Petition for Writ of Certiorari — City of New Haven v. Town of East Haven

Supreme Court brief1973

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AMIERAEL-RE DEK, a

In the

Supreme Court of the United States

JANUARY TERM, 1973

‘. YQ1137

Tue Ciry Or New Haven,

Petitioners,

THe Town Or East HAVEN, ET ALS.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Rocer J. FRECHETTE, Esq.,

215 Church Street,

New Haven, Conn. 06510

Attorney for Petitioner.

THE MACK CO.,. NORTH HAVEN, CONN.

EO A EPR LS OEIC EL LAL ESSE OGLE TEE EEE SEN A” EMT elm

TABLE OF CONTENTS

Opinions REE ace tee a ee ene

Jurisdiction ag. ties te i gle an Mrs ECE et 1d

Questions pel seca ty ae eve cere

Statement of the Case Re ee oe

Reasons for Granting the Writ

II.

If In Fact And In Law There Is An Inverse

Condemnation, Is The Taker Of Overflight

Easements The Operator Of The Airport, The

Federal Aviation Administrator, Or The Air-

lines: And Is The Analogy Of The Bridge

And Its Approaches, Basis For Legal Liability

Or Should The Dissents By Justices Black

And Burton Be Adopted? 2...

Whether This Court In United States v. Caus-

by, 328 U.S. 256 And In Griggs v. Allegheny

County, 369 U.S. 84 Requires Substantial

Diminution of Market Value By Frequent,

Low, Noisy Overflights In Superadjacent Air-

space Above The Plaintiffs’ Land Or May

6-12 Flights Per Day Over Contiguous Prop-

erty Which Result In Consequential Damages,

Provide The Basis For Inverse Condemna-

tion, And If The Latter Is So, Is The Case

Of Richards v. Washington Terminal Co., 233

U.S. 546 (The Basis for Causby) Overruled?

B. Frequency Resulting i aa

a Me lae ee see

Ill.

IV.

VI.

(A) Does The Following Allegation In The

Complaint, Absent Diversity Of Citi-

zenship, Invoke Federal Jurisdiction

When It Is The Only Jurisdictional Al-

RSs enero ahaa leetee

(B) Does Title 28 U.S.C. Section 1331 Re-

quire That The Matter In Controversy

Exceed $10,000.00 In Addition To Inter-

ests And Costs So That When It Ap-

pears With “Legal Certainty” The Plain-

tiffs’ Claim Cannot Attain That Amount,

Must The Court Dismiss The Complaint?

Does The Trial Court’s Adoption Of A Dimi-

nution Of Value Formula, The Basis For

Which Was Unknown To The Appraiser So

Testifying, Constitute An Unconstitutional

Taking Of The Defendants’ Property When

There Is No Other Evidence Of Diminution

Tg RE a tel edn Sear aera eke Aree

Does The Requirement Of Certainty of

Judgment Permit The Court To Grant An

Easement Running In Favor Of The Defend-

ants And Against The Plaintiffs To Cover

Flights Over Land Contiguous To The Plain-

a PANE EERIE TSA Pa eee eterna ans

After The Trial Of A Case On The Merits

And More Than Six Months After Briefs Are

Filed, Does The Court Have Authority To

Order “A Supplemental Hearing As To Dam-

ages Only” When The Question Of Liability

And Damages Are Inextricably Intertwined?

ee NE SAEs REAL So ORTON MIRC

erEeEEeEnND THROLIGH POOR COPY

AIR BIOL ARRON RAM MELEE BIOTA Ee Gich EOE ELE ..

PAGE

iii

TABLE OF CITATIONS

PAGE

Constitution of the State of Connecticut

Article I, Sectionn Va .-ccccvcccwscnscstcmtmnememnennnenanste

STATUTES:

98 U.S.C. Section L108 (dL) .....-.occccsenneeecnnenennnnnn : 8

9B U.S.C. Sector OSD .ncccccccccccecnccnnnnnenncnenmenennnn 3, 15,17

98 U.S.C. Section 21OL (0) ..crcccccccce ceeeeeecteecnsnentnennen samen 2

49 US.C. Section 1101 et. seq. nn... ean nnenennnnmmnnnm Gy 2B

49 U.S.C. Section 1331 ............ Be eet acetal ae

CASES:

Aaron v. United States, 311 F.2d 798 (Ct. Cl. 1963) 13, 14, 24

Aaron v. United States, 340 F.2d 665 (Ct. Cl. 1964)... 14

Adaman Mutual Water Co. v. United States, 186 F.

Supp. 658 (Ct. Cl. 1958)... 24

Avery v. United States, 330 F.2d 640, 643, (Ct. ca. 1964) 24

Bacon v. United States, 295 F.2d 1936 (1961) . _ 14,24

Barney v. New York, 193 U.S. 430, 1904 . a: 16

Batten v. United States, 306 F.2d 580 cert. . ceed 3

L. U.S. 955 carter eset ik Anand tice ete OIA 12, 24

Boardman v. United States, 316 F. od 895 (Ct. Cl. 1968) 24

Dewar v. Brocks, 16 F. Supp. 636 D.C. Nev. 1936 . 17

East Haven, et al v. New Haven, et als, 159 Conn. 971

A. 9d. 110 (1970) . bi ON sor RAUB GS sae RO 4,15

Par v. City of Keene, 238 AQd ee Sgn Sols 24

Freeman v. United States, 167 F. Supp. 541 tod Okla.

on a Gees Uaaoence ears 24

Gardner v. County of Allegheny y, 353 Pa. 120, ‘194, 42

A.2d 187, 192 (1958) .. 7

Gasoline Products Compan y V. ” Champlin. ‘Refining,

(1931) 283 U.S. 494, 498, 499, 51 S. Ct. 513, 75

“he gy ee Rent inborn cme) autre nae onan 22

PAGE

Griggs v. Allegheny County, 369 U.S. 84 ........ 6,7, 8, 11, 12,

13, 14, 22, 24

Griggs v. Allegheny, 402 Pa. 411, 168 A.2d 133 (1960) 7

Hahn v. Gottlieb, 430 F.2d 1243 La. Mass. 1970 ............ 17

Jensen v. United States, 305 F.2d 444 (Ct. Cl. 1962) ... 13,14

Mosher v. City of Phoenix, 287 U.S. 29 (1932) ......... 16

Richards v. Washington Terminal Co., 233 U.S. 546 2, 10, 11, 13

Schubert v. United States, 246 F. Supp. 1970 (S.D. Tex.

Smith v. Maryland Casualty Company, 292 F. Supp.

ak EE Eee nea eee eT en 17

Thornburg v. Port of Portland, 233 Ore. 178, 376 P.2d

100 (1962) . ar: 12

Twenty-One Mining Co. v. Original Six ¢ to tien Mine,

(CCAG. 1921) 265 F. 469 | me 22

United States v. Causby, 328 US. 256 =a 2, 6, 1, 8 10, 11, 12,

13, 14, 21, 22, 24

United States v. Merz, 306 F.2d 39 (1962) . 20

United States of America v. City of New Haven, et als,

447 F.2d 972 (2nd Cir.) . 8

United Sattes v. Raines, 362 U. s. IT a at Page 26 (1960)

ALE aR ee 16

United States v. 357.25 Acres of Land, 35 F. Sue. 361

(wd La. 1944) . : 24

Watts v. Wattle, (U.S. ) 6 Pet. 389, 8 L. Ed. 437 21

LAW REVIEW ARTICLES:

Marshall T. Bohannon, Airport Easements, Va. L.R.

Vol. 54, p. 355 et seq. 1965... 23

Berger, Nobody Loves an Airport, s. Cal. " R. 1970 23

Rule 59, Federal Rules of Civil Procedure . res 22

BLEED THROUGH POOR COPY

In the

Supreme Court of the United States

JANUARY TERM, 1973

No.

Tue Crry Or NEw HaAvEN,

Petitioners,

THe Town Or East HAVEN, ET ALS.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Petitioner, the City of New Haven, respectfully prays

that a writ of certiorari issue to review the judgment, with-

out opinion, of the United States Court of Appeals for the

Second Circuit entered in this proceeding on November 22,

1972.

OPINIONS BELOW

The opinion of the Second Circuit Court of Appeals, as yet

unreported, appears at Appendix A, infra pp. la to 8a.

The opinion of the United States District Court, District of

Connecticut is reported at 331 F. Supp. 358 16 (S.D.N.Y.

1971) and the supplemental opinion of said District Court is

reported at 333 F. Supp. 338 (S.D.N.Y. 1971).

Ee Ee ae |

Seren her Rtas Ga ean” —_—

JURISDICTION

The judgment of the Court of Appeals for the Second Cir-

cuit was entered on November 22, 1972. This Court’s juris-

diction is invoked under United States Code Title 28 Section

2101(c).

QUESTIONS PRESENTED

1. If in fact and in law there is an inverse condemnation,

is the taker of overflight easements the operator of the airport,

the Federal Aviation Administrator, or the airlines; and is the

analogy of the bridge and its approaches basis for legal liabil-

ity, or should the dissents by Justices Black and Burton be

adopted?

