Alevizos v. Metropolitan Airports Commission
| Citation | 317 NW 2d 352 |
| Decision Date | 26 March 1982 |
| Docket Number | No. 51059.,51059. |
| Parties | James H. ALEVIZOS, et al., Petitioners, Frank L. Ario, et al., petitioners, Appellants, v. METROPOLITAN AIRPORTS COMMISSION, Respondent. |
| Court | Minnesota Supreme Court |
Olson, Gunn & Seran, Richard J. Gunn, William D. Gunn and Russell A. Sorenson, Minneapolis, for appellants.
Oppenheimer, Wolff, Foster, Shepard & Donnelly, Gordon Shepard, Michael Berens and Madge S. Thorsen, Minneapolis, for respondent.
Minnesota Pollution Control Agency, Roseville, amicus.
Heard, considered and decided by the court en banc.
This is an appeal by residents near the St. Paul-Minneapolis International Airport from a district court order and judgment denying a writ of mandamus for inverse condemnation of an "avigational easement." While we find that the trial court properly followed the procedures and the standard for this kind of proceeding, we also conclude that petitioners were deprived of a jury trial, which they had not waived, and, therefore, a new trial is necessary.
The case began in 1970 as a class action against the Metropolitan Airports Commission (MAC) for inverse condemnation, when residents in the area claimed an unconstitutional taking of avigational easements.1 In Alevizos v. Metropolitan Airports Commission, 298 Minn. 471, 216 N.W.2d 651 (1974) (Alevizos I), this court held a class action was not appropriate. We remanded and set out a standard for establishing an unconstitutional taking, which provided that:
We * * * will give relief to any property owner who can show a direct and substantial invasion of his property rights of such a magnitude he is deprived of the practical enjoyment of the property and that such invasion results in a definite and measurable diminution of the market value of the property.
298 Minn. at 487, 216 N.W.2d at 662.
The suit of Frank L. and Georgette Ario was advanced as a test case and tried to the district court, without a jury, in early 1979. The trial court, after a careful consideration of the record, concluded that there was a "substantial invasion of property rights of such magnitude that the Arios are deprived of the practical enjoyment of their property." The court found, too, that the aircraft flights over and near the Arios' home constituted a repeated and aggravated invasion of their property rights and that there was a reasonable probability this invasion would continue in the future.2 On appeal, these findings and conclusions are not disputed. The dispute here arises because the trial court also concluded that "the invasion has not resulted in a definite and measurable diminution in the market value of the petitioners' property." Consequently, the writ was denied.
On appeal petitioners claim that the evidence establishes their right to inverse condemnation as a matter of law; that the trial court made an incorrect evidentiary ruling and misapplied the Alevizos I standard; and that, finally, they were deprived of a jury trial. While petitioners had successfully opposed MAC's initial request for a jury, they claim this was not a waiver as they were misled by language in Alevizos I as to the jury's role in proceedings of this kind. To discuss these issues, we must first describe the factual setting.
Mr. and Mrs. Ario live at 5640 11th Avenue South in Minneapolis, where Mr. Ario teaches and coaches at nearby Washburn High School. The Arios have lived at this address since February 1962 and do not want to sell or move away from the neighborhood. The house was purchased for $21,600 in 1962 and, as of October 1, 1978 (the stipulated date of valuation), was worth $58,000 to $69,000. The Arios were aware of the airport in the vicinity when they bought the house but did not give this serious consideration, since it was their impression that airplanes flew over much of the south Minneapolis area where they wanted to live. Also, in 1962, few large jet aircraft used the airport.
The Ario residence is located about two city blocks from the northwest corner of the airport property and is now approximately 8,000 feet from the end of runway 11 Right-29 Left. Aircraft landing on this runway usually follow an imaginary centerline that runs between 350 and 500 feet south of the Ario property. Some aircraft fly directly over and some fly somewhat to the north of their property. The instrument landing system glide slope is approximately 475 to 500 feet above ground level at the point of the Ario residence.
