construction of a nearby elevated roadway. The trial court had awarded the plaintiff not only "severance or consequential damages" under La. Const. Art. 1, Sec. 2, but also damages under C.C. art. 667. The Supreme Court set aside the award made for "diminution in value caused by impaired accessibility, discomfort, and disturbance," but affirmed the award for "diminution in market value ... by reason of structural damage attributable to vibration from pile driving activity":

"Damages which cause discomfort, disturbance, inconvenience, and even sometimes financial loss as an ordinary and general consequence of public improvements are not compensable, and are considered damnum absque injuria.

"The damage which a property owner may claim against one exercising the power of eminent domain would exclude non-physical damage, and the physical damage which is recoverable must be proximately caused by the improvement as designed and constructed or must be the probable, the immediate, the direct, and the necessary result and effect of the activities engaged in during construction. In short, compensable physical damage to adjacent property is restricted to that which is actually a consequence of the activity complained of." 231 So.2d at 384.

The court also stated that the liability of a public body under inverse condemnation "must be limited to those instances where there is a physical taking or damage to that property or a special damage peculiar to the particular property and not general damage sustained by other property similarly located." 231 So.2d at 383.

Relying on these passages, the defendants here argue that plaintiffs' claims are limited to recovery for inverse condemnation, for which the ordinary measure of damages is the difference in the market value of the property before and after the damaging or taking. Plaintiffs' other claims, they assert, are damnum absque injuria. Many of the statements made in the Reymond case, however, have been limited or disapproved by later cases.

In Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971), the trial court had awarded the plaintiff damages for structural damage to his home caused by a contractor's work on behalf of the parish to enlarge a nearby drainage canal. In upholding the award, the Supreme Court noted that the construction project was not the direct result of expropriation proceedings, nor was the damage to Chaney's house incidental to an expropriation proceeding. The court upheld Chaney's recovery under Article 667, however, designating as dicta those portions of the Reymond case that discussed Article 667: "Furthermore, we do not agree that we should follow the interpretation placed upon Article 667 by the opinion in Reymond." 249 So.2d at 184.

The Chaney court concluded,

"An activity, then, which causes damage to a neighbor's property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant." 249 So.2d at 186.
Under these concepts, the court found the parish liable.

In State, Department of Highways v. Garrick, 260 La. 340, 256 So.2d 111, 114 (1971), the court stated, "Noise and vibration are not damna absque injuria."

In Dean v. Hercules, Incorporated, 328 So.2d 69, 73 (La.1976), the court stated that application of Art. 667 was not limited to immovable property:

"C.C. 667 is not limited in its operation to damage to immovable property. Rather, the article specifically provides that the landowner cannot make any work on his estate 'which may be the cause of any damage to [his neighbor].' Article 667 seems to encompass liability for personal injuries." 328 So.2d at 73.
In State, Through Dept. of Highways v. Ellender, 379 So.2d 1069 (La.1980), the Supreme Court held that defendant landowners in an expropriation suit were entitled to assert reconventional demands against the State regardless of the basis of such demands. The court specifically overruled two 1932 cases which had limited the issues in expropriation proceedings to the value of the part taken and damages to the remainder.

In Acadian Heritage Realty v. City of Lafayette, 434 So.2d 182 (La.App. 3 Cir.1983), writ denied 440 So.2d 733, the plaintiff landowners recovered damages for nuisance and diminution of property value based on the City's operation of a landfill. Affirming the award, the Court of Appeal ruled,

"[A] court may grant relief for operations on land causing inconvenience to neighboring property upon proof that the activity carried on is of sufficient intensity, annoyance and inconvenience that he who causes it has created a nuisance. * * * An action for such abuse of rights arises from Louisiana Civil Code Articles 2315, 667 and 668. * * * " 434 So.2d at 185.
Noting that the City of Lafayette contended the Reymond case prohibited any award of general damages, the court pointed out,
"The instant case is not an expropriation case. The Supreme Court in Lombard v. Sewerage & Water Board of New Orleans, supra, held that the State or its agencies are within the perview [sic] of the terms 'proprietor' and 'estate' as used in Civil Code Article 667. * * * Courts have allowed general damages to plaintiffs where there has been physical damage to their property. * * * Damages for discomfort and inconvenience have also been awarded in the absence of physical damage to property. * * * " 434 So.2d at 188.
Finally, the court addressed the City of Lafayette's argument that recovery of general damages should be prohibited for policy reasons. The City asserted that if recovery by plaintiffs were allowed, floodgates of litigation in the lower courts would be opened, resulting in an undesirable burden on the court system and tremendous economic disaster on municipalities.

Similar concerns are raised by the defendants here. We adopt the position of the Acadian Heritage Realty court on that question:

"[I]t is true that public policy considerations play an important part in an analysis a court may use in determining the competing interests of parties. A duty risk analysis under LSA-C.C. Article 2315 involves the weighing of policy factors to determine the scope of the duty owed and whether the risk involved falls within the ambit of protection as defined by the duty. The mere fact that an ostensibly properly operated landfill is to be constructed in an area may require a 'balancing of interests' before a real estate speculator recovers for loss of value of adjoining property. * * * " 434 So.2d at 186.
We conclude that any language in Reymond that could be construed as limiting the plaintiffs' remedy in this case to inverse condemnation has been implicitly overruled by subsequent jurisprudential development. In particular, the holdings in Dean v. Hercules, Incorporated, supra (interpreting C.C. art. 667 to encompass personal injuries as well as property damage arising from a neighboring landowner's use of his land), and in the Acadian Heritage Realty case, supra, make it impossible to say that recovery under inverse condemnation eliminates any other recovery.

We hold, therefore, that insofar as plaintiffs prove property damage sufficient to constitute a "taking" by the defendants -- either physical damage or other damage causing diminution in the market value of their property -- their recovery is for inverse condemnation. Insofar as plaintiffs establish that the activities conducted at the airport caused personal injury, whether physical or otherwise, or property damage that is not a "taking," their recovery is under C.C. arts. 667-669 and/or C.C. art. 2315. The evidence presented by the plaintiffs will determine which remedy the trier of fact should apply. Considering the foregoing, it is our opinion that there is no reason to vacate the contested rulings of the district court. Accordingly, the application is denied.

WRIT DENIED.