AVIATION NOISE LAW
Aircraft Noise Damages


Aircraft Noise Damages

By Howard Beckman
Attorney at Law

All rights to publication are reserved by the author. Republication of all or any portion of the text, other than "fair use," requires express permission from the author.

(Revised January 7, 2013)



Introduction

A claim for damages due to aircraft noise is usually asserted along with a "takings" claim (action in inverse condemnation) as alternative theories for a remedy. The takings claim is necessary if the airport's defense is that it has an avigation easement. In some cases courts prefer a takings theory; in fact, in some states the definition of a government taking of property (usually in the state's constitution) includes damage akin to nuisance.

Two landmark U.S. Supreme Court decisions established liability for aircraft noise. In the 1946 case of United States v. Causby (328 U.S. 256) the court held that the U.S. government was liable to property owners for noise due to military aircraft. Then in 1962 in the case of Griggs v. Allegheny County (369 U.S. 84, 82 S.Ct. 531) the court extended the Causby rule to local airport proprietors via the 14th Amendment. Various state courts have held that airports, pilots, or aircraft owners (including airlines) are liable for noise damages. The California Supreme Court has been particularly clear on the question of liability (see cases below). (See Airport and Pilot Liability for Nuisance.)

Damages for aircraft noise are typically measured as the diminution of value of property attributable to the noise. Diminution of value does not have to mean an actual monetary loss. At least one court measured diminution in terms of a lesser rise in value compared to surrounding properties. Damages are also affected by whether the noise is defined as a continuing or permanent nuisance.

In some cases plaintiffs seek injunctive relief in addition to damages or as the preferred remedy. Plaintiffs seek court orders regulating particular flight operations, typically take-off and landing patterns or flight at specific altitudes. Injunctive relief is almost never available because of federal preemption of regulation of aircraft in flight.

Airport owners typically defend suits by asserting that the complaint was filed too late (statute of limitations). Determining the onset of the noise nuisance is a significant question, particularly if the aircraft fleet mix at the airport has changed over time (for example, jets or helicopters begin to use the airport), resulting in a change in the amplitude, frequency, or quality of noise.


Literature

Appraisal Institute publications (has several publications with expert guidance on evaluating diminution of value of real property due to noise).

Bibliography: Airport Noise and Property Value (this website).

Airport Noise and Residential Property Values (this website).

"Airport Noise Cases: Condemnation by Nuisance and Beyond." 7 Wake Forest Law Review 271-___ (March 1971).

Bainer, Roland C. "Governmental Nuisance Liability: An Inadequate Remedy for Aircraft Noise." 9 California Western Law Review 310-325 (winter 1973).

Bell, Randall; Orell Anderson; and Michael Sanders. Real Estate Damages: Applied Economics and Detrimental Conditions, 2d ed. Appraisal Institute (2008).

"Modern Status of Rules as to Balance of Convenience or Social Utility as Affecting Relief from Nuisance, 40 American Law Reports 3d 601.

"Nuisance as Entitling Owner or Occupant of Real Estate to Recover Damages for Personal Inconvenience, Discomfort, Annoyance, Anguish, or Sickness, Distinct from, or in Addition to, Damages for Depreciation in Value of Real Property or Its Use," 25 American Law Reports 5th 568.

Rossi, Vincent J., Jr. "Inverse Condemnation and Nuisance: Alternative Remedies for Airport Noise Damage." 24 Syracuse Law Review 793-809 (1973).

"Shifting Aircraft Noise Liability to the Federal Government." 61 Virginia Law Review 1299-1337 (Oct. 1975).


Cases

FEDERAL

Luedtke v. County of Milwaukee (1975) -- Owners of property near a county-owned airport sued the county and several airlines under negligence and nuisance theories. The appellate court held that plaintiffs may not seek nuisance or negligence damages from an airport for noise on the basis of a Wisconsin statute dealing with liability for low-altitude flying if airport operations comply with federal laws and regulations. No cause of action existed under the Fifth Amendment against the county-owner of the airport or private airlines since the amendment applies only to takings by the federal government. Because plaintiffs had initiated an action for inverse condemnation in state court, the district court should properly abstain from judgment on plaintiffs' cause of action under the Fourteenth Amendment but retain jurisdiction. (7th Cir.; 521 F.2d 387)

Note: "We overrule Luedtke to the extent it holds that all common law remedies for airport noise and pollution have been preempted by federal law." (Bieneman v. City of Chicago, 7th Cir., 1988; 864 F.2d 463)

