Constitutional Law – takings — overflight

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Wisconsin Supreme Court

Civil

Constitutional Law – takings — overflight

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 creation and expansion of airports is usually deemed a public good. But that good frequently comes at a significant cost to neighboring landowners. This cost cannot be ignored.”

“‘One of the principal purposes of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”’ Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).”

“We affirm the decision of the court of appeals. We conclude 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. We remand the case to the circuit court to make further factual findings and to hold additional hearings, as necessary, to determine whether a taking occurred in this case.”

Affirmed.

2010AP342 Brennan v. New Richmond Regional Airport Commission

Prosser, J.

Attorneys: For Appellant: Krass, Phillip R., Minneapolis; For Respondent: Southwick, Benjamin, Richland Center; Siler, Ronald L., New Richmond