Brenner v. New Richmond Regional Airport Commission
2012 WI 98
| Wis. | 2012Background
- This is a review of an unpublished Wisconsin Court of Appeals decision reversing a circuit court ruling.
- The circuit court dismissed inverse condemnation claims by Brenner, the Wickenhausers, and the Seidlings near the New Richmond Regional Airport after a 1500-foot runway extension.
- The circuit court applied a regulatory-taking standard, holding plaintiffs must be deprived of all or practically all use to prove a taking.
- The court of appeals held the regulatory-taking standard does not apply to actual occupation takings, remanding for factual findings.
- The property owners alleged adverse effects from the runway extension (noise, vibration, overflights, and reduced value) and sought compensation for an avigation easement.
- The Wisconsin Supreme Court granted review and ultimately adopted a standard focusing on low, frequent overflights that directly affect use and enjoyment, remanding for further factual findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What standard governs takings in airplane overflight cases? | Brenner et al. argue for the Causby/airspace-based standard. | City contends only regulatory-takings standards apply. | Taking occurs if overflights are low and frequent enough to directly affect use. |
| Do FAA flight-path deviations affect whether a taking occurred? | Deviations from FAA paths can still invade superadjacent airspace and are compensable. | Only compliant flight paths should be considered; deviations negate liability. | Regular deviations from FAA patterns can support a taking if they invade superadjacent airspace. |
| How does severance damage interact with inverse condemnation for land not condemned? | The 77-acre remainder is still subject to inverse condemnation. | Severance damages preclude recovery for the remaining lands. | Severance damages do not bar inverse condemnation for remaining land; must adjust for prior severance payments. |
| What is the proper geographic scope of the takings analysis (airspace height)? | Owners possess a block of airspace; invasions below minimum safe altitude can take. | Minimum safe altitude governs; higher flights cannot take surface property. | Analysis considers superadjacent airspace, not strictly the minimum safe altitude, with time/frequency as key factors. |
Key Cases Cited
- United States v. Causby, 328 U.S. 256 (1946) (airspace overflights can constitute a taking when low and frequent)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupation is a taking)
- Griggs v. Allegheny County, 369 U.S. 84 (1962) (local airport actions can cause a taking of airspace)
- BatÂten v. United States, 306 F.2d 580 (10th Cir. 1962) (no taking for mere noise/distance damages absent taking of property)
- Eberle v. Dane County Bd. of Adjustment, 227 Wis.2d 609 (1999) (Wisconsin recognizes takings absent physical invasion where regulation deprives use)
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (reaffirms regulatory takings framework; relevant to Wisconsin approach)