Bacon v. United States (1961) -- Plaintiffs sued for damages due to noise from jet aircraft traffic at nearby Air Force base. Plaintiffs had bought their land between 1923 and 1946. The airfield began operation during World War II, and the types of operations at the base had changed over the years. Federal law sets a time limit for filing a claim for which the Court of Claims has jurisdiction -- six years from the time the claim accrues (28 USC 2501). Held: The limitation on action for damages ran from 1954, when flights began to seriously interfere with plaintiffs' use of property. Before 1954 flights had not seriously interfered with plaintiff's use of property, and the pre-1954 flights had reduced the value of plaintiffs' lands to a lesser degree. (U.S. Ct. Claims; 295 F.2d 936, 155 Ct.Cl. 441)


CALIFORNIA

Supreme Court

Anderson v. Souza (1952) -- The court upheld an injunction against certain operating conditions at a rural, private airfield because of noise inflicted on neighboring residents. This case was the first of a series of strong judicial statements in California on the liability of airports to residents for damages due to noise. The court emphasized that in this case the airport was private, not public, and ruled that "there is nothing to distinguish a private airport from any other private business with regard to enjoining operations which create a nuisance." At the same time the court reiterated the established principle that neighbors must "to a reasonable degree yield their desired privacy to the general welfare which is contributed to by the operation of legitimate business." The court concluded that "in the absence of a showing that the airport ... could not be operated in such a way as not to constitute a nuisance, complete abatement is beyond the rights of plaintiffs." (38 Cal.2d 825, 243 P.2d 497) (In contrast, see Loma Portal Civic Club v. American Airlines below, where plaintiff's sought to enjoin commercial flights at a public airport.)

Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) -- Federal preemption of local regulation of airport noise is not absolute. State law damage remedies remain available against an airport proprietor despite the fact that federal law precludes interference with commercial flight patterns and schedules, since federal law preempts only the exercise of police power to reduce airport noise. Airport proprietors have a duty under state law to reduce airport noise. Plaintiffs may elect to treat airport noise as a continuing or permanent nuisance. (39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866; cert. denied 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314) (This opinion is discussed extensively in Renz et al. v. 33d. Dist. Agricultural Assn. (1995, 6th Dist. Ct. App.), 39 Cal.App.4th 61, 46 Cal.Rtpr.2d 67. See subsequent decision in this case, Baker v. Burbank-Glendale-Pasadena Airport Authority, 1990, 2d Dist. Ct. App., below.)

Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) -- Homeowners sued the city, owner of L.A. International Airport, on nuisance and inverse condemnation theories for injuries due to excessive noise from aircraft using the airport. The court held that a nuisance cause of action arising from aircraft noise is not preempted by federal regulation of aviation. There is no reason in law or policy why the nuisance remedy provided by Civil Code s. 3479 should not apply. Moreover, the city's liability is not precluded by Civil Code s. 3482, which states that nothing done or maintained under express authority of statute can be deemed a nuisance. Statutes that broadly authorize or regulate airports or flights do not create legislative sanction for their maintenance as a nuisance. (26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329)

Lochlin v. City of Lafayette (1994) -- There is no requirement that actions for inverse condemnation be publically funded. (7 Cal.4th 327) (See also Smith v. County of Los Angeles, Cal. Ct. App. 1989.)

Loma Portal Civic Club v. American Airlines (1964) -- Residents sought an injunction against low-altitude flights to and from Lindbergh Field in San Diego over their homes, which plaintiffs characterized as a nuisance. Plaintiffs did not claim monetary damages. Held: Such injunctive relief is unavailable as a matter of public policy because "there is an overriding public interest in the operation of aircraft with federal airworthiness certificates in federally certified, scheduled passenger service, in a manner not creating imminent danger, and in accordance with applicable statutes and regulations." (61 Cal.2d 582, 39 Cal.Rptr. 708, 394 P.2d 548)

Nestle v. City of Santa Monica (1972) -- Noise nuisance from a government-owned airport is remediable by a nuisance action. Such action, because it has a statutory basis (Civil Code s. 3479, nuisance), is not barred by the California Tort Claims Act. (6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480)

Wilson v. Interlake Steel Co. (1982) -- The state Supreme Court concludes that noise alone, without some physical damage, does not support an action for trespass. The court's opinion discusses the traditional distinction between trespass and nuisance. (32 Cal.3d 229, 185 Cal.Rptr. 280)


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)

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).

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. In January 1985 the airport adopted tougher noise limits, and fought against FAA efforts to force the airport to admit aircraft that exceeded the airport's noise limits but met FAA requirements (see City and County of San Francisco v. Federal Aviation Administration, 1991). 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, 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 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)

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)

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)

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)


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)


OTHER STATES

Supreme Courts

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).

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)

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)

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)


Courts of Appeal

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)

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).

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)

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)

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)

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)

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)

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)