Here’s the latest inverse condemnation opinion from the Wisconsin Supreme Court in a case involving overflights from an adjacent airport. The case arose when property owners asserted that an extension of the runway by 1500 feet was a taking. The trial court dismissed the property owners’ inverse condemnation claims, but the court of appeal reversed and revived their claims.The airport authority sought review by the Wisconsin Supreme Court, which affirmed.
The decision was summarized by the Schober & Mitchell blog:
The Court took into consideration the fact that Wisconsin Statutes Section 114.03 and 114.04 gave property owners certain rights with respect to airspace over their properties. It determined referring to federal case law that the proper standard to be applied in determining whether a taking occurs in airplane overflight cases is whether the government action results in aircraft flying low enough and with such frequency as to have a direct and immediate effect on the property owner’s use and enjoyment of the property. The circuit court had held that the appropriate standard to apply was whether the property owners had been deprived of all or substantially all of the use of their properties.
The Supreme Court found that the circuit court had applied the wrong standard, and remanded the case for submission of evidence and a determination whether the flights were so low and frequent as to constitute a taking.
Read their entire post here.
Brenner v New Richmond Regional Airport Comm’n, No. 2010AP342 (Wis. July 17, 2012)