Aaron v. City of Los Angeles

• Decision Date: 03 July 1974
• Court: California Court of Appeals Court of Appeals
• Parties: , 7 ERC 1657 Irving D. AARON et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Appellant. Civ. 40999.

Page 162

115 Cal.Rptr. 162

40 Cal.App.3d 471, 7 ERC 1657

Irving D. AARON et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Appellant.

Civ. 40999.

Court of Appeal, Second District, Division 5, California.

July 3, 1974.

Hearing Denied Aug. 28, 1974.

Burt Pines and Roger Arnebergh, City Attys., Milton N. Sherman, Principal Asst. City Atty., and John F. Haggerty, Asst. City Atty., for defendant and appellant.

Ellis & Sloan, Los Angeles, and Lyle C. Ellis and James E. Sloan, Los Angeles, for plaintiffs and respondents.

ASHBY, Associate Justice.

Defendant appeals from a judgment in inverse condemnation in favor of numerous individual plaintiffs following a trial by the court. The issue in this appeal is whether the City of Los Angeles (City), as owner and operator of Los Angeles International Airport (LAX), is liable in inverse condemnation to owners of residential property in the neighborhood of the airport which is damaged and reduced in market value by the noise from jet aircraft taking off and landing at the airport. The trial court answered this question in the affirmative, and granted judgment against the City with respect to 520 parcels of such property. We have concluded that the trial court was correct and that the judgment should be affirmed.

FACTS

Between 1959, when jet aircraft first began using LAX, and 1965, the City permitted gradually increasing numbers of jet flights to and from the airport. ¹ These aircraft emit loud and disturbing noises. An accoustical expert with the consulting firm of Bolt, Beranek and Newman prepared a study for the Federal Aviation Administration entitled '1965, 1970, and 1975 Noise Exposure Forecast Areas for Los Angeles International Airport.' The purpose of the study was to determine the effects of aircraft noise on land use in areas surrounding the airport. The effective perceived noise level (EPNL), which measures the annoyance caused by such noise, was determined based on known noise levels of the engines, altitudes, distances, flight paths, and takeoff and landing patterns. Adjustments were made to reflect the number of flights per day and the timing of the flights, since frequent flights and nighttime flights are more annoying to residents. Based on these values three noise exposure forecast (NEF) areas were determined. ² NEF area C was the one in which jet aircraft noise had the greatest effect upon people below. Single family construction is not recommended in NEF area C because noise is likely to constitute a severe interference with the use of land for that purpose. The bulk of the properties originally involved in this suit are in NEF area C.

A few of the individual plaintiffs testified about the disturbing and annoying effects which the jet noise had on conversations, radio and television viewing and sleep. There was also some testimony that soot, oil and fuel from the aircraft fell on some of the parcels involved causing damage to painted surfaces and preventing homeowners from keeping their cars uncovered or drying clothes in their yards. However, recovery is not sought for the noise and other inconveniences as such, but rather for the diminution in property value caused by them.

Most of the trial was occupied by the testimony of a team of appraisers for plaintiffs. They visited the properties of the named plaintiffs in 1963, heard the jet noise themselves, and prepared appraisals of the properties involved. They appraised the market values of these properties and what their market value would have been if unaffected by jet noise, based on sales of comparable properties in other areas. The trial court determined that 581 of the parcels had been damaged and their market value reduced by the jet noise. ³ The reductions in market value ranged from $400 to $6,000 but were preponderantly in the neighborhood of $1,000. In the judgment the court also granted an easement to the City for flights of jet aircraft in the air space over and near the properties involved, to the extent of such usage in May 1963, which was determined to be the time of the taking or damaging of property in this case.

I JET NOISE AS A TAKING OR DAMAGING OF PROPERTY

There is no appellate case in California that squarely holds the municipal operator of an airport liable in inverse condemnation to the owners of residential property in the vicinity of the airport which is damaged and diminished in market value by noise from jet aircraft landing and taking off at the airport. The subject has been treated by numerous legal commentators, however, ⁴ and we are guided to our conclusion by prior decisions of the California Supreme Court which imply this result, as well as by other California decisional and statutory law and decisions of the United States Supreme Court and courts of sister states.

