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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1077

## Text

_

/

\\ } 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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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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IMPLEMENTATION STRATEGES

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COMPATIBILITY STUDY

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FIGURE

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
| »

Ps AOL TAINO SAD

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0824%3A1. Public record. Not legal advice.