When an airport expands its runways, neighbors seeking to prove inverse condemnation under Brenner II’s overflight framework need to show harm from planes in the air – not problems on the ground. This was the conclusion of the Court of Appeals in a recent decision, Brenner v. City of New Richmond, No. 2014AP799, 2015 Wisc. App. LEXIS 394 (Wis. Ct. App. May 27, 2015) (per curiam) (may not be cited for controlling or persuasive authority – see Wis. Stat. § 809.23(3)).
Aircraft flight operations can give rise to takings. Under the Supreme Court of Wisconsin’s earlier decision in Brenner v. New Richmond Reg’l Airport Comm’n, 2012 WI 8, 343 Wis. 2d 320, 816 N.W.2d 291 (“Brenner II”), a takings claim may exist where the landowner can show that airplane overflights were low enough and frequent enough to have a direct and immediate effect on the use and enjoyment of the person’s property. Thus, if landowners could connect their loss of property to the aircraft overflights, there was the possibility of compensation.
The appeal here arose out of the post-Brenner II hearings. “On remand, [from Brenner II] it was still necessary for the [landowners] to establish a “taking” under Brenner II by establishing the frequency and altitude of the alleged overflights over their property....” At the hearings, the landowners’ appraiser testified to the impact on the property. He concluded that extending the runways and the noise, dirt, and protective regulations that go along with extensions meant that the landowners were limited as to how they could develop the property. Before the extension, he testified, the property had a “highest and best use” as commercial. With the dirt and danger, the “highest and best use” fell to industrial. The loss, he estimated, was $780,000.
Most importantly, the appraiser connected this decrease in the value to the runway extensions – not low-flying planes. Thus, the circuit court concluded that the landowners failed to prove there was a taking of the landowners’ property. The circuit court “apparently did not believe the evidence established overflights of sufficient frequency and altitude to constitute a taking.”
The landowners appealed. On appeal, the landowners argued that the Supreme Court’s ruling in Brenner II does not limit aircraft-related takings to overflights. Rather, the landowners said, the trial court should be able to consider effect of the runway. The landowners contended Brenner II “was never intending to say [that] when the extension of this runway creates an invasion of the property by dust, noise, and smell that comes from the airport extension as opposed to directly from planes, that that is not [a] legitimate consideration.”
The court of appeals disagreed. It held firm in limiting the sources of harm to overflights only. The rule of Brenner II, the opinion explains, is that landowners must tie property harm to the intrusions of the property’s “superadjacent” block of air with direct and immediate effect on the use and enjoyment of that property.
As such, the court of appeals agreed with the circuit court that the landowners had failed to connect their harm to overflights. The landowners’ expert “never once used the word overflight in the cited testimony, and he clearly linked any physical effects on the property to the fact that the runway is [now] close by.” Thus, any safety issues affecting the property’s highest and best use were attributed to the proximity of the runway.
Finally, the court of appeals repeated that Brenner II really did limit takings to those arising from invasions of airspace. Other airplane-related damages did not fall under that specific takings framework. In support, the court of appeals noted that the Brenner II opinion quoted extensively from Batten v. United States, 306 F.2d 580 (10th Cir. 1962) as guidance. Quoting Batten, the Brenner II court explained that although airports may bother neighbors with shock waves, vibrations, noise, smoke, and oily black deposits, those damages could potentially give rise to consequential damages in a tort or nuisance case but that they were inappropriate to consider in an overflight takings case.
Although this most recent decision may not be cited for controlling or persuasive authority, it can help guide the practitioner faced with tough takings assignments. Where landowners seek inverse condemnation under Brenner II, they will need to tie the injury to low-flying planes. As much as it would seem like the airplane and the runway are linked, only the airplane (invading the landowner’s airspace) leads to the compensable taking under the Brenner II overflight analysis. In short, landowners contemplating overflight claims need to look to the sky.