2. Whether this Court in United States v. Causby, 328

U.S. 256 and in Griggs v. Allegheny County, 369 U.S. 84 re-

quires substantial diminution of market value by frequent,

low, noisy overflights in superadjacent airspace above the

plaintiffs’ land or may 6-12 flights per day over contiguous

property which result in consequential damages, provide the

basis for inverse condemnation, and if the latter is so, is the

case of Richards v. Washington Terminal Co., 233 U.S. 546

(The basis for Causby ) overruled?

3. (a) Does the following allegation in the complaint, ab-

sent diversity of citizenship, invoke federal jurisdiction when

it is the only jurisdictional allegation:

“33. In addition, the defendant, acting under color of

state laws, grants and licenses, have deprived the plain-

tiffs of their rights and privileges guaranteed by the laws

and constitution of the State of Connecticut, in violation

of the plaintiffs’ Fifth and Fourteenth Amendments to the

Constitution of the United States.”

(b) Does Title 28 U.S.C. Section 1331 require that the

matter in controversy exceed $10,000.00 in addition to inter-

ests and costs so that when it appears with “legal certainty”

the plaintiffs’ claim cannot attain that amount, must the Court

dismiss the complaint?

4. Does the trial court’s adoption of a diminution of value

formuia, the basis for which was unknown to the appraiser so

testifying, constitute an unconstitutional taking of the de-

fendants’ property when there is no other evidence of diminu-

tion of value?

5. Does the requirement of certainty of judgment permit

the Court to grant an undefined easement running in favor of

the defendants and against the plaintiffs to cover flights over

land contiguous to the plaintiffs’?

6. After the trial of a case on the merits and more than

six months after briefs are filed, does the Court have auth-

ority to order “a supplemental hearing as to damages only”

when the question of liability and damages are inextricably

intertwined?

STATEMENT OF THE CASE

The facts relevant to the questions presented by this petition

are uncontrovertial and, therefore, may be introduced to the

Court in a summary fashion, and references herein are to

the opinion unless otherwise denoted.

Thirteen plaintiffs sued Eastern and Allegheny Airlines and

the Federal Aviation Administrator in U. S. District Court for

the District of Connecticut asking for money damages and

asking an injunction prohibiting turbo-prop and jet aircraft

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from taking off and landing at Tweed-New Haven Airport,

the title of which is owned by the petitioner and which airport

physically is located in both East Haven and New Haven.

The Federal Aviation Administrator successfully moved to

have the suit dismissed as to him on jurisdictional grounds,

At the urging of the Court, the petitioner herein, the City

of New Haven, was cited in as an additional defendant, and

three motions to dismiss filed by the petitioner were denied.

Town of East Haven et al v. Eastern Airlines et als, 282 F.

Supp. 507 (D. Conn. 1968). The plaintiffs claimed a vio-

lation of State, Constitutional and Statutory rights which re-

sulted in an inverse condemnation.

After a trial in October of 1970 and the filing of briefs in

December of 1970 the Trial Court on July 31, 1971 found for

the defendant airlines on all counts, found for the petitioner

as against six plaintiffs, and found there was a partial taking

as to seven plaintiffs, but as to these plaintiffs the Court found

they failed in their proof of damages, but it ordered a sup-

plemental hearing as to damages only as to these plaintiffs, and

that hearing took place October 18, 1972. The short testi-

mony as to damages is printed in its entirety as the peti-

tioner avers that as a matter of law the formula method em-

ployed by the appraiser is insufficient to compute money dam-

ages. (App. pp. 9a-73a )

The City has owned the entire airport, one-half of which is

located in East Haven, since 1290. The City of New Haven

has no right to condemn property in East Haven for airport

purposes. East Haven, et als v. New Haven, et als, 159

Conn. 271 A.2d 110 (1970). Every flight and every aspect of

every landing and take off at the airport is under the direc-

tion, control, and jurisdiction of the Federal Aviation Ad-

EE -~ . Rest ee OU ee eee OE ae eR le PSE ED BORE Weert te D6 2k De Vert Oe

ministrator along with the Civil Aeronautics Board; thus, the

United States government so controls aviation that a pilot

cannot even board a plane without F.A.A. approval. The

City has no legal power to stop any flight from landing or

taking off as that power is exclusively in the Federal Govern-

ment.

There was no evidence of, and the Court did not find that

airplanes passed through superadjacent airspace over the real

property owned by any of the plaintiffs (pp. 17, 21, 22, 2A,

96, 54) but rather the Court found that the planes were over

property near that of the plaintiffs. There were 6-12 flights

per day and all flights complied with F.A.A. regulations.

(Opinion pp. 11, 13, 36-39) There is currently a temporary

mandatory injunction affirmed by the Second Circuit Court of

Appeals requiring the City to keep its runway open to the

distance of 4,370 feet. The Court found normal real estate

activity and no mass exodus of residents. (pp. 57, 58). No

plaintiffs were sick, none sold their homes at a loss, none failed

to acquire financing, all testified that their property had in-

creased in value and that the neighborhood has been stable.

Most had improved their property since the advent of turbo

jets.

The District Court found at the end of the case in chief that

the plaintiffs had failed to prove damages and that it could

dismiss the case because of that; the Court nevertheless al-

lowed a supplemental hearing as to damages only. (Opinion

p. 58) The only evidence then, because the Court, a

fori, found it needed expert evidence to compute damages,

took place at the supplemental hearing. The only evidence

as to damages consisted of the use by plaintiffs’ appraiser of

a formula which he read about in a journal and about which

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he talked to the author once on the telephone. (App. pp. 37a,

38a) The expert admitted he knew nothing of the airport which

was the alleged basis of the formula, he did not know the

type of planes involved, the number of planes per day, the

type of property they flew over, the number of engines the

planes had, the time of the flights, and yet this assessment of

damages was applied verbatum by the Court. And this for-

mula was used by the Court despite the appraiser’s admission

that the advent of jet aircraft had appreciated the properties

surrounding O'Hare Airport in Chicago. Lastly the appraiser

testified the only property which was sold after the date of the

taking, sold for its pre-taking value, therefore disproving the

formula.

On November 22, 1972 the Court below affirmed the judg-

ment of the District Court.

REASONS FOR GRANTING WRIT

I. Ir IN Fact AND INLAW THERE Is AN INVERSE

CONDEMNATION, Is THE TAKER OF OVERFLIGHT

EASEMENTS THE OPERATOR OF THE AIRPORT, THE

FEDERAL AVIATION ADMINISTRATOR, OR THE AIR-

LINES: AND Is THE ANALOGY OF THE BRIDGE

AND Its APPROACHES, BAsIs For LEGAL LIABILITY,

Or SHOULD THE DissENTs By Justices BLACK

AND BurRTON BE ADOPTED?

The only two cases decided by this Court, Griggs v. Alle-

gheny County, 369 U.S. 84 and United States v. Causby, 328

U.S. 256, state that frequent, low, noisy, overflights which de-

stroy or substantially reduce the value of property constitute

a taking by the operator of an airport, although in Griggs one

oo ats or " me aes ABI SND A! ERE ot T

of the three prospective defendants (the airlines) was not be-

fore the Court as they were dropped as a defendant in State

Court proceedings. The plaintiff had the option to proceed

under trespass or taking, and Griggs chose the taking theory

releasing the airlines (see Gardner v. County of Allegheny, 353,

Pa. 120, 124, 142 A.2d 187, 192 (1958), Griggs v. Allegheny

402 Pa. 411, 168 A.2d 133 (1960). In Causby the airlines

were not a defendant because the operator of the airport and

the aircraft was the same, the United States Government.

In Causby, a 6-2 decision, the legal question of whom is

taker was never in issue as the government, being both the

operator of the airport and the operator of the aircraft never

presented this problem. Therefore, the only case addressing

itself to this problem is Griggs, and as was pointed out in

the preceding paragraph, the airlines (the operator of the

aircraft) were not a party to the suit, nor was the Federal

Aviation Administrator, the regulator of navigable airspace.

At pages 89 and 90 of Griggs this court rationalizes why

the promoter, owner and lessor of the airport is the taker, in

the Constitutional sense, of the air easements. This Court held,

subject to the approval of the Federal Aviation Administrator,

the owner determines where the airport would be built, what

runways it will need, their directions and length, what land

and navigation easements would be needed. That sentence

unfortunately argues the conclusion — the owner does not

need an easement — it only needs a runway which is access-

ible to aircraft — for example, if the owner of blackacre at

the end of a runway located in another city attempted to erect

a radio tower, it would not be the owner of the airport but

the Federal Aviation Administrator who would be the only one

who could compel its destruction or obtain an injunction

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against its erection. United States of America v. City of New

Haven, et als, 447 F.2d 972 (2nd Cir.)

