Petition for Writ of Certiorari — Oxley v. City of Tulsa ex rel. Tulsa Airport Authority

_

/

\\ } Supreme Court, U.S.

RO-1HOTE| FILED

: 9EC 20

joserri F. SPANIOL, JR

No. CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1989

JOHN T. OXLEY,

Petitioner,

VS.

CITY OF TULSA, OKLAHOMA, a municipal corporation,

by and through the TULSA AIRPORT AUTHORITY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OKLAHOMA

N. FRANKLYN CASEY

Counsel of Record

CasEY & JONES

3140 South Winston, Suite 2

-Tulsa, Oklahoma 74135

(918) 747-9654

Bruce A. McKENNA

2900 Mid-Continent Tower

Tulsa, Oklahoma

(918) 583-7571 ;

Counsel for Petitioners

December 19, 1989

9

QUESTIONS PRESENTED

1. Whether ext~eme and disruptive noise, overflights,

fumes, and vibrations which render land useless for resi-

dential purposes, effectuate a compensable governmental

taking of any protected interest in real property. '

2. Whether extreme and disruptive noise, overflights,

fumes, and vibrations which render land useless for resi-

dential purposes, combined with a municipality’s unrea-

sonable and discriminatory conduct which precludes a

landowner from developing his property for commercial

and light industrial purposes and in a manner consistent

with both its zoning and the surrounding uses in the area,

effectuate a compensable taking of any protected interest

in real property.

3. Whether a compensable taking of a protected in-

terest in real property occurs by virtue of a municipality’s

repeated and unequivocal expressions of an intent to ac-

quire private property for public purposes, combined with

(1) the admitted implementation of the plan which pro-

poses the means for the acquisition of that property, on a

first priority basis, for its ultimate development in a man-

ner identical to that proposed by the landowner, and (2) the

municipality’s illegal, discriminatory, and unreasonable,

overly regulatory, conduct which does not substantially

advance legitimate state interests and which discrimina- ~

torily denied to the petitioner access to public airport

runways.

1. The parties identified in the caption of the case in this Court are

the only parties to the litigation. The parties will be referred to

throughout this Petition as ‘“‘Oxley”’ and ‘‘the city.”

ii

TABLE OF CONTENTS

_ QUESTIONS PRESENTED.....................

TABLE OF AUTHORITIES..................... il

REPORTEDOPINION .......................... 1

STATEMENTOF JURISDICTION .............. 2 |

CONSTITUTIONAL, STATUTORY AND REGULA-

TORY PROVISIONS IN QUESTION............ 2

STATEMENT OF THE CASE AND MATERIAL

IN ccsdecx i vg ea oa 3

REASONS FORGRANTING THE WRIT ......... 9

iii

TABLE OF AUTHORITIES

Cases:

Agins v. City of Tiburon, 447 U.S. 255 (1980) ..... 14

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

ay as a we one 6 EW Kn 8 4 hee 8s 11,15

Carson Street Case, 101 Pitt. L.J.35 (1952) ...... 19

Commonwealth v. Lawton, 50 Pa. C. 144, 412 A.2d

rc CG ies ye sy ks ove ewe WS 20

Concrete Services Co. v. State, 274 Cal. App. 2d

142, 78 Cal. Rptr. 923 (1969)............. ——

Fifth Avenue Corp. v. Washington County, 282 Or.

NOE 5 ow eee en ees 20

First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987) .......... 12

Griggs v. Allegheny County, 369 U.S. 85 (1962)... i2

Henthorn v. Oklahoma City, 453 P.2d 1013 (Okla.

ee ee 10, 16

a 19

In re Philadelphia Parkway, 250 Pa. 257,95 A. 429°

TTS Te ne a 18

Kaiser Aetna v. United States, 444 U.S. 164(1979) 25

Kissinger v. City of Los Angeles, 161 Cal. App. 2d

22

McShane v. Farribault, 292 N.W.2d 253 (Minn.

ES EES Se ea 23

Nollan v. California Coastal Commission, 483 U.S.

ee ea oka sca eh ew ek 6s 0a ee 13

iv

Oxley v. City of Tulsa, Oklahoma, ___ P.2d ___,

SS oo win vc cece cc eccuneusce 10

State ex rel, Dept. of Highways v. Cook, 542 P.2d

re are ee 10

Thornburg v. Port of Portland, 376 P.2d 100 (Or.

I EN ocak ek Pie kWe keke uhh e ek eubces> 15

United States v. Causby, 328 U.S. 256 (1946) ..... 11

Miscellaneous:

City of Tulsa Master Plan.................. passim

City of Tulsa Airport Noise Control and Land Use

Compatibility Study (ANCLUC)........... passim

No.

In the Supreme Court of the United States

OCTOBER TERM, 1989

JOHN T. OXLEY,

Petitioner,

vs.

CITY OF TULSA, OKLAHOMA, a municipal corporation,

by and through the TULSA AIRPORT AUTHORITY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OKLAHOMA

The petitioner John T. Oxley respectfully requests

that a writ of certiorari issue to review the judgment and

opinion of the Supreme Court of Oklahoma, entered in the

above entitled proceeding on March 28, 1989, rehearing

denied on September 21, 1989.

REPORTED OPINION

The opinion of the Supreme Court of Oklahoma ren-

dered March 28, 1989, is reprinted in the Appendix hereto

at p. Al, infra. The opinion, originally publihed in the

Oklahoma Bar Journal at 60 O.B.J. 808 (S. Ct. Okla.,

#67016), does not yet appear in West’s Pacific Reporter.

Petitioner's request for rehearing was denied by the Okla-

2

homa Supreme Court on September 21, 1989. A copy of

the unpublished Order denying rehearing is appended here-

to.

STATEMENT OF JURISDICTION OF THE SUPREME

COURT OF THE UNITED STATES

Based on a theory of de facto taking, the petitioner

sought damages under the just compensation clauses of

United States and Oklahoma Constitutions. A jury

returned a verdict that no ‘‘taking” had occurred. The

opinion of the Supreme Court of Oklahoma, denying the

relief requested by the Petitioner, was rendered on March

28, 1989. See p. Al, infra. Petitioner’s request for re-

hearing was subsequently denied on September 21, 1989.

See p. Al4, infra.

The statutes conferring jurisdiction on this Court are

28 U.S.C. $1257(3) and §2101(c) (1982).

CONSTITUTIONAL PROVISIONS, STATUTES, ZONING

AND REGULATORY PROVISIONS INVOLVED

U.S. CONST. amend IV. See p. Al5, infra.

U.S. CONST. amend XIV. See p. A15, infra.

Okla. Const. Art. II, §7. See p. Al6, infra.

Okla. Stat. Tit. 66, $§51-55, 57. See pp. Al6-A18, infra

Okla. Stat. Tit. 27, $13. See pp. A18-A20, infra.

City of Tulsa Master Plan. SEe pp. A21-A22, infra.

City of Tulsa Airport Noise Control and Land Use

Compatibility Study (ANCLUC). See pp. A23-A44,

infra.

~~ Fr PF PP

3

.

STATEMENT OF THE CASE AND

MATERIAL FACTS

This action was instituted seeking recovery of dam-

ages based on a theory of inverse condemnation. The

district court trifurcated the action into three phases.

Phase one would determine whether the noise, fumes,

vibrations, and overflights associated with the operation of

Tulsa International Airport (hereinafter collectively re-

ferred to as airport conditions), had substantially inter-

fered with any protected property interest. Phase two

would determine the extent of the interference; that is,

whether an avigation easement or fee simple interest had

been appropriated. Phase three would determine the com-

pensation to be paid.

Phase one was to be tried on the theory that airport

conditions had appropriated some recognized and pro-

tected property interest and that Oxley was entitled to

compensation. The scope of inquiry was broadened when

the district court was compelled to reverse its in limine rul-

ing that evidence of anti-competitive conduct would be ad-

missible only in phase two to determine the extent of the

taking. Thus, evidence of anti-competitive conduct was

presented to the jury for its determination as to whether

there had been a substantial interference with any recog-

nized and protected property interest.

In 1951, Oxley purchased a sixty-four acre (more or

less) tract of land located near Tulsa International Airport.

At that time, the property was located adjacent to a golf

course. By virtue of airport expansion, the land is now

located adjacent to the airport’s major, and eastern-most,

north-south runway (17L/35R), borders the airport, and is,

essentially, the only remaining peninsula of privately

owned property between the major runway (17L/35R) and

4

the shorter north-south runway to the west (17R/35L). See

pp. Al-A2, infra.

In 1952, what is now the major runway was extended

to allow military aircraft access to the McDonnell Douglas

Plant. Commercial air traffic was confined to the west

runway. It was not until 1961 that a taxi-way was con-

structed to accommodate the newly extended runway. At

that time, however, the vast majority of commercial air-

craft continued to utilize the westernmost runway because

of its proximity to the airport terminal and did not, there-

fore, adversely affect Oxley’s property. Ultimately, a new

terminal was constructed and, during the later 1960's, com-

mercial jet aircraft began to use the eastern runway to the

exclusion of the western runway.

With this increased use, Oxley’s property became sub-

jected to unbearable noise, noxious odors, extreme vi-

bration, and overflights. In addition, American Airlines,

which, after Oxley’s purchase of the property, constructed

a maintenance facility within one thousand feet of the

property, conducted nightly tests, usually after midnight,

wherein jet engines would be operated at full power for as

long as two hours. These unbearable conditions adversely

affected the Oxley family’s use and enjoyment of the land

and their thoroughbred horse breeding operation. Even-

tually, the property became unsuited for Oxley’s intended

use thereof. See pp. Al-A2, infra.

As the airport expanded, the city undertook a course of

conduct which led Oxley to believe that, because of the air-

port conditions, his property would be acquired by the city.

Assurances that the city would purchase the property were

repeatedly made to Oxley and at public meetings of the

Airport Authority. Although Oxley was told that two mil-

lion dollars had been set aside for the purchase of his prop-

erty, those funds were ultimately used for street con-

5

struction. Despite the abundance of funds held in the Fed-

eral Aviation Administration land acquisition trust fund,

excuses were thereafter made that the purchase money

was unavailable. As such, Oxley offered to finance the

city’s purchase of the property, but his offer was never ac-

cepted, the city failed to purchase or condemn the prop-

erty, and the unbearable living conditions forced Oxley to

move. Id.

During the same period of time, the city was required

by the Federal Aviation Administration to prepare an Air-

port Noise Control and Land Use Compatibility Study

(hereinafter referred toas ANCLUC). See pp. A22 A44, in-

fra. That study repeatedly referred to the extreme con-

ditions to which the Oxley property was subjected, con-

sistently noted the property’s suitability for airport de-

velopment, unequivocally recommended acquisitior of the

property on a first priority basis, showed the property as

being located inside the airport fence, described municipal

development of the property in a manner identical to that

ultimately proposed by Oxley, placed restrictions on, and

prohibitions against, private commercial development of

the land, and directed that the city purchase the property

and thereafter seek reimbursement of the purchase price

from federal funds. Two of ANCLUC’s noise measure-

ment testing sites (sites 1 and 15, see pp. A26-A29, A33, in-

fra) were located on Oxley’s property and established its

location in a seventy-five Ldn zone, which required imme-

diate acquisition based on the intolerable noise associated

with such a classification. See p. A36 and pp. A38-A44, in-

fra. ANCLUC mandated that acquisition of the Oxley

property was the airport’s highest land acquisition pri-

ority. Yet, no such acquisition, either by purchase or con-

demnation, was forthcoming.

