Ohio Supreme Court Delays Trial in Airport Noise Suit

JULY 2, 1999

The Ohio Supreme Court has delayed a July 13 trial that would have determined how much the Toledo-Lucas County Port Authority should pay homeowners who have suffered through excessive aircraft noise near Toledo Express Airport.

In a six-line ruling released this week the high court voted 4-2 to grant a stay requested by attorneys for the port authority. Justices Francis Sweeney and Paul Pfeifer dissented. Justice Alice Robie Resnick did not take part because her husband, Melvin, is on the Toledo-based Sixth District Court of Appeals.

The Supreme Court ruling did not overrule any appeals court decision or indicate it would accept jurisdiction in the dispute. Those questions remain pending. But the move likely will delay a trial in Fulton County Common Pleas Court until the fall or next year, said David Zoll, an attorney representing about 105 homeowners near Toledo Express Airport. "This is just one more in a long series of delays that the port authority has created to try to prevent this matter from being heard by a jury," Mr. Zoll said.

William Connelly, an attorney representing the port authority, did not return phone messages.

The case is a consolidation of suits that homeowners filed beginning in 1993, charging that the noise from the cargo planes from the former Burlington Air Express, now BAX Global, Inc., has diminished enjoyment of their property and lowered its value.

On April 28, Judge Lawrence Grey, a visiting judge from southeast Ohio, ruled in Fulton County Common Pleas Court that the agency created a public nuisance through its handling of the BAX Global, Inc., hub project at Toledo Express Airport and is liable for harm suffered by the homeowners. He scheduled a July 13 trial to determine the amount the port authority would have to pay in damages.

In a June 15 ruling, judges from the Dayont-based Second District Court of Appeals -- sitting in for the Sixth District Court of Appeals judges who recused themselves -- ruled that the decision by Judge Grey is not a final ruling of the trial court and could not be appealed by the port authority.

Attorneys representing the port authority disagreed, contending that Judge Grey's decision conflicted with other appeals court decisions that a jury should determine the extent of the port authority's immunity from noise-related lawsuits. The port authority attorneys asked the state Supreme Court to delay the trial until the legal dispute can be resolved.

Mr. Zoll opposed the delay in the trial, saying that the state Supreme Court has ruled twice that the port authority does not have immunity from lawsuits triggered by noise from BAX Global planes. "Though the Port Authority has admittedly created noise levels over the plaintiffs' homes which have made the homes incompatible with residential use, the Port Authority continues to argue that it is the King, and it can do no wrong," Mr. Zoll wrote in documents filed with the state Supreme Court.

James Hartung, president of the Toledo-Lucas County Port Authority, declined comment.

Mr. Zoll said this week that an attorney representing the port authority expressed interest in a possible settlement. "I don't know if we can settle it or not," he said, declining to provide further details.

Source: The Toledo Blade (copyright)