This Court correctly commented at Page 85 of Griggs, that

the entire operation of airplanes, from the inserting of the key

in the ignition to the permission required to take off and land

is peculiarly in the absolute control of the F.A.A. If the

F.A.A. approves an airport and contributes funds for its con-

struction, and if at a later date there is a “taking” case, there

is no more reason, because of a grant agreement, to hold the

operator liable then to find the Federal Aviation Administra-

tion liable. That is so because it is the Federal Aviation

Administrator who, by Statute (Title U.S.C. 1108(d)), must

be satisfied so as to approve any project with respect to any

airport. Therefore, if the caretaker of the airspace, the Fed-

eral Aviation Administrator, has approved flights in and out of

an airport, it-is he, by approving, allowing and encouraging

such flights, who should be held liable for a taking or an

inverse condemnation, for it is under the public’s right to

travel that Congress has granted the Administrator such all

encompassing power. Causby stands for the proposition that

the United States Government should be liable for a taking.

Griggs did not have the actual trespassers, the airlines, as de-

fendants in the case because Griggs chose not to proceed in

trespass under Pennsylvania law, and therefore, this Court held

the owner liable on a taking theory based upon a breach of a

constitutional duty to acquire sufficient real estate so that the

clear zones are over the fee owned by the operator. Further,

the Court analogized that the governmental owner of an air-

port is likened to the governmental owner of a bridge which

would not be a usable facility unless the government owned

at least an easement over the land necessary for the ap-

er sok CSAS CRE AI Lal Ry PATENT Aad OARS NENG AONE ELIE IE ORI FP GOLTT Li EE -—

proaches to the bridge. That is precisely the position this

petitioner has taken — with one notable exception which was

missing from the analogy of the bridge, and which makes the

case of an airport and its clear zones even stronger than that

of the bridge and its approaches. That is Congress has not

seen fit to place the entire road system, from the insertion of

the key in the ignition of a car through the absolute control of

the time and direction of movement of the cars, within a

governmental agency; therefore, even if the statement by

this Court that a county which built a bridge and which

county did not acquire highway easements approaching the

bridge would be guilty of a taking (it would not), the fact and

law of the matter is that the owner of the airport is powerless

to prevent airlines from using the airport — that is in the

peculiar, exclusive control of the Federal Aviation Administra-

tor. It is clear that the Court cannot order the City to shut

down the airport because of Title 49 Sec. 1101 et. seq. and if

the Court cannot order it, the City certainly cannot unilater-

ally refuse the airlines (the public in its right to travel) the

right to land and take off. Therefore, the owner of an air-

port is without a legal remedy to avoid the consequences of

the holding which makes the owner the taker.

Further, the analogy of the bridge and its approaches is

faulty. Suppose the City of New Haven built a bridge in

New Haven which had its terminus abutting a playground in

East Haven. Suppose further a car traversed the bridge and

entered the playground. That is not a “taking” by New Haven.

The operator of the car has committed a trespass, but the

owner of the bridge has committed no wrong as to the own-

er of the playground. This Court so held, by analogy in

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Causby when it affirmed the holding of Richards v. Washing.

ton Terminal Company, 233 U.S. 546.

It is equally obvious that the operator of the aircraft com-

mits the trespass; in the supposed case the trespassers are

Allegheny and Eastern Airlines, which are public carriers op-

erating under authority and direction of the Civil Aeronautics

Board and the Federal Aviation Administration, both of which

function to satisfy the right of the public to travel.

Therefore, it is inescapable that the public is the logical one

who takes and therefore, the logical one to pay for a “taking”

if the Courts are going to enter judgments based on “taking”.

The remedy in a “taking” case should be the right of the

property owner to recover from the F.A.A. and thus all of the

public who have the right to travel would pay for that right.

The alternative is to hold the air carriers liable as they, once

again with the permission of the Federal Government, may

increase prices to obtain money to pay for the taking, and

thus that portion of the public which travels will pay for the

right.

If the operator of the airport must pay, it not only has no

basis in law because of the fallacy of the bridge analogy, but

it is grossly unfair to the already overburdened city property

tax will be adversely affected again; the National Airport

Plan will be thwarted as no city, or county will open airports,

and the result, country-wide, will be that reaction of Los

Angeles — close the airport.

This Court should find no taking or if a taking is found, the

taker should be the United States Government.

I]. WHETHER Tuis Court IN United States v. Causby,

328 U.S. 256 AND IN Griggs v. Allegheny County,

369 U.S. 84 REQUIRES SUBSTANTIAL DIMINUTION

Or MARKET VALUE By FREQUENT, Low, Noisy

OVERFLIGHTS IN SUPERADJACENT AIRSPACE

AspoveE THE PLAINTIFFS’ LAND Or May 6-12

FLIGHTS PER Day OvER CONTIGUOUS PROPERTY

WuicH REsuLtT IN CONSEQUENTIAL DAMAGES,

ProvipE THE Basis For INVERSE CONDEMNA-

TION, AND IF THE LaTTER Is So, Is THE CasE OF

Richards v. Washington Terminal Co., 233 U.S

546 (THE Basis For Causby) OVERRULED?

The decision below directly conflicts with the only two

“taking” cases decided by the United States Supreme Court,

United States v. Causby, 328 U.S. 256 and Griggs v. Allegheny

County, 369 USS. 84.

Overflights

In Causby this Court analyzed the 1914 case of Richards

v. Washington Terminal Company, 233 U.S. 546 and conclud-

ed the principle that a transportation system authorized by

law and lawfully operated cannot be deemed a private nuis-

ance, and that the result visited upon the plaintiff was not a

taking but consequential damages. Justice Douglas care-

fully distinguished Richards by stating at page 262 of Causby:

“In that case property owners whose lands adjoin a rail-

road line were denied recovery for damage resulting from

the noise, vibrations, smoke and the like incidental to

the operation of the trains.”

In Causby this Court further said (328 U.S. at 262),

“In the supposed case, the line of flight is over the land.

And the land is appropriately as directly and completely

as if it were used for the runways themselves.”

In Griggs this Court said (369 U.S. at 87 quoting Judge Bell),

“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 plaintiffs

residence.”

The Trial Court in its Memorandum of Decision discussed

favorably the requirement of overflights and then admitting

that, in the Tweed-New Haven Airport,

“The planes landing and taking off from these runways

must have passed so very close to these properties, if not

directly over them, as to make it seem like unrealistic

nitpicking to deprive these plaintiffs of the Causby rule.

As a practical matter, these properties were directly af-

fected by the flight.” (Page 54, 55)

The Trial Court then cited as its only authority for the lack of

overflights the case of Thornburg v. Port of Portland, 233 Ore.

178 376 P.2d 100 (1962), a case which was sent back for trial,

as affects Tweed-New Haven Airport, on the basis that over-

flights were not necessary for inverse condemnation and Thorn-

burg cited as its authority for such a proposition the dissent

in the Tenth Circuit Court of Appeals case of Batten v. United

States, 306 F.2d 580 cert. denied 371 U.S. 955. At page 104

of its decision Thornburg refused to affirm the trial court hold-

ing because certiorari was pending before this Court and it

expected Batten to be overruled. However, the dissent in

Batten has never been adopted, rendering nugatory Thornburg

as certiorari was denied. Judge McLean states, at page 50 of

his Memorandum of Decision,

“Although there is no decision directly binding on one

as to how Causby and Griggs should be interpreted 1 feel

that only cogent reasons should induce one to depart

from the great weight of Federal authority in other cir-

cuits. I have not found a sufficiently compelling reason

to do so.”

Then Judge McLean disregarded his own reasons and found

that overflights were not necessary and found for the plain-

tiffs, despite the fact there is not one Federal Court Decision

supporting his position, and the only two Supreme Court cases

hold to the contrary. The Second Circuit Court of Appeals, in

its judgment (App. pp. la-8a) did not even comment on the

question that overflights are necessary for an inverse condem-

nation — if they are not, what is the theory of a taking?

Richards, and therefore, Causby and Griggs rule out legal

nuisance, and in effect the Trial Court has overruled Causby

and Griggs by dispensing with Richards.

Frequently Resulting In Damage.

This Court held in Causby at page 266,

“Flights over private land are not a taking, unless they

are so low and so frequent as to be a direct and immedi-

ate interference with the enjoyment and use of the land.”

At Tweed-New Haven the only evidence of low, frequent

flights is six to twelve (Opinion Page 10-13), and the height

of the flights was “Less than 500 feet” (Opinion Page 55).

The Court cited Aaron v. United States, 311 F.2d 798 Ct. Cl.

1963 and Jensen v. United States, 305 F.2d 444 Ct. Cl. 1962

as authority for the proposition that these were sufficient

flights although at page 55 the Court concluded,

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“Although the question in close, I conclude, in all the

evidence, that there was sufficiently direct and immediate

interference with these plaintiffs’ use and enjoyment of

their land to constitute a taking.”

Aaron involved 200 flights per day and Jensen involved 700

flights per day over the plaintiffs’ land — clearly not the 6-12

at Tweed-New Haven.

In Causby this Court referred to closeness over the plaintiffs’

land or 67 feet above the house; in Griggs they were 12 feet

over the plaintiffs’ chimney. The measurements are important

as the small jets and turbo-props not over the plaintiffs’ homes

in East Haven did not render

“A valuable factory site to grazing land, an orchard to

a vegetable patch, a residential section to a wheat field.

