Responsibility for Implementation and Enforcement of Airport Land-Use Zoning Restrictions (2009)

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64 Appendix E Excerpt from the Minnesota Department of Transportation Airport Compatibility Manual Patzau v. New Jersey Dep't of Transp., 271 N.J. Super. 294 (App. Div. 1994), which addressed the constitutionality of an air safety and zoning act that, among other things, required the adoption of building height restrictions within airport safety zones. The court found that “the state may impose very substantial zoning and other restrictions on the use of property in order to advance legitimate public interests without being obligated to provide compensation.” Aeronautics Comm'n v. State ex. rel. Emmis Broad. Corp., 440 N.E.2d 700, (Ind. App. 1982), the court found that a state “high structures act,” which regulates structural height near airports for the purpose of protect[ing] the safety and welfare of persons and property in the air and on the ground by ensuring the navigable airspace overlying the state is maintained in an unobstructed condition,” is valid “because Congress has evidenced a purpose to leave legal enforcement of regulations pertaining to high structures and air safety to state and local governments.” La Salle Nat'l Bank v. County of Cook, 34 III. App. 3d 264 (1975), in which the court determined that the enactment of an airport zoning ordinance that imposed height restrictions on buildings near certain airports, including a naval air station, for the purpose of preventing aviation hazards did not unconstitutionally deprive a landowner of its property without just compensation. Cheyenne Airport Board v. Rogers, 707 P.2d 717 (Wy. 1985), appeal dismissed, 476 U.S. 1110, (1986), where the Wyoming Supreme Court applied federal and state law definitions of airspace property right to reject a takings claim. Kimberlin v. City of Topeka, 710 P.2d 682 (1985), the court held that a zoning ordinance that establishes height and use restrictions to promote airport safety is a proper exercise of police power and does not result in an unconstitutional taking without just compensation. Fitzgerald v. City of Iowa City, 492 N.W.2d 659 (Iowa 1992), where the court found no compensable physical invasion was present where the evidence presented by plaintiffs was devoid of any evidence showing either the frequency or approximate altitudes of planes flying over the plaintiffs' lands. Vacation Village, Inc. v. Clark County, Nevada, Adversary No. 98-2313-RCJ (December 30, 2004), where no takings was present as to 1.25 acres of plaintiff's land where the “parcel as a whole” was not diminished in value, but where other property affected by overflights was deemed a taking and substantial compensation was ordered. [See other discussion about this case in this Report]. Schmidt v. City of Kenosha, 214 Wis. 2d 527 (Wis. App. 1997), the court concluded that an airport zoning ordinance that prohibits construction along aerial approaches to an airport “is not arbitrary capricious, but is reasonably related to a legitimate public purpose.” Northwest Props. v. Outagamie County, 223 Wis. 2d 483 (Wis. App. 1998), the court determined that a municipality had authority to enact a zoning ordinance that protects the aerial approaches to an airport by regulating, restricting and determining the use, location, height, number of stories and size of buildings and structures and objects of natural growth in the [airport's] vicinity. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987), where the United States Supreme Court rejected the notion that a public nuisance must be an inherently noxious or unreasonable land use and found that what would otherwise have been a lawful coal mine posed a threat to the common welfare akin to a public nuisance because of the subsidence risks it created.

65 Welch v. Swasey, 214 U.S. 91 (1909), where the court has long recognized that police power enactments limiting vertical, lateral, and subjacent property development do not effect compensable takings. Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978), where the situation in which a landowner is restrained in his or her use of one spatial area of the property—his airspace, side yards, or subsoil—as merely one species of regulation and no actual property in these cases have been appropriated by the government. [See other discussion about this case in this Report]. Richmond, Fredericksburg & Potomac R.R. Co. v. Metropolitan Washington Airports Auth., 251 Va. 201 (1996), where 23,000 annual overflights were insufficient to establish a taking because there was no evidence of the types of airplanes using the runway, the height at which they passed over the property, or the frequency of landings. Ackerman v. Port of Seattle, 55 Wash. 2d 400 (1960), finding a taking based on continuing and frequent low overflights. Village of Willoughby Hills v. Corrigan, 278 N.E.2d 658 (Ohio 1972), where the court found that unlike a surface invasion of land, an invasion of airspace above the land does not constitute a per se taking. Harrell's Candy Kitchen v. Sarasota-Manatee Air. A., 111 So. 2d 439 (Fla. 1959), where the court upheld the validity of airport height restrictions without payment of just compensation. The court determined that the police power authority was necessary where the restrictions promoted the welfare of the state. Austin v. Travis County Landfill Co., 73 S.W.3d 234 (Tex. 2002), the Texas Supreme Court found evidence insufficient to support a compensable taking where flights over landfill did not reduce market value where the Texas Supreme Court found that plaintiff failed to establish a claim of compensable taking by aircraft. The plaintiff did not provide evidence sufficient to support the claim that flight from the city airport over the landfill directly impacted the property's surface and caused the value to decline. Even though the landfill owner was exposed to an influx of risks and costs, the evidence was not sufficient to show that civilian overflight effects caused or contributed to the land's decline in market value.