Whether condemnation of avigation rights was sufficient to avoid takings claim requires further fact finding

by Melanie Thwing

Brenner, Wickenhauser and Seidling v. City of New Richmond

(Wisconsin Court of Appeals, May 10, 2011)

Robert Brenner, Steven and Cristy Wickenhauser and Allan and Susan Seidling (landowners) all own land in the vicinity of the New Richmond Regional Airport in the City of New Richmond, WI. In 2007 the City extended the main runway by 1,500 feet. Sixty-two acres of the Wickenhausers’ land was condemned by the City as well as condemning an avigation easement over another four acres.

The avigation easement alone prohibits buildings and trees exceeding between twenty-six and thirty-eight feet tall depending on the location. This easement states it is for the use and benefit of the public and includes the right to cause sound, noise, vibration and dust that is inherent with the operation of aircrafts. It goes on to state that the noise impacts may be “annoying” to land users.

After experiencing the runway expansion’s effects that included odors, dust, vibrations, sound, low overhead flights, and runway strobe lights the landowners filed an inverse condemnation claim in circuit court under Wis. Stat. § 32.10, claiming that the operation of the airport deprived them of all property rights (not just those condemned through the avigation easement). The circuit court found that because the landowners had not been deprived substantially of all beneficial use of the properties there was no taking.  The landowners appeal to the Wisconsin Court of Appeals, arguing that the circuit court applied the wrong standard when it concluded there no taking.

Wis. Stat. § 32.10 allows landowners who believe property has been taken by the government to bring an inverse condemnation claim for compensation. It is intended to deal with eminent domain, where the government occupies private property and plans to continue this occupation. The facts must show either an actual physical taking or a government-imposed restriction that deprives the owner of beneficial use of his property.  According to the Wisconsin Court of Appeals this essentially means that landowners do not need to demonstrate that they have been deprived of all or substantially all beneficial use. The court points that if this were the case then public entities would rarely be required to compensate landowners.

Under § 32.10 (6g) the loss of air rights is identified as a compensable loss. The City acknowledges this, but argues that a taking occurs only if flights have a direct, immediate, and substantial effect on the enjoyment of the land. In this case the FAA-approved flight paths do not fly over the landowners’ homes.  The Court disagreed with the city’s argument because it fails to to take into account that flight paths may cross above other portions of the landowners’ properties (not just their homes) and ignores the finding of the circuit court that the space above the homes are in fact used by airplanes and helicopters regardless of the identified routes of the FAA-approved flight paths.

The actual determination of whether a taking has occurred depended on further fact finding. The Court of Appeals remanded the case to the circuit court for fact finding to determine whether there was a partial taking.

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