Some value would remain. But the use of the airspace

immediately above the land would limit the utility of

the land and cause diminution of value.” Causby at page

262.

nor do they so affect property so that

“... no home could be built, no tree planted, no fence

constructed, no chimney erected. An invasion of the

superadjacent airspace will often effect the use of the sur-

face of the land itself.” Griggs, supra at 88-89.

Tweed-New Haven then does not have chickens killing them-

selves against the wall (Causby), plaintiffs driven from their

homes (Griggs), banks refusing to mortgage property (Bacon

v. United States, 295 F.2d 1936 (1961), inability to raise chick-

ens (Aaron v. United States, 340 F.2d 665 (Ct. Cl. 1964), the

frequently falling objects and Palls of black smoke (Jensen

v. United States, 305 F.2d 444 (Ct. Cl. 1962) nor the lack of

a market for homes.

SHOWIN:

—_., - —_— *" - -~vTer. Te eT. ee

—E7~ smeats om

— eee |

Ill.

(A) Doers THE FOLLOWING ALLEGATION IN THE

CoMPLAINT, ABSENT DiversiTy OF CITIZENSHIP,

INVOKE FEDERAL JURISDICTION WHEN IT Is THE ‘

ONLY JURISDICTIONAL ALLEGATION: i

“33. In addition, the defendant, acting under color of

state laws, grants and licenses, have deprived the plaintiffs

of their rights and privileges guaranteed by the laws and

constitution of the State of Connecticut, in violation of

the plaintiffs’ Fifth and Fourteenth Amendments to the

Constitution of the United States.”

The only Statute which plaintiffs claim invokes Federal

Court jurisdiction is 28 U.S.C. 1331. This Statute has a two-

pronged requirements to invoke jurisdiction — it must exceed

$10,000.00 in controversy exclusive of interest and costs and

it must have arisen under the Constitution, laws or treaties

of the United States.

The only allegation in Paragraph 33 of plaintiffs’ amended

complaint is that they have been denied rights and privileges

guaranteed by the laws and constitution of Connecticut.

That is a state wrong which, by the allegation of the wrong,

is subject to State Court redress, as no Federal question is in-

volved and obviously there is no diversity of citizenship be-

tween two Connecticut towns. The Connecticut State Courts

have had aspects of this case before it since 1967. East Haven,

et als v. New Haven, et als, 159 Conn. 453, and the State

Court has not hesitated to act, as they are continuing to do

at this very moment.

Obviously laws and treaties are eliminated as a jurisdictional

basis for 28 U.S.C. 1331 in this case. What allegation shows

the Constitutional Requirement? Obviously it is not a Fifth

ee. eo) ee ee ee he tS co. |

IGE WH Nee EME TRAIN OWNER Te OA ESE S NAAN AI, OER ED i... ,

Amendment taking because it is not the Federal Government

that is taking and the Fifth Amendment only applies to the

Federal Government in a taking case. There is no allegation

that there is a violation of the Fourteenth Amendment be-

cause Paragraph 33 expressly states that if the defendants did

what they are alleged to have done, this is in violation of the

Constitution and laws of the State of Connecticut, and Arti-

cle I, Section 11 of the Constitution of the State of Connecti-

cut provides no remedy in State Courts. In short, the plain-

tiffs have pleaded a state constitution and State law violation

and they have pleaded they have State Court remedies, which

they certainly have, and therefore, the plaintiffs have never

pleaded themselves into Federal jurisdiction.

The case of Mosher v. City of Phoenix, 287 U.S. 29 (1932) er-

roneously relied upon by the trial court, and not commented on

by the Second Circuit Court of Appeals, is directly in point and

supports petitioner's claim attacking lack of Federal Court juris-

diction because in Mosher it was pleaded that Arizona law

allowed a taking without compensation, directly the opposite

of what East Haven has pleaded here. Further, this Court

in United States v. Raines, 362 U.S. 17 at page 26 (1960) Note

6 points out exactly what the defendant claims here — it does

not appear that the State offered no remedy at all to the prop-

erty owner, and therefore, Barney v. New York, 193 U.S. 430

1904 although clearly eroded, has not been eroded for the

proposition of Note 6 of Raines, and there is no Federal Court

jurisdiction of the subject matter of this complaint.

ae .

(B) Dogs TiTLe 28 U.S.C. SECTION 1331 REQUIRE

THat THE Matter IN CONTROVERSY EXCEED

$10,000.00 IN AppDITION To INTERESTS AND CosTs

So THAT WHEN It APPEARS WITH “LEGAL CERTAIN-

ty” THE PLAINTIFFS’ CLAIM CANNOT ATTAIN THAT

AMOUNT, Must THE CourT DIsMIss

THE COMPLAINT?

The law is clear that unless the Court can say with legal

certainty that a plaintiff cannot attain the requisite $10,000.00

jurisdictional amount, the Court must dismiss the case because

it has no jurisdiction. Smith v. Maryland Casualty Company,

992 F. Supp. 358, D.C. La. 1968. Further plaintiffs may not

pool their claims to maintain an action. Dewar v. Brocks,

F. Supp. 636, D.C. Nev. 1936 16; Hahn v. Gottlieb, F.2d 12A3,

L.A. Mass. 1970, 430. Upon appeal the Appellate Court's

first question to the defendants was “Why are you here with

$18,000.00 among seven plaintiffs?” That is precisely the

point we raised at the trial level, appellate level and raise

here. Has there not been a violation of the equal protection

clause of the Constitution when, despite the proof, not with

legal, but with mathematical certainty, the plaintiffs cannot

satisfy the threshold requirement of $10,000.00 damages.

The defendant-petitioner filed 3 motions to dismiss based

upon the failure of the plaintiffs to satisfy the jurisdiction re-

quirement of Title 28 Section 1331 (9/21/71, App. pp. 74a-77a)

and (App. pp. 78a-87a) supplemental cases of July 31, 1970,

(App. pp. 87a-92a) These motions and the answer

show with legal and mathematical certainty that from the in-

ception of the case there was no chance for any plaintiff to

remotely approach $10,000.00 damages. Volumes 7 and 8

of the Appendix filed in the Second Circuit Court of Appeals,

ee ed

oT Te. eee ne ed

ue a

nae Ct OY eee MARE

ie Kot lhe? to celigt 6? iehliba ve He PSA

‘

fi)

“

Pages 616a-769a and these pages are devoid of evidence of

$10,000.00 damages. At the end of the case in chief it was

obvious that the claim of lack of jurisdiction amount still

could not be met; (Opinion 58) the formula proved it, and yet

jurisdiction was maintained. ,

There clearly was no jurisdiction under either provision of

Title 49, U.S.C. 1331, and the Trial Court should have dis-

missed the action as the Second Circuit Court of Appeals

should have done.

IV. Doers THE TRIAL Court’s ADOPTION OF A Dim-

INUTION OF VALUE FORMULA, THE Basis For

WuicH Was UNKNOWN To THE APPRAISER So

TESTIFYING, CONSTITUTE AN UNCONSTITUTION-

AL TAKING OF THE DEFENDANTS’ PROPERTY

WHEN THERE Is No OTHER EvIDENCE OF Dim-

INUTION OF VALUE?

The Trial Court had no legal evidence of damages (diminu-

tion of property values) before it. At the end of the trial in

chief in October of 1970, and six months after briefs were

filed, the Trial Court rendered its Opinion July 31, 1971 which

found a “taking” by the operator of the airport, the defendant

City of New Haven, but the Court found (Tr. 58),

“There has actually been a failure of proof on this sub-

ject and I could dismiss the plaintiffs’ claims for com-

pensation on that ground. To do so seems to me unjust.

Accordingly, I will hold a further hearing limited strictly

to this question of amount of compensation, at which time

both sides may offer further evidence on the subject . . .”

The Court then, a fiori, states that the question of damages

is one that the Court could not assess without expert testi-

mony and, therefore, the Court found that it can assess

damages in a supplemental hearing based upon the testimony

of an expert and it did not, prior to the supplemental hear-

ing, have evidence of damages. In fact it stated above that it

could dismiss the plaintiffs’ claims for failure to prove dam-

ages. If there are damages, then, they must be found in

the supplemental hearing held October 6, 1971, and the only

testimony produced by the plaintiffs was that of Heiberger

and Nitz which is printed in its entirety in the Appendix as

the City claims as a matter of law that evidence is insufficient

to assess damages. The reason for this claim is that Hei-

berger stated, App. p. 45a,

“__. essentially our market study in — I shouldn't say

‘showed. It was inconclusive. There were insufficient

sales to really come up with a definite study, and sales

and resales varied with respect to the average increment

in value.”

