Residents Claim Civilian Aircraft Have No Legal Right
to Use Former Marine Airbase

DECEMBER 1, 1999

Some Laguna Woods residents think they've hit upon a novel approach to blocking proposed conversion of the former El Toro Marine base to a civilian airport: a provision in their homeowner documents they say allows them to decide who can and cannot fly over the retirement community.

The residents contend that Leisure World's developer signed over rights known as avigation easements to the Marine Corps for $3 million in 1963, allowing the military to fly over the property without the threat of lawsuits over noise, pollution and other aircraft-related problems.

But those easements expired when the base closed July 2, residents said. Without new easements to replace them, they said, the county cannot bring flights for the new El Toro airport over Laguna Woods without their approval. Current plans call for arriving jets to make their final approach right over the center of the new city. "If the huge commercial airport were to be built, no flights could take off or land to the south, forcing all flights over Newport Beach, Santa Ana and Anaheim," said Dave Schlenker, a Laguna Woods resident who heads Seniors Against the El Toro Airport.

The county contends that there is no legal requirement to obtain avigation (aircraft navigation) easements from South County homeowners to operate an airport at El Toro. Michael Gatzke, who has handled the county's airport litigation for nearly 20 years, said federal law establishes navigable airspace as anything above 1,000 feet and whatever airspace is needed for safe takeoffs and landings.

A spokesman for the Federal Aviation Administration agreed with Gatzke. The only situation where avigation easements are recommended is when government funds have been used to insulate homes against aircraft noise, FAA spokesman Mitch Barker in Seattle said. The easements assure that the homeowners can't sue later for noise.

South County air rights are worth fighting for, said Mission Viejo attorney Ron Steinbach, an airport foe who has researched the issue of avigation easements. He said the county could face lawsuits for inverse condemnation if an airport is opened without easements in Laguna Woods and Aliso Viejo, the two cities under the approach path. Residents also could sue for trespass, he said -- a tactic Gatzke said has been tried in airport fights around the country "and lost every time."

"They'd be invading private property, regardless of the noise," said Steinbach, who isn't involved with the Leisure World group.

Paying for the use of the airspace would be costly, airport foes said. The county could attempt to obtain the easements through condemnation, they said, but doing so would require agreement by four of the five county supervisors--only three of whom support building the airport.

Two private attorneys, one in El Segundo and one in Chicago, both of whom who have sued airports on behalf of homeowners, said residents cannot use the absence of avigation easements to stop an airport or divert planes. However, residents near El Toro might be able to sue successfully for damages in court once the airport is open, they said.

"If the impacts [damage] property, then the airport operator has to pay for it," said Steven Pflaum, with the law firm McDermott Will & Emery in Chicago, who represented Newport Beach during its fight in the 1980s against expansion of John Wayne Airport.

Attorney John Schimmenti of El Segundo, who has sued over Los Angeles International, Burbank, and San Diego's Lindbergh airports, said governments should determine the harm to homeowners because of an airport and then pay them for it. But governments prefer to "simply fly," he said, and then the burden shifts to residents to prove within the first five years of operation that they've been damaged by the airport. "These are tough cases to prevail on," Pflaum said.

The issue of avigation easements has centered in Leisure World because title documents for the residential community, which encompasses all of the homes in Laguna Woods, acknowledge the existence of day and night flights at the Marine Corps Air Station. The titles also state that units were insulated by the developer to reduce jet noise.

For the last two years, the county has required some developers in Aliso Viejo, Foothill Ranch and Rancho Santa Margarita to sign over avigation easements for new homes. The easements acknowledge potential overflights by all types of aircraft and were required anticipating a commercial airport at El Toro, planners said.

However, the recent easements were obtained only in areas previously identified as being subject to high noise from the military flights. The county has kept the noise zone in place until an environmental report is certified in May, which will contain a new noise zone for commercial flights. That zone will shrink drastically and be contained within the base's 4,700 acres, planners said.

The airport, planned to open in 2005, is being designed to handle up to 28.8 million passengers a year by 2020. It would be the second-largest commercial airport in Southern California.