Brenner v. New Richmond Reg'l Airport Comm'n

• Decision Date: 17 July 2012
• Docket Number: No. 2010AP342.,2010AP342.
• Citation: Brenner v. New Richmond Reg'l Airport Comm'n, 2012 WI 98, 343 Wis.2d 320, 816 N.W.2d 291 (Wis. 2012)
• Parties: Robert E. BRENNER, Steven J. Wickenhauser, Cristy K. Wickenhauser, Allan J. Seidling and Susan M. Seidling, Plaintiffs–Appellants, v. NEW RICHMOND REGIONAL AIRPORT COMMISSION and City of New Richmond, Defendants–Respondents–Petitioners.
• Court: Wisconsin Supreme Court

343 Wis.2d 320

816 N.W.2d 291

2012 WI 98

Robert E. BRENNER, Steven J. Wickenhauser, Cristy K. Wickenhauser, Allan J. Seidling and Susan M. Seidling, Plaintiffs–Appellants,

v.NEW RICHMOND REGIONAL AIRPORT COMMISSION and City of New Richmond, Defendants–Respondents–Petitioners.

No. 2010AP342.

Supreme Court of Wisconsin.

Argued Feb. 7, 2012.

Decided July 17, 2012.

For the defendants-respondents-petitioners, there were briefs filed by Benjamin Southwick and Benjamin Southwick Law Office, Richland Center, and Ronald L. Siler and Van Dyk, O'Boyle, & Siler, S.C., New Richmond, and oral argument by Benjamin Southwick.

For the plaintiffs-appellants, there was a brief filed by Phillip R. Krass and Malkerson, Gunn, & Martin, LLP, Minneapolis, and oral argument by Phillip R. Krass.

An amicus curiae brief was filed by James S. Thiel and Corey F. Finkelmeyer, assistant attorneys general, with whom on the brief was J.B. Van Hollen, on behalf of the State of Wisconsin.

DAVID T. PROSSER, J.

[343 Wis.2d 324]¶ 1 This is a review of an unpublished decision of the court of appeals, reversing an order of the St. Croix County Circuit Court, Howard W. Cameron, Jr., Judge. The circuit court dismissed the inverse condemnation claims of several landowners whose property is close or immediately adjacent to the New Richmond Regional Airport (Airport). The landowners alleged that an extension of the Airport's runway by 1500 feet amounted to the compensable taking of an easement because the resulting overflights had adverse effects on their properties, including diminished use and enjoyment and decrease of value.

¶ 2 The circuit court acknowledged that the subject properties had been adversely affected, but it concluded that “for a taking by the government to be compensable, the property owner must be deprived of all or practically all of the beneficial use of the property or of any part. The Court must consider the whole property and not just a portion of each ... property.” The court of appeals reversed, holding that the “standard for regulatory takings does not apply to physical occupation cases.” Brenner v. City of New Richmond, No. 2010AP342, unpublished slip op., ¶ 1, 2011 WL 1760465 (Wis.Ct.App. May 10, 2011).

¶ 3 We are presented with the following question: In airplane overflight cases, is the proper standard for determining a taking (1) whether the overflights are low enough and frequent enough to have a direct and immediate effect on the use and enjoyment of property, or (2) whether the overflights deprive the property owner of all or substantially all beneficial use of the property?

¶ 4 We conclude that a taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner's property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property. We remand the case to the circuit court to make further factual findings and apply this standard to determine whether there were takings of the properties in this case.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 5 The New Richmond Regional Airport is owned and operated by the City of New Richmond (City) in St. Croix County. The Airport is located on the north end of the city on approximately 350 acres of land.¹ The Airport is bounded on the west by County Trunk Highway CC (CTH CC).

¶ 6 In September 2006 the Airport began a construction project to extend its 4000 foot Northwest/Southeast main runway by 1500 feet. The project was completed in June 2007. To make the extension possible, the City ² acquired by direct condemnationapproximately 62 acres of land from Steven and Cristy Wickenhauser (the Wickenhausers) whose 142.5 acres of land abutted the north end of the Airport. The City also acquired a 3.813 acre avigation easement ³ over two parcels within the remaining 80 acres of the Wickenhauser property. The avigation easement covered airspace above the Wickenhausers' personal residence and dairy barn. The Wickenhausers asked the City to condemn their entire 142.5 acres. The City declined.

¶ 7 The Airport and the Wickenhauser property are on the east side of CTH CC. Robert Brenner (Brenner) and Allan and Susan Seidling (the Seidlings) own properties on the west side of CTH CC.

¶ 8 The Brenner property consists of approximately 5 acres and includes his personal residence, a barn, and other miscellaneous improvements. The house is 816 feet from the closest point of the extended runway. The edge of the Brenner property borders CTH CC and is closer to the runway than the house.