The City avers this proves that the only test used by the ap-

praiser, and therefore, the only test available to the Court

(as the Court said it needs expert testimony to assess com-

pensation ) was the formula used by Heiberger. The City is

not claiming that its appraiser is better than the plaintiffs’ —

the City is claiming that the record is devoid of admissible

evidence of diminution of value, or compensation. The rea-

son for this is that Heiberger admitted he applied a formula,

the basis for which he did not know, to the subject airport,

which formula he read in a 16-page article (App. pp. 37a, 38a),

he talked to the author for twenty minutes (App. p. 38a),

he did not know if it was an airfield open to airlines, the

formula’s basis, but it was a military field (App. pp. 38a, 39a,

40a), he does not know what airfield it covered (App. pp. 38a,

39a), he does not know the name of the airfield, but it was a

military field (App. p. 38a), he does not know what year

the study covered (App. pp. 38a-39a), he does not know

how many flights per day or per year were involved (App. p.

40a), but on cross-examination he thinks it was 60,000 flights

per year, when Tweed-New Haven has 3,600 per year and he

does not know why the 25,000-foot figure applies (App. pp.

37a, 38a, 60a) and he figured a 2% angle and it should be 3 de-

grees. Further, and most important, the only property he

applied the formula to which was sold was property allegedly

with a pre-taking value of $25,000.00 which he said was di-

minished in value to $22,750.00, but which sold, post taking,

for $25,000.00 Disprovinc THe Formu a. (App. pp. 69a, 70a,

71a)

Therefore, by using the formula the Court has deprived the

defendants of property (money) without due process of law

in violation of the Fifth Amendment of the Constitution. Fur-

ther, this Court has held in United States v. Merz, 306 F.2d 39

(1962) that a formula is not a proper method to assess

damages.

V. Dots THE REQUIREMENT OF CERTAINTY OF

JUDGMENT PERMIT THE CourRT To GRANT AN

EASEMENT RUNNING IN FAvor OF THE DEFEND-

ANTS AND AGAINST THE PLAINTIFFS To COovER

FLIGHTs OveR LAND ContTiGuous To

THE PLAINTIFFS’?

The judgment rendered by the Trial Court

“That upon payment of the judgments [money damages

paid to seven plaintiffs] Defendant City of New Haven

will acquire a permanent easement in the properties of

these plaintiffs for the operation of a similar number

= —

—S7~” asinine is aietnens Ee A I =~ t

of turbo-prop planes and jet planes of the size and use at

the time of the trial.”

render the decision void for uncertainty?

In Watts v. Wattle, (U.S.) 6 Pet. 389, 8 L.Ed. 437 it is a

fundamental rule that a judgment should be complete and

certain in and of itself, and that the form of the judgment

should be such as to indicate with reasonable clearness the

decision which the Court has rendered, so that the parties are

fixed and so that judgment is susceptible of enforcement in a

manner prescribed by law. A failure to comply with this re-

quirement renders the judgment void for uncertainty.

The judgment complained of grants an easement which is not

defined as to length, width, height or actual use, and the

judgment is devoid of where this easement is to be. The Trial

Court granted an easement, and this error is covered in the

overflights portion of this petition, over properties that are con-

tiguous to the plaintiffs’ properties. How can such an ease-

ment be recorded on the Land Records? It cannot be, as the

Trial Court has granted an easement which affects not the

plaintiffs’ land, but other contiguous lands. In short, the

City is compelled to pay the plaintiffs for something

the plaintiffs cannot grant. Is this “and the land is ap-

propriated as directly and completely as if it were used for

the runways themselves?” Causby, page 262. In Causby

itself, page 268, the case was remanded to determine if the

easement taken was a permanent or a temporary one, and it

is respectfully submitted there is no certainty of judgment in

the supposed case and the judgment is void for want of cer-

tainty as is shown by error more glaring than the easement

problem of Causby.

OAR eS

VI. AFTER THE TRIAL OF A CASE ON THE Merits

AND More THAN Six MONTHS AFTER Briefs

ARE FiLep, Dots THE CourT HAVE AUTHORITY

To OrperR ““A SUPPLEMENTAL HEARING As To

DAMAGES ONLY” WHEN THE QUESTION OF LI-

ABILITY AND DAMAGES ARE INEXTRICABLY

INTERTWINED?

Not one of the “taking” cases reported on a State or Fed-

eral level supports the determination that first the trier finds a

taking and then he finds how much. From Causby and Griggs

as was covered on pages 11 to 14 herein it was pointed

out that there must be a substantial diminution of market

value. It is axiomatic in a taking case that there must be

a substantial diminution of market value and that is what results

in the taking. A taking case is not analogous to a negligence

case in which the issues of liability and damages may be

separately determined, or in a breach of contract case in

which the breach may be determined independently of the

damages for that breach. The issues, then, are not so distinct

and independent from the rest of the case so that they may

be tried separately without injustice to the determination of

the whole issue, and, therefore, the granting of a separate

hearing is fatal.

Twenty-One Mining Co. v. Original Six to One Mine, (CCAG.

1921) 265 F. 469; Gasoline Products Company v. Champlin

Refining, (1931) 283 U.S. 494, 498, 499, 51 S. Ct. 513, 75 L.

Ed. 1181.

Rule 59 of the Federal Rules of Civil Procedure permits ad-

ditional evidence after judgment for any one of three rea-

sons — error of fact, or law, or for newly discovered evidence

eo teh NUR RE MOC RENE EAN AOL RIOT I LE LBL. AERIAL,

— none are present in this case and the Trial Court acted

without authority in so ordering a supplemental hearing as

to damages only, as the case was tried, briefs were filed and

then six months later the Court ordered a supplemental hear-

ing. There is no authority for such a proceeding.

CONCLUSION

This case presents issues posed by numerous similar airports

throughout the United States, both in the Federal and the

State Court systems and cases are pending in both jurisdictions.

A discussion of the problem is presented in “Airport Ease-

ments” 1965 Virginia Law Review Volume 54, page 355 et seq.

by Marshall T. Bohannon and in 43 S. Cal. Law Review,

Berger, “Nobody Loves an Airport” (1970)

In many diverse sections of the County the question of in-

verse condemnation has placed severe restrictions on the pub-

lic’s right of travel. In effect this decision will negate the ef-

fect of Congressional legislation as Title 49 Section 1101 et.

seq. and Title 49 Section 1301 et. seq. will be overcome by

municipalities closing down airports by reason of their being

responsible for damages caused by the Federal Government

through the F.A.A. and by the air carriers in their quest for

profit. As was reported in the New York Times and distrib-

uted by the Associated Press, the City of Los Angeles is now

desirous of closing its airport by reason of the fact that the

already financially strapped cities have an added burden of

financing the air travel of the rest of the country — let the

Federal Government pay for all citizens’ rights to travel or

let the airlines raise ticket prices to pay these damage suits.

Pave

The holding below, if allowed to stand, will in effect re-

verse Griggs and Causby and reverse the multitude of Fed-

eral and State case law such as:

Boardman v. United States, 376 F.2d 895 (Ct. Cl. 1968);

Ferguson v. City of Keene, 238 A.2d 1;

United States v. 357.25 Acres of Land, 55 F. Supp. 361

(wd. La 1944);

Adaman Mutual Water Co. v. United States, 186 F. Supp.

658 (Ct. Ci. 1958);

Aaron v. United States, 311 F.2d 789 (Ct. Cl. 1963);

Avery v. United States, 330 F.2d 640, 643 (Ct. Cl. 1964);

Bacon v. United States, 295 F.2d 1936 (1961);

Batten v. United States, 292 F.2d 144 (10 Cir. 1961);

Freeman v. United States, 167 F. Supp. 541 (wd. Okla.

1958);

Schubert v. United States, 2A6 F. Supp. 1970 (S.D. Tex.

1965).

For these reasons a writ of certiorari should issue to re-

view the judgment of the Second Circuit.

Respectfully submitted,

The Petitioners

By Rocer J. FRECHETTE, Esq.

Their Attorney.

‘sme Co

SAGER MAR CEE SO RETR REA PIM ALA EET

Sup

FILE COPY FYL :

FEB 16 |;

In the MICHAEL RODAX,g

Supreme Court of the United States

JANUARY TERM, 1973

79=1137

Tue City Or NEw Haven,

Petitioners,

THE Town Or East HAVEN, ET ALS.,

Respondents.

APPENDIX TO PETITIONER’S BRIEF ON

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RoceErR J. FRECHETTE, Esq.,

215 Church Street,

New Haven, Conn. 06510

Attorney for Petitioner.

THE MACK CO., NORTH HAVEN, CONN.

CR psy. —_ :

ge a ee nu Peale Pusch ont SY ato Diets one oa SD ite. a Sy ERAT REN AES 7% pert ~~

INDEX

PAGE

Opinion of The United States Court of Appeals ...... la

Testimony in entirety of Real Estate Expert of Respond-

ent who estimated damages by formula :

Direct examination 0.0.0.0... .u-smmmunmmmnnnnnsnenrene 9a f

tli tne IR OEE eet ENR EN . ;

Redirect examination 00.0... 6la

REcross CxAMINATION oo eccccesereee Ce

ne Mi 8 osc ccrrcmentencosmryioon ‘Te i

FREER BEET ee ROPE IR NC REY LH ERE ALI EIS IRS BOLE : APE ate |

7 Patios Ua ha ATG woe AP

No. J2~ i/39

Yow. eon “aia

Tue City Or New Haven,

CURED 02 pp cllent - fe ferden?

