Requirement That Landowners Give Aircraft Overflight Easement Before Obtaining Building Permit Did Not Constitute a Taking of Their Property

Landowners assert a requirement that they provide an aircraft overflight easement before obtaining a building permit constitutes a taking of their property without just compensation.  The court of appeal held that the overflight easement did not effect a taking of the landowners’ property.  (Powell v. County of Humboldt (January 16, 2014, A137238) — Cal.Rptr.3d —, Cal.App. 1 Dist.).

Scott and Lynn Powell (the “Powells”) purchased property approximately one mile from the Arcata-Eureka Airport.  The County of Humboldt (“County”) owns the Airport.  The County adopted an “Airport Land Use Compatibility Plan” (“ALUCP”) and eventually incorporated it into its general plan.  The Powells’ property is located within Zone C, which means that the property is not under a runway approach but is located in an area “over which aircraft routinely fly at or below an altitude of 1,000 feet.”  The ALUCP requires that all real property owners in Zone C must dedicate an overflight easement before they can obtain a building permit. 

In 2004, the Powells applied for a building permit for a covered porch and carport that were illegally built without permits by the previous owners of the property.  The County informed them that an overflight easement was a condition for issuance of a permit.  The Powells did not follow through with the application.  In 2008, the County notified the Powells that they had to obtain an “after-the-fact” permit for the porch and carport.  The Powells submitted a new application and protested the overflight easement on the grounds that it was unconstitutional.  The County told the Powells that it would not approve the application without dedication of the easement.  The Powells filed a petition asserting that the overflight easement condition is unconstitutional and constituted a taking of their property without just compensation.  The trial court granted summary judgment in favor of the County.

The court of appeal affirmed the decision of the trial court.  A Fifth Amendment regulatory taking of property may occur where (1) the “government requires an owner to suffer a permanent physical invasion of her property,” (2) a regulation completely deprives an owner of all economic use of his or her property, or (3) a “regulation interferes with the investment-backed expectations for the property.”  The court found that there was no claim or evidence that the overflight easement condition deprived the Powells of any beneficial use of their property or interfered with their investment-backed expectations.  Therefore, the only argument for a regulatory taking would have to arise from a per se physical taking, which “requires a permanent physical occupation or invasion, not simply a restriction on the use of private property.”

The general rule is that “‘[f]lights over private land are not a taking, unless they are so low and so frequent as to a direct and immediate interference with the enjoyment and use of the land.”  However, California courts “have held that just compensation may be required even if there is no physical intrusion into the landowner’s private airspace.”  A municipal owner and operator of an airport can be held liable for a taking of property or damage to property if a property owner “can show a 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 uncompensated, would pay more than his proper share to the public undertaking.” (Emphasis omitted.) 

If the overflight easement at issue in this case does not authorize “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.”  The County insists that the easement did not permit flights that traverse the Powells’ private airspace and that it cannot be used in the future to allow overflights that materially interfere with the Powells’ use of the property without payment of just compensation.  The court found this to be a concession that the easement does not preclude a future takings claim by the Powells or future owners of the property for an increase in noise or overflights that cause a measurable reduction in the value of their property. 

The Powells could not show that the easement would reduce the value of their property or substantially interfere with the use and enjoyment of their property.  The court of appeal found that the trial court properly granted summary judgment in favor of the County.  The overflight easement did not as a matter of law effect a taking of the Powells’ airspace or private property.                  


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