MICHIGAN COURT OF APPEALS UPHOLDS MY TRIAL VICTORY IN AN AIRPORT AVIGATION EASEMENT/RUNWAY PROTECTION ZONE CASE

Court of Appeals upheld a jury verdict awarding $470,000 in just compensation, where the condemning authority offered only $49,500.  The Court of Appeals also upheld an award of statutory interest of approximately $100,000.

In what should be the culmination of an eight year journey that involved three trips to the Court of Appeals, a recent published opinion upheld a jury’s verdict requiring Lenawee County to pay full value for David and Barbara Wagleys’ home.  In 2005, the County condemned an avigation easement.  (“Avigation” comes from the word for aviation.).  The County claimed that the easement simply allowed it to clear and trim trees and offered a nominal amount for the property rights it acquired plus an additional amount for trees being removed, totaling about $50,000.  In reality, the easement placed the home in a Runway Protection Zone (“RPZ”) (to read more about the impact of RPZs, please see this blog post.  Furthermore, the easement created a “right-of-way” for the “general public” to fly two feet over the Wagley’s home.

The easement also limited the Wagley’s future ability to use the property by placing restrictions on future activities.  Unfortunately, these restrictions were so vague that the County was unable to define them in discovery, indicating that they would sue the Wagleys if the County deemed something objectionable in the future.  This case was a classic example of an agency acquiring property rights but then claiming that it should pay a lesser amount of just compensation because it would not actually use the rights.  (Another blog post discussed this concept in greater detail).

We hired a team of experts.  Carl Byers, an engineer and airport planner with extensive experience flying in the United States Air Force, testified about flight safety issues.  Jerald Searle testified as an airport planning expert.  Franklin McVeigh, a respected real estate broker, discussed the difficulties of listing the property for sale while complying with Michigan’s real estate disclosure laws.  Finally, David Burgoyne synthesized all of this information in his real estate appraisal.  Bruce H. Benz was my indispensible co-counsel.  (Michigan Lawyer’s Weekly wrote a detailed article about the trial strategy we employed following a second verdict that I obtained on behalf of the Wagley’s neighbors that can be read here.

The Court of Appeals examined its two prior opinions and recognized that we were entitled to ask the jury to award the full value of the Wagley’s home as just compensation.  The opinion allowed us to address issues relating to the easement’s acquisition of property rights allowing placement of the home in the RPZ.  The Court of Appeals stated:

While the easement and the RPZ are separate legal entities, the evidence supported that the FAA required the county to obtain an avigation easement precisely because the Wagleys’ property was in the RPZ.  Thus, the RPZ created the need for the easement, and the easement included the land and airspace contained within the RPZ.  Given the interrelationship between the avigation easement and the RPZ, the experts’ use of the terms somewhat interchangeably is not surprising.

The Court of Appeals recognized the propriety of the testimony elicited by the experts, providing a summary of that testimony:

The Wagleys’ trial evidence focused on the contention that their home was unsafe due to its inclusion in the RPZ and therefore a total taking had occurred.  Several witnesses testifying on the Wagleys’ behalf described the RPZ as the area in which most aviation accidents took place, and opined that homes were incompatible with an RPZ.  Pilot Carl Byers, one of the Wagleys’ experts, disputed the county’s claim that the airport was safer because of the runway alteration:

If all they had done was take the same size of runway designed for the same size of aircraft and moved it further from the houses, then I could potentially see where that could be considered a safer condition.  But that’s not what happened.  They moved it 500 feet further away, but then they also made the runway larger, they designed it for larger aircraft flying for lower approach minimums, faster speeds….  So just moving the threshold away from the houses they negated that by making it a much bigger – a runway attracts much larger, faster aircraft.

Byers opined that the existence of homes within the RPZ endangered residents and increased the likelihood of accidents.  He represented that had his engineering consulting company been involved in this project it would have refused to “sign off” if houses remained in the RPZ.  Similarly, engineer Jerald Searle expressed that when practicable, an airport should acquire all property within the RPZ.  David Burgoyne, the Wagleys’ principal appraiser, summarized that based on his evaluation of the available expert reports regarding the aviation issues presented in the case, ‘it’s better if the property’s acquired in fee and the houses are removed.’  In Burgoyne’s view, the avigation easement destroyed the practical value and utility of the Wagleys’ home.

The opinion demonstrates the importance of working with a qualified team of expert witnesses with a wide breadth of experience.

This case has been a long and difficult journey for the Wagleys and their neighbors.  They persevered through eight years of litigation, in large part because they recognized that the county was willing to place them in a dangerous position in order to save money.  The importance of fighting this battle was demonstrated shortly after the jury reached its verdict.  David Wagley was standing in his driveway and watched a plane barely clear his neighbors home, another owner that I represent, and crash land short of the runway.  The worst case scenario that our experts recognized could happen almost did, with a place nearly crashing into a house.  To read the full opinion, click here.

If you have any questions about condemnation and eminent domain issues, please do not hesitate to contact me.