Lenawee Cnty. v. Wagley, Docket No. 311255.

Decision Date21 May 2013
Docket NumberDocket No. 311255.
Citation301 Mich.App. 134,836 N.W.2d 193
CourtCourt of Appeal of Michigan — District of US


Strauss & Strauss, PLLC (by Gary David Strauss), for Lenawee County.

Clark Hill PLC, Southfield, (by Stephon B. Bagne) and Whitker & Benz, P.C. (by Bruce H. Benz, Ann Arbor), for David and Barbara Wagley.



In this condemnation dispute, a jury awarded defendants, David Wagley, Barbara Wagley, Bank of Lenawee, and Pavillion Mortgage, $470,000 as just compensation for an avigation easement over the Wagleys' residential property, plus interest, costs, and fees.1 Plaintiff, Lenawee County, appeals as of right, raising numerous challenges to evidentiary rulings, the jury instructions, and the trial court's posttrial supplementary damages award. We affirm the trial court's evidentiary and instructional rulings. We also affirm the court's award of statutory interest on the just compensation award. We reverse, however, the trial court's order enhancing the damages award in the event the county decides to take the entirety of the Wagleys' property because this would require retroactive application of a statute creating substantive rights. We remand for correction of the judgment accordingly.


This case arises from the county's decision to expand and modify the Lenawee County Airport. The project began in approximately 1994 and evolved over several years. The 2003 revisions increased the length of Runway 23 from 4,000 to 5,000 feet and shifted the runway's location. The additional length permitted larger corporate aircraft to regularly operate at the airport and generally enhanced aviation safety.

David and Barbara Wagley own a four-bedroom home on a 1.3–acre lot abutting the airport. Bank of Lenawee and Pavillion Mortgage each have an interest in the property as well.2 The Wagleys purchasedthe home in 2001, before Runway 23 was lengthened. The new runway is actually 532 feet farther from the Wagleys' property than the prior runway. But due to the runway lengthening, a larger area on the ground and in the air must remain free of obstructions.

Federal Aviation Authority (FAA) standards mandate the creation of a runway protection zone (RPZ) “begin[ning] 200 feet beyond the end of the area useable for takeoff or landing,” maintained to “enhance the protection of people and property on the ground.” 3 Pursuant to the 2003 airport layout plan, the FAA determined that the Wagleys' home was within the RPZ. Although the parties disputed whether the home had always been within the RPZ, the county did not seek an avigation easement until 2005, when it filed this condemnation action under the Uniform Condemnation Procedures Act (UCPA), MCL 213.51 et seq. With its complaint, the county filed a declaration of taking estimating the just compensation due the Wagleys as $47,500.

The avigation easement described in the declaration of taking permits the county “to keep the airspace above [certain] heights ... clear and free” of obstructions including fences, trees, and buildings. The easement also governs activities on the land, prohibiting “any ground structures, natural growth, storage of equipment, vehicles or aircraft, flammable material storage facilities, or activities which encourage the congregation of people in the [RPZ]....” Attendant to the easement, the county prohibited the creation of “electrical interference with radio communication between” the airport and aircraft and activities “mak[ing] it difficult for fliers to distinguish between airport lights and others” or resulting in glare in fliers' eyes or “otherwise ... endanger[ing] the landing, taking-off or maneuvering of aircraft [.] Further, the easement forecloses on the encumbered land “the construction of new residences ... or places of public assembly, such as churches, schools, office buildings, shopping centers, and stadiums.”

Two interlocutory appeals brought the parties to this Court before trial commenced. In the first, the county challenged the trial court's summary ruling that FAA regulations precluded residential uses within RPZs, resulting in a total taking of the Wagleys' property as a matter of law. This Court reversed, holding that an avigation easement approved by the FAA is an “acceptable alternative” to complete acquisition of the property. Lenawee Co. v. Wagley, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2007 (Docket Nos. 268819, 268820, 268821, 268822, and 268823) ( Wagley I ), 2007 WL 861172, *2. Documentary information submitted by the county satisfied this Court that the FAA had approved the avigation easement. Id. at *3–4. Thus, “the trial court erred in determining that a total taking was required under FAA regulations ‘as a matter of law.’ Id. Nevertheless, this Court observed that [a] condemning agency is required to pay just compensation for the whole parcel of property if acquiring only a portion of it would destroy the practical value or utility of the remainder.” Id. at *4, citing MCL 213.54(1) and M. Civ. JI. 90.18. We specifically reserved for a jury's determination whether the Wagleys “suffered a total taking—that is, whether the practical value or utility of the remainder of the parcels was destroyed—is a disputed question of fact....” Id. at *5.

