215 Ct. Cl. 953 | Ct. Cl. | 1977
"This taking claim comes before the court on defendant’s motion for summary judgment (or, in the alternative, for dismissal), opposed by plaintiffs who seek a trial. For the reasons stated below, the motion is denied.
"Plaintiffs are the owners of two parcels of land near Air Force Plant 42 in the County of Los Angeles, which plant includes a military airport and a plant for manufacturing and testing by commercial firms for the Air Force.
"Plaintiffs’ parcels were located by the main entrance to the Lockheed plant, situated near the airport, and both parcels are directly beneath the approach path for runway 4 and the departure path for runway 22.
"Plaintiffs base their taking claim on two distinct theories of liability. The familiar theory of taking based on aircraft overflights is based on the Air Force’s failure to acquire enough property in the airport vicinity and alleges that the jet aircraft using the airport have, because of noise, vibration, and fumes, impaired the utility, marketability, and value of the properties. The other theory of liability is based on the Air Force’s alleged influence on the Palmdale City Council and the Los Angeles County Board of Supervisors, which allegedly caused their respective denials of plaintiffs’ applications to rezone the two parcels from single family residential to commercial planned development zones.
"Defendant has moved for summary judgment, alleging the facts pleaded bring the case squarely within the holding of De-Tom Enterprises, Inc. v. United States, 213 Ct. Cl. 362, 552 F.2d 337 (1977), where the United States was held not liable for its role in influencing a county board of supervisors to refuse a zoning application. Plaintiffs offer
"In De-Tom, plaintiff was found by the court to have acquiesced in the county board’s decision, leaving plaintiff with the untenable argument that the United States could be held liable for influencing a proper and lawful result. Here, by contrast, plaintiff has challenged the adverse zoning decisions in state court and does not agree that the decisions influenced by the United States were proper. Too, De-Tom emphasized that the Government’s regulatory activity cannot create taking liability unless it reached a certain level of extensiveness or intrusiveness, so long as there is no physical damage to or intrusion of plaintiffs property. As indicated above, plaintiffs’ claim includes allegations of physical damage or intrusion from jet overflights, and De-Tom did not purport to rule upon the Government’s liability for taking where physical intrusion or damage has been coupled with regulatory interference. Finally, De-Tom emphasized that the actions of the United States before the county board were the same as actions of any other landowner who might present arguments against zoning changes to a board considering a neighbor’s application for rezoning. Plaintiffs’ opposition to defendant’s motion for summary judgment contends the United States went much further here, stating the Government involved itself through private, 'secret’ meetings as well as regular public proceedings.
"We are doubtful that these distinctions are sufficient to permit a judgment on the claim based on Government influence. The claims sound essentially in tort, and it hardly needs repeating that this court hears no claims in tort. 28 U.S.C. § 1491 (1970). It is true that Government regulation, if sufficiently extensive or intrusive, may constitute a taking, see Benenson v. United States, 212 Ct. Cl. 375, 548 F.2d 939 (1977), but it is equally true that the wrongful influencing by the Federal Government of actions by a separate governmental entity is at bottom a claim grounded in tort. See Sharp v. United States, ante, at 883. Nevertheless, we are not inclined to foreclose fact finding and argument on this issue, for we are not eager to grant partial summary judgment where the theories of liability
"We do see a cognizable claim stated in plaintiffs’ allegations that the invasion of noise, fumes, and vibration by overflying aircraft constitutes a taking. See, e.g., United States v. Causby, 328 U.S. 256 (1946).
"Upon the parties written submissions, but without oral argument,
"IT IS HEREBY ORDERED that defendant’s motion for summary judgment, or in the alternative for dismissal, is denied. The case is remanded to the Trial Division for further proceedings.”
See also Branning v. United States, ante at 949.