Metropolitan News-Enterprise


Friday, January 17, 2014


Page 1


Appeals Court Rejects Takings Claim Based on Overflight Easement


By MICHAEL J. PEIL, Staff Writer


A county general plan requiring property owners to provide an overflight easement as a condition for obtaining a building permit does not constitute a taking of property, the First District Court of Appeal held yesterday.

Div. One, in an opinion by Justice Sandra L. Margulies, affirmed a judgment in favor of Humboldt County, saying there was no evidence that its plan would permit overflights to invade the plaintiffs’ private airspace, substantially interfere with their use and enjoyment of property, or cause a measurable reduction in the property’s value.

Humboldt County adopted, as required by law, an “Airport Land Use Compatibility Plan” in 1993, amended it in 1998, and incorporated it as part of its general plan in 2002. The purpose was to provide orderly growth for each public airport and the surrounding areas, and safeguard the welfare of the public within the vicinity of an airport.

Scott and Lynn Powell purchased residential property in June 2004 on Grange Road in McKinleyville. The property is located one mile from the Arcata-Eureka Airport, which is owned by the county.

Although not under a runway approach, aircraft routinely fly over the property at an altitude of less than 1,000 feet.

The Powells’ property is located within “Airport Compatibility Zone C,” which is designated under the general plan as being a zone where all owners of real property must dedicate an overflight easement as a condition for the issuance of a building permit.

The Easement

The easement grants Humboldt the right to allow the noise of flights over the property, regulate the release of substances into the air that would impair visibility, regulate the emission of light that could impair pilot vision, and prohibit electrical emissions that would interfere with aviation systems.

In 2004, the Powells applied for a building permit for a carport, which had been illegally built on their property by the previous owners. Humboldt County subsequently informed them of the easement condition, to which all permit issuance was subject.

 The Powells did not complete the application due to what they said were other demands on their time.

The county wrote to the Powells in 2008, informing them that the county could pursue legal remedies and monetary penalties unless the Powells obtained an “after-the-fact” permit for the carport.

The Powells submitted another application for a permit in early 2010, and the county again informed them of the easement condition, once in February and again in August.

On Aug. 20, 2010, the Powells’ counsel sent a letter protesting the easement as unconstitutional, and requesting the approval of the permit with the condition. The city declined to approve the permit without the dedication of the easement.

The Powells took no further action, and, according to the county, their application expired one year later.

The Powells filed a complaint for relief on Jan. 12, 2011, seeking a writ commanding the county to approve the permit without the easement, claiming that failure to do so constituted a taking of their property without just compensation.

Trial Court

According to the Powells, the easement condition constituted an exaction required by the county for a government benefit, the permit, and as a result, was an unconstitutional taking unless it substantially advanced a government interest .

Humboldt and the Powells filed cross-motions for summary judgment. The trial court granted the county’s motion and denied the Powells’.

Humboldt Superior Court Judge Dale A. Reinholtsen held that the Powells failed to demonstrate that there was genuine issue of fact as to whether the easement condition resulted in a physical taking or individual imposition as opposed to a uniform requirement.

On appeal, Margulies agreed. She explained that Nolan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374 are unconstitutional-conditions cases that protect the right to compensation when the government takes property when owners apply for permits.

 “If there is no taking, Nollan and Dolan do not apply,” she said.

She explained that before a permit approval condition can therefore be scrutinized, an easement condition needs to rise to the level of a taking.

Humboldt’s easement condition was not a taking. she said:

“There is no claim or evidence in this case that County’s overflight easement condition completely deprived the Powells of any beneficial use of their property…or interfered with their investment-backed expectations…The only category of compensable Fifth Amendment regulatory taking arguably implicated by the overflight easement is a per se physical taking…[and] we do not find the overflight easement by its literal terms would constitute such a taking.”

She went on to say:

“The overflight easement in this case did not as a matter of law effect a taking of the Powells’ private property or airspace...and the Powells failed to come forward with evidence sufficient to either establish the practical effect of the easement was to bring about such a taking, or to demonstrate there are triable issues of material fact with respect to that question.”

The case is Powell v. County of Humboldt, 13 S.O.S. 246.


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