Vv.

THe Town Or East HAVEN, ET ALS.,

Sea. Appellee ~ Plaml (/

APPENDIX TO PETITIONER’S BRIEF ON

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINION OF THE UNITED STATES COURT

OF APPEALS

Appeal from an award of damages for “inverse condemna-

tion” made by the United States District Court for the Dis-

trict of Connecticut, the late Edward C. McLean, Judge, to

—

nusee

indi RRS oe Re REI Sieg

easements as a result of turbo-prop and jet aircraft service

at its Tweed-New Haven Airport.

Of arr ween

Affirmed.

RocEr J. FRECHETTE, Assistant Corporation

Counsel, New Haven, Conn., for Ap-

pellant-Defendant.

Antuony V. DeEMayo, New Haven, Conn.

(Cohen and DeMayo, New Haven,

.. of counsel), for Plaintiffs-Ap-

pellees.

Moore, Circuit $dtige:<*@

The plaintiffs are the Town of East Haven and property

owners whose properties are in the vicinity of the Tweed-

New Haven Airport, an airport owned and operated by the

City of New Haven (the City). The defendants are the City

of New Haven, Eastern Airlines and Allegheny Airlines, Inc.’

After a non-jury trial, the District Court dismissed the action

against the Airlines and dismissed all claims against the City

except claims for compensation for easements taken by the

City in seven specific properties of seven plaintiffs. After a

‘ Originally the Administrator of the Federal Aviation Agency

was a party defendant. On motion the action against him

was dismissed. The City was added as a defendant in an

amended complaint.

di 2

: —

supplemental hearing as to damages, the District Court award-

ed various amounts ranging from $2,100 to $3,300 for a total

of $18,400.72 “Upon payment of the judgments, defendant

City of New Haven will acquire a permanent easement in the

properties of these plaintiffs for the operation of a similar

number of turbo prop planes and jet planes of the size in use

at the time of the trial [October 14-27, 1970].” 333 F. Supp.

338, 341 (S.D.N.Y. 1971). The City appealed from the award

of damages to those property owners.

The history of the development of the airport and its com-

mercial use by Eastern and Allegheny Airlines as well as by

private planes has been graphically and thoroughly set forth

in the late Judge McLean’s opinion, 331 F. Supp. 16 (1971).

The location of the properties owned by the individual plain-

tiffs (the recipients of the damage awards) in relation to the

airport and its runways has been described in his original and

supplemental opinions, 331 F. Supp. at 21-26 and 333 F. Supp.

338 (1971).

The airport serves the City of New Haven and accessible

cities and towns. It has been developed by the City aided

by federal funds, pursuant to the National Airport Plan auth-

orized by the Federal Airport Act, 49 U.S.C. § 1101 et seq.

. Michael Fusco . p Deadekeraee $2,500

I ne ncienenneionien $2,850

Leslie Munro .... ee

I nasser $3,200

Alphonse Guidone, Jr. $2,250

Louis Audette ........... _.. $2,200

Leon Amendola ......... . $3,300

ROE POP LO OARS oe

The appellate issues before us are exceedingly limited. In

fact the City concedes as much, saying (Brief, p. 11): “The

question is whether plaintifls have succeeded in proving the

amount of that damage with reasonable certainty.” The

City claims that plaintiffs have proven no damage. No issue

of injunctive relief is raised. The District Court denied any

such relief, stating: “The right of the public to travel by air

by means of modern airplanes far outweighs the disadvantage

to the relatively few persons, such as these plaintiffs, who are

adversely affected to some extent.” 331 F. Supp. at 30. More-

over, “Trespass, Annoyance and ‘Emotional Damage’,” as well

as nuisance were rejected as items of damage by the Court.

In short, the City questions only the award of damages for the

easements taken in these specific six properties.

The City’s arguments assert many grounds. First, the City

attacks the quality of, and the method used by, the plaintiffs’

damage appraiser and extols the opinion of its own. Differ-

ences in opinions of appraisers in real estate valuation cases

are not altogether surprising. The Trial Court had to, and

did, weigh the testimony presented by all the parties and ar-

rive at his own conclusions. Second, the City points to the

fact that the plaintiffs acquired their properties subsequent to

the creation of the airport. This fact alone is not determina-

tive because, as the Trial Court found, plaintiffs’ “grievances

are based on later operations of turbo-prop and jet aircraft,

particularly the jets.” 331 F. Supp. at 20. Although the City

takes issue with this conclusion, there can be no doubt that

the advent of the jets aggravated the situation. As to the

City’s third claim, that the Court found it guilty of trespass,

the Court held that “there should be no separate recovery by

peg

ae.

ey :

PRL GET LEO LN OM LR OIL ENE IEEE NERS et . oa

. gue : + dae oes She ee : eed TINS

any plaintiff of damages for trespass, either against the City

or against the airlines. ° ° * Where there has been no taking

because there has been no significant invasion of plaintiffs’

property, it would seem to follow, at least as far as the City

is concerned, that there has been no trespass on that prop-

erty.” (Id. p. 35). Fourth, the City asks, “Can you have a

taking when the value of the property has appreciated?”

(Brief, p. 31). The answer is clearly “yes”. The Court,

after weighing all the testimony, quite properly found that

the fair market value of certain of the plaintiffs’ properties

had been reduced, even though this value exceeded the or-

iginal acquisition cost. 333 F. Supp. at 340. His discriminat-

ing approach is evidenced by the denial of damages to five

other party plaintiffs. Fifth, the attack upon jurisdiction

and the claim of res judicata made by the City are rejected.

Lastly, the City urges that there is “UNCERTAINTY oF JuDG-

ment” in that the judgment does not “indicate with reason-

able clearness the decision which the Court has rendered ° * °.”

The City asks (Brief, p. 61) what kind of “an easement which

is not defined as to length, width, height, or actual use,

* ¢ ©” will it receive upon payment of the judgment awards,

and in what form will such an easement be drafted in order

to be recorded in the Land Records office.

To a certain extent the last point is well taken but it does

not render the judgment void for uncertainty, as the City

argues. At the time of trial, the Court had before it the spe-

cific flight schedules of Allegheny and Eastern. Allegheny

operated five flights per day with Convair 580s (turbo-props )

which necessitated five landings and five departures. East-

ern operated two jet flights, with two arrivals and two depar-

. iii:

tures. In addition, numerous private and corporation-owned

planes (some jets) used the airport. The airport is operated

by employees of the Federal Aviation Agency who control all

traffic in and out of the airport. Directions for landing and

take-off are given from a control tower and the runways to

be used, of necessity, must be determined by wind, weather

and other conditions.

Control of air navigation must be in the hands of the

Agency. Certain it is that the courts should give no direction

or even suggestion as to its operation. Even more so should

the courts make no brash predictions as to the future of air

transportation. The history of the development of the pas-

senger plane alone should be a deterrent to prophesy. Forty

years ago planes carrying a few passengers could land and

take off on short runways — virtually cow pastures. Soon

came a series of planes capable of carrying many passengers,

landing and taking off at high speeds and requiring ever

lengthening runways. Witness the DC series of 3s, 4s, 6s, 8s,

9s and 10s, and the 707s, 727s and now the giant 747.

The planes are available. Whether the City of New Haven

will wish to have them is, or should be, entirely a legislative

decision. Already the populace has apparently aligned itself

into two factions — those who wish to preserve the compara-

tive peace and quiet of their residential communities and ban

further expansion of the airport so as to prevent invasion by

even noisier planes, and those who would measure “progress”

by their ability to go from New Haven to some other city in

—_ Pe eee POA Ei get

minutes or a few hours.* And in the background is always

the specter of the supersonic plane.

What the future will hold is not for present Court conjec-

ture. Were we to heed the wisdom of an earlier era, we

would know that “The Moving Finger writes; and, having

writ, Moves on; ° ° °.”* Aviation has indeed moved on.

Thus the past decision that have been “writ” dealing with in-

vasions of property rights are useful only for their attempted

creation of general principles. Obviously, a rule of reason

approach must be followed in the resolution of future prob-

lems.

The judgment of the court below does not require that the

City receive a formal easement from each plaintiff to whom

damages have been awarded. Nor do we. The opinion

states, as definitely as the situation permits, the basis for the

taking that occurred. For this the court has awarded dam-

ages, presently payable for the present invasion.

Neither the opinion below nor this opinion is to be construed

as a template for the future. Whether the Tweed-New Haven

Airport will be expanded to permit larger aircraft to land and

take off; whether the required glide paths of such planes will

‘The planning consultant of East Haven expressed the opin-

ion that the noise and pollution caused by the jets would ad-

versely affect the stability of the area; the chairman of the

Industrial Development Committee of the Greater New

Haven Chamber of Commerce spoke in glowing term of

the advantages of fast transportation as a stimulant to in-

dustrial development. 331 F.2d at 27.

