State Supreme Court to debate airport issue

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Property owners claim damages, seek compensation

The Wisconsin Supreme Court next month will consider whether property owners are entitled to compensation from airports, even if they are not in the direct flight path of planes overhead.

The case arises from the expansion of a public airport in the city of New Richmond. Three nearby property owners claimed damages through the inverse condemnation process.

One of the property owners did receive some compensation because his land was taken for the project and he received additional compensation for an avigation easement that permitted planes to fly directly over his property. Two other property owners received nothing. All claimed the planes using the airport reduced the value of their property and adversely affected their ability to use their homes in a quiet and peaceful manner.

The trial court denied compensation, but the Wisconsin Court of Appeals reversed.

Before the Wisconsin Supreme Court, New Richmond argues that any damages the property owners have suffered is only “consequential,” and thus, not compensable.

In its brief, the city argues a taking occurs “only when the general flying pattern of all aircraft landing and taking off at the airport results in overflights directly over the inverse condemnation claimants’ property. … Interruption in the enjoyment and quiet use of real estate in the vicinity of an airport, but not involving direct overflights, is a consequential damage for which there is no taking under the 5th Amendment.”

The city argues the only exception to this rule is when the government actions “were so extreme as to result in the loss of all or nearly all economic value of the owners’ property, even though that property was not directly under the FAA-recommended flight path” — a standard not met in this case.

But the property owners contend this exception applies only to “regulatory takings,” not partial takings that result from the actual occupation of airspace.

In their brief, the owners argue, “Because the landowners seek damages from the direct invasion of their property by overflights, rather than damages resulting from government action outside their property, this is a compensable taking by physical occupation case rather than a noncompensable consequential damages case.”

The parties also dispute whether direct overflights actually occur over the owners’ property.

In Brief

Case: Brenner v. City of New Richmond, 2010AP342

Attorneys:For Brenner, et al.: Phillip Krass of Malkerson Gunn Martin LLP, Minneapolis For city of New Richmond: Benjamin Southwick of Benjamin Southwick Law Office, Richland Center