City of Austin v. Travis County Landfill

• Decision Date: 28 March 2002
• Docket Number: No. 00-0944.,00-0944.
• Parties: CITY OF AUSTIN, Petitioner, v. TRAVIS COUNTY LANDFILL COMPANY, L.L.C., Respondent.
• Court: Texas Supreme Court

73 S.W.3d 234

CITY OF AUSTIN, Petitioner, v. TRAVIS COUNTY LANDFILL COMPANY, L.L.C., Respondent.

No. 00-0944.

Supreme Court of Texas.

Argued October 17, 2001.

Decided March 28, 2002.

Rehearing Overruled May 30, 2002.

Pamela Stanton Baron, David Allan Smith, Asst. City Atty., Andrew Dwight Martin, City Atty., Reynolds Miller Shelton, Asst. City Atty., Austin, James D. Ossyra, Hopkins & Sutter, Chicago, IL, for petitioner.

John N. McClish, Womack & McClish, Austin, for respondent.

Justice O'NEILL delivered the opinion of the Court.

In this case we consider the constitutional standard necessary to establish a "taking" of private property by aircraft overflights under the Texas Constitution. See Tex. Const. art. I, § 17. Purporting to follow United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), the court of appeals affirmed the trial court's compensation award to the property owner. 25 S.W.3d 191, 204. It held that a decrease in the land's fair market value caused by airport operations resulted in a taking even though the landowner did not show that overflight effects had directly harmed the underlying property. Id. at 201. While we agree that Causby defines the constitutional standard necessary to prove a taking in this case, we conclude that the court of appeals misapplied that standard. To establish a taking by aircraft overflights, a landowner must show that the overflight effects impacted the land directly, immediately, and substantially so that the property was unusable for its intended purpose. See Causby, 328 U.S. at 266, 66 S.Ct. 1062. Because here the landowner's evidence did not meet this standard, the landowner did not establish a taking. Accordingly, we reverse the court of appeals' judgment and render judgment that the property owner take nothing.

I Background

Bergstrom Air Force Base, located in southeast Travis County, was closed in 1991 as a part of the federal government's military-base closure policy. Under a 1942 agreement between the federal government and the City of Austin, the Bergstrom property reverted to the City. The City decided to develop a new municipal airport at the Bergstrom location, and the City's voters approved Austin-Bergstrom International Airport's (ABIA's) construction in a May 1993 referendum. The airport began civilian operations in June 1997, and some military flights still operate from the airport. This case involves the municipal airport's impact on Travis County Landfill Company's (TCLC's) nearby property.

TCLC owns a 133-acre tract of land located about one-half mile south of the airport's main runway. TCLC's predecessor in interest, 244 Joint Venture, obtained a Type IV landfill permit for this tract that would allow it to receive non-putrescible dry waste, such as construction rubble, tree clippings, and tires. Although the permit was obtained in 1988, an ensuing lull in building projects resulted in an insufficient stream of construction waste, causing the company to postpone opening the landfill. By the time of trial, landfill operations had still not commenced and the property remained undeveloped raw land.

Significant legal restrictions pre-existing the airport's municipal use limit TCLC's use of the airspace immediately above its land. The property is burdened by a Deed of Easement that TCLC's predecessor in interest granted to the United States and which the City now owns. That deed conveys what is called an avigation easement, which allows 60,900 military aircraft unobstructed passage over TCLC's property each year. The deed also describes certain airspace above the property as approach-departure and transition zones, and conveys a "clearance" or "obstruction" easement that allows the City to prohibit or remove vegetation, buildings, and other structures that extend into those zones.

When civilian flights began operating from Bergstrom in 1997, TCLC sued the City alleging that the flights over its property constituted an unconstitutional taking of its property. See Tex. Const. art. I, § 17. TCLC sought a judgment declaring that the avigation easement does not grant the City civilian overflight rights. It also requested a temporary injunction preventing the City from directing civilian flights over its property until the City obtained overflight rights through condemnation proceedings or the purchase of an easement.¹ TCLC further sought actual and exemplary damages for trespass and inverse condemnation, together with attorneys' fees, interest, and costs.

