Taking of Property: Avigation Easements and Zoning Regulations
Taking of Property: Avigation Easements and Zoning RegulationsBy 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.
(Updated December 21, 2015)
II. Avigation Easements Imposed as a Condition of Development
III. Avigation Easements by Prescription
IV. Zoning Regulations As a Taking of Property
An easement — a legally enforceable use of property by someone other than the owner — is most commonly granted to public utilities or government agencies for uses that benefit the public at large (e.g., streets). It is typically negotiated, paid for, and recorded in a formal document signed by the property owner and the easement holder. Unless agreed otherwise, an easement "runs with the land," meaning that it is enforceable against all succeeding owners of the property.
Public agencies invested with the power of eminent domain can acquire an easement through legal proceedings called condemnation. The chief function of these proceedings is to assure that the landowner will be fairly compensated for the easement. If the agency does not initiate condemnation proceedings, the landowner can file an action in "inverse condemnation" to force the agency to go through the formalities of condemnation and pay the value of the easement. The resulting proceeding in court is essentially the same as a condemnation action initiated by the public agency. (However, see the U.S. Supreme Court decision in United States v. Clarke for discussion of important differences between the affirmative process of condemnation and inverse condemnation proceedings, in particular the different consequences of the two.)
Airports acquire avigation easements in the airspace over neighboring properties in order to (1) prevent construction of buildings and towers, planting of trees, installation of lighting, or any other development that might interfere with aircraft takeoff and landing, or (2) protect against liability for any nuisance caused by airplanes using the airport, i.e., the impact of noise, fumes, and vibration on the "use and enjoyment" of properties under the flight paths to and from the airport. The former is a type of "hazard easement" while the latter is a type of "nuisance easement" but in practice both are called avigation easements. The two types are not typically combined in one legal document, although they may be.
Airports rarely take the trouble to acquire nuisance avigation easements by initiating condemnation proceedings. Nuisance easements are sometimes imposed on new developments near an airport (see below), but only if the airport owner (a city or county) also has jurisdiction over the land surrounding the airport. An airport may also require a nuisance avigation easement as a condition for installing insulation against noise in homes and schools. When sued for nuisance by neighboring landowners, airports assert that they have a prescriptive avigation easement (see below) over the plaintiff's land and therefore are not liable for any nuisance due to aircraft noise, fumes, or vibration.
(See also "Avigation Easements" in the Index to Website).
Avigation Easements Imposed as a Condition of Development
In recent years the FAA has promoted the imposition of avigation easements as a condition of approval of subdivisions or other new development near airports. These impositions are intended (hopefully) to eliminate the airport's liability for nuisance claims due to noise or fumes. Under these circumstances the avigation easement is a taking of property, since it burdens the property by significantly affecting the use of the property, and it is uncompensated (the authority imposing the easement does not pay the property owner for the easement).
Under the rule enunciated by the U.S. Supreme Court in Nollan v. California Coastal Commission (483 U.S. 825, 1987), "to obtain easement of access across private property, the State must proceed through its eminent domain power."
In 2006 the Nevada Supreme Court applied the Nollan rule to avigation easements in McCarran International Airport v. Sisolak (see cases below). The court held that the manner in which the avigation easement was exacted, as a condition of development, could not have created a permanent right for the county-owned airport because it lacked due process of law.
Avigation Easements by Prescription
Under certain circumstances an easement can be obtained "by prescription," analogous to acquiring title to land by adverse possession. A classic example is when a neighbor openly and continuously drives his vehicle across your land without permission and you make no effort to stop the trespass. After a period of time fixed by state law, the neighbor could claim a legally enforceable right to drive across your land, that is, an easement by prescription (or prescriptive easement).
In theory a prescriptive avigation easement is acquired by simply flying over the property for a number of years (the number set by state law to perfect a claim for adverse possession).
See the separate discussion Prescriptive Avigation Easements.