In the landmark case of United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), the Supreme Court held that frequent low flights over the Causbys' land by military aircraft landing at a nearby airport operated by the United States constituted a taking of the Causbys' property without compensation in violation of the Fifth Amendment of the United States Constitution. The noise from the aircraft rendered it impossible to continue the use of the property as a commercial chicken farm. Although the flights did not completely destroy the enjoyment and use of the land, they were held to be so low and frequent as to constitute a direct and immediate interference with the full enjoyment of the land, limiting the utility of the land and causing a diminution in its value, and therefore constituted a taking under the Fifth Amendment.

In the other major Supreme Court decision on this issue, Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), the court held that Allegheny County, which owned and operated the Greater Pittsburgh Airport, was liable for a taking of property under the Fifth Amendment where the noise from aircraft taking off and landing at the airport on flight paths over the Griggs' property rendered the property undesirable and unbearable for residential use. The court saw no difference between the county's responsibility to pay for the land on which the runways were built and its responsibility for the air easements necessary for operation of the airport. 'The glide path for the northeast runway is as necessary for the operation of the airport as is a surface right of way for operation of a bridge, or as is the land for the operation of a dam. (Citation.) As stated by the Supreme Court of Washington in Ackerman v. Seattle, 55 Wash.2d 401 (sic 400), 413, 348 P.2d 664, 671, 77 A.L.R.2d 1344, '. . . an adequate approach way is as necessary a part of an airport as is the ground on which the airstrip, itself, is constructed . . ..' Without the 'approach areas,' an airport is indeed not operable. Respondent in designing it had to acquire some private property. Our conclusion is that by constitutional standards it did not acquire enough.' (369 U.S. at p. 90, 82 S.Ct. at p. 534, 7 L.Ed.2d at p. 589.)

A federal circuit court has narrowly interpreted Causby and Griggs to mean that there is no taking under the Fifth Amendment unless the aircraft invade the air space directly over the plaintiff's property and the property is rendered uninhabitable. (Batten v. United States, 306 F.2d 580 (10th Cir. 1962), cert. den. 371 U.S. 955, 83 S.Ct. 506, 9 L.Ed.2d 502, rehrg. den. 372 U.S. 925, 83 S.Ct. 718, 9 L.Ed.2d 731.) However, several states have interpreted their own constitutions to require compensation under less strict circumstances when the noise from aircraft has diminished the market value of the homeowner's property.

The leading case is Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962), second appeal 244 Or. 69, 415 P.2d 750 (1966). There the Oregon Supreme Court rejected any arbitrary limitations based upon the altitude of the particular aircraft or upon a technical trespass of the air space directly over the homeowner's land. The court held that there could be a taking whenever the government acts in such a way as substantially to deprive an owner of the useful possession of his property. (Thornburg v. Port of Portland, Supra, 376 P.2d at p. 106.) In the second appeal the court held: 'The proper test to determine whether there has been a compensable invasion of the individual's property rights in a case of this kind is whether the interference with use and enjoyment is sufficiently direct, sufficiently peculiar, and of sufficient magnitude to support a conclusion that the interference has reduced the fair market value of the plaintiff's land by a sum certain in money. If so, justice as between the state and the citizen requires the burden imposed to be borne by the public and not by the individual alone.' (Thornburg v. Port of Portland, Supra, 415 P.2d at p. 752.)

Similarly in Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1964), cert. den. 379 U.S. 989, 85 S.Ct. 701, 13 L.Ed.2d 610, the Supreme Court of Washington held that there should be no arbitrary distinction between property directly overflown by jet aircraft and that which is not. The court noted that article I, section 16, amendment 9 of the Washington Constitution refers to a 'taking' or 'damaging' of property (as does article I, section 14 of the California Constitution) and thus is broader than the 'taking' provision of the United States Constitution. The court found it unnecessary to become 'embroiled' in this distinction, however, because in the prior Washington decision of Ackerman v. Port of Seattle (1960) 55 Wash.2d 400, 348 P.2d 664 (quoted by the United States Supreme Court in Griggs v. Allegheny County, Supra), property was defined to include the unrestricted right to use, enjoy, and dispose of the land, and the frequent flight of aircraft over the land reducing its market value was held to be a...