Melillo v. New Haven

Citation249 Conn. 138,732 A.2d 133
Decision Date01 June 1999
Docket Number(SC 15811)
CourtSupreme Court of Connecticut

Callahan, C. J., and Borden, Berdon, Katz and Palmer, Js. William H. Clendenen, Jr., with whom, on the brief, were Nancy L. Walker and Thomas C. Pellegrino, for the appellants (plaintiffs).

Martin S. Echter, deputy corporation counsel, with whom were Roger J. Frechette and, on the brief, Franz P. Frechette, for the appellee (defendant).



The plaintiffs, Richard and Donna Melillo, own a home in East Haven that is located several hundred feet north of Tweed-New Haven Airport (Tweed). They initiated this action against the defendant, the city of New Haven, which owns and operates Tweed, alleging that certain commercial jet flights into and out of Tweed substantially interfered with the use and enjoyment of their property, thereby entitling them to compensation. After a court trial, the trial court rejected the plaintiffs' claims and rendered judgment in favor of the defendant. We affirm the judgment of the trial court.1

The record reveals the following relevant facts. In September, 1979, the plaintiffs purchased a home located at 177 Burr Street in East Haven for $60,000. The plaintiffs have resided at the 177 Burr Street residence since that date. The house, which is situated on a lot measuring 100 feet by 125 feet, was built in 1959, and is located approximately 450 feet north of the northern boundary of Tweed and less than 1500 feet from the end of the runway.2 Aircraft using the runway fly almost directly over the plaintiffs' home.

Tweed, which straddles land located in both New Haven and East Haven, commenced operations in 1931. During two periods between 1967 and 1975, commercial jets flew in and out of Tweed. These flights gave rise to an action in the United States District Court for the District of Connecticut by the town of East Haven and owners of twelve homes located near Tweed. See generally East Haven v. Eastern Airlines, Inc., 331 F. Sup. 16 (D. Conn. 1971), affd, 470 F.2d 148 (2d Cir. 1972), cert. denied, 411 U.S. 965, 93 S. Ct. 2144, 36 L. Ed. 2d 685 (1973) (Eastern Airlines'). With respect to seven of these homes, the District Court found that the overflights had substantially interfered with the owners' use and enjoyment of their properties and, consequently, that the overflights constituted a compensable taking under the fifth amendment to the United States constitution.3 Id., 33. The plaintiffs' property, however, was not the subject of the litigation in Eastern Airlines.

From 1975 to 1984, there was no commercial jet service into or out of Tweed.4 On November 10, 1984, however, Air Wisconsin conducted a test flight of a commercial jet. This jet, which flew directly over the plaintiffs' home, caused noticeable turbulence. Immediately after the test flight, the plaintiffs began a campaign to persuade the defendant to discontinue any further use of Tweed by Air Wisconsin jets.

Despite protests by the plaintiffs and other neighborhood residents, the defendant permitted Air Wisconsin to begin regularly scheduled jet flights into Tweed on February 15, 1985. These flights continued through December, 1986. Between March, 1985, and April, 1986, the peak period of Air Wisconsin jet service into Tweed, Air Wisconsin landed between 69 and 102 jets each month at Tweed. A substantial percentage of those jets flew directly over the plaintiffs' property, frequently at altitudes of less than 100 feet.5

Five days after Air Wisconsin had commenced its regularly scheduled jet service into Tweed, the plaintiffs filed an action against the defendant, among others, in the United States District Court for the District of Connecticut. They claimed that the Air Wisconsin overflights had resulted in a taking of their property without just compensation in violation of the fifth amendment. In 1988, the District Court granted the defendant's motion for summary judgment, concluding that the plaintiffs' federal takings claim was not ripe under Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), because the plaintiffs had not yet been denied just compensation under Connecticut law.6Leach v. New Haven, United States District Court, Docket No. N 85-71 TFGD (D. Conn. August 8, 1988) (Daly, J., slip opinion, pp. 5-6).

