Daily Development for
Wednesday, January 13, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EMINENT DOMAIN; INVERSE CONDEMNATION; AVIGATION EASEMENT: Airport neighbors cannot maintain inverse condemnation claim based on overflights because neighbors lack ownership interest in airspace and are not damaged by noise to an extent appreciably greater than general public.

Thompson v. City and County of Denver, 958 P.2d 525 (Colo. App. 1998).

Denver International Airport was built near a parcel owned by several individuals. The land apparently was used for agricultural purposes and residential purposes related to the agriculture. Under FAA regulations, airplanes are permitted to navigate at levels of 500 feet or higher over areas that are "uncongested" as was plaintiff's land here.

The property owners' tenant complained about constant airplane noise. The allegations included claims that the noise disrupted sleep, face to fact and telephone conversations, disturbed radio and television audio, and that the vibrations jostled wall hangings off center.

The owners brought an inverse condemnation action premised on the "taking or damaging" by the owner of the airport of the landowner's property. (Unlike the U.S. Constitution, but like many state constitutions, Colorado does require just compensation for "damaging" property as well as for physical takings.)

The trial court ruled that no taking had occurred. The Colorado Court of Appeals affirmed, holding that, under federal law, airspace over 500 feet above ground level is in the public domain. Because the trial court's determination that the overflights were occurring between 1000 and 2000 feet above ground level was supported by the evidence, the Court of Appeals affirmed its determination that the surface property owners had not been deprived of any property interest.

The case treats separately the question of whether the direct overflights were a taking and the question of whether they " damaged" the plaintiff's property. This suggests that low overflights might be actionable even if they did not cause injury. After concluding that the overflights in question were not so low as to constitute a taking, the court proceeds to analyze whether they unconstitutionally "damaged" plaintiff's property.

The court points out that the nature of the damages suffered must be distinct from those suffered by the general public. The idea of the inverse condemnation claim is that the plaintiff is made to suffer more than the rest of the population in order to support a project of general public benefit. The court concluded that the alleged damages did not mark the plaintiffs as "specially" injured in ways that persons located near to public highways or myriad other heavy use corridors are affected.

Comment 1: The case follows the line of reasoning in the famous (but totally obscure) Causby decision in which Justice Douglas found that repeated low overflights of a farmer's property that virtually destroyed any utility in the property constituted a physical taking of an avigation easement by inverse condemnation. Causby is first obscure because it does not make clear whether the overflights would be actionable absent the huge injury caused. But the court in the instant case can skirt that issue because it holds that the overflights from the Denver airport were within the FAA guidelines. It accepts the notion that the appropriate line to be drawn between what are permitted overflights and what are not is the FAA standard, even though that standard was not drawn for the purpose of defining property rights, but for establishing safety standards. The FAA standard need not be the line used by state courts to define what constitutes a taking, but this case is not the first one to use it.

Comment 2: The case does not cite contrary authority, but there are a number of cases that have held that significant noise and vibration burdens can constitute an unconstitutional taking, even when the state Constitution does not provide compensation for "damaging." See, e.g., Jackson v. Metropolitan Knoxville Airport Auth., 922 S.W.2d 860 (Tenn. 1996) which cites the leading case of Thornburgh v. Port of Portland, 376 P. 2d 100 (1962) and numerous other state court cases to the same effect.

Comment 3: Public agencies interested in developing airports have become increasingly sophisticated in preparing for the possibility of liability suits. One common tactic is to develop "airport protection zones" which (apparently legally), limit development severely in the area of a proposed airport. Such zoning practices, which appear to be intended for no other purpose than to limit future takings claims, strike the editor as inappropriate, but they are quite common and apparently have survived challenges. For a catalogue of all the ways that a city can protect itself from liability for creating airport protection zones, see Cheyenne Airport Board v. Rogers, 707 P.2d 717 (Wyo. 1985) (City's declaration of severe building height limitation to facilitate civic airport activities not actionable now, if it ever was, due to running of statute of limitations and other arguments, and landowner must cut down cottonwood tree that has grown over the limit).

Comment 4: For some fun with this concept, see Howard Lax's facetious DD for Christmas, 1996, regarding the famous case of United States v. Seven Reindeer and a Sled Full of Toys, 12 F.4th 25 (Upper Cir. 1996).

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