¶ 9 The Seidling property consists of approximately 15 acres including their personal residence, crop fields, and pasture land. It borders CTH CC on the east and is directly south and west of the Brenner property. The Brenner property was once part of the Seidlings' acreage. The Seidlings' home is approximately 1503 feet from the runway. Susan Seidling indicated that she runs a daycare business out of her home.

¶ 10 Some of the Seidling land and much of the remainder of the Wickenhauser land are rented for crops or other agricultural uses.

¶ 11 Like the Wickenhausers, both Brenner and the Seidlings asked the City to condemn their land after they learned of the planned airport extension. The City declined.

[343 Wis.2d 328]¶ 12 The landowners and their witnesses testified in various proceedings about the adverse effects of the Airport expansion. In essence, the landowners complained that the extended runway led to noise, dust, dirt, flashing lights, disruption of their sleep, diminished enjoyment of their property, concerns about safety, direct overflights, and a decrease in property value.

¶ 13 As noted, the City condemned approximately 62 acres of the Wickenhausers' property and acquired an additional avigation easement. The State made a jurisdictional offer ⁴ for the land, the easement, and severance damages.⁵On December 14, 2007, the Wickenhausers notified the State that they were rejectingthe jurisdictional offer, which led to a separate lawsuit on December 28, 2007, Wisconsin Bureau of Aeronautics v. Steven Wickenhauser, No. 2007CV1210 (St. Croix County Circuit Court). This condemnation suit against the Wickenhauser property is completely separate from this case.⁶

[343 Wis.2d 330]¶ 14 The present case was filed December 13, 2007, by Brenner, the Wickenhausers, and the Seidlings. These landowners alleged inverse condemnation, nuisance, and trespass. To perfect their claim, they filed a verified petition for inverse condemnation, under Wis. Stat. § 32.10, in June 2008.

¶ 15 After a number of motions and pretrial proceedings designed in part to clarify the issues, the case proceeded to a court trial before Judge Cameron on June 10 and July 10, 2009. The landowners and their witnesses focused on the adverse effects created by additional aircraft flying in new flight patterns at the Airport, while the City emphasized that much of the value of the respective properties had not been lost.

Robert Brenner

¶ 16 Robert Brenner lived on his property with his fiancée and her daughter. A licensed pilot, Brenner testified that because of the runway extension, crosswinds caused aircraft to fly directly over his property, sometimes at less than 100 feet in altitude.

¶ 17 While some of Brenner's testimony indicated that aircraft travelled over his house during the FAA recommended approach, he also indicated that some pilots did not follow “the standard traffic patterns” and showed “[t]otal disregard for any traffic regulations or rules.”

¶ 18 During the first day of the trial, Brenner offered video evidence of this claim and testified: “[Y]ou will see how aircraft totally disregard the air traffic patterns that are ... set up by the FAA, and how they deliberately fly over either my house or Steve's house.” The City objected to this testimony, asking the court: “How can the City be responsible for what pilots do when they're acting illegally and contrary to FAA regulations?”

[343 Wis.2d 331]¶ 19 Brenner also testified that “this is an uncontrolled airport; and so pilots can do basically whatever they want, and ... actually—you know, it's the pilot's responsibility, but it's also the airport's responsibility to ensure proper traffic patterns are followed.”

¶ 20 Brenner testified that, after the expansion, residing in his home had been a “living nightmare.” He testified about helicopters flying in and out at all hours of the night. He testified that jets that could not previously use the shorter runway are now flying in and out of the airport. He testified that, since the extension of the runway, air traffic has increased and that his whole family's sleep is interrupted because of the noise of the airport and the flashing strobe lights at night during landings and take-offs. He testified that he and his family cannot sit outside and have a conversation or a picnic or a cookout because of the noise. He testified to being concerned about safety issues because the planes fly close to the house, noting that the power lines in front of his home were lowered ten feet from their original level because the aircraft were getting dangerously close. He testified about the debris and dust kicked up by the jets, as well as the kerosene smell.

¶ 21 Brenner complained about vibrations in his home, particularly with the windows. The 9–year–old daughter of his fiancée testified that, at one time, she was mixing a cake for her grandmother and vibrations from a plane flying over caused the bowl of cake mix to vibrate off the table and break on the floor. She also testified that the noise often wakes her up at night and is scary.

The Seidlings

¶ 22 The Seidlings have lived on their property since about 1991. Allan Seidling testified that he can feel vibrations while he is sitting in the house when planes come in. He described the odor drifting in from the east. He said he had installed air conditioning but would rather have his windows...