The plaintiffs then brought this action, claiming, inter alia, that: (1) the Air Wisconsin overflights had resulted in a permanent taking of their property by inverse condemnation7 in violation of article first, § 11, of the constitution of Connecticut,8 thereby entitling them to just compensation; and (2) they were entitled to compensation from the defendant under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (relocation assistance act), 42 U.S.C. § 4601 et seq.9 With respect to their state constitutional takings claim, the plaintiffs alleged that their property had been the subject of a taking by virtue of the Air Wisconsin overflights from 1984 to 1986.10 In support of their claim, the plaintiffs relied on the landmark case of United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 2d 1206 (1946), which established the federal standard for determining when an avigation easement11 has been acquired by inverse condemnation.12 In Causby, the United States Supreme Court

"The relocation assistance act provides that "[w]henever a program or project to be undertaken by a displacing agency will result in the displacement of any person, the head of the displacing agency shall provide for the payment to the displaced person of—

"(1) actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property...." 42 U.S.C. § 4622 (a) (1) (1994). essentially established a public highway in the air by declaring as outdated the ancient common-law doctrine that ownership of land extended to the periphery of the universe. Id., 260-61. At the same time, the court set limits on the uncompensated use of this public airspace. Flights below the minimum safe altitude of 500 feet, which had been prescribed by the Civil Aeronautics Authority, now the Federal Aviation Administration, fall outside of the downward reach of the navigable airspace. Id., 263-64. Not all such flights, however, create compensable takings. "Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land."13 (Emphasis added.) Id., 266.

After a trial, the court concluded that the plaintiffs had failed to prove their claims. The court's factual findings, which are set forth in its memorandum of decision, may be summarized as follows. The trial court concluded that the plaintiffs' property "was the subject of significant direct low altitude jet overflight from 1967 to 1975." The trial court also found that the "noise and turbulence [of the Air Wisconsin overflights from 1984 to 1986] substantially interfered with the [plaintiffs'] enjoyment of [their] property and caused some minor physical damage—such as loosened shingles—to the property,"14 and that the "noise and turbulence [caused by the Air Wisconsin overflights] were roughly the same" as that caused by the jet overflights occurring between 1967 and 1975. Finally, the trial court stated that "[t]he evidence does not support a finding that the value of the [plaintiffs'] property was significantly altered by the Air Wisconsin [overflights]. The testimony of the plaintiffs' expert to the contrary—unsupported by any written report—was not credible. The value of the property has undoubtedly been lessened by virtue of the property's proximity to the airport, but that was the case in 1979 when the [plaintiffs] purchased it. To state the matter another way, I cannot find that the [plaintiffs] have sustained any significant economic damage as a result of the Air Wisconsin [overflights]."

On the basis of these factual findings, the trial court rendered the following legal conclusions. In light of the nature of the low altitude jet overflights from 1967 to 1975, the plaintiffs' property had been taken, for constitutional purposes, sometime during that time period, probably in 1967.15 The trial court further concluded that, because the plaintiffs did not own the 177 Burr Street property at that time, they were not entitled to recover for that earlier taking.

The trial court, having determined that the plaintiffs' property had been taken sometime between 1967 and 1975, rejected the plaintiffs' claim that they were entitled to compensation for a permanent taking of their property based on the Air Wisconsin overflights.16 The court expressly noted that an earlier, permanent taking did not automatically bar the plaintiffs from establishing a second compensable permanent taking by virtue of the Air Wisconsin overflights. The court reasoned that it might have been possible for the plaintiffs to prevail on their claim of a compensable taking during the period from 1984 to 1986, notwithstanding the earlier taking, if the plaintiffs had been able to establish that the property had "been permanently `taken' by moderate jet overflights from 1967 to 1975 and then permanently `taken' to an even greater extent by the substantially more severe [Air Wisconsin] overflights from 1984 to 1986." Because, however, the plaintiffs had not proven that the Air Wisconsin overflights were more disruptive to the enjoyment of property rights than the overflights from 1967 to 1975, the trial court concluded that the plaintiffs could not prevail under that theory.17 Finally, the trial court rejected the plaintiffs' claim under the relocation assistance act because they had never moved from their home as a result of the Air Wisconsin overflights and, consequently, were not "displaced persons"...

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