Florida Homeowners Seek Class Action in Federal Court
for Inverse Condemnation Due to Aircraft Noise

AUGUST 25, 2016

Broward County homeowners have taken their fight over aircraft noise at the county-operated Fort Lauderdale-Hollywood International Airport to the U.S. Court of Appeals for the Eleventh Circuit after the district court dismissed the plaintiff's suit as premature. The case was originally filed by Noy Hadar in the district court for the Southern District of Florida in September 2015 and named only Broward County as a defendant in an action for inverse condemnation. (See Third Lawsuit in a Week over Noise at Florida Airport's New Runway.)

In the original complaint Hadar alleged that, as a result of expansion of the south runway, overflights above his residence and others have become “frequent, severely disruptive, and dangerous, and are frequently directly overhead at low altitudes.” The complaint alleged that when Hadar and other nearby residents acquired their homes, their properties were free of undue noises, fumes, pollutants, glare, vibrations, and other nuisances. Hadar argued that residents have a right to zoning and land use controls that do not interfere with their use of their properties and to be free from regulations and laws that would cause third parties -— in this case aircraft operators —- to trespass on their homes.

Plaintiffs contended that noise from departing aircraft became unbearable after an expanded south runway was put into operation in September 2014, and thus the noise impacts constituted a taking of their property that should be compensated under the 5th Amendment of the U.S. Constitution. Hadar later amended his complaint to include tort claims and added several airlines as defendants.

The opening of the new 8,000-foot south runway increased the airport’s annual capacity to 425,000 flights per year. The expansion project had been in the works since the early 1990s and had faced opposition from local residents for nearly as long. The city of Dania Beach, Florida, south of the airport, repeatedly challenged the environmental impact statements Broward County submitted to the FAA in the 2000s. In November 2013 it ended its opposition to the project after the FAA approved a deal to provide an estimated $186 million in noise mitigation and home sales assistance to affected citizens.

In June of this year, when Hadar sought to certify a class of plaintiffs, U.S. District Judge Donald M. Middlebrooks dismissed the case, finding the court lacked jurisdiction because Hadar failed to first pursue an inverse condemnation claim in state court. Plaintiffs appealed the dismissal.

The county has urged the Eleventh Circuit to affirm the dismissal. “As the trial court correctly determined, Hadar’s federal takings claim is premature because he did not first seek redress in state court for inverse condemnation under the Florida Constitution,” the county said. “Under federal law, a takings claim is not ripe until a plaintiff seeks compensation through available state court procedures.”

Hadar has argued on appeal that the state court remedy for inverse condemnation against Broward County was neither “available” nor “adequate,” because in Bakus v. Broward County, a nearly-identical case filed against Broward County over 20 years ago, state residents lost the inverse condemnation proceeding. “The result in Bakus would have been the exact same result for Hadar,” he said. “Thus, there was no point in requiring Hadar to go to state court on an ‘inverse condemnation’ theory since the case would have been dismissed by the state court.”

Hadar claims that his suit is a “straightforward federal class action” and that the district court erred in dismissing the federal claim and declining to exercise jurisdiction over remaining state court claims.

The county also argues in its reply to Hadar's appeal that Hadar relied on mistaken legal arguments to present the noise pollution dispute as an inverse condemnation case. Moreover, the county argues, Hadar has not claimed any lost property value, and he does not seek a condemnation determination regarding his property or the property of other members of the proposed class, so his claim is unsound.

Defendant Spirit Airlines Inc. filed a reply to Hadar's appeal in which it argues that the air travel industry is exclusively regulated by the federal government, thus preempting Hadar's state-law claims.

Source: Various articles posted on line.

Case information:

Noy Hadar et al. v. Broward County, et al., Case No. 16-14569, 11th Circuit Ct. App., filed June 30, 2016. (Documents available at Pacer.)

Hadar v. Broward County, Case No. 0:15-cv-61845, S.D. Fla., filed Sept. 1, 2015. (Documents available at Pacer.)

Plaintiffs are represented by Cullen A. O'Brien of Cullin O'Brien Law PA, Sue-Ann Nicole Robinson of Robinson Caddy Law, and Zeljka Bozanic of Bozanic & Associates PA.