6

The purpose of the ANCLUC study was to reduce the

effects of airport generated noise and facilitate land use

compatibility within the airport environs. It supple-

mented and confirmed the policies and recommendations

of the Master Plan, adopted by the city in 1975. These

documents are, to the extent possible, binding on the

city and can be relied on by the public as expressions

of land use policy. Both the Master Plan and ANCLUC

recommended courses of airport expansion and develop-

ment. ANCLUC established a schedule of priorities for

the improvements and acquisitions necessary for both

the expansion of the airport and making surrounding

land use compatible with airport operations. Although

ANCLUC is not concerned with zoning classifications, its

policies and recommendations set forth the uses to which

land was being put and established prospective uses to

which it might be put in order to make it compatible with

the noise generated by, and activities associated with, the

airport. ANCLUC unequivocally states that certain uses

within the seventy-five Ldn zone, in which Oxley’s prop-

erty is entirely located, are not compatible with the airport

and the conditions it generates. Both ANCLUC and the

Master Plan restricted certain, and absolutely forbade

other, uses to which land surrounding the airport could be

put. Compare p. A22, infra with pp. A34-A35, infra.

Oxley was unaware that the Master Plan and

ANCLUC contained recommendations for acquisition of

the property and, more importantly, prohibitions against

certain types of private use and development. In addition,

those documents contained recommendations for

municipal development of the property which mirrored Ox-

ley’s plans and proposals contained in his 1981 application

for a special exception under the City Ordinances to de-

velop his property as an airport. See pp. A3-A5, infra.

7

The application was denied and Oxley was forced to rezone

the property for airport related light industrial use. As

part of his development plan, Oxley sought permission

from the city to conduct a “through the fence’’ operation

wherein his property would be permitted access to the air-

port through the construction of ramps and taxiways

which would allow aircraft to utilize airport related bus-

inesses to be located on the Oxley property. See p. A4,

infra. Oxley would use the property to operate aircraft sales,

hangaring, and servicing facilities, and to conduct fixed base

operations and their concomitant aircraft related office,

freight, and cargo facilities. Restaurants, motels, and other

rental businesses that are necessary for a complete service

facility were also proposed in Oxley’s plan. In order to ac-

complish this goal, a limited joint venture was established

between Oxley and Douglas Jandebeur, an airport fixed

base operator, under which Oxley would provide the

financing for the project and Jandebeur would provide the

expertise for the daily operation of the facility.

When Oxley sought to pursue those development

plans, although the city outwardly expressed a conditional

willingness to permit such operations, both the Master

Plan and ANCLUC, as planning documents, would have

prohibited such development. See pp. A22, A34-A385, in-

fra. In the Master Plan, the city stated that, upon acquiring

Oxley’s property, it would put that property to uses virtually

identical to those proposed by Oxley when he requested

permission to operate a ‘“‘through the fence” facility. The

Master Plan stated that the Oxley property was to be de-

veloped by the airport as a general aviation apron, hangar

expansion, and for aviation related industry. It is also

noted that fixed base operators might be located on the

property. ANCLUC also recommended that, upon ac-

quisition from Oxley, the city conduct enterprises virtually

identical to those proposed by Oxley. The intent to ac-

8

quire Oxley’; property as expressed in both the Master

Plan and ANCLUC, was publicly confirmed in June, 1982.

See p. A3, infra. In addition, on July 14, 1983, the Air-

ports Improvement Trust directed that all sixty-four acres

of residential property within the seventy-five Ldn contour

should be acquired. The Oxley property comprised vir-

tually all of that contour. See pp. A37-A38, infra. Thus, the

city’s intent to acquire the property destroyed the invest-

ment and development potential of the land and the joint

venture between Jandebeur and Oxley was terminated.

Although the airport had provided “through the

fence’’ access to other private individuals, Oxley’s request

for such access met with opposition despite the general

policy of the Federal Aviation Administration that such ac-

cess, once granted to one person, could not be discrimina-

torily withheld from another. The city’s opposition took

the form of the imposition of unreasonable conditions that

would have vesulted in the Oxley property being assessed

with charges and “user fees’’ equal to those being assessed

against ‘‘on-airport’’ business which leased their facilities

from the city. In some instances, these charges had been

as high as eighty-five percent (85%) of the gross profits of

the affected enterprise. The conditions had not been im-

posed on other entities that had previously been granted

through the fence access. The imposition of such

unreasonable conditions effectively denied ‘‘through the

fence’”’ access. The irony of imposing such conditions is

that both the Master Plan and ANCLUC would have pre-

cluded commercial development of the property even if

such access could have been made reasonably available.

Moreover, residential use of the property was impossible

because of airport conditions. In short, all use of the prop-

erty was effectively prevented.

9

After the city’s public declaration that it intended to

acquire the entire tract of land between the two runways,

which included the Oxley property, Oxley was faced with

the city’s apparent refusal to purchase the property, its

steadfast unwillingness to grant reasonable access to the

field, and both the restrictions and the outright prohibi-

tions of the Master Plan and ANCLUC.

The city has never explained this obvious inconsis-

tency betweeh its conduct and the policies to which it was

bound and which have been adopted almost in their en-

tirety. The city’s failure to purchase or condemn the Ox-

ley property is the one glaring exception to full implemen-

tation of those policies. As such, the city violated its

statutory duties and Oxley was forced to institute this ac-

tion in inverse condemnation on February 13, 1984.

REASONS FOR GRANTING THE WRIT

I

THE JUDGMENT BELOW THAT NO TAKING OC-

CURRED CONSTITUTES A DECISION OF FEDERAL

LAW THAT IS BOTH IN CONFLICT WITH APPLI-

CABLE DECISIONS OF THIS COURT AND AN IM.-

PORTANT DECISION REGARDING FEDERAL LAW

THAT HAS NOT BEEN, BUT SHOULD BE, DECIDED

BY THIS COURT.

The Oklahoma Supreme Court’s decision is partly the

function of that court’s misperception of the procedure by

which the trial was conducted. The Oklahoma Court’s

decision was based on the notion that the trial was bifur-

cated. In fact, the trial was trifurcated. To effectuate the

trifurcation, the trial court ruled that Oxley’s phase one

case in chief could not include presentation of evidence of

anti-competitive conduct. Only airport conditions were

10

relevant to the interference. When the city, however, in-

troduced evidence of other potential uses to which the

property might be put, the court permitted Oxley to rebut

those contentions by establishing that the city’s planning

documents and its anti-competitive conduct had, in fact,

precluded those other potential uses.

The Oklahoma Supreme Court, improperly relying on

bifurcation, ignoring the dissolution of the in limine order,

and failing to discuss or cite this Court’s decisions, held:

Because of the trial court’s ruling in limine, the ap-

pellant’s assertions that the airport imposed unrea-

sonable restrictions on through - the - fence operations

and engaged in other ‘‘discriminatory”’ and ‘‘anti-com-

petitive” practices, are all without factual support in

this record. But even assuming, arguendo, that the

record disclosed facts in support of the appellant’s alle-

gations of discrimination and anti-competitive prac-

tices, there would still be insufficient showing under

[State ex rel, Dept. of Highways v. Cook, 542 P.2d

1405 (Okla. 1975)] to form the basis of a finding that a

de facto taking had occurred.

... Here there is no ‘‘taking’’ of access, but rather a

refusal to grant access.

... Refusal to grant access does not, however, con-

stitute an ‘‘overt”’ act leading to the exercise of domi-

nion and control.

Oxley v. City of Tulsa, see p. Al, infra.

If judicial focus is restricted to the only issue properly

presented in the first phase of the trial, that is, substantial

interference with any recognized and protected property

interest, then the question presented for review is whether

airport conditions constituted a substantial, Henthorn v.

Oklahoma City, 453 P.2d 1013, 1016 (Okla. 1969), or im-

11

mediate interference, United States v. Causby, 328 U.S.

256, 266 (1946), with a protected property interest that was

“sufficiently direct, sufficiently peculiar, and of sufficient

magnitude to cause [the court] to conclude that fairness

and justice, as between the State and the citizen, requires

the burden imposed to be borne by the public and not by

the individual alone.’’ Batten v. United States, 306 F.2d

580, 587 (10th Cir. 1962) (Murrah, J., dissenting). If so,

then a compensable taking had occurred.

If, however, because of the city’s violation of the in

limine order granted at its behest, judicial inquiry is com-

pelled to account for the city’s anti-competitive conduct in

determining the existence of a substantial interference,

then the sufficiency and immediacy of the interference

must be determined by also considering evidence of anti-

competitive conduct and the restrictions and prohibitions

contained in land use planning documents.

It is well established that noise and overflights can be-

come so burdensome to the land they affect that their pres-

ence results in a taking thereof. In United States v.

Causby, 328 U.S. 256 (1946), the issue was whether the re-

spondents’ property was taken, within the meaning of the

Fifth Amendment, by frequent and regular low altitude

flights over their land. Id. at 258. This Court recognized

that noise and overflights could result in a taking of prop-

erty and stated that the effect of these conditions “was the

destruction of the property as a commercial chic!sen farm.

Residents are frequently deprived of their sleep and the

family has become nervous and frightened.’’ Jd. at 259.

The Court held that flights over private land amount to a

taking if they are “‘so low and so frequent as to be a direct

and immediate interference with the enjoyment and the

use of the land.’’ Jd. at 266.

12

Sixteen (16) years later, in Griggs v. Allegheny County,

369 U.S. 85 (1962), it was held that a landowner was en-

titled to compensation because the noise produced by air-

craft was comparable to that produced by a jack hammer

or noisy factory. The Court stated:

“Regular and almost continuous daily flights,

often several minutes apart, have been made by a

number of airlines directly over and very, very close to

plaintiff's residence. During these flights it was often

impossible for people in the house to converse or to

talk on the telephone. The plaintiff and the members

of his household . . . were frequently unable to sleep

even with earplugs and sleeping pills; they would fre-

quently be awakened by the flight and the noise of the

planes; windows of their home would frequently rattle

and at times plaster fell down from walls and ceilings;

their health was affected and impaired, and they some-

times were compelled to sleep elsewhere.”

Id. at 87. \

In First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987), the plaintiff alleged

that the ordinance at issue denied all use of the land. The

issue was ‘‘whether the Just Compensation Clause requires

the government to pay for ‘temporary’ regulatory

takings.’’ Jd. at 313. In Lutheran Church, it was stated:

“Tt would ve a very curious and unsatisfactory result if

... it shall be held that if the government refrains from

the absolute conversion of real property to the uses of

the public it can destroy its value entirely, can inflict

irreparable and permanent injury to any extent, can, in

effect, subject it to total destruction without making

any compensation, because, in the narrowest sense of

the word, it is not taken for public use.”

13

Id. at 316-17 (emphasis in original). The Court noted the

general rule that ‘‘while property may be regulated to a cer-

tain extent, if regulation goes too far, it will be recognized

as a taking. . . . [T]he entire doctrine of inverse condemna-

tion is predicated on the proposition that a taking may oc-

cur without . . . formal proceedings.”’ Jd. at 316.