Zoning Regulations As a Taking of Property
Land-use restrictions in the form of zoning standards are an alternative to the use of avigation easements to protect against potential hazards around an airport. While the FAA has virtually unconstrained authority to control development within an airport, local government (cities and counties) have unquestioned authority for land-use planning around airports. (Even the FAA has expressly acknowledged this in numerous official documents.) Nevertheless, the FAA can affect zoning decisions indirectly, but in ways that are too complicated to attempt to explain briefly.
Moreover, the question of when a regulation becomes a taking of property is a highly complex question that cannot easily be summarized.
See Who Controls Development in and Around an Airport?
"Airport Operator's Rights and Remedies As to Uses of Adjoining Land Interfering with Aircraft Operations, 25 American Law Reports 2d 1454
Etter, Rick. "Defensibility of Avigation Easements: FAA Requirements", presented at 2011 AAAE Airport Noise Mitigation Symposium, St. Louis, Missouri, Oct. 3, 2011. [Link to PDF file.]
"Flight over Land As Taking or Damaging Thereof without Compensation," § 7, Aviation, 8 American Jurisprudence 2d
"Inverse Condemnation State Court Class Actions," 49 American Law Reports 4th 618 (see §§ 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. "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).
"Theories As to the Ownership of the Air and Legal Incidents Thereof," 69 American Law Reports 316, 83 American Law Reports 333, 99 American Law Reports 173 (these articles have historical value)
"Zoning Regulations Limiting Use of Property Near Airport as Taking of Property," 18 American Law Reports 4th 542.
Aaron v. United States (1963) -- In this action for compensation for the taking of an avigation easement, plaintiffs were entitled to compensation for an easement only with respect to overflights below 500 feet above ground. Plaintiffs lived in an "uncongested" area and the public ("navigable") airspace in uncongested areas commences at 500 feet altitude according to federal aviation regulations. (U.S. Ct. Claims; 160 Ct.Cl. 295, 311 F2d 798)
Adaman Mutual Water Co. et al. v. United States (1958) -- Action for damages for taking of avigation easements over various farmlands situated near an Air Force base. Held: The taking of an avigation easement by the government occurs when the government begins to operate aircraft regularly and frequently over a parcel of land at low altitudes, with the intention of continuing such flights indefinitely. (U.S. Ct. Claims; 143 Ct.Cl. 921, 181 F.Supp. 658)
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)
Branning v. United States (1981) -- Plaintiff brought action for compensation for alleged taking of easement over his property as a result of noisy aircraft flying overhead from adjacent Marine Corps Air Station. Held: the introduction of noiser aircraft after plaintiff purchased the property created a new cause of action, even though earlier flights (fewer and less noisy) had constituted a partial taking. In addition, the court had a strong response to the government's attempt to exclude liability for noise from aircraft flying above "safe altitudes": "Minimum safe altitude and minimum noise levels are concerned with two different things. [Citation] While safety may be measured in terms of altitude, a reasonable noise level cannot be measured solely in terms of altitude." "This is a case of first impression in which the court may consider the altitude of the flights over the [plaintiff's] property, but must give primary consideration to the effects of aircraft noise where the government itself has adopted and published standards of compatibility of use of the subjacent property." (U.S. Ct. Claims; 654 F.2d 88, 228 Ct.Cl. 240)
Favro v. Port of Seattle (1995) -- Waiver language in "avigation" easements cannot reasonably be interpreted as a waiver of claims for damages arising prior to the granting of the easements. (W.D. Wash., C92-16347, unpublished decision)
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)
Klein v. United States (1961) -- Plaintiffs in 1958 filed a claim to recover compensation for the taking of an avigation easement because of frequent flights of jet aircraft from a neighboring military airbase. The overflights began in 1947; claims against the government for damages must be filed within six years of the damage (28 USC 2501). Held: The filing of the claim was timely because a cause of action for taking of private property for public use does not accrue until conditions have reached that state where the extent of the government's use of an interference with plaintiffs' use and enjoyment of the property is known or ascertainable. In this case the damage to plaintiffs' property was not known or ascertainable until September 1954. (U.S. Ct. Claims; 152 Ct.Cl. 221) (Compare Lacey v. United States, below.)