*Rubaiyat of Omar Khayyam.

a |

affect other residents in a manner similar to that affecting the

six plaintiffs in this case; whether a substantial variation from

the type of air service in effect at the time of the District

Court trial will cause further harm to the present plaintiffs;

whether some agency of government will issue a decree which

will affect property rights — these conjectures are not within

the purview of this decision and no opinion is expressed there-

on. The judgment appealed from merely requires the City to

pay for that which it has already taken. We have considered

all of the City’s other contentions; none of them has merit.’

We affirm.

VOLUME 4— DEFENDANT’S APPENDIX

(317a)

Epwarp F. Hesercer, called as a witness by the Plaintiffs,

being first duly cautioned and sworn by Margherita Cun-

ningham, a Notary Public within and for the State of

Connecticut, was examined, and testified on his oath as

follows:

By the Notary Public:

Q. Would you please state your full name and address? A.

Mr. Name is Edward F. Heberger. I live 1215 Long Hill

Road, Guilford, Connecticut.

* The City has moved to file a supplemental brief. The mo-

tion is denied.

—eSo7_—~—~™ SE EIS RK BN a oA RATT OIE CLEAN RAIL AD PEED SHAE TEN UO Re SIE NO UN om |

9 hme

Direct examination by Mr. DeMayo:

Q. Mr. Heberger, what is your present occupation? A. I

am a real estate appraiser.

Q. Would you advise the Court of your qualifications in this

field? A. I am a graduate of the University of Connecticut.

I am an M.I.A. member of the American Institute of Real

Estate Appraisers. I am a senior realty appraiser member

of the Society of Real Estate Appraisers. I am a senior mem-

ber of the American Society of Appraisers. I have been

(318a) appraising property full time since 1958. I teach

courses in appraising for the University of Connecticut Exten-

sion School.

Q. Have you qualified as an expert witness in states other

than Connecticut? A. Yes, I have.

Q. What states? A. Maine, Vermont and New York.

Q. Have you completed any advanced courses in real es-

tate appraising? A. Yes. I have successfully completed four

courses sponsored by the American Institute of Real Estate

Appraisers, and I completed a course at the School of Ac-

quisition of Real Estate in New York State.

Q. Have you frequently lectured to seminars and courses

on the subject? A. I would say occasionally.

Q. As a matter of fact, were you scheduled to lecture today

until this case was scheduled? A. I was scheduled to con-

duct, not lecture, just run a seminar which was a joint meet-

ing between the Connecticut Chapter of the S.R.E.A. and

A.LR.E.A.

on paeAADNT REAPING A IRINA ANS PONY rr

10a

Q. Your qualifications are set forth in each of the appraisal

reports that you have prepared for this matter, are they not?

(319a) A Yes, they are.

Q. Now, with respect to the present litigation, prior to em-

barking upon any of your work, did you read the judgment of

this Court in this case? A. Yes.

Q. That is Judge McLean’s judgment, a copy of which I

showed you? A. Yes.

Q. After reading the judgment and a conference with me,

what did you undertake to do? A. I undertook to prepare a

market study, a study of the reactions of the market in the area

influenced by the airport.

Q. Did you also examine various appraisal periodicals and

journals and theses? A. Yes, I did.

Q. What approaches were considered by you in arriving

at in this report? A. Over three recognized approaches were

given consideration, the cost approach, the value of the mar-

ket data approach to value, and the income approach to value.

Q. Did you utilize those approaches in preparing your re-

port? A. I utilized two approaches, the cost approach and

the market data approach.

(320a )

Q. As a result of your examination of this particular situa-

tion and the data you acquired, what did you decide upon

as the method to be employed in evaluating the damages to

each one of these property owners? A. Well, with respect

to six of the properties, the market data approach was used,

‘

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and with two of the properties the cost approach to value

was used.

Q. These were utilized in arriving at what figures? A.

The before and after values of the properties being ap-

praised.

Q. Did you also apply to each of these properties an ad-

ditional method in determining the damages claimed by the

property owners? A. Yes. We used what is known as

the factor formula for estimating the damages caused by an

avigation easement.

Mr. DEMayo. If your Honor please, with your permission,

I think I might facilitate things if I gave your Honor

and Mr. Frechette Schedule “A” which would list the prop-

erties, and you wouldn't have to take extensive notes and fig-

ures. May that be marked? Is there any objection to this,

Mr. Frechette?

Mr. FRECHETTE. No.

The Court. We will just mark it for this hearing.

(321a)

Clerk Grimes. This will be DeMayo Exhibit 1 of 10/18/71.

(DeMayo Exhibit 1 of 10/18/71: Schedule “A”).

By Mr. DeMayo:

Q. Now, do the figures listed on Schedule “A” set forth

your appraisal of the value of the property for the taking,

after the taking and also the damages which you computed?

ad — i.

12a

A. Yes, they do. May I say at this point that both Donald

Nitz and myself worked on these appraisals together.

Q. In other words, he worked with you and combined the

data, and this is a joint report? A. Yes, and we both signed

the appraisal reports.

Q. This is the case an all properties? A. Yes.

Q. Mr. Nitz isin Court? A. He is.

Q. Starting with the appropriate report for 52 South End

Road, property in the name of Mr. Erle Jones, is that the

first report on your schedule? A. Yes, it is.

Mr. DeMayo. If your Honor please, to facilitate follow-

ing this both by you and Mr. Frechette, I have a set of those

which I shall show you. I suppose I should probably offer

them (322a) one at a time so you can follow with Mr. He-

berger, so I will follow that procedure, and you follow it in

that fashion.

I would offer, then, the report on 52 South End Road on

the property of Mr. Jones.

(DeMayo Exhibit 2 of 10/18/71: Appraisal Report of 52

South End Road, East Haven, Connecticut. )

By Mr. DeMayo:

Q. Mr. Heberger, in connection with your preparation of

52 South End Road, the property of Mr. Jones, would you ex-

plain to His Honor what the purpose of your appraisal was

and how you arrived at the various values? A. The purpose

of preparing the appraisal was to arrive at an estimate of the

damage created as a result of the avigation easement over

———eE——_— AN RRA EY IAS ERG INET IE TES WTC EE SNR OEE) NAPS ERIS ae

13a

the property. In order to do this, we estimated the value of

the property before the taking.

In the case of 52 South End Road, we could locate no sales

of similar properties, so in this case we used the cost approach

to value to estimate the value prior to any taking.

Q. After you arrived at the value of the property as you con-

sidered it prior to the taking, did you then address yourself

to the question of computing a reduction in value occasioned

by the taking? (323a) A. Yes, and we did it based upon a

factor formula about which perhaps a little background would

be in order.

This factor formula has been utilized a number of times in

connection with airport cases, if that is a correct term. It was

developed by an M.A.I. appraiser in Macon, Georgia, and a

professor at the University of Georgia in 1955 or so, and the

formula is based upon analysis or studies of damages at various

airports as shown by market analyses, so we applied the formu-

la to the subject property, and we developed damages of

$2,300.

Mr. FrecuETTE. I object to that conclusion. I don’t think

it is time that his conclusion should come in. The specfiic rea-

son is there is no foundation for it at this time.

The Court. 1 will let him answer. He will develop it, I

am sure.

By Mr. DeMayo:

Q. In discussing or explaining the factor formula, is this

the material that starts at page thirteen of your appraisal? A.

Yes, it is.

14a

Q. Would you explain briefly the factors that go into evolv-

ing the formula? A. All right. As set forth at the top of

page thirteen, there are three principal factors. The first

is the height (324a) from the ground surface. This is the

glide angle plane and we used a fifty to one glide angle plane,

which is the accepted way of doing this.

Q. Is this also the glide angle plane in use at Tweed-New

Haven Airport? A. Yes, it is.

Q. When you say the height from the ground surface or

glide angle plane, would you explain exactly what that di-

mension indicates just for the record? A. We start at the end

of the runway for zero, and we take a fifty to one line to a dis-

tance of 25,000 feet out from the end of the runway, and

based on this line we calculate the height at the bottom of

the glide angle plane from ground level to the bottom of

the glide angle plane.

Q. Is this shown on the diagram on page 16? A. Yes.

This diagram on page 16 is strictly for the example as shown.

Each of the appraisal reports has an example of the technique

as we used it.

Q. So the actual computation for this particular property

would be the diagram that is shown on page 21? A. That

is correct.

Q. After computing the height from the ground, I take it

you — by the way, when you say the height from the ground,

you mean the height over the subject property which a plane

passes on approaching at a fifty to one flight angle? (325a)

A. That is incorrect.

we dic LARP RAT NCEE SD STRELA NEN NE RAAT INT LIT LE RTE I BE CLRE SE ELL AI OPTI TE

15a

Q. Correct me, then. A. This glide angle plane — a plane

cannot fly below the glide angle plane. They do fly higher.

The glide angle plane is also established so no obstructions are

constructed above this height.