Much of plaintiffs' evidence of the invasive nature of the overflights is anecdotal. Among other things, the Arios and their neighbors testified that, when landing, the sound of the plane is like a high-pitched whine; on takeoff, there is a deep rumbling roar. If the aircraft is overhead, conversations stop, inside and outside the house. Windows and walls vibrate, dishes rattle, and pictures turn aslant. Several people testified that phone conversations must stop while the aircraft passes overhead. Television pictures flip and roll from electrical interference. Outdoor activities are moved indoors when overflights are frequent. Reading and writing activities, as well as the family dinner hour, are interrupted. Sleep is often disturbed.
The Arios became increasingly aware of the aircraft noise in the late 1960's, when larger, noisier aircraft began using the airport. Runway 11 Right-29 Left is the longest runway and the sole runway fully instrumented to handle landing aircraft. It is also the runway closest to the Ario home. Runway 11 Left-29 Right is parallel to and 3,800 feet from this first runway. Together, says Raymond Glumack, executive director of MAC, these two runways are the "heart throb" of the airport operation, and they account for takeoffs over the Ario neighborhood 24.6% of the time and landings in the same area 17.3% of the time. Daily during the 3 peak hours, overflights can occur every 2 to 3 minutes at the Ario residence.
Noise levels monitored by the Minnesota Pollution Control Agency (PCA) at the Ario residence, as well as in other Minneapolis areas, demonstrated, as the trial court observed, that the noise intensity experienced by petitioners is greater than that experienced by the public generally.
On the critical issue of whether the admitted noise problems translated into a diminution of market value, seven witnesses testified, three for petitioners and four for respondent MAC.
Collin Viesselman, an appraiser for the Veterans Administration, testified for petitioners; he made no formal appraisal but said, in his opinion, "there is a definite difference in value" for homes in the Ario neighborhood. Howard Shenehon, an appraiser, also testified for the Arios. He made no appraisal of the Ario house, but, based on his familiarity with general studies in the south Minneapolis area, he gave an opinion that the Ario property would be reduced in value from 5 to 15%.
Petitioners' chief appraisal expert was Culver LaSalle, who conducted a formal appraisal, using both the market and cost approaches to arrive at a value for the Ario house of $62,500. To determine if this figure represented a loss of market value due to airport noise, LaSalle then compared two groups of homes, Group I near the airport and Group II at the west edge of Minneapolis, near Edina. LaSalle concluded the Ario home would be worth 10 to 15% more if there were no airport noise intrusion. This would put the value of the Ario home at about $70,000, so the appraised value of $62,500 represented a diminution in value of $7,500. On cross-examination, however, LaSalle admitted there were differences other than airport noise between the Group I and Group II neighborhoods. The crosstown highway runs through Group I, creating several dead end streets; no comparable traffic pattern exists in Group II. Homes around Group I tend to be older and smaller. Homes around Group II tend to improve in quality, especially on the Edina border. Group II is quite close to Southdale Shopping Center, and there is no comparable commercial center in Group I.
Louis Ried Schott and Stanley Miller, two representatives of an appraisal research firm, testified for respondent. Schott and Miller selected four study areas from which each collected his own sales data. Schott conducted a computer regression analysis of noise impact on the Ario house; Miller conducted a conventional market approach appraisal. Other than the selection of common study areas, Schott and Miller conducted their studies independently.
The four study areas, chosen for their comparability to the Ario neighborhood, included two neighborhoods in western Minneapolis near Edina, one area surrounding the Ario home, and a fourth neighborhood in northeast Minneapolis near St. Anthony Village. A computer printout of 1,819 sales made between 1971 and 1978 was then obtained from the city assessor's office. This was refined to a final sample total of 786. All of these homes were then physically inspected and photographed. Using a "regression analysis," Schott and his staff isolated six factors as having the greatest influence in predicting market value.3 While aircraft noise was a variable factored into the analysis, it proved to have no measurable, or at best a negligible, effect on market value.
Miller conducted a conventional market appraisal of the Ario home, using comparable sales from the same four study areas used in the computer regression analysis.4 In his opinion, the Ario home could be placed in any one of the study control areas and sold for roughly the same price. "So," Miller concluded, "I don't believe the market is measuring noise."
Peter Patchin was respondent's last appraisal expert. Patchin used both the cost and market approaches in conducting a formal appraisal. He surveyed a much wider area than the other experts, selecting 100 sales of three- and four-bedroom, story-and-a-half, expansion bungalow houses throughout south Minneapolis and part of St. Louis Park. All...
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