At trial, TCLC's experts testified that, excluding the airport's existence, the highest and best use of TCLC's property is a Type IV landfill vertically expanded beyond its existing permit. The evidence indicates that, absent the airport, TCLC could have obtained a vertical expansion from the Texas Natural Resource Conservation Commission. But, apparently, in reaching this conclusion, the experts did not consider the pre-existing military-avigation easement, ongoing military flights from the municipal airport, or the City's clearance easement. According to TCLC's experts, the airport's operations substantially reduced the property's fair market value because (1) TCLC was unable to vertically expand its landfill beyond the existing permit, and (2) there are increased risks associated with operating a landfill in close proximity to a municipal airport. 25 S.W.3d at 201. Both parties' experts agreed that the property's fair market value, excluding the airport from consideration, was $9,800,000. But they disagreed about the property's value after taking the airport's operation into account.

The trial court submitted both liability and damage issues to a jury. The jury found that the City took the airspace over TCLC's property by overflights associated with the airport's operation. It also determined that the fair market value of TCLC's property after the taking was $6,850,000. The City moved for judgment notwithstanding the verdict, claiming that there was no evidence that the overflights interfered with TCLC's use and enjoyment of the property. The trial court denied the City's motion and rendered judgment in TCLC's favor for $2,950,000, the difference in the property's value before and after the taking. The trial court also entered findings of facts and conclusions of law in support of the judgment, concluding that the City took TCLC's property by overflights without adequate compensation. But it refused TCLC's request for attorneys' fees and injunctive relief. Both the City and TCLC appealed.

The court of appeals, with one justice dissenting, affirmed the trial court's judgment and compensation award. 25 S.W.3d at 204. Only the City petitioned this Court to review the court of appeals' judgment. We granted the City's petition to decide whether TCLC established that the civilian overflights, above and beyond the military overflights, constituted a taking under the Texas Constitution.

II The Constitutional Standard

Article I, section 17 of the Texas Constitution provides that "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person...." Tex. Const., art. I, § 17. The federal takings clause is substantially similar. See U.S. Const. amend. V ("[N]or shall private property be taken for public use, without just compensation"). This similarity has led us, in other contexts, to rely on the United States Supreme Court's interpretation of the federal takings clause in construing our takings provision. See, e.g., City of Corpus Christi v. Pub. Util. Comm'n of Tex., 51 S.W.3d 231, 242 (Tex. 2001) (examining federal precedent to decide the framework for determining whether utility charges constitute a taking); Mayhew v. The Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex.1996) (citing Causby for the proposition that determining whether a taking occurred is a question of law).

We have never decided when aircraft overflights constitute a taking of property under our constitution, though our courts of appeals, including the court of appeals in this case, have invoked the federal standard. See 25 S.W.3d at 198; see also Wilkinson v. Dallas/Fort Worth Int'l Airport Bd., 54 S.W.3d 1, 16-17 (Tex.App.-Dallas 2001, pet. denied) (holding overflights must cause a direct, immediate, and substantial interference with the landowner's use and enjoyment); City of Houston v. McFadden, 420 S.W.2d 811, 814 (Tex. Civ.App.—Houston [14th Dist.] 1967, writ ref'd n.r.e) (recognizing a taking-by-overflight claim under the federal standard). Because both the City and TCLC argue that Texas takings jurisprudence tracks the federal taking-by-overflight standard, we assume, without deciding, that the federal and state constitutions provide the same protections from overflight effects. See Mayhew, 964 S.W.2d at 932 (applying the "more familiar" federal land-use standard to a taking claim because the claimant urged that Texas follows the federal jurisprudence). Thus, we consider TCLC's taking claim under the federal Causby standard.

Causby states that the "air is a public highway," and airspace above the land "is part of the public domain"; thus, the inconveniences that flights over private property cause "are normally not compensable under the Fifth Amendment." Causby, 328 U.S. at 261, 266, 66 S.Ct. 1062. To constitute a taking, the flights over private land must be "so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land." Id. at 266, 66 S.Ct. 1062. In Causby, the claimants operated a commercial chicken farm and lived on their property. Id. at 259, 66 S.Ct. 1062. Military aircraft, including fighters, transports, and bombers, continuously overflew the land, creating "startling" noise that caused a substantial number of the claimants' chickens to die and caused a drop in production from others. Id. Because of the overflights, the land could no longer...