Q. How does the height from the surface of the glide angle

plane enter into your formula? Would you explain that to

His Honor either by use of the diagram or the text? A. On

page 15 at the top of the page it says, “Item one,” and with

respect to the example and not the specific property, we

used 3,000 feet, and we used 500 feet for height, and we cal-

culated 51 feet under the glide angle plane to ground level

as our third item, so the numbers are a little bit out of se-

quence, and 500 feet is considered to be the ultimate height.

In other words, anything above 500 feet, there is no loss of

any type; it is considered to be free air space and no damage

would result; so, we computed again on the case of the ex-

ample, 51 feet, and 51 feet into 500 feet is approximately 10

percent, rounded out to 10 percent, and this is built into a

weighted average, and we come up with 90 percent times

50 percent. Fifty percent is a total percentage of 100 per-

cent that is assigned to this category.

Q. In other words, in this formula 50 percent of the loss

factor is weighted in terms of the distance over the (326a)

property that a plane passes? A. That is correct, so what we

are trying to establish is what percentage of that 50 percent —

Q. In your formula, .45 is the factor that is computed to be

resulting from the height over the property of the airplane? A.

In the case of the example, that is correct.

Sik

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;

16a

Q. What are the other two? A. The second is, again, this is

item two on page 13, the distance at a right angle from the

center line of the ranway extended.

Q. Would you explain that? A. It is shown in the illus-

tration on page 16. This would be the 3,000 — it comes out

3,000 feet from the end of the runway, and in the case of the

illustration, it is 500 feet distant from the center line of the

runway extended at a right angle.

Q. So what you project into the formula with this factor

is the lateral distance from the runway to the subject property?

A. Yes.

Q. Finally, what is the third element of the formula? A.

The third element is the distance from the end of the run-

way to the property.

Q. As I understand vou, then, this formula takes into (327a)

account for the subject property the height at which planes

pass over the property, the distance of the property from the

center line of the runway or extended, if necessary, and finally

the distance of the subject property from the end of the run-

way? A. That is correct, and as pointed out in the analysis,

what this does, it sets up a relationship for each property

that is affected and falls into these zones, one to the other, and

it is based in part upon the value of the property being ap-

praised, and then these three factors are taken into considera-

tion so you can come up with a specific loss, if any, for any

property within the approach zones.

Q. As a necessary function, then, of this formula, the proxi-

mity to the airport runway and the closer the property is to

the runway or to the end of the runway and the lower the

17a

plane over the property, the greater would be the weight of

these factors, is that correct? A. That is correct, sir.

Q. That would also be affected by the value of the property?

A. That is correct.

By The Court:

Q. How do you apply this formula to the value of the

property? A. This is shown, your Honor, in the case of the

(328a) example on page 15.

By Mr. DeMayo:

Q. May I suggest you follow through with this subject

property for His Honor on this? A. All right.

Mr. DeMayo. If your Honor would prefer that, I think it

would make it more sensible.

By The Court:

Q. This is a theoretical example? A. That is correct. That

was done to show any reader of the report how the formula

is used before we applied it to the specific property in ques-

tion.

Q. I don’t care whether you use the theoretical example or

the particular property. 1 was just interested in finding out

how vou apply this formula. A. All right. Why don't we

stay with the example?

18a

By Mr. DeMayo:

Q. All right, go ahead. A. On page 15, your Honor, we set

up a weighted average at the top of the page of 85.10. After

we have worked out our percentages and computed the dis-

tances, we come up with 85.10, which is actually an 8.51

factor.

Q. May I suggest you start at the top of page 15 and ex-

plain the 3,000 divided by the 25,000 and the 12 percent so

His Honor can see every computation? (329a) A. The 3,000

feet in the case of the example is the distance from the end

of the runway. The 25,000 feet is for the purposes of the

formula, the ultimate distance. Anything beyond 25,000, cer-

tainly there would be no damage in our opinion, so 3,000

divided into 25,000 or vice versa equals 12 percent on this

complement, and 12 percent from 100 equals 88 percent, and

then 20 percent is that portion of 100 percent which has been

assigned for this particular factor. We multiply the 88 per-

cent by the 20 percent. That gives us 17.6.

This formula is something you just don't pick up all at

once. It took me a great deal of study and analysis before |

could apply it. Perhaps it is difficult to explain, but this is

the basis, and I think the rationale is set out in the explana-

tion itself.

Now, we did essentially the same thing for the other two

factors. The property being appraised or in the sample is

500 feet from the center line of the runway extended, and

according to the formula, anything beyond 2,000 feet, there

would be no damage of any kind whatsoever from the center

line of the runway extended, so 500 feet is 25 percent of 2,000

feet. Subtracting that from 100 percent, we come up with

EATON te

19a

75 percent. We multiply 75 percent by 30 percent, which is,

again, that portion of that 100 percent assigned for this fac-

tor, giving us 22.5.

(330a)

For the third item, the bottom of the glide plane is 51 feet

above the ground level of the property. The ultimate is con-

sidered to be 500 feet. Fifty-one feet is approximately ten

percent of 500 feet. We subtract that from 100. It gives us

a 90 percent times 50 percent, which is that portion of 100

percent which has been assigned for this factor, which gives

us 45.

The total or sum of those three items is 85.1, which is divid-

ed by 10, which is a factor that is built into the formula, which

gives a final factor of 8.51 in the case of the example, so we

take 8% percent of the value. We just estimated a value of

$25,000 in going through the example, so 8% percent of

$25,000 is $2,125 in the case of the example. We subtract

that from the $25,000 estimated value before, and it results

in a value of $22,875 which is rounded out for practical pur-

poses to $22,900, leaving us a damage of $2,100 in the case of

the example. We followed this formula in estimating the

value of all the properties.

By the Court:

Q. The formula leads you ultimately to a percentage, as I

understand it? A. Yes.

Q. Which in the case of your example is 8.51 percent?

A. Yes, your Honor.

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20a

(331a)

Q. That percentage of what you think the value was before

the flights occurred represents your opinion as to the damage?

A. Yes, essentially yes, that is correct, your Honor.

Mr. DeMayo. Before I ask any other questions, does your

Honor want any part of the formula gone over or explained

further?

The Covrt. I think it will be clear when I read this. It

is reasonably clear now.

By Mr. DeMayo:

Q. If I can just recap the computation, it is as you noted it

on lines 1, 2 and 3 above the three figures which are applied

to each of those phases, namely, the 25,000 feet, the 2,000 feet

and the 500 feet represent the point at which the formula ends

and anything beyond that is not considered to be damage-

worthy, shall we say? A. That is correct, and this is based on

the approach zone itself. It is not something arbitrarily ar-

rived at.

Q. Would you explain why those three measurements are

significant? If you want to use the diagram for clarity’s sake,

you are free to do so. A. All right. This is based upon the

typically recognized approach zones for modern runways, and

it is also based upon evidence that was introduced at what |

understand to be a previous hearing in this matter, and (332a)

these are established, I believe, through the F.A.A. with re-

spect to distances, and so on,

2la

Q. All the subject properties you examined would be with-

in the configuration of this schematic approach zone, would

they not? A. They would; they are.

Q. As a matter of fact, at least two of the properties are

actually within the boundary of the clear zone, are they not?

A. Yes. One definitely is.

Q. One and possibly two? A. Yes.

Mr. Frecuetre. I don’t want to object, but clearly this

was leading.

The Court. Yes. Don't lead him.

By Mr. DeMayo:

Q. With regard to the subject property, then, Mr. Heber-

ger, you testified you arrived at a value for this property

based on the cost reproduction method, is that correct? A.

Yes.

Q. Then you applied this formula to that figure? A. I did.

Q. And reduced that figure that you arrived at from the

cost approach by that amount? (333a) A. That is correct.

Q. As a result of that, what did you conclude to be the

damages suffered by virtue of the taking? A. $2,300. I might

say this property itself does fall within the clear zone, and I

know in the cases of many or several airports that there aren't

supposed to be improved properties in the clear zone.

Q. With respect to that figure of $2,300, based on your own

knowledge of real estate and experience in the field, does the

figure which you have given us of $2,300 for this subject

BREE.

— 7

22a

property, is that figure consistent with your own professional

opinion as to the damage suffered by the property?

Mr. FrecHETTE. I object. I feel there is no foundation for

any further comments by this witness.

The Court. | will let him answer.

A. Yes.

By The Court:

Q. Am I correct with respect to this particular property —

and we are now talking about 52 South End Road — the factor

or percentages is 9.4 whereas in the example it was 8.51? A.

Yes, your Honor, you are correct, and the factor will vary

from property to property.

(334a)

Q. Depending upon their location? A. Yes, sir.

By Mr. DeMayo:

Q. Mr. Heberger, I wonder if you would clear up one

possible point of confusion with regard to page 17 of this re

port entitled, “Appraisal Example of Factor Formula,” and

the third sentence on that first paragraph talks about the tota

width of the runway, 2,000 feet. I believe a word has beer

omitted from that which we should clarify so His Honor won’:

be confused when he reads it. A. Yes. It is the approact

zone.

Q. It is actually the width for that approach zone, is that

correct? A. Yes.

SAREE TP _«tf

Bp Sa