The Court has recognized that the line between a per-

missible regulation and a taking requiring compensation is

not always easily determined. In Nollan v. California

Coastal Commission, 483 U.S. 825 (1987), guidance was

given as to where that line must be drawn when it was

stated:

[L]jand use regulation does not effect a taking if it

“substantially advance{s] legitimate state interests”

and does not ‘“‘den[y] an owner economically viable use

of his land.’’... Our cases have not elaborated on the

standards for determining what constitutes a ‘‘legiti-

mate state interest’ or what type of connection be-

tween the regulation and the state interest satisfies

the requirement that the former ‘‘substantially ad-

vance”’ the latter. They have made clear, however,

that a broad range of governmental purposes and regu-

lations satisfy these requirements.

Id. at 834-35 (footnotes omitted). Obviously, an utter

failure to advance the legitimate state interest is con-

stitutionally forbidden. In addition, the lack of connection

between a condition imposed on the use of land and the

purpose to be achieved means:

The purpose then becomes, quite simply, the obtaining

of an easement to serve some valid governmental pur-

pose, but without payment of just compensation.

Whatever may be the outer limits of “‘legitimate state

interests’’ in the takings and land-use context, this is

14

not one of them. In short, unless the permit condition

serves the same governmental purpose as the develop-

ment ban, the building restriction is not a valid regu-

lation of land use but ‘an out-and-out plan of ex-

tortion.”’

Id. at 837. The Court continued:

We view the Fifth Amendment’s Property Clause to be |

more than a pleading requirement, and compliance '

with it to be more than an exercise in cleverness and )

imagination. As indicated earlier, our cases describe |

the condition for abridgement of property rights

through the police power as a ‘substantial

advanciing]” of a legitimate state interest. We are in-

clined to be particularly careful about the adjective |

where the actual conveyance of property is made a con-

dition to the lifting of a land-use restriction, since in

that context there is a heightened risk that the pur-

pose is avoidance of the compensation requirement,

rather than the stated police power objective.

Id. at 841.

Although Lutheran Church and Nollan apply to the

issues herein, neither of those opinions considered the

question of whether the governmental regulations and con-

duct had permanently denied to those landowners all

reasonable and economically viable use of their property.

Agins v. City of Tiburon, 447 U.S. 255 (1980), however, did

address that issue. In Agins, the plaintiffs brought an in-

verse condemnation action seeking a declaration that |

various zoning ordinances were facially unconstitutional.

Although the Court rejected the claim and found that the

ordinances substantially advanced legitimate state in-

terests, dicta in the court’s opinion is directly applicable to

the facts of the present litigation. The Court stated:

nearer

Af 4

15

Although the ordinances limit development, they

neither prevent the best use of the appellants’ land...

nor extinguish a fundamental attribute of ownership.

. At this juncture, the appellants are free to pursue

their reasonable investment expectations by sub-

mitting a development plan to local officials. Thus, it

cannot be said that the impact of general land-use

regulations has denied appellants the ‘‘justice and

fairness’’ guaranteed by the Fifth and Fourteenth

Amendments.

Id. at 262-63.

Although it predated Agins, Lutheran Church, and

Nollan, Judge Murrah’s dissent in Batten v. United States,

306 F.2d 580 (10th Cir. 1962), served as the basis for the

trial court’s jury instructions in the instant action. Judge

Murrah called for a balancing between the state and

private interests and formulated the following consti-

tutional test:

Whether the asserted interest is one which the law will

protect; if so, whether the interference is sufficiently

direct, sufficiently peculiar, and of sufficient

magnitude to cause us to conclude that fairness and

justice, as between the State and the citizen, requires

the burden imposed to be borne by the public and not

by the individual alone.

Id. at 587.

In Thornburg v. Port of Portland, 376 P.2d 100 (Or.

1962), the Oregon Supreme Court, in an inverse condemna-

tion action, stated that ‘‘there is a question, in each case, as

a matter of fact, whether or not the governmental activity

complained of has resulted in so substantial an interference

with use and enjoyment of one’s land as to amount to a tak-

ing of private property for public use.’’ Jd. at 105. Based

16

on this standard, the court stated, in language consistent

with this Court’s Nollan opinion:

[A] taking occurs whenever government acts in such a

way as substantially to deprive an owner of the useful

possession of that which he owns, either by repeated

trespasses or by repeated nontrespassory invasions

call ‘‘nuisance’”’. If reparations are to be denied, they

should be denied for reasons of policy which are them-

selves strong enough to counter-balance the consti-

tutional demand that reparations be paid.

Id. at 107.

Causby’s “immediate interference’ requirement and

the substantial interference test contained in Judge Mur-

rah’s dissent and the Thornburg opinion have been

adopted by the Supreme Court of Oklahoma in Henthorn v.

Oklahoma City, 453 P.2d 1013 (Okla. 1969). In Henthorn,

the court stated that ‘‘there must be a substantial inter-

ference with the use and enjoyment of the property af-

fected, in addition to showing low, continuous, frequent

flights over or in close proximity to the plaintiff's

property.’ Jd. at 1016.

Despite the trial court’s ruling in limine and because of

the city’s interjection of evidence and issues not otherwise

properly presented in phase one, the combined effects of

airport conditions and anti-competitive conduct were prop-

erly before the jury for its decision as to whether there had

been a substantial interference with a protected property

interest. If the evidence established such an interference,

then the threshold test of ‘‘immediate interference’’ man-

dated by Causby and Griggs have been met because the

unbearable living conditions generated by airport oper-

ations appropriated an avigation easement by virtue of

their immediate interference with a protected property in-

17

terest. Further, under the analysis required by Agins,

Lutheran Church, and Nollan, the anti-competitive regu-

lation of the property, which, whether termed a “refusal to

grant access” or a “denial of access,” was a violation of

FAA policy regulations and effectively precluded all use of

the property - residential, commercial, and airport related

light industrial. Such regulation, whether codified, incor-

porated into binding and implemented planning

documents, or individually imposed to insulate govern-

ment from the competition of private enterprise, ‘‘goes too

far’’ and must “be recognized as a taking,”’ Lutheran

Church at 316, because it does not “‘substantially advance

legitimate state interests” and denies Oxley the ‘‘economi-

cally viable use of his land.”’ Nollan at 834.

A writ of certiorari should, therefore, issue to resolve

this important question of law and policy.

II

BECAUSE THE TRIAL COURT'S IN LIMINE RUL-

ING WAS DISSOLVED TO ALLOW PROOF OF ANTI-

COMPETITIVE CONDUCT, THAT PROOF, COM-

BINED WITH THE CITY’S UNEQUIVOCAL INTENT

TO ACQUIRE OXLEY’S PROPERTY, ESTABLISHED

AN IMMEDIATE INTERFERENCE WITH A PRO-

TECTED PROPERTY INTEREST.

The Oklahoma Supreme Court’s decision denying Fifth

Amendment compensation to the petitioner is in conflict

with decisions rendered by the California, Minnesota,

Oregon, and Pennsylvania courts. In those jurisdictions,

it has been held that unequivocal and overt action, under-

taken pursuant to an expressed intent to acquire private

land which is to be thereafter used in connection with the

public improvement, constitutes a taking.

18

In the present litigation, the Master Plan and

ANCLUC are the equivalent of zoning ordinances because

they contain recommendations that can be relied upon by

landowners as statements of municipal policy. In addi-

tion, with the exception of specific recommendations con-

cerning Oxley’s property, the policies and recommenda-

tions have been uniformly followed in the expansion of the

airport. Many of the policies and recommendations

preclude uses to which the Oxley property can be put.

In In re Philadelphia Parkway, 250 Pa. 257, 95 A. 429

(1915), the Pennsylvania Supreme Court was called upon to

determine whether land, lying directly in the path of a pro-

posed parkway, had been effectively taken from its owner.

The evidence established that after the parkway was

platted, the city acquired property within the proposed

right of way. At the time of trial, some work had been

completed on the parkway. In holding that the landowner

was entitled to compensation, the court noted that the

parkway was a worthless improvement unless it was fin-

ished in its entirety. Jd at __, 95 A. at 430-31. In

holding in favor of the landowner, the court stated:

[I}f the City did some unequivocal act evidencing an in-

tention to open, followed by actual work done on the

projected street, the right to compensation under

proper circumstances might accrue even if counsels

had failed or neglected to pass an opening ordinance.

. Here we have not one but a series of unequivocal

acts covering a period of years and all evidencing the

intention of the City to open and complete the

parkway. In furtherance of the intention to open and

complete the undertaking, lands have been condemned

under the power of eminent domain, properties pur-

chased, improvements made, and large sums of money

expended. The City is just as irrevocably committed

_ ae EE: RSE

19

to the improvement as if the ordinance to open had

been passed.

Id. at __., 95 A. at 431. Philadelphia Parkway

establishes that a condemning authority cannot resist a

request for the payment of compensation in an inverse con-

demnation action by hiding behind an argument ‘that

there has been no actual, physical taking”’ of a landowner’s

property. Carson Street Case, 101 Pitt. L.J. 35, 38 (1952).

The rule that mere platting of property does not constitute

a “‘taking”’ is, therefore, subject to an important exception

relating to a condemning authority’s demonstrated intent

to take property for a public purpose and its commission of

one or more unequivocal acts establishing that intent.

In Hilltop Properties, Inc. v. State, 43 Cal. Rptr. 605

(1965), the plaintiff alleged that pursuant to the

defendant’s request, it reserved two strips of its property

for highway use and that the defendant’s intent to take,

and its unequivocal acts in conformity therewith, had

deprived the plaintiff of the use of its property. Although

the court held that the enumerated circumstances were not

exceptional and did not, therefore, justify an award of com-

pensation to the landowners, it stated:

[W]here a City does some unequivocal act evidencing

an intention to open a proposed street, parkway, or

other contemplated improvement, or where the

prohibitory provisions of an ordinance or statute are

such as actually to interfere with an owner’s use of his

property, it is held the acts amount to a taking in the

constitutional sense.

Id. at 609. In justifying its holding, the court dis-

tinguished the Philadelphia Parkway case by stating:

20

There the situation which developed was that at in-

tervals during a period of from ten to twelve years cer-

tain properties in the area of the proposed parkway

had been acquired by the city either by condemnation

or by purchase; some buildings had been torn down,

and some improvements made and work done on parts

of the parkway. In holding that property owners were

entitled to relief in damages because of the situation in

which they had been placed, through no fault or act of

their own, while waiting for the city to do something to

relieve them from the hardships of the situation, the

reviewing court allowed such relief on the basis that

the facts warranted an exception to the general rule.

The rationale of the holding is that the city’s un-

equivocal acts evidencing and intent to open the

parkway followed by actual work done on the pro-

jected street, constituted such exceptional cir-

cumstances as to entitle the property owners to com-

pensation.

Id. at610. Thus, if a landowner shows the existence of ex-

ceptional circumstances “‘which have substantially de-

prived him of the use and enjoyment of his property,’’ he is

entitled to compensation. Commonwealth v. Lawton, 50

Pa. C. 144, ___, 412 A.2d 214, 216 (1980).

The focus of the inquiry in determining whether there

has been an immediate interference with Oxley’s property

is a showing that a formal condemnation of his lend was in-

evitable. Jd. Oxley is entitled to compensation for his loss

because by reason of the actions of the city ‘‘(1) he is

precluded from all economically feasible private uses pend-

ing eventual taking for public use; or (2) the designation

results in such governmental intrusion as to inflict vir-

tually irreversible damage.” Fifth Avenue Corp. v.

