In Powell v. County of Humboldt, No. A137238 (Jan. 16, 2014), the California Court of Appeal held the County's demand that landowners who sought an after-the-fact building permit for a carport and porch for their mobile home dedicate an overflight easement for the nearby Eureka airport did not run afoul of Nollan-Dolan-Koontz.
The court concluded that the overflight easement did not consitute a per se physical taking of the Powell's property, and thus they did not meet that part of the NDK standard which prohibits the conditioning of a permit on the surrender of the right to compensation for a taking. Here, the court held, the Powells did not show that the easement was a taking. See slip op. at 15. Although property owners generally have airspace rights, there is no right to exclude aircraft from the "navigable airspace above their property in accordance with applicable safety regulations." As the court concluded:
Thus, unless the overflight easement in this case by its own terms authorizes frequent incursions into the Powells’ private airspace at altitudes causing noise and disturbance to the Powells, it does not effectuate a taking under federal or state law. According to the County, the limitation of the easement to overflights made “to the extent and in the manner consistent with safe operating procedures as provided under applicable governmental regulations” means that it does not permit overflights traversing the Powells’ private airspace.
Slip op. at 18. The court found it dispositive that the Powells had not alleged or proved that the potential for aircraft overflights did actual damage to their land, or to their uses. But the court also noted that the County agreed (made a "binding concession") that if the scope of the overflight easement were to change so that it did interfere with the Powells' use of their land, the Powells would have a viable takings claim.
The court concluded with this:
In sum, the Nollan essential nexus standard is a special application of the doctrine of unconstitutional conditions. It does not apply unless the government requires a person as a condition for receiving a discretionary government benefit to give up the constitutional right to just compensation for a taking of their property, or compels the person to pay a monetary fee equivalent to such a taking. The overflight easement in this case did not as a matter of law effect a taking of the Powells’ private property or airspace under Fifth Amendment jurisprudence or California law, 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 trial court therefore properly granted summary judgment to the County.
Slip op. at 22. Will there be an effort for further review in the California Supreme Court? The property owners are represented by our colleagues at Pacific Legal Foundation, the guys who won Nollan and Koontz, and who are the pros on exaction issues, so we would not be surprised at all.
Powell v. County of Humboldt, No. A 13723 (Cal. App. Jan. 16, 2014)
