Air University Review, July-August 1976

The United States Air Force, as it enters the second half of this decade, is acquiring a variety of new weapon systems that will thoroughly modernize its aircraft inventory. Simultaneous with the prospective acquisition of the F-15, F-16, and A-10 tactical aircraft, the B-1 strategic bomber, the E-3 airborne warning and control system (AWACS) aircraft, and the still-to-be-selected advanced medium short takeoff and landing transport (AMST), the Air Force may also be acquiring numerous potentially expensive lawsuits claiming diminution of property value caused by the introduction of these new weapon systems.

As these new aircraft enter the inventory, they will be assigned in varying numbers to units at bases throughout the United States. (Basing of the aircraft in other countries will also occur, but those actions would raise different questions that are not germane to this discussion.) The new aircraft will have a number of impacts upon the bases and nearby civilian communities. Extensive new construction or remodeling of existing base facilities may be required to accommodate these aircraft, the number of military and civilian personnel employed at the base may grow or shrink, expenditures in the local community may increase or decrease, and a rise or fall in flying activity and noise levels associated with aircraft operations at the base may occur--these are just a few of the areas where the new weapon systems could have an impact.

It is in the last two areas, flying activities and noise levels, that, assuming the provisions of the National Environmental Policy Act have been met, major, costly, and controversial legal actions may arise.

This contention is based on a survey of decisions reached by state and federal courts involving airport operations. These decisions determined that various airport operations, including the introduction of noisier aircraft, could decrease property values in the area of the airport and constitute a "taking" of the property without proper payment to the owner by the airport operator--a violation of the Fifth Amendment to the United States Constitution as applied to activities of the federal government and extended to other government units in this country through the Fourteenth Amendment.

While the initial reaction might be "What difference does a change in aircraft make? They are all jets!" a more measured view recognizes that a change in the type of aircraft operating from a given base could mean a big difference in noise levels experienced both on and off base. It could also mean considerable change in the dimensions of flight patterns and related activities of aircraft operating in the vicinity of the base.

For example, replacing an F-4 Phantom wing with an A-10 wing would mean a substantial difference in noise levels at the base. The A-10 with two large turbofan engines and exceptional lift and maneuverability is substantially less noisy than the F-4 with its two afterburner-equipped engines. Also, because the A-10 requires less runway to become airborne and a smaller turning area than the F-4, the effect of the noise generated by the A-10 on the communities surrounding the base will be significantly less than that of the F-4.

On the other hand, adding F-15 Eagles to bases that already operate fighter aircraft such as the F-4 Phantom, F-111, and F-104 Starfighter, as has been done at Luke Air Force Base, Arizona, and Nellis Air Force Base, Nevada, results in comparatively minor variances in noise levels both on and off base. The variances that do occur result in reductions in the noise impact.¹

If, however, a C-130 Hercules transport wing with 47 turboprop transports is replaced by an F-15 Eagle Wing with 72 twin-engine, afterburner equipped fighters, as has been done at Langley Air Force Base, Virginia " . . . there will be an increase in area impacted by the noise associated with F-15 operations."²

In the first two instances, the A-10 replacing the F-4 and the F-15 being added to a base with a comparable noise pattern, there would appear to be little basis for legal action involving the "taking concept."

But, the introduction of the F-15 (or any other aircraft that would increase noise intensity or enlarge the noise impact area) as a replacement for the C-130 would appear to provide a potential for claims against the federal government for uncompensated taking. In fact, the May 1975 Final Environmental Statement for the F-15 Beddown at Langley AFB, Virginia, contains information that might be used as a partial basis for such claims. In the statement, the Air Force, using its own Air Installation Compatible Use Zone (AICUZ) criteria, states that the area surrounding Langley that is designated as being incompatible for residential use will grow to include 46 more acres of land and 2213 people with the shift to F-15 operations.³ If the F-15 operation genuinely renders the area unsuitable for residential use and property values decline, the situation could be exceedingly costly for the Air Force.

According to the Court of Appeals of the State of California, Second District, in the 1974 case of Aaron v. City of Los Angeles,⁴ if ". . . the owner of property in the vicinity of the airport can show measurable reduction in market value resulting from the operation of the airport in such manner that the noise from aircraft using the airport causes a substantial interference with the use and enjoyment of the property, and the interference is sufficiently direct and sufficiently peculiar that the owner, if compensated, would pay more than his proper share to the public undertaking," then the operator of the airport (in this case the City of Los Angeles) is liable for the taking or damaging of the property. This decision was allowed to stand by the United States Supreme Court in 1975 in City of Los Angeles v. Aaron,⁵ when it denied a petition by the city for a writ of certiorari to the Court of Appeals of the State of California, Second District, in the 1974 case.

While the Aaron case does not involve an agency of the federal government, the Supreme Court's action significantly broadens the scope, depending on the merits of a given case, of what may be considered an uncompensated taking involving aircraft operations.

