PILOT-Counsel: An Airport Wins One

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​November 2021 editorial comment and update: This article first appeared in the Octoberr 1999 issue of AOPA PILOT magazine.  A lot has happened at Connecticut’s Tweed airport in the 22 years since John Yodice wrote this article, not the least of which is more litigation.  The most recent litigation that we’ll address in this update relates to the expansion of Tweed’s runway 2/20.  And, interestingly, the complainant was not nearby homeowners, but rather, indirectly, the state of Connecticut. 
 
In 2009, the Connecticut state legislature passed an act that restricted Tweed’s runway 2/20 to its existing length of 5,600 feet.  The Tweed-New Haven Airport Authority, seeking to expand the runway length, brought a case against the Connecticut Attorney General in his official capacity seeking a declaratory judgment.  In 2017, the U.S. District Court found that the airport authority did not have standing to bring suit because there was no injury caused directly by the statute—the act noted above. Furthermore, the court claimed that state law, in this specific instance, was not preempted by federal law.  The airport then appealed to the Second Circuit Court, and whereupon, in July of 2019, the decision was overturned.  The 3-judge appeals court panel found that the Runway Statute did indeed injure Tweed by preventing it from extending its runway. The State made numerous other claims seeking to affect its position on standing, but the court was unpersuaded.  On the question of federal preemption, the court said: “We straightforwardly conclude that the Runway Statute falls well within the scope of the FAAct’s [FAA’s enabling statute] preemption because of its direct impact on air safety.”  It's yet another win for the airport!  

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It’s a fact of life.  Many airports are under constant pressure by local residents who complain about the sound and sight of airplanes.  What often makes the situation unfair is that these complaining residents moved next to the airport knowing full well that an airport is close by, and that they should expect overhead air traffic coming and going from the airport.  That doesn't seem to prevent them from pressing for traffic restrictions--and sometimes outright closure--even though there has been no significant increase in traffic or noise impact on them since the time they purchased their homes.
 
That's why it is heartening to read a recent decision of the Connecticut Supreme Court rejecting a claim by two such residents who years ago purchased a home very near to the Tweed-New Haven Airport.  This is a win for aviation interests that could be an important precedent. 
 
The Tweed Airport is owned by the city of New Haven, Connecticut.  It has been an airport since 1931.  It had been the subject of litigation by nearby homeowners even before the lawsuit we are reporting here.  In that earlier litigation, several local residents objected to commercial jet traffic coming and going from airport during two periods between 1967 and 1975.  They sued in Federal court.  In that suit, the court ruled in favor of the homeowners, finding that the overflights had substantially interfered with the owners' use and enjoyment of their properties.  The court held that the overflights amounted to a "taking" for which the homeowners must be compensated. 
 
In 1979, the plaintiffs in the case we are reporting, bought their home near the airport, paying $60,000 for a house built in 1959, well after the airport had been established.  It has served as their home since they bought it.  The home is located some 450 feet north of the northern boundary of the airport and about 1500 feet from the end of one of the 

​runways.  Aircraft using that runway fly almost directly over the home at low altitudes.  At the time that they purchased the home, the airport had a considerable amount of non-jet traffic, and was also regularly used by corporate jets.  But there was no commercial jet service. 
 
In 1984, Air Wisconsin conducted a test flight of one of its jets at the Tweed Airport.  It flew directly over the plaintiffs' home.  It caused quite a stir among the nearby residents.  The two plaintiffs and other residents immediately began a campaign to persuade the city to discontinue any further use of Tweed by Air Wisconsin jets, to no avail.  In 1985, the city allowed Air Wisconsin to begin regularly scheduled flights into Tweed.  Five days later, the plaintiffs sued the city in Federal court, which, for technical reasons had to be re-instituted in State court.  The plaintiffs claimed that the Air Wisconsin overflights resulted in a permanent taking of their property by inverse condemnation, for which they were entitled to just compensation under the Connecticut Constitution. 
 
Here is the legal situation.  The Connecticut Constitution provides, very similar to the United States Constitution, that a person's property may not be taken for a public purpose without just compensation.  A person's real property includes a reasonable amount of the airspace above the property.  In the 1946 landmark case of United States v. Causby, the United States Supreme Court established a standard for determining when an avigation easement in a person's property has been taken by inverse condemnation.  An avigation easement is sort of a public highway in the air permitting flight in airspace over a person's land. Inverse condemnation is a shorthand description of the way in which a landowner recovers just compensation for a taking of the landowner's property when formal condemnation proceedings have not been instituted.
 
At the trial court level, the plaintiffs' claim was rejected.  The claim was rejected because the court was not able to find that the plaintiffs sustained any significant economic damage as a result of the overflights.  The court went on to state that the value of the property had been lessened by virtue of the property's proximity to the airport, but that was the case in 1979 when the plaintiffs purchased it.  The trial court concluded that there had been a "taking", but that the taking occurred during the 1967 to 1975 period when commercial jet traffic operated there.  The plaintiffs could not prove that the Air Wisconsin overflights were more disruptive to the enjoyment of property rights than the jet overflights from 1967 to 1975.
 
At the trial, each side presented the testimony of a real estate appraiser regarding the value of the property before and after the Air Wisconsin overflights.  Each side relied on the comparable sales approach, which is a well- established valuation method, to estimate the fair market values of the property.  
 
The plaintiffs' appraiser estimated that the property had decreased in value from $90,500 prior to the Air Wisconsin flights, to $59,000 after they started.  He valued the property at $105,000 as of the time of trial in 1997.  
 
On the other hand, the city's appraiser testified that there was no discernable impact on the value of the property.  He testified that, based on the sales data he accumulated and analyzed, the properties in the flight zone showed an average annual percentage increase in value in the middle range of the overall market.
 
After listening to the detailed testimony, the trial court was more persuaded by the testimony of the city's appraiser, and expressly discredited the conclusions of the plaintiffs' appraiser.  For one thing, according to the court, the city's appraiser had superior credentials.  For another, the plaintiffs' appraiser had limited experience in residential appraisal in the particular area, whereas the city's appraiser had done extensive residential appraisal work in that locale.  For still another, the plaintiffs' appraiser did not restrict himself to comparable sales data, but instead used other valuation tools to bolster his conclusions.  As opposed to the plaintiffs' appraiser, the city's appraiser based his valuation solely on comparable sales figures, and limited his market study to the most relevant locale.  On these bases, the trial court chose to believe the city's appraiser.  The trial court rejected the plaintiffs' claim.
 
The plaintiff homeowners appealed the trial court's decision.  On appeal, the Connecticut Supreme Court reviewed the case in some detail, and then affirmed the trial court.
 
One of plaintiffs' arguments was that another, better appraiser might have succeeded in persuading the trial court that the property had lost value, where the appraiser that the plaintiffs used had failed.  In answer to this argument, the Supreme Court said: "It is far more likely, however, that, by the time the plaintiffs had purchased their home in 1979, the market already had adjusted for the likelihood of interference from jet flights into and out of Tweed.  In other words, any diminution in the value of the ... property may have been reflected in the price that the plaintiffs had paid for the property when they purchased it in 1979, after the first series of jet overflights from 1967 to 1975."
 
This decision could provide an important precedent in Connecticut, and a persuasive logic elsewhere.  A homeowner who buys a home near an established airport fully recognizing that the airport will continue to generate traffic near the home, in fairness should not be heard to complain about the airport. 

​                                         Copyright © Yodice Associates 1999.  All rights reserved.
       
    
John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com