AVIATION NOISE LAW
Inverse Condemnation Actions


Inverse Condemnation Actions

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.

In preparation as of March 1, 2011

Introduction

[In preparation]


Literature

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

"Airport Operations or Flight of Aircraft as Constituting Taking or Damaging of Property," 22 American Law Reports 4th 863

"Airport Operator's Rights and Remedies as to Uses of Adjoining Land Interfering with Aircraft Operations," 25 American Law Reports 2d 1454

"Inverse Condemnation State Court Class Actions," 49 American Law Reports 4th 618 (see ss. 3, 4, 6, and 7 on airports and aircraft)

Kettelson. "Inverse Condemnation of Air Easements." 3 Real Prop., Prob. Tr. J. 97-___ (1968).

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

Russell, James. "Recent Developments in Inverse Condemnation of Air Space [Compensation for Airport Interference with Rights of Adjacent Landowners]." 39 J. Air Law Comm. 81-101 (1973).

Stoebuck, William B. "Condemnation by Nuisance: The Airport Cases in Retrospect and Prospect." 71 Dick. Law Rev. 207-239 (1967).

West Digests, "Eminent Domain - Remedies of Owners of Property - Inverse Condemnation (Topic 148 - IV).


Cases

FEDERAL
Argent v. United States (1996) -- Landowners near Navy air station brought inverse condemnation action, alleging that constant noise from pilot training diminished the use and enjoyment of their property and amounted to an avigation easement or taking. The trial court granted summary judgment for the government. Appellate court reversed, holding: (1) inverse condemnation action is not precluded just because aircraft do not fly directly over plaintiffs' property; (2) summary judgment was not appropriate because there was genuine issue of material fact whether increased flight operations created second avigation easement within the period set by statute of limitation. (Fed. Cir.; 124 F.3d 1277)

Hero Lands Company v. United States (1983) -- Owners of land adjacent to naval air station brought an action for inverse condemnation of avigation easements. Held: Flights over plaintiffs' land suitable for industrial development had not resulted in any substantial interference with plaintiffs' use and enjoyment of the land or any substantial diminution in value of the land. (U.S. Ct. Claims; 554 F.Supp. 1262)

CALIFORNIA

Andrews v. County of Orange (1982) -- Fifty four homeowners near John Wayne Airport filed actions for inverse condemnation against the county as owner of the airport, claiming jet overflights had diminished the market value of their homes. In addition, six plaintiffs sued for personal injury and emotional distress. The court upheld the right of plaintiffs to introduce evidence about what the county could have done to alleviate aircraft noise. In addition, the case is interesting because it provides insight into one jury's biased consideration of diminution of market value of homes caused by aircraft noise. (Ct. App. 4th Dist.; 130 Cal.App.3d 944)

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).

Cole et al. v. City of Santa Monica (2001) -- An action for inverse condemnation was unsuccessful because the judge discredited the testimony of the plaintiffs' expert witness on the diminution in the value of their property due to aircraft noise. The court also denied the city's claim of a prescriptive easement in the air above plaintiffs' properties, on the grounds in part that the city had often recognized plaintiffs' property rights by promising to minimize aircraft noise. (Sup. Ct. Los Angeles Co., Case No. SC 055 183)

Smith v. County of Los Angeles (1989) -- There is no constitutional bar to assessment of costs against an unsuccessful plaintiff in an action for inverse condemnation. (Ct. App. 2d Dist.; 214 Cal.App.3d 266, 262 Cal.Rptr. 754) (See also Lochlin v. City of Lafayette, Cal. Sup. Ct. 1994.)

OTHER STATES

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)

Bakus v. Broward County, Fla. Ct. App., 4th Dist., 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))

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).

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).

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)

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)

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)

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)

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)

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)

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. Suprement 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)

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)

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)

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)