Federal liability for taking resulting from the operation of military aircraft is not a new concept. It was firmly established in 1946 in United States v. Causby.⁶ The Supreme Court held that frequent low overflights of the plaintiff's land by military aircraft landing at a nearby installation produced noise that made it impossible to use the property as a chicken farm. That constituted an uncompensated taking of Causby's property in violation of the Fifth Amendment to the Constitution. The court reasoned that while the enjoyment and use of the land were not totally destroyed by the flights, they limited the use of the land and caused a diminution of its worth.⁷ The court also went on to say that inconveniences caused by airplanes are normally not compensable because they are part of our modern environment and that flights over private land are not taking unless their frequency and low altitude cause them to become ". . . a direct and immediate interference with the enjoyment and use of the land."⁸

In 1962 the Supreme Court, in Griggs v. Allegheny County,⁹ held that under the Fifth Amendment Allegheny County as owner and operator of the Greater Pittsburgh Airport was liable for taking an air easement over Griggs's property because the noise from takeoffs and landings passing over the property rendered it unsuitable for residential use.

That same year the United States Court of Appeals for the 10th Circuit, in Batten v. United States,¹⁰ applied a narrow interpretation to the Causby and Griggs decisions. It held that direct overflight of the plaintiff's property had to occur for a taking to be recognized and that the lateral noise experienced by owners of property adjacent to but not directly under the flight path was not a taking on the part of the government.

This concept of what constituted a taking was generally upheld by federal and state courts. It was used in 1971 by the United States District Court in East Haven v. Eastern Airlines¹¹ and by the City of Los Angles in its defense in the Aaron case, The Batten rule, however, was rejected by the California Court of Appeals in Aaron when it quoted and adopted the opinion of the Supreme Court of Washington in the 1964 case of Martin v. Port of Seattle. ¹² The Washington court stated:

We are unable to accept the premise that recovery for interference with use of land should depend upon anything as irrelevant as whether the wing tip of the aircraft passes through some fraction of an inch of airspace directly above the plaintiff's land. The plaintiffs are not seeking recovery for a technical trespass, but for a combination of circumstances engendered by the nearby flights which interfere with the we and enjoyment of their land.¹³

In rejecting the City of Los Angeles's appeal of the decision favoring Aaron, which had been rendered by the California Superior Court, Los Angeles County, the California Court of Appeals sought a more logical approach to the taking issue as expressed by the Washington court cited and the Oregon Supreme Court which held:

The proper test to determine whether there has been a compensable invasion of the individual's property rights in a case of this kind is whether the interference with use and enjoyment is sufficiently direct, sufficiently peculiar, and of sufficient magnitude to support a conclusion that the interference has reduced the fair market value of the plaintiff's land by a sum certain in money. If so, justice as between the state and the citizen requires the burden imposed to be borne by tile public and not by the individual alone.¹⁴

The previously discussed decisions indicate that the concept of taking is valid in regard to aircraft operations in the vicinity of any airport, military or civilian; that the operator of the airport is liable for compensation to parties whose property is judged to have been taken by aircraft operations associated with the airport; that a diminution of value of the property must be caused by the aircraft operations for a taking to have occurred; and that taking can occur in the vicinity of the airport in areas other than those directly under aircraft flight paths.

Judgments made in favor of plaintiffs in taking cases can be substantial. The Aaron case produced awards of $659,440 to property owners near Los Angeles International Airport. A little over a year later another $385,700 was awarded to persons similarly affected by Los Angeles International operations. Between the two awards the city bought outright 34 other homes for $1.8 million.¹⁵

For The Air Force there are serious implications regarding aircraft operations and the taking issue. With inflation and the consequent shrinking of the defense dollar in terms of real purchasing power, neither the Air Force nor the nation can afford to spend money compensating property owners for taking actions.

With six new weapon systems entering the inventory now and in the near future, many installations will be changing in terms of their effect on neighboring communities. Reasoned and careful planning now can, in most instances, match our new weapon systems to installations where there would be little or no likelihood of taking suits resulting from aircraft operations at those bases. Essential to success in this effort is the recognition that considering only the physical environmental effects of aircraft noise and flight patterns is not sufficient; the economic environmental effects must also be evaluated to preclude or at least minimize the possibilities for taking suits.

1. Final Environmental Statement on F-15 Beddown at Luke AFB, Arizona, August 1974, p. 3-3.

2. Final Environmental Statement on F-15 Beddown at Langley AFB, Virginia, May 1975, p. 4.

3. Ibid.

4. Aaron v. City of Los Angeles, 7 ERC at p. 1666.

5. City of Los Angeles v. Aaron, 7 ERC at p. 1657.

6. United States v. Causby, 328 U.S. 256.

7. Ibid., at p. 262.

8. Ibid., at p. 266.

9. Griggs v. Allegheny County, 369 U. S. 84.

10.Batten v. United States, 306 F.2d 580.

11. East Haven v. Eastern Airlines, 2 ERC at p. 1867.

12. Martin v. Port of Seattle, 391 P.2d at p. 545.

13. Ibid.

14. Thornburg v. Port of Portland, 415 P.2d at p. 752.

15. "49 Families to Get $365,700 in Jet Noise Suit," Los Angeles Times, January 11, 1973.

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