Washington County, 282 Or. 591, ___, 581 P.2d 50, 63

21

(1978). Thus, when there is a demonstrated intent to ac-

quire private property for a public purpose and the con-

demning authority establishes that intent by some un-

equivocal act, such as the commencemeat of work on the

proposed public project, then there are special cir-

cumstances which justify an award of compensation. E.z.,

Concrete Services Co. v. State, 274 Cal. App. 2d 142, 78

Cal. Rptr. 923 (1969). Under such circumstances, the con-

demning authority is found to have acqtired the real prop-

erty “‘not as a result of bargaining in the open market, but

rather in the broad exercise of its power to condemn

private property for public use.’’ Id. at 926.

This Court’s decisions in Causby, Griggs, Agins,

Lutheran Church, and Nollan serve as the foundation for a

holding that a combination between (1) conduct which

either unduly restricts or entirely prohibits the reasonable

use and development of land and (2) conditions associated

with the operation of an airport which make residential use

impossible, results in a compensable taking under the Fifth

Amendment. The city’s intent to acquire Oxley’s prop-

erty was clearly established. The implementation of the

Master Plan and ANCLUC policy recommendations and

the irrevocable commitment to the expansion of the airport

are the unequivocal and overt acts which have caused an

immediate and substantial interference with protected

property rights which, in turn, lead to the effective exercise

of dominion and control over the land which precludes all

reasonable use thereof. Such an immediate interference

which does not substantially advance legitimate state in-

terests is a compensable taking.

To find an immediate and direct interference in this

litigation is the logical extension of this Court’s prior

holdings and is consistent with eminent domain principles

announced by other jurisdictions. The concurrence of air-

22 -

port conditions, policies set forth in binding planning

documents which prohibited or otherwise restricted

reasonable use and economically viable development of the

land, and anti-competitive conduct which placed unreason-

able restrictions on good faith proposals for development,

eliminates any possibility that Oxley can ever use, enjoy,

develop, or dispose of his property. The elimination of

those protected interests confirms the substantial nature

of the interference.

The city has never explained its failure either to pur-

chase on reasonable terms or to condemn the Oxley prop-

erty. It has never explained the contradictions between

its outward expressions of a purported willingness to per-

mit development, albeit on unreasonable conditions, and

the restrictions and prohibitions of the Master Plan and

ANCLUC. It has never explained its reasons for imposing

such onerous conditions on through the fence access. It

has never explained its reasons for failing to comply with

FAA policies by imposing discriminatory conditions on

such access. It has never explained its reasons for pursu-

ing and complying with every other Master Plan and

ANCLUC policy except the mandate that the Oxley prop-

erty be acquired on a first priority basis. It has never ex-

plained why the Oxley property was carved out of acquisi-

tion tract B, while the remaining properties contained

therein were either purchased or condemned.

In an action seeking a declaratory judgment that zon-

ing ordinances improperly restricted the uses to which land

could be put, the California Court of Appeals, in Kissinger

v. City of Los Angeles, 161 Cal. App. 2d 454, 327 P.2d 10

(1958), stated that land use regulation which is clearly un-

reasonable, oppressive, or discriminatory, is impermissible.

The court noted that the city’s conduct was a blatant at-

tempt to use its police power to take property without pay-

ing just compensation. The court stated:

Te

——

23

The evidence establishes that to accomplish the

enlargement of the airport and the creation of the ap-

proach zone... the city intends to condemn the sub-

ject property. The inference is clear that the true pur-

pose of the ordinance was to prevent the improvement

of the subject property in order that it might be ac-

quired at a lesser price for airport purposes.

Id. at ___, 327 P.2d at 16. The court did not accept Los

Angeles’ attempt to justify its conduct. Unlike Los

Angeles, the city of Tulsa has never attempted to justify

its conduct.

The unspoken reasons for the city’s conduct are clear.

Compliance with the Master Plan and ANCLUC means

that the city intends to develop the Oxley property for pur-

poses identical to those proposed by Oxley. Oxley’s pro-

posed development would not only preclude similar mu-

nicipal development on the site, it would also present

immediate and effective competition with what is now a

municipal monopoly. Thus, rather than comply with

ANCLUC and meet its statutorily imposed obligations to

avoid the commencement of inverse condemnation actions,

the city is in the enviable position of destroying the value

of the land without being held responsible for its conduct.

Oxley’s land is left alone to bear the burdens of the airport;

burdens that should be borne by the public as a whole. The

city is insulated from its conduct and is left alone to enjoy

its monopoly. The city’s policies and conduct have not

resulted in the arbitration of competing land uses.

Rather, they consist of ‘‘regulation for the sole benefit of a

governmental enterprise.’ McShane v. Farribault, 292

N.W.2d 253, 257 (Minn. 1980). Under the foregoing cir-

cumstances, and as was noted in this Court’s Nollan

opinion, landowners and developers are left to guess at the

nature and quality of the ‘substantial state interests” that

24

can justify an uncompensated taking of one, more, or all of

the protected interests in property.

By precluding development of the property, destroy-

ing its residential use, and by imposing restrictions and

prohibitions that make development and use impossible,

the city fosters its monopoly. Although the failure to com-

ply with the mandate to acquire the property prevents mu-

nicipal development of the land, the profitability of the

city’s enterprise remains unaffected because of its monop-

oly status. Under Nollan, therefore, the legitimacy of the

city’s monopoly, the propriety of imposing unreasonable

conditions on access to the field, and the failure to imple-

ment Master Plan, ANCLUC, and statutory policies are all

brought into question because the city’s conduct does not

advance legitimate state interests and has the cumulative

effect of depriving Oxley of all economically viable use of

his land. As it was stated by this Court in Lutheran

Church, that is ‘‘a very curious and unsatisfactory result.”

Yet, such is the effect of the Oklahoma Supreme Court’s

decision.

This Court’s Causby, Griggs, Agins, Lutheran Church,

and Nollan decisions constitute a line of authority under

the Fifth and Fourteenth Amendments which is binding on

the Oklahoma courts. Those decisions are the foundation

for a holding that a municipality’s land use planning docu-

ments and intentional misconduct which, when both com-

bined with the normal consequences of operating an air-

port, precludes all reasonable use of property, effectuates a

compensable taking of property. This Court’s decisions

are consistent with the state court decisions in Thorn-

burgh, Kissinger, Fifth Avenue, and Philadelphia

Parkway. Those decisions are diametrically opposed to

the decision of the Oklahoma Supreme Court which ex-

presses the policy, and establishes an unfortunate prece-

25

dent that a municipality (1) has unfettered discretion to

operate its airport in a way that substantially intrudes

upon the rights of surrounding landowners, (2) can, in

essence, destroy the value of property by preventing its

reasonable use in the vicinity of an airport, and (3) has no

accountability, as a matter of either governmental policy

or economics, for its actions. Such extreme deference to a

municipality’s power has resulted in an utter disregard for

the landowner’s rights to use, dispose of, enjoy, and/or

develop his property. In fact, the decision sanctions a

municipality’s total divestiture of every right of use and

expectancy that would otherwise be available to a land-

owner. See Kaiser Aetna v. United States, 444 U.S. 164,

179-80 (1979).

The opinion of the Oklahoma Supreme Court has either

improperly decided, or failed to address properly, a very

specific constitutional issue as to the extent of regulation

of use that is permissible when certain other uses are im-

possible by virtue of conditions that cannot be changed,

and which, in combination, either preclude all reasonable

use of the property or substantially interfere with one or

more protected interests therein. Tulsa International Air-

port continues to grow, with construction of a third North-

South runway currently in process, thereby increasing the

amount of property, and number of individuals, affected by

airport conditions. McDonnell Douglas and American

Airlines continue to expand their respective construction

and maintenance facilities, thereby further increasing air

traffic at the airport. When larger and noisier aircraft

begin to use the airport at increased numbers, what is to

happen to other landowners whose homes happen to bear a

disproportionally significant brunt of progress and expan-

sion? Their rights to use, enjoy, develop, and dispose of

their properties will be affected to as great an, if not a

greater, extent as Oxley’s property is now affected. With-

26

out a grant of the writ requested herein and ultimate rever-

sal of the Oklahoma Supreme Court’s decision, the City of

Tulsa, and other governmental entities, will surely feel

secure in their ability to destroy property values, sub-

jugate land to the burdens of an airport, preclude all

reasonable use and development of land near an airport,

and either acquire the properties at a depressed value or

preclude enterprising individuals from making the best out

of an intolerable and unfair situation. At the very least,

the conflict among the decisions and Oklahoma’s

divergence from this Ccurt’s precedents, results in an

unsettled federal framework around which future decisions

must be formulated. Unfortunately, the Oklahoma

Supreme Court’s opinion, which neither provides sufficient

detail of the facts elicited at trial nor properly accounts for

the procedural context in which the action was tried, is suf-

ficiently broad to uphold similarly egregious municipal

conduct in other jurisdictions. That conduct, being

violative of the Fifth and Fourteenth Amendments must

be recognized for what it is: a compensable taking.

27

Itl_

CONCLUSION

For the foregoing reasons, it is respectfully requested

that this Petition for Certiorari be granted. If it is later

determined on the merits that Oxley is correct in urging

that there has been an immediate and substantial in-

terference with a protected property interest, then the mat-

ter should be remanded to the state courts for a determina-

tion of the extent of the taking and the compensation to be

paid to the petitioner.

Respectfully submitted,

N. FRANKLYN CASEY

Counsel of Record

Casey & JONES

3140 South Winston, Suite 2

Tulsa, Oklahoma 74135

(918) 747-9654

Bruce A. McKENNA

2900 Mid-Continent Tower

Tulsa, Oklahoma

(918) 583-7571

Counsel for Petitioners

December 19, 1989

Al

APPENDIX

(March 28, 1989)

OPINION FROM THE OKLAHOMA

SUPREME COURT

JOHN T. OXLEY, Appellant, v. CITY OF TULSA,

OKLAHOMA, a municipal corporation, by and through

THE TULSA AIRPORT AUTHORITY, Appellees.

No. 67,016. March 28, 1989.

Appeal from District Court, Tulsa ey. Hon.

Robert Scott, District Judge.

Appeal by landowner from jury verdict in inverse

condemnation case. City of Tulsa cross-appeals trial

courts denial of motion to assess commissioner’s costs,

and cost of defending action against land owner.

JUDGMENT ON VERDICT FOR DEFENDANT,

CITY OF TULSA, AFFIRMED. CROSS-APPEAL BY

CITY OF TULSA DISMISSED.

Bruce A. McKenna, N. Franklyn Casey, Tulsa, for ap-

pellant.

J. Richard Studenny, Randall S. Pickard, Tulsa, for ap-

pellee.

SIMMS J.: Action below for inverse condemnation.

Appellant, Oxley, is the owner of approximately sixty (60)

acres of land adjacent to, and partially surrounded by, the

Tulsa International Airport. The,chronology of events

and facts are largely undisputed.

Appellant purchased the property at issue in 1951. At

the time, the airport was much smaller, and used only by

propeller driven aircraft. Appellant built his family home

on the premises and began a horse breeding operation, all

without disturbance by the airplanes using the facility.

A2

A year later, the east runway to the airport was ex-

tended parallel to the appellant’s property on the east side.

