FLY RIGHT: LOW OVERHEAD FLIGHTS AND PILOT DEVIATIONS FROM FAA FLIGHT PATTERNS CAN CREATE LIABILITY FOR AIRPORT AUTHORITIES

In homage to the upcoming season, I am writing the 12 Days of Condemnation, highlighting a dozen of my favorite eminent domain decisions.  Sixth, a 2012 Wisconsin case that relies upon federal precedents that protects property owners adjacent to airports.

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 standard applies in Wisconsin.

This Wisconsin case also addressed another important issue. 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?’” I have personally observed this type of behavior at multiple airports in northern Michigan. I have also heard airport managers suggest the property owners should pursue the pilots themselves, even going so far as to suggest that owners should sit out in the yards with binoculars to write down aircraft tail numbers.

The Wisconsin Supreme Court rejected assertions like that and 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, if applied in Michigan, would make the airports liable for that conduct.