Claassen v. City and County of Denver, No. 99CA1165.

• Docket Nº: No. 99CA1165.
• Citation: 30 P.3d 710
• Case Date: October 26, 2000
• Court: Court of Appeals of Colorado

30 P.3d 710

Carl L. CLAASSEN and Susan D. Claassen; Linda T. Kaysen and Edward L. Kaysen, Jr.; Thompson P. Stanfield and Carol U. Stanfield; Michael S. Katz and Holly Kim Katz; Joseph R. Ross; Mark Black and Peggy Tabor; Julie L. Roubidoux and Jodie E. Hogan; Bobby L. McGee and Sandra McGee; Kay Banta and Holly Kim Katz; and Rodney G. Lambertson and Carolyn L. Lambertson, Plaintiffs-Appellants,
v.
CITY AND COUNTY OF DENVER, a body politic and corporate of the State of Colorado, Defendant-Appellee

No. 99CA1165.

Colorado Court of Appeals, Div. V.

October 26, 2000.

Certiorari Denied September 4, 2001.¹

30 P.3d 712

Hale Hackstaff Tymkovich & ErkenBrack, L.L.P., Timothy M. Tymkovich, Allan L. Hale, Monica A. Flanigan, Denver, CO, for Plaintiffs-Appellants

J. Wallace Wortham, City Attorney, Nicholas Pijoan, Assistant City Attorney, Denver, CO; Holme Roberts & Owen LLP, Patricia C. Tisdale, Richard F. Rodriguez, Denver, CO, for Defendant-Appellee.

Opinion by Judge NIETO.

Plaintiffs, Carl L. Claassen, Susan D. Claassen, Linda T. Kaysen, Edward L. Kaysen, Jr., Thompson P. Stanfield, Carol U. Stanfield, Michael S. Katz, Holly Kim Katz, Joseph R. Ross, Mark Black, Peggy Tabor, Julie L. Roubidoux, Jodie E. Hogan, Bobby L. McGee, Sandra McGee, Kay Banta, Rodney G. Lambertson, and Carolyn L. Lambertson, appeal the trial court's judgment dismissing their claims for compensation for the alleged taking of and damages to their real property caused by aircraft overflying their property while landing at or departing from Denver International Airport (DIA). Defendant, the City and County of Denver, is the owner and operator of DIA. We affirm in part, vacate part of the judgment, and remand with directions.

Plaintiffs sought relief based first, on alleged violations of the Fifth and Fourteenth Amendments, and second, on alleged violations of Colo. Const. art. II, § 15, and § 38-1-101, et seq., C.R.S.2000. The court granted Denver's motion to dismiss all of the claims based on violations of the Fifth and Fourteenth Amendments. The court also granted Denver's motions for summary judgment on all of the claims based on both the alleged "taking" and the alleged "damaging" in violation of Colo. Const. art. II, § 15.

I. Taking Claims

Plaintiffs assert that the trial court erred by granting summary judgment dismissing their claims for the alleged taking of their property in violation of Colo. Const. art. II, § 15. We disagree.

The court found that all of the subject property was in an uncongested area, as that term is used in Federal Aviation Administration (FAA) regulations. See 14 C.F.R. § 91.119 (2000). The aircraft overflights, except in a few isolated instances, have been over five hundred feet above ground level. Based on these facts, the court found there had been no physical entry into plaintiffs' property and no physical ouster of the plaintiffs from their property. The court concluded that without physical entry on or physical ouster from the property, the plaintiffs could not recover for a taking of their property and, accordingly, granted summary judgment.

Appellate review of summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995). Summary judgment may be granted when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56. In assessing the propriety of a summary judgment, the court must view the facts in the light most favorable to the nonmovant. Colorado Civil Rights Commission v. North Washington Fire Protection District, 772 P.2d 70 (Colo.1989).

A taking occurs when an entity with the power of eminent domain substantially deprives an owner of the use and enjoyment of property. Northglenn v. Grynberg, 846 P.2d 175 (Colo.1993). The requirements for a de facto taking are "a physical entry by the condemnor, a physical ouster of the owner, a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner's power of disposition of the property." Northglenn v. Grynberg, supra, 846 P.2d at 178-79.

Navigable airspace is in the public domain, and the surface owner's property interest in airspace above his or her land is generally limited to the airspace which is below navigable limits. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). In Colorado, the General Assembly has declared that the ownership of

30 P.3d 713

airspace above the land is vested in the owners of the land "subject to the right of flight of aircraft." Section 41-1-107, C.R.S.2000

Congress has defined "navigable airspace" as airspace "above the minimum altitudes of flight prescribed by regulations. . . ." 49 U.S.C. § 40102(a)(30)(2000). The Federal Aviation Administration regulations define the minimum safe altitude of flight as:

Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within the horizontal radius of 2,000 feet of the aircraft.

Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

14 C.F.R. § 91.119(b), (c)(2000).

Plaintiffs first assert that the court erred in determining that their properties are in an "uncongested area." We are not persuaded.

Plaintiffs acknowledge there is no case law interpreting the FAA regulations defining the meaning of a "congested area." They argue that their properties are a "settlement" and therefore should be considered a "congested area." The regulation refers to the "congested area of a city, town, or settlement." When read in the context of the regulation, "settlement" refers to a cluster of occupied buildings which are in an unincorporated area but which have the physical...