Lacey v. United States (1979) -- Claim for taking of avigation easements was barred by six-year statute of limitations on claims against the U.S. government (28 USC 2501) because the extent of impairment of landowners' right by overflights were readily ascertainable long before the six years preceding the claim. (U.S. Ct. Claims; 595 F.2d 614)
Persyn v. United States (1995) -- Genuine issues of fact as to noise generated by aircraft flying over property adjacent to an Air Force Base, the frequency and altitude of flights, and the effect on the adjacent landowners' property precluded summary judgment on landowners' claim of a taking due to the overflights. (U.S. Ct. Claims; 32 Fed. Cl. 579)
Vacation Village v. Clark County, Nevada (2007) -- County had adopted zoning ordinances that restricted use and building height on property near the airport. The court determined that the effect of the ordinances on plaintiff's property did not constitute a taking of property under the U.S. Constitution, but did under the Nevada Constitution. In arriving at this decision the court applied a ruling of the Nevada Supreme Court (McCarran International Airport v. Sisolak). (U.S. Ct. App. 9th Cir.)
Courts of Appeal
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 of Oakland v. Nutter (1970) -- The City, owner of the Oakland International Airport, sought to acquire easements in the airspace over numerous residential properties to protect approaches to the airport. The City insisted that the easements were "clearance" easements only. The defendant-owners argued that the easements were in fact "avigation" easements and sought not only the fair market value of the easement to be condemned but also "severance damages" due to the interference and inconvenience that the remainder of the property suffers by reason of the air easement. The court ruled that landowners are entitled to recover for the diminution in the value of the subjacent land remaining after an air easement and that it is proper for a trial court to hear evidence of the effects of excessive noise, vibration, discomfort, inconvenience, and interference with the use and enjoyment of the land on the value of the subjacent land, to the extent such factors are occasioned by flights through the easement condemned. (Ct. App. 1st Dist.; 13 Cal.App.3d 752, 92 Cal.Rptr. 347)
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.)
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))
Barnes v. City of Hillsboro, Ore. Ct. App., 2010 -- City of Hillsboro rezoned a large area near an airport, imposing various limitations on uses and new development, including the requirement of an avigation easement for new subdivisions. Some property owners who objected to the rezoning ordinance appealed to the Oregon Land Use Board of Appeals (LUBA). LUBA found the avigation easement to be an unconstitutional taking of property without compensation and reversed the rezoning ordinance. The court of appeals upheld LUBA's decision. (The link is to a list of LUBA decisions for 2010. Look under June for Barnes v. City of Hillsboro. The decision is a 3 MB PDF file.)
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).
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)
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.)
Fullerton v. Knox County Commissioners, Maine, 1996 -- If the trial court finds that an air easement amounts to a "direct and immediate" interference with plaintiff's land, plaintiff is entitled to interest from the date of the takings judgment. (672 A.2d 592)
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)
Highline Sch. Dist. No. 401, King County v. Port of Seattle, Wash. 1976 -- Held: An avigation easement, even when prescriptively obtained, will abridge a person's ability to sue for inverse condemnation so long as the holder of the interest can demonstrate (1) the existence of an easement and (2) its use of the burdened property stays within the bounds granted by the easement. (548 P.2d 1085, 87 Wash2d 6)
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)
Thornburg v. Port of Portland, Ore., 1962 -- A taking of private property may be trespassory or by nuisance. Landowners have a right to be free from unreasonable noise. A taking can occur if aircraft noise is not directly over the plaintiff's property and even if it is within the navigable airspace defined by law. (376 P.2d 100)
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)
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)