Years later, in 1961, a taxiway was added to the west side

of that runway to improve airport access for commercial

jets. At this point in time, the appellant’s property di-

rectly adjoined the taxiway. Eventually, in 1972 or 1973,

because of the increasing volume of flights using the east

runway and the associated noise, the appellant moved his

home and horse ranching operation to other land he owned

in the county. He continued, however, to use the buildings

and land as rental property. Appellant testified that he

had trouble keeping tenants during this time, however, be-

cause of the extreme noise associated with airport oper-

ations.

In 1975, the Trustees of the Tulsa Airport Improve-

ment Trust adopted a master plan for airport expansion.

As part of the overall scheme for future growth, the plan

prohibited further development of the surrounding land for

those uses described as incompatible with the airport. The

primary incompatible use was residential. Because of its

continued residential use, the plaintiff's land was con-

sidered a top priority for airport acquisition in the master

plan. The appellant testified that an appraisal was

ordered by the Airport Authority at that time, but no offer

to purchase followed. He also testified that at various

times during these years he had attempted to negotiate

with the Airport Authority for the purchase of his property

and that at one time, he offered to agree to some type of

time payment plan.

In 1980-81, a noise compatibility study was conducted

as an update of the master plan, designated the

“ANCLUC”’ study.' ANCLUC, too, identified the appel-

1. ‘““ANCLUC” is the acronym used to designate The Airport Noise

Compatibility and Land Use Study. The airport director testified that

this study is an additional planning document required by the Federal

Aeronotics Administration as an update to the master plan in order to

qualify for certain types of federal funds.

8

A3

lant’s property as a priority for airport acquisition because

of extreme noise impact on the property and because of its

incompatible, residential, use.?, According to the ANCLUC

study, the appellants property was in the area of highest

noise impact.

Acquisition of the appellant’s property was authorized

at a meeting of the Airport Trustees held in June, 1982.

This authorization was based on a preliminary draft of the

ANCLUC study. The minutes of the meeting show that

the trustees planned to fund the purchase of the property

with meney owed the airport by the city of Tulsa. These

minutes also show that it was the trustees’ belief at the

time that later development of the property would reim-

burse the airport for the funds used to purchase the land.

Appraisers were again sent to establish a value for the

property. In September of that year, the property owners

in the impact area were notified that the Airport was con-

sidering acquisition of the property and were given infor-

mation about landowner’s condemnation rights. That

notification advised them not to relocate or contract with

third parties for the sale of his property since that would

risk “losing your eligibility for relocation assistance.”’

The owners were also asked to cooperate with the Airport

Authority by providing abstracts of title, which the Air-

port would have updated.

The record shows that three months after receipt of the

aforementioned letter, the appellant filed an ajplication

with the city to change the zoning for his property to light

2. An examination of ANCLUC shows that the parcel in question is

the first acquisition priority and is discussed solely in terms of acquisi-

tion. ANCLUC does state that afterwards, the property could be

developed for airport compatible uses and that development could be

used to defray the costs of its purchase. The study recommended that

“every effort should be made to purchase properties on an opportunity

basis, rather than resorting to condemnation.”’

A4

industrial and commercial. A hearing on this application

was held on January 6, 1983. That same day, the airport of-

fered to purchase the property for $1,500,000.00. This of-

fer was rejected within a few days in a letter from the

appellant’s attorney with the comment that the property

‘“‘was not for sale.”

The next communication was in a letter dated March

22, 1983, from the appellant’s attorney addressed to the

airport director. In this letter, the director is reminded

that the appellant is appealing the denial of his application

for a special zoning exception to the district court and asks

the director for information on the terms the airport would

impose for an agreement to access airport facilities so the

appellant could develop his property for airport-related

businesses. The airport director responded with a gencral

outline of “through-the-fence’’® requirements by letter

dated June 1, 1983. There was, apparently, no further

written communication between the appellant and airport

authorities on this request, nor do the minutes of the Trustees’

meeting, held the following month, show that the trustees

were advised about the appellant’s inquiry. Those

minutes do, however, show that the trustees gave final ap-

proval and adoption to the ANCLUC noise control study

and approved a change in the private property acquisition

policy. Under this change, land would no longer be ac-

quired by large blocks, but rather as individual parcels

within the discretion of the airport staff. A prioritization

3. ‘‘through-the-fence”’ is a term of art used in airport operations to

denote a plan whereby a private landowner is allowed access to publicly

owned airport property, subject to certain conditions adapted from FAA

recommendations, in order to conduct a private business in airport-

related enterprises. Without a ‘“‘through-the-fence” agreement, persons

desiring to conduct these businesses must lease facilities from the air-

port itself. According to trial testimony, income from such lease

agreements provides a significant portion of an airport's operating in-

come.

A5

plan was still established. As residential land, the appel-

lant’s property continued to have the highest priority.

The appellant was successful in his rezoning efforts

and his property was rezoned for commercial and light in-

dustrial uses in December, 1983. Feeling that he was

unable to competitively develop his property because of

the airport’s requirements for ‘‘through-the-fence’’ op-

erations and its alleged stated intention to ‘“‘take”’ the prop-

erty, the appellant filed this inverse condemnation on Feb-

ruary 14, 1984.

Commissioners were appointed and returned an ap-

praisal of $1,250,000.00 in damages. The City of Tulsa

filed exceptions to the report; plaintiff/appellant’s demand

for a jury trial was granted.

At trial, the appellant sought to show a fee simple de

facto taking of his property, allegedly accomplished by the

airport in two stages. The first stage was the alleged de

facto taking of the residential use and enjoyment of the

property by excessive noise, fumes and odors. The Air-

port does not contest the fact that the fumes, noise and

odors caused a substantial impairment to the residential

use of the property.

The second stage, as alleged by the appellant, was a

taking by the airport of all other uses by oppressive and

anti-competitive conduct, resulting in the appellant being

unable to develop his land for its highest and besi use: air-

port related light industrial and commercial uses.

By pretrial order, the court divided the trial into two

phases. The first phase was on the issue of whether there

had been a de factotaking. The second phase was to be on

the issue of the extent of the taking and damages there-

for. At the same time, the court sustained the city’s mo-

tion in limine to exclude all mention of alleged anti-

A6

competitive acts by the airport and to limit introduction of

the ANCLUC study only as it related to noise, overflights

and odors. The court ruled that the excluded evidence

would only be relevant to the issue of damages. At the

close of the first nhase, the jury returned a verdict for

defendant city. Oxley’s motions for new trial and judg-

ment notwithstanding the verdict were subsequently over-

ruled by the trial court and this appeal followed. Later,

as prevailing party, the city presented motions to the court

requesting that Oxley be assessed the costs of the commis-

sioners appointed to assess damages and seeking to

recover the costs of defending the action. The court de-

nied these motions and the city cross-appeals.

Re

As appellant Oxley’s first proposition of error, he

argues that the trial court erred when it refused to grant

his motion for judgment on the opening statements and

further erred in refusing to grant his motions for directed

verdict and judgment notwithstanding the verdict. We

cannot agree.

Oxley’s petition alleged a fee simple ‘‘taking”’ of his

property. At best, the city only admitted that the airport

operations surrounding the appellant’s property made that

land unsuitable for residential use. A dispute remained as

to whether the airport’s operations effected a de facto tak-

ing of all other uses. Resolution of this dispute required a

factual determination of whether the interference of the ap-

pellant’s use by noise, odors and fumes associated with air-

port operations was of such a substantial nature as to take

the appellant’s property in fee

This is a jury question and it would have been error to

sustain Oxley’s motions for judgment on the opening

statements and for directed verdict. Matoon v. City of

A7

Norman, Okl., 617 P.2d 1347, (1980). The test is “‘whether

there is a sufficient interference with the landowner’s use

and enjoyment to constitute a taking. [This question] is

one that the trier of facts must decide.’’ Matoon, supra, at

1349. Henthorn v. City of Oklahoma City, Okl., 453 P.2d

1013, (1969).*

As a portion of his third proposition of error, the ap-

pellant raises the same issue as in his first proposition

when he states that the trial court erred in allowing the

jury to determine a matter of law, whether noise, over-

flights and odors effected a taking of his property. This

proposition misstates the jury function in an inverse con-

demnation action. After review of the transcript of the

hearing on the appellant’s motions, discussed above, it is

clear that the trial court was not charging the jury with the

task of resolving the legal question of a “taking”, but rather

with the task of making the factual findings which must

necessarily precede the legal conclusion urged by ap-

pellant. Henthorn, supra, at 1016.

II.

In support of his arguents that the trial court should

find a de facto taking as a matter of law, Oxley argued that

an intent by a municipality to acquire property, coupled

4. It is important to note at this point that the appellants burden

was to prove significant impairment of the fee estate in his property,

rather than impairment of a single use, i.e.: residential. Iu recognizing

this point, we note that the appellant, voluntarily and with full

knowledge regarding the airport’s intentions and the reasons for those

intentions, elected to have his property rezoned to a compatible use.

Oklahoma and other jurisdictions have recognized the doctrine of ‘‘es-

toppel by acquiescence’. See e.g.: Oklahoma City v. Wells, supra;

Becker v. Rolle, 508 P.2d 509 (Kan. 1973); Scott v. Jordan, 661 P.2d 59

(N.M.App.1983). ‘‘Acquiescence arises where a person who knows he is

entitled to impeach a transaction but neglects to do so for such length of

time that, under the circumstances of the case, the other party may

fairly infer that he has abandoned his right.’ Becker, supra, at 514,

citing: Black's Law Dictionary, 4th Ed. at 40 (emphasis supplied).

A8

with some unequivocal act in furtherance of that intent, is

tantamount to an overt act by the municipality to assert

dominion and control. This is also the argument for ap-

pellant’s second assignment of error on appeal.

The record shows that the city, through the Airport

Authority, has expressed its intent and plan to acquire the

appellant’s land. The appellant’s land is often referred to

in the ANCLUC study as a priority for acquisition. There

can be no doubt that the airport was attempting to imple-

ment the plan when it offered to purchase the appellant’s

property. In State, ex.rel, Department of Highways v.

Cook 542 P.2d 1405 (1975), another inverse condemnation

action, a landowner had alleged that the state had engaged

in a number of activities which served to inhibit private

development of the appellant’s land as a precursor to later

acquisition. Among these, inter alia, were the state’s

published plans for future development of the landowners

property; the state’s refusal to act on applications for

development presented by private developers; and the

city’s denial of an application to change the zoning for the

landowner’s property in order to accommodate the state’s

future development plans. When presented with facts

showing those, and other, acts by the state in furtherance

of a master plan for land acquisition, this Court said in

Cook, that “there is neither an actual taking nor has there

been demonstrated any overt act leading to exercise of do-

minion and control over [the] property upon which to base

a finding of de facto taking.” Cook, supra, at 1407.

Similarly, in this case, the appellant has only shown

that the Airport Authority planned to acquire his prop-

erty, as demonstrated by the offer to purchase and

ANCLUC. Also, the appeliant has shown that one de-

veloper chose not to proceed with negotiations to purchase

the land in question; that decision was based, in part, on

AY

the Airport Authority's stated intentions. Because of the

trial court’s ruling in limine, the appellant’s assertions that

the airport imposed unreasonable restrictions on through-

the-fence operations and engaged in other “discriminatory”

and “anti-competitive” practices, are all without factual

support in this record. But even assuming, arguendo, that

the record disclosed facts in support of the appellant’s

allegations of discrimination and anti-competitive prac-

tices, there would still be insufficient showing under Cook,

supra, to form the basis of a finding that a de facto taking

had occurred.