Extensive discovery ensued. In October 2008, the parties stipulated to the entry of an order reciting, “neither party shall illicit [sic] testimony from the [FAA] or the Michigan Department of Transportation Bureau of Aeronautics [DTBA].” After this order entered, the parties vigorously disagreed about the role FAA publications would play at the trial, leading to their return to this Court. See Lenawee Co. v. Wagley, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2011 (Docket Nos. 302533, 302534, 302535, 302537, and 302538) ( Wagley II ), 2011 WL 6379321.

Wagley II concerned the county's objection to the trial court's exclusion of four evidentiary items: an unsigned letter to United States Senator Carl Levin authored by FAA representative Christopher Blum; an affidavit executedby FAA manager Irene Porter addressing FAA regulations, policies, and procedures; a study conducted by Daniel P. McMillen regarding the effect of avigation easements around Chicago's O'Hare Airport; and portions of an appraisal that analyzed the effect of avigation easements at the Grand Haven Airport in Michigan. Id. at *5. The county further contended that the trial court should have excluded an appraisal prepared by David E. Burgoyne, the Wagleys' expert witness, setting forth an evaluation “predicated on the assumption that residential occupancy ... was prohibited after the taking due to [the] location in the RPZ.” Id. at *6.4

This Court held that the trial court had erred by denying the county's motion to exclude the portion of Burgoyne's appraisal “predicated on the assumption that FAA regulations prohibit residential use,” id. at *7, and affirmed the other evidentiary decisions. With respect to the Burgoyne appraisal, this Court emphasized that [i]t is entirely improper, under the law of the case doctrine, to allow the jury to hear testimony regarding an appraisal predicated on purported FAA regulations that prohibit residency in the RPZ.” Id. at *9. We held that the parties' stipulation precluding the elicitation of testimony from the FAA or the DTBA governed the remaining evidentiary issues and affirmed the trial court's in limine rulings. Id. at *9.

Trial began on June 4, 2012, and ended two days later. In his opening statement, counsel for the county introduced the avigation easement concept by specifically referring to the FAA:

What an avigation easement is, it limits, in this case, growth of trees above a certain height that the FAA finds for safe clearance....

And as you'll hear from our witnesses here, the FAA ... controls all aspects of flight in this country. It's amazing how many rules there are for pilots, but thank God this is a very safe industry. There's lots of rules they've got to follow.

Now, the main purpose of the easement we took here and really the only proactive or the only thing we did was to cut down the trees that might go above these elevations. Now, the easement language here is a form document from [the Michigan Department of Transportation] and the FAA, it's a form document that's generally used in most all easements across the country.

Counsel then described the history of the airport's runway renovations and discussed the function of an RPZ concept, again making referring to the FAA.

The county presented as its first witness Stephanie Ward, manager of aviation planning for Mead & Hunt, “a consulting engineering company.” The county had contracted with Mead & Hunt to develop and implement the airport expansion, and Ward worked directly on the project. Ward explained that the Wagley avigation easement was necessary to comply with FAA regulations requiring clear aircraft “approach slopes,” generally defined as the places where aircraft typically fly. She likened the approach slope to a roadway: [T]he approach slope area is where you're typically going to be driving, for example, the paved surfaces of the roadway.” In contrast, the “approach surface” is more akin to the “road right-of-way,” which must be “clear of signs, clear of trees, those types of things. So that way if you deviate from that area it's going to be clear of obstructions.” According to Ward, the FAA generously defines the required clearance for approach slopes to avoid obstructions “so that if a plane were to operate below the typical approach, they're not going to run into anything.” Ward explained that the county acquired the avigation easement “to make sure especially with the change in the approach slope that we had the ability to control...

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