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Stephon B. Bagne

Member, Clark Hill PLC

Phone: (313) 965-8897

Fax: (313) 309-6897

Email: sbagne@clarkhill.com


Stephon B. Bagne’s expertise in representing property owners in condemnation cases is widely recognized. Stephon has represented all types of property owners in a variety of situations including vacant and improved property, partial and total takings, easement and fee acquisitions, involving commercial and residential properties. He has won jury trials in courts throughout the State of Michigan and successfully defended those verdicts before the Michigan Court of Appeals. Stephon has prevailed in challenges of the necessity of takings and negotiated less onerous acquisitions in partial taking matters. He regularly speaks and writes about eminent domain and other real estate law issues for a variety of professional organizations. For a more complete bio, please click here.







The Wisconsin Supreme Court, relying on United States Supreme Court rulings that apply in all states, recognized that low, frequent flights over property may be compensable even if they do not deprive the owner of substantially all beneficial use of the property.  This applies even when pilots deviate from established flight paths.

In a prior post, I discussed a Michigan Court of Appeals decision upholding a jury’s award of just compensation equaling the entire value of a home that I obtained when an airport obtained an avigation easement.  By obtaining an easement, the airport triggered the property owner’s entitlement to just compensation.  But what happens when an airport fails to obtain the necessary easement?  A property owner may still be entitled to just compensation, particularly where frequent, low flights pass directly over their home.  A recent Wisconsin Supreme Court decision discussed these issues and applies United States Supreme Court decisions that apply in all 50 states.

Brenner v New Richmond Airport, 816 NW2d 291 (Wis. 2012) involved an inverse condemnation case filed by property owners near a runway.  They had a variety of complaints derived from the passage of aircraft over their homes, including vibrations that shook the homes, flashing lights and noise that interfered with sleep, a kerosene smell, and noise that prevented them from enjoying their yards.  In sum, “the landowners alleged that an extension of the Airport’s runway by 1500 feet amounted to the compensable taking of an easement because the resulting overflights had adverse effects on their properties, including diminished use and enjoyment and decrease of value.”  The opinion concluded that “a taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner’s property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property.”

The Wisconsin Supreme Court discussed a seminal United States Supreme Court holding that “involved frequent and regular flights of Army and Navy aircraft over a residence and chicken farm in North Carolina.  The aircraft passed directly over the property at a height of 83 feet, along a path approved by the Civil Aeronautics Authority.  The aircraft were so close to the property that they barely missed the tops of the trees.  The aircraft were so disruptive to the property that 150 chickens on the farm were killed when they flew into the walls from fright, and the property owners had to give up their business.”  The Wisconsin Supreme Court recognized that “generally speaking, a landowner has a three dimensional property interest in airspace: the person has a property interest in the block of air that is bounded by the length and width of the person’s land holdings and rises up to approximately the height of the government-defined minimum safe altitude of flight.  Physical invasions of this superadjacent airspace may constitute a taking.”  Thus, a taking may occur if the “superadjacent airspace” is invaded by aircraft overflights if “overflights have been low enough -- that is, invasions of a person’s block of superadjacent airspace -- and frequent enough to have a direct and immediate effect on the use and enjoyment of the person’s property.  If this standard can be satisfied, the government has taken an easement without paying compensation for it.”  In an overflight case, an owner does not need to prove that “the overflights deprive the property owner of all or substantially all beneficial use of the property.”

This opinion differentiates overflights from cases involving effects emanating from the adjacent airport, where the higher standards applies in Wisconsin.

This Wisconsin case also addressed another important issues.  The owners complained “that some pilots did not follow ‘the standard traffic patterns’ and showed ‘[t]otal disregard for any traffic regulations or rules’.”  “The City objected to this testimony, asking the court: ‘How can the City be responsible for what pilots do when they’re acting illegally and contrary to FAA regulations?’”  The Wisconsin Supreme Court made the airport liable.

A city cannot operate an airport and permit some of the aircraft that use it to disregard established FAA flight paths.  The City bears responsibility if aircraft are regularly deviating from FAA flight patterns and those deviations result in invasions of the superadjacent airspace of neighboring property owners with adverse effects on their property.  The City is in a far superior position to enforce the FAA’s flight standards than the property owners.  Placing the burden on the property owners to seek enforcement against individual airlines or pilots would effectively deprive the owners of a remedy for takings of their property.

This holding is important.  Flight paths are frequently established to cause aircraft to pass over lower populated areas.  Frequently, those areas are not populated because easements have been acquired to prevent occupancy of the property, which may include the Runway Protection Zone that the FAA recognizes is “incompatible with homes.”  Click here to read a blog post discussing RPZ issues.  However, pilots may be motivated to “cut the corner” and fly over populated areas.  I have personally observed this happening at the Harbor Springs Airport and the Mackinac Island Airport.  This holding, if applied in Michigan would make the airports liable for that conduct. 

To read the entire Brenner v New Richmond Regional Airport case, click here.

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

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