The appellant’s allegations of anti-competitive prac-

tices are based on the Airport Authority’s alleged refusal

to allow him low cost access to the runway in order to in-

crease the profitability of private enterprises conducted on

his own land. Even if true, the essence of the appellant’s

argument is that unless an adjacent landowner, in this case

a public entity, grants him low cost access to public land, a

taking has been effected because the appellant cannot con-

duct as profitable a business enterprise without the access.

Here, there is no “taking” of access, but rather a refusal to

grant access.

As in the case of land adjacent to a major highway, ac-

cess, or the lack thereof, becomes an element of value to be

taken into account once a “taking” has been shown. Gay-

lord v. State, ex.rel, Department of Highways, Okl., 540

P.2d 558, 561 (1975). Refusal to grant access does not,

however, constitute an “overt” act leading to the exercise of

dominion and control. Gaylord, supra, at 561; Cook,

supra, at 1407.- We are unaware of any authority, nor has

authority been cited, which supports the appellant’s con-

tentions to the contrary.

Al0

ITI.

As an additional argument under his third proposition,

the appellant alleges that juror misconduct was, in part,

the cause of the verdict in favor of the city, and that the

trial court erred when it did not grant a new trial when in-

formed of the alleged misconduct. Primarily, the ap-

pellant’s arguments are based on his post-trial realization

that one of the jurors had a prior business relationship with

the appellant and the belief that the juror harbored a

grudge against the appellant. In support of these allega-

tions the appellant offered the affidavits of himself, the

bailiff, an alternate juror, and one juror. :

The appellant’s affidavit simply states that it was only

when the trial had been completed that he became aware

that the jury foreman, Gatewood, had lost a substantial

amount of insurance business as a result of a business deci-

sion made by the appellant. The affidavit of the bailiff

states that during the trial, juror Gatewood had asked the

bailiff to provide him with a list of the juror’s names and

their seating arrangements; the request was refused. The

alternate juror’s affidavit states that Gatewood had

stressed to her the fact that the appellant was wealthy and

owned a 6,000 acre ranch in addition to the property at

issue. She stated in the affidavit that she “was shocked to |

learn that the jury had returned a verdict for the City of

Tulsa.” Lastly, the affidavit of juror Roberts is offered

which describes at length the deliberation process used by

the jury and his perception that jury foreman Gatewood

coerced the jury into its verdict.

The cases are legion in which this Court has ruled that

affidavits, depositions and oral testimony of jurors may

not be used to impeach a jury verdict. See: Barnhart v.

International Harvester Company, Okl., 441 P.2d 1000,

1007 (1968), and cases cited therein. A single exception to

this established rule exists by statute.

ee ae ee a

All

Title 12 O.S. 1981 §2606(B) authorizes jurors to testify

regarding allegations of misconduct. The pertinent provi-

sions of that statute state:

“Upon an inquiry into the validity of the verdict. ..,

a juror shall not testify as to any matter or statement

occurring during the course of the jury’s deliberations

or as to the effect of anything upon his or another

juror’s mind or emotions as influencing him to assent

or dissent from the verdict . . . or concerning his mental

processes during deliberations. A juror may testify on

_ the question whether extraneous prejudicial informa-

tion was improperly brought to the jury’s attention or

whether any outside influence was improperly brought

to bear upon any juror...” 12 0.S. 1981 §2606(B)

(emphasis added).

See also: Willoughby v. City of Oklahoma City, OKkL.,

706 P.2d 883 (1985). An examination of the affidavit of

juror Roberts in light of the above statute makes it pa-

tently obvious that all the allegations contained therein are

inadmissible pursuant to 12 O.S. 1981 §2606(B). The re-

maining affidavits do not contain allegations of fact suffi-

cient to support the grant of a new trial based on a finding

of jury misconduct. Willoughby, supra; Barnhart, supra,

Holden v. Coussens, Okl., 576 P.2d 758 (1978).

IV.

Lastly, the appellant argues that the trial court erred

in refusing to submit a special interrorgatory to the jury,

resulting in “a verdict whose basis is unknown”. This

argument is based on the premise that the jury could have

found for the City of Tulsa on one of two possible theories:

absence of significant impairment to constitute a de facto

taking; or, that the appellant’s claim was barred by the ap-

plicable fifteen-year statute of limitations, 12 O.S. 1981

§93(4); Oklahoma City v. Wells, Okl., 91 P.2d 1077, 1083

(1939).

Al2

A review of the transcript reveals that the appellant

misstates the facts in this proposition of error. This

transcript shows that the appellant did not request a

special interrogatory prior to the time the jury was

discharged. The settled rule regarding such propositions

of error is that an objection to the form of a jury verdict is

deemed waived unless an objection is made at the time the

verdict is received and before the jury is discharged.

Miller v. Judd, Okl., 429 P.2d 714, 717 (1967); Morgan v.

Oklahoma Natural Gas Co., OkL., 561 P.2d 1363 (1977).

V.

On cross-appeal, the city argues that the trial court

erred when it denied the city’s motions to assess the com-

missioners’ costs against Oxley and when it denied the

city’s motion to assess costs of defending the action.

We are unable to address the merits of the issues

raised on cross-appeal. The City of Tulsa/cross-appellant

has failed to ensure that the record on appeal contains the

order appealed from or any other necessary documents.

No designation of record appears in this cross-appeal.

Failure of an appellant to designate a record on appeal con-

stitutes an abandonment and the appeal is subject to

dismissal. Matter of Burkhart’s Estate, Okl., 562 P.2d

1151 (1977). This Court is left with no record to examine.

It is the cross-appellant’s duty to ensure that there has

been prepared a sufficient trial court record to show cause

for reversal at the appellate level. MFA Insurance Co. v.

Jones, Okl. App., 620 P.2d 472 (1980). Hamid v. Sew

Original, Okl., 645 P.2d 496 (1982). The cross-appeal by

the City of Tulsa is dismissed.

VI.

Accordingly, for the reasons stated herein, the judg-

ment on the verdict for defendant City of Tulsa is AF-

Al13

FIRMED. The cross-appeal to the trial court’s order

charging the city with the Commissioners’ costs and deny-

ing its motion for costs of defending the action is DIS-

MISSED.

HARGRAVE, C.M., LAVENDER, SIMMS, DOOLIN

and SUMMERS, JJ., concur;

OPALA, V.C.J., HODGES, WILSON and KAUGER,

JJ., concur in part, dissent in part.

Al4

(Filed September 22, 1989)

IN THE

SUPREME COURT OF THE

STATE OF OKLAHOMA

No. 67,016

JOHN T. OXLEY,

Appellant,

ws

CITY OF TULSA, OKLAHOMA, a municipal corporation,

by and through THE TULSA AIRPORT AUTHORITY,

Appellee.

ORDER

Petition for Rehearing of appellant Oxley is denied;

Petition for Rehearing of the appellee, City of Tulsa,

Oklahoma, is granted and said appellee’s cross-appeal is

hereby reinstated.

DONE BY ORDER OF THE SUPREME COURT IN

CONFERENCE THIS 21st DAY OF SEPTEMBER,

1989.

/s/ Rudolph Hargrave

Chief Justice

HARGRAVE, C.J., LAVENDER, SIMMS, DOOLIN and

SUMMERS, JJ. concur.

OPALA, V.C.J., HODGES, WILSON and KAUGER, JJ.,

dissent from denying Oxley’s rehearing petition; con-

cur in reinstating Tulsa’s cross-appeal.

Ald

CONSTITUTIONAL, STATUTORY, AND REGU-

LATORY PROVISIONS IN QUESTION

The Fifth Amendment to the United States Constitu-

tion provides (U.S. CONST. amend V):

Capital crimes; double jeopardy; self-incrimination; due

process; just compensation for property

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion.

Section one of the Fourteenth Amendment to the

United States Constitution provides (U.S. CONST. amend

XIV):

$1. Citizenship rights not to be abridged by states

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and the State wherein they re-

side. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; not

deny to any person within its jurisdiction the equal protec-

tion of the laws.

Article II, section 7, of the Constitution of the State of

Oklahoma provides (Okla. CONST. ART. II, $7):

Al6

§7. DUE PROCESS OF LAW

No person shall be deprived of life, liberty, or property,

without due process of law.

Chapter 2, entitled ‘‘Acquisition of Land,” of Title 66

of the Oklahoma Statutes, (Okla. Stat. Tit. 66 (1981)), en-

titled ‘“‘Railroads,’’ provides the applicable provisions of

the Oklahoma statutory regulation of procedures ap- :

plicable to eminent domain proceedings. Various sections ,

of that Title and Chapter provide, in relevant part, as :

follows:

§51. Power to enter upon and appropriate lands

Every railroad corporation incorporated under this Ar-

ticle, and any railroad corporation authorized to construct, - |

operate or maintain a railroad within this State, has power

and is authorized to enter upon any land for the purpose of

examining and surveying its railroad, and to take, hold

and appropriate so much real estate as may be necessary

for the location, construction and convenient use of its

roads, including all necessary grounds for buildings, sta-

tions, workshops, depots, machine-shops, switches, side- )

tracks, turntables, snow defences, and water stations; all |

material for construction of such road and its appur- )

tenances, and the right of way over adjacent land sufficient

to enable such corporation to construct and repair its road

and the right to conduct water to its water stations, and to

construct and maintain proper drains, and may obtain the

right to such real estate by purchase or condemnation in

the manner provided by law. Okla. Stat. Tit. 66, §51 (1981)

§52. Purchasing or taking realty

Any railroad corporation may purchase and use real

property for a price to be agreed upon with the owners

thereof; or the damages to be paid by such corporation for

Al7

any real property taken as aforesaid, when not agreed

upon, shall be ascertained and determined as hereinafter

provided. Okla. Stat. Tit. 66, §52 (1981)

§54. Compensation, accrual of right to

When possession is taken or property condemned, as

provided herein, the owner shall be entitled to the imme-

diate receipt of the compensation awarded, without prej-

udice to the right of either party to prosecute further pro-

ceedings for the judicial determination or the sufficiency or

insufficiency of said compensation. Okla. Stat. Tit. 66,

§54 (1981)

§55. Review of commissioner’s report-Jury trial-Notice-

Costs

(A) The report of the commissioners may be reviewed

by the district court on written exceptions filed by either

party, in the clerk’s office within thirty (30) days after the

filing of such report; and the court shall make such order

therein as right and justice may require, either by confir-

mation, rejection or by ordering a new appraisement on

good cause shown; or either party may within sixty (60)

days after the filing of such report file with the clerk a writ-

ten demand for a trial by jury, in which case the amount of

damages shall be assessed by a jury, and the tria! shall be

conducted and judgment entered in the same manner as

civil actions in the district court... .

(B) Within ten (10) days after the report of commis-

sioners is filed, the court clerk shall forward to the attorney

of record for the condemnor, the attorney of record for each

condemnee, and to all unrepresented condemnees, a copy of

the commissioners’ report and a notice stating the time

limits for filing an exception or demand for jury trial as

specified in paragraph (A) of this section... .

-Al18

(C) The time limits for filing an exception and demand

for jury trial, as prescribed in paragraph (A) of this section,

shall be calculated from the date the report of the commis-

sioners is filed in the case.... Okla. Stat. Tit. 66, §55

(1981)

§57. Provisions applicable to all corporations and to state-

Proceedings by state-Determination of character of use-

Assessment of damages when land taken without condem-

nation

The provisions of this article with reference to eminent

domain shall apply to all corporations having the right to

eminent domain, and shail apply to the State of Oklahoma

and its various educational, reformatory, penal and elee-

mosynary institutions, including departments of state hav-

ing the power to purchase real property for public pur-

poses, and such institutions and departments shall have

the right under this article to acquire fee simple title to the

property taken.... Okla. Stat. Tit. 66, §57 (1981)

Title 27 of the Oklahoma Statutes entitled “Eminent

Domain,” provides in section 13 thereof as follows (Okla.

Stat. Tit. 27, §13 (1981) ):

§13. Policies

Any person, agency or other entity acquiring real prop-

erty for any public project or program described in Section

1 of this act shall comply with the following policies:

1. Every reasonable effort shall be made to acquire,

expeditiously, real property by negotiation.

2. Real property shall be appraised before the initia-

tion of negotiations, and the owner or his designated

representative shall be given an opportunity to accompany

the appraiser during his inspection of the property.

ane

Alg

3. Before the initiation of negotiations for real prop-

erty, an amount shall be established which is reasonably

believed to be just compensation therefor and such amount

shall be promptly offered for the property. In no event

shall such amount be less than the approved appraisal of

the fair market value of such real property. Any decrease

or increase in the fair market value of the real property

prior to the date of valuation caused by the public improve-

ment for which such property is acquired, or by the likeli-

hood that the property would be acquired for such im-

provement, other than thet due to physical deterioration

within the reasonable control of the owner, will be disre-

garded in determining the compensation for the property.

The owner of the real property to be acquired shall be pro-

vided with a written statement of, and summary of the

basis for, the amount established as just compensation.

Where appropriate, the just compensation for the real pro-

perty acquired and for damages to remaining real property

shall be separately stated.

4. No owner shall be required to surrender possession

of real property before the agreed purchase price is paid or

deposited with the state court, in accordance with appli-

cable law, for the benefit of the owner of an amount not less

than the approved appraisal of the fair market value of

such property, or the amount of the award of compensation

in the condemnation proceeding of such property.

5. The construction or development of a public im-

provement shall be so scheduled that, to the greatest ex-

tent practicable, no person lawfully occupying real prop-

erty shall be required to move from a dwelling, assuming a

replacement dwelling, as required by the Oklahoma Reloca-

tion Assistance Act of 1971, will be available, or to move

his business or farm operation without at least ninety (90)

days’ written notice from the date by which such move is

required.

A20

6. If any owner or tenant is permitted to occupy the

real property acquired on a rental basis for a short term or

for a period subject to termination on short notice, the

amount of rent required shall not exceed the fair rental

value of the property to a short-term occupier.

7. In no event shall the time of condemnation be ad-

vanced, on negotiations or condemnation and the deposit

of funds in court for the use of the owner be deferred, or

any other coercive action be taken to compel an agreement

on the price to be paid for the property.

8. If an interest in real property is to be acquired by

exercise of power of eminent domain, formal condemnation

proceedings shall be instituted. The acquiring authority

shall not intentionally make it necessary for any owner to

institute legal proceedings to prove the fact of the taking

of his real property.

9. If the acquisition of only part of the property

would leave its owner with an uneconomic remnant, an of-

fer to acquire the entire property shall be made. Okla.

Stat. Tit. 27, §13 (1981). In July, 1988, this section was

amended in part and additional provisions were added.

Neither the amendments nor the additions apply to, or af-

fect, the outcome of the present dispute.

A21

The City of Tulsa Master Plan and the Airport Noise

Control and Land Use Compatibility Study, referred to by

its acronym ANCLUC, are planning tools which have been

used by the City and the Airport Authority to guide, and

have virtually dictated, the development and expansion of

Tulsa International Airport. In relevant part, the Master

Plan provides at page 218, as follows:

AIRPORT LAYOUT PLAN

LAND ACQUISITION

A third area of acquisition is located immediately

south of the recently completed Port Road. This prop-

erty is also bounded on three sides by the airport. The

recommendation to acquire this area is based on

several environmental considerations and to provide

protection for the airport against the encroachment of

incompatible land uses which could reduce the

airport’s ability to safely and efficiently operate. . . .

This area will also provide for general aviation apron

and hangar expansion as well as an area for future in-

dustrial development.

The Master Plan also provides, at page 423, that “the

area between the north/south runways is surrounded on

three sides by the airport .... This area will be utilized for

airport expansion and activities.”

The Master Plan also provides, at page 229, as follows:

“{I}t is proposed that the area immediately to the west of

runway 17L/35R and along Memorial Road be designated

as a location for potential aviation industrial sites.”’

With respect to noise measurement levels, which were

designated in the ANCLUC study by an Ldn categoriza-

tion, the Master Plan recorded its measurements by a

categorization known as Composite Noise Ratings (CNR).

A22

Oxley’s property was within the CNR-3 zone. That zone

was described in the Master Plan as follows: “The highest

noise level; concentrated group action would probably be

taken by the community.”

With respect to the effects that noise would have on

potential development of property surrounding the airport,

the Master Plan provided, in Figure 6-15, as follows:

FIGURE 6-15

LAND USE CONSIDERATIONS FOR CNR ZONE 3

NEW DEVELOPMENT TO BE RESTRICTED

Primary Metal Industries

Fabricated Metal Products

Communications

All Retail Trade Activities, Except Construction

Services and Eating and Drinking

Nature Exhibits

Sports Assembly

Water Based Activities

Playground and Neighborhood Parks

Community and Regional Parks

NEW DEVELOPMENT TO BE PROHIBITED

Residential, All Kinds

Retail Trade, Eating and Drinking

Government Services

Educational Services

Miscellaneous Services

Cultural Activities

Entertainment Assembly

Public Assembly

Resorts and Group Camps

Professional, Scientific, and Controlling Instruments

Source: BECO-MJM-RDS Analysis

A23

%001 %1 %I %9Z %09 %F¢ %Z UOIJEIAY [B4BUIH 49YIO

%001 %1 %l ZI %LZ %6EI %OH Jal ssaursng

%001 %1 %l oc ot (BIE) (LO. Asevitiw

%00I %1 = 8 eco “-- %I1E %29 Ixe] sty

%001 %1 8=%T ose “-- %TE %29 Jae uty *

JRO] 92 _ 2 ia we AsoBayeD euolesado

AVANNY

Yodaty JBUOTPeUIdIU] esIN]

NOILVZIMLA AVANNY

2 PIGeL

The Master Plan was updated by an Airport Noise

Control and Land Use Compatibility Study & Master Plan

*

Update. ANCLUC provides:

A24

Table 28

AVERAGE DAILY AIRCRAFT OPERATIONS

Tulsa International Airport

AIRCRAFT TYPE

DAILY OPERATIONS

Air Carriers:

727-100,-200 56

737-200 30

DC-9-15,-32 18

707-320 2

Subtotal 106

Air Taxi:

Metroliner 4&4

Subtotal 44

Military:

Helicopter 3

A-7 25

F-4 4

Subtotal 32

General Aviation:

Business Jet (turbojet) 38

Business Jet (turbofan) 26

Single Engine (piston) 175

Twin Engine (piston) 140

Twin Engine (turboprop) 57

Subtotal 436

TOTAL 618

————————E—e—eEeeEeEeEeEeEeEeEeEeEeE———eEyeE eS

A25

RESULTS

Measurement Results

The measurement program was conducted over a two-week

period in January, 1981 and an additional two-week period

in April, 1981. The time spent at the sites averaged two

days per site at each of the aircraft sites and one-half day

per site for the ambient sites. A total of over 800 jet air-

craft were measured during the survey. The raw data col-

lected during the measurement survey for aircraft

(flyovers and engine runups) is given in the Appendix.

The results of the aircraft noise measurements at Sites one

through ten were condensed and combined with the annual

operational assumptions to generate an Ldn noise level.

These noise levels are due to aircraft noise only and include

engine runup data. The results are depicted in Table 33.

Table 33

RESULTS OF AIRCRAFT NOISE MEASUREMENTS

Tulsa International Aircraft

LOCATION Ldn NOISE LEVEL

Site |! 75.5

Site 2 65.4

Site 3 64.6

Site 4 60.5

Site 5 71.1

Site 6 74.1

Site 7 67.8

Site 8 66.1

Site 9 66.8

Site 10 66.3*

*Engine runup from American Airlines was not measured.

With this included, the Ldn noise level would be 70.3.

A26

The results of the ambient noise measurements at each site

are depicted in Table 34 in terms of the Leq index. For

most of the sites the ambient data is derived from com-

bining the data from a number of different measurements

at different time periods throughout the day. The results

are a measurement of all noise sources at the site except

the noise from any aircraft events.

Table 34

RESULTS OF AMBIENT NOISE MEASUREMENTS

DAYTIME

LOCATION LEQ LAND USE

Site | 51 Residential

Site 2 52 Residential

Site 3 58 School Park/Residential

Site 4 54 Residential

Site 5 51 Park/Open Space

Site 6 63 Graze Land

Site 7 53 School/Residential

Site 8 55 Residential

Site 9 56 Airport Property/Residential

Site 10 53 Residential

Site ll 62 Industrial

Site 12 64 Residential

Site 13 57 School

Site 14 54 Residential

(Continued on Next Page)

A27

Table 34

RESULTS OF AMBIENT NOISE MEASUREMENTS

DAYTIME

LOCATION LEQ LAN‘ USE

Site 15 57 Residential

Site 16 57 Residential

Site 17 53 Residential

Site 18 54 Residential

Site 19 51 Zoo/Open Space

Site 20 59 Industrial

The results of the aircraft and ambient measurements for

each site are discussed in the following paragraphs.

Site One. Residential. Site one is located between the

the runways to the north of the airport. The site is ex-

posed to various airport noise sources, including departure

noise, arrival thrust reversal, taxi noise and engine test

runups.

Being adjacent to the airport, this site receives a more con-

tinuous impact from noise due to both departures and ar-

rivals at the same time and from taxiing aircraft. The

nighttime engine runup from the American Airlines

maintenance facilities was found to be a major noise source

affecting the site. A noise monitor was left at this site to

continuously record the noise environment for five nights

(results are given in the Appendix). On two of these eve-

nings, hourly Leq’s from engine runup were measured at

greater than 76 dB(A). While the maximum noise levels

from the engine runup is below that of caparture noise, the

duration is much longer, lasting at times far more than two

hours.

aa nti

A28

Site Two. Residential. Site two was designed to measure

the noise environment in the community south of the air-

port. There are no major non-aircraft generated noise

sources nearby. The site is located directly south of the

centerline of Runway 17L/35R. Aircraft departing Run-

way 17L will commonly overfly this site before turning in

the direction of their destinations. The dominant source

of the aircraft noise is from departing 727’s and A-7’s.

Site Three. School Park and Residential. Noise levels

between the runways south of the airport and the noise

from I-44 were recorded at this site. A number of aircraft

departing southward will overfly the site. The maximum

noise level from an aircraft flyover was 96 dB(A) by three )

A-7’s departing in formation. The site is also exposed to |

noise from I-44, which measured an ambient noise level of ;

an Leq of 58 dB(A).

Site Four. Residential. Noise levels due to aircraft op-

erations southeast of the airport were recorded at this site. |

Aircraft departing on Runway 17 to eastern destinations

will commonly turn and overfly this site. The maximum ;

noise level from an aircraft flying overhead was 92 dB(A). ;

There are no major non-aircraft noise sources in the vi-

cinity.

Site Five. Open Space Park Land. This site was selected

primarily for calibration of the noise contours. There are

no noise sensitive land uses in the vicinity. The measured

Ldn for the site was 71.1 dB(A). The ambient Leq was

recorded at 52 dB(A).

Site Six. Open Space/Grazing Land. Site six was also de-

signed primarily for calibration of the noise contours. The

loudest aircraft operations were the A-7 formation de-

partures. The maximum noise level for one of these events

was 107 dB(A). The ambient noise levels from State

Highway 11 was measured at an Leq of 63 dB(A).

aa tereriaeeneeieiantel

A29

Site Seven. Mingo School and Residential. This site is

exposed to noise from aircraft operations and engine

runups. There are no major ambient noise sources in the

vicinity (maximum noise levels from train operations was

72 dB(A)). The Air National Guard base is located nearby,

and prior to departure of the A-7 aircraft, engine runups oc-

cur for a period of time. During the measurement survey,

A-7 engine runups were recorded on a number of occasions.

The noise levels from these runups averaged an Leq of 74

dB(A) for twenty minutes. Runway 17L departures during

the ground roll resulted in loudest operations recorded at

this site. A group of six A-7’s generated a maximum noise

level of 93 dB(A).

Site Eight. Residential. This site was designed to deter-

mine the aircraft noise environment just south of the air-

port and between the two parallel runways. There are no

major non-aircraft noise sources in the vicinity. The dom-

inant noise source affecting the site resulted from de-

partures off of Runway 17L. Most of the noise is due to

sideline noise. It is rare that an aircraft will fly overhead.

Site Nine. Residential and Open Space. This site is lo-

cated very close to the departure end of Runway 17R. The

dominant aircraft noise at the site resulted from business

jet departures on this runway. Maximum noise levels re-

corded at the site from a Jet Commander departure was

105 dB(A). The Frisco train generated a maximum noise

level at the site of 77 dB(A).

Site Ten. Residential. Site ten is located close to Run-—

way 17R/35L and a number of general aviation FBO’s.

Business jet departures on this runway and engine runups

from the FBO’s and American Airlines are the major noise

sources on the site. There is a substantial amount of

engine runup noise from the FBO’s. This includes both

business jets, turboprop and piston aircraft. While the

A30

noise from piston aircraft runups are quieter, the runups

are more often.

Site Eleven. Industrial. Site eleven measured the noise

levels from military aircraft on the downwind leg and from

traffic noise on the Mingo Valley Expressway. The peak

noise from an F-4 flying overhead measured 80 dB9(A).

The ambient Leg due to the Expressway was measured at

62 dB(A).

Site Twelve. Residential. This site is located adjacent

to State Highway 11 at the same distance from the road-

way as the front yards of these residences are. Mea-

surements recorded the noise levels from State Highway

11 and peak noise levels from aircraft operations. The am-

bient noise level due to roadway usage was recorded at 64

dB(A). The maximum noise level from an aircraft flyover,

a departing Lear Jet on Runway 17R, was measured at 90

dB(A).

Site Thirteen. School. Site thirteen measured the noise

levels at John Ross Elementary School. The ambient

noise environment was measured at 57 dB(A). The max-

imum noise levels recorded from a flyover event was 92

dB(A) (departing A-7). There are no other major noise

sources in the area.

Site Fourteen. Residential. This site is located to the

north of the crosswind runway and between the two

parallel runways. It was used primarily for fine tuning the

noise contours for the area between the two runways.

Site Fifteen. Residential. This site is located very close

to the taxiways for Runway 17L/35R. It was used for

additional fine tuning of the noise contours for the area be-

tween the runways. This site is exposed to a similar noise

environment as Site One except thrust reversal and taxi

noise is much louder at this site.

A31

Site Sixteen. Residential. Site sixteen measured the side-

line noise in the residential neighborhood southeast of the

airport. Occasional military aircraft in the touch and go

pattern wili overfly the site. The maximum noise level re-

corded from a departing jet was 87 dB(A).

Site Seventeen. Residential. Site seventeen is lo-

cated almost directly south of the airport. The major air-

port noise sources at the site were from departures on Run-

way 17L. The noise exposure at this site is very close to

the levels recorded at Site Two, located just to the east.

Site Eighteen. Residential. Site eighteen recorded the

noise due to the Frisco Railroad operations. The site is lo-

cated seventy-five feet from the centerline of the railroad

tracks. The rear edge of the yards for these homes are lo-

cated within this distance. The maximum noise levels

from railroad noise was recorded at 96 dB(A). The railroad

operations take place eighteen times per day. The maxi-

mum noise level recorded from a jet departure was 98

dB(A) (Lear Jet on Runway 17R).

Site Nineteen. Zoo. This site permitted measurements

of the noise levels at the Tulsa Zoo. The ambient noise en-

vironment was recorded at an Leg of 51dB(A). The maxi-

mum noise level recorded by an aircraft operation was a

Lear Jet departure which generated a peak noise level of 84

dB(A). Occasional general aviation aircraft that overfly

the site will commonly generate this high of noise level or

louder.

Site Twenty. Industrial. Site twenty was designed to

record the noise environment at the gravel pit operations

east of the airport. No blasting took place during the time

of the measurement survey. However, the ambient noise

levels in this area was measured at 50 dB(A).

—

A33

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TULSA INTERNATIONAL AIRPORT

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A36

e. Land Acquisition

As outlined in preceding narrative, the residential areas

south of the airport are the most heavily impacted of all

areas in the airport environs within the 65 Ldn noise con-

tours. However, a portion of the residential area between

the parallel runways and south of Port Road is the only in-

compatible use area within the 75 Ldn noise level, with the

remainder of the area falling within the 70 Ldn noise level.

Although several options are available to abate noise south

of the airport, the location of the residential area south of

Port Road limits the available options for noise abatement.

Measures 12, 13 and 14 have been proposed as a possible

means of minimizing impacts, since a major noise con-

tributor to the area is from engine runups. However, these

measures are effective to limited degree and have no affect

on noise impacts attributable to landings and take-offs on

the parallel runway pair. An acquisition and relocation

program could provide impetus to the development of com-

patible uses in the area. Therefore, for the preceding

reasons, the following measure is proposed:

* Measure 15 - Acquire all land between the parallel

runway pair and south of Port Road which is ex-

posed to noise levels in excess of 70 Ldn.

A program for land acquisition west of the passenger ter-

minal area has been underway the past several years. This

program was designed to mitigate incompatible land uses

in an area surrounded by aircraft, vehicular and industrial

access traffic. Noise levels attributable to aircraft exceed

65 Ldn in the area and approach 70 Ldn. Vehicular traffic

on the Gilcrease Expressway contributes to the total noise

exposure of the area. It is presented as Measure 16 that

the land acquisition program for the area be continued to

fully mitigate the incompatible residential uses which re-

main.

A37

* Measure 15. Acquisition of All Land Between the

Parallel Runway Pair and South of Port Road Which

Is Exposed to Noise Levels in Excess of 70 Ldn.

1. Noise Impacts Factor. This land acquisition will be

the most effective means of mitigating noise impacts

which now exist on the north side of the airport; however, it

_is also the most disruptive. - All of the residential area

presently within the 70 Ldn contour will be removed, leav-

ing only a small area of residential development within the

70 Ldn on the south side of the airport.

x * *

Table 40

INCOMPATIBLE LAND USES

WITHIN NOISE CONTOURS

(In Acres)

Tulsa International Airport

NOISE CONTOUR

SCENARIO Ldn 65 Ldn 70 Ldn 75 TOTAL

Existing Situation 931 264 64 1259

Future Case 606 33 0 639

Scenario | 409 2 0 Sil

Scenario 2 Insignificant Change for all Contours

Scenario 3 358 0 0 358

Scenario 4 671 187 45 903

Scenario 5 712 194 47 953

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COMPATIBILITY STUDY

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A40

Table 46

TREATMENT AND SEQUENCE MATRIX

FOR EACH PARCEL

TULSA INTERNATIONAL AIRPORT

PARCEL TREATMENT SEQUENCE

A EASEMENT FOURTH

8 LAND ACQUISITION FIRST

c REZONE SECOND

D LAND ACQUISITION SECOND

E LAND ACQUISITION THIRD

F REZONE (EASEMENT) FIRST (FOURTH)

G CHANGE LAND USE SIMULTANEOUS

H CHANGE LAND USE SIMULTANEOUS

CHANGE LAND USE SIMULTANEOUS

J NOISE ENVIRONS ZON. SIMULTANEOUS

K NOISE ENVIRONS ZON. SIMULTANEOUS

L NOISE ENVIRONS ZON. SIMULTANEOUS

M _NOISEENVIRONS ZON. SIMULTANEOUS

N NOISE ENVIRONS ZON. SIMULTANEOUS

O —_NOISEENVIRONS ZON. SIMULTANEOUS

A4l1

Land Acquisition

For the residential area south of Port Road lying between

the parallel runways, a land acquisition program is envi-

sioned as the most effective long-term technique for mak-

ing the area compatible with airfield operations. Simi-

larly, a program to acquire residential properties adjacent

to the existing terminal should be pursued to ensure a com-

patible environment between the airport and its neighbors.

- Additional land will need to be acquired in the northeast

sector of the airfield to accommodate a third parallel run-

way. Additional discussion regarding land acquisition can

be noted in a later section of this document.

A42

¢ Land Acquisition. The program to purchase incom-

patible properties, already initiated by the Tulsa

Airport Authority, should be pursued in the im-

pacted areas previously designated. It is believed

that at least 50 percent of these properties could

feasibly be purchased in the short-term course, pro-

vided land acquisition can be given high enough pri-

ority in the airport budget. The properties closest

to Runway 17L-35R should be given the highest pri-

ority since they are more heavily impacted by air-

craft operations and run-up noise.

A43

Land Acquisition

Land acquisition is the most secure way of avoiding incom-

patible land uses, protecting the airport from encroach-

ment and providing for airport expansion, but at the same

time it is the most expensive method of ensuring develop-

ment control. There are three parcels of land recommend-

ed for fee simple acquisition (B, D, and E), while Parcel A is

recommended for either fee simple acquisition or the pur-

chase of an avigation easement. Parcel B is the largest

and most sensitive to immediate noise impacts. It is also

already programmed for acquisition and some parcels are

currently being purchased. Although, in the long term,

the aircraft-related noise contours do not encompass the

majority of this area, planned and existing FBO and

maintenance operations will present considerable noise im-

pacts in the area. To prevent even greater land use incom-

patibilities, to eliminate existing land use incornpatibilities

and to provide for needed airport expansion, it is recom-

mended that this area be purchased as soon as feasible.

A44

Table 47

LAND USE IMPLEMENTATION SEQUENCE

TULSA INTERNATIONAL AIRPORT

ACTION TIME FRAME

1982 1985 | 1990 | 1995

Airport Environs Zoning ®

Building Code Modifications @

Sound Attenuation Program @

Land Acquisition

*

: A

B *

D oa *

E a e

F e

Rezone

:

F

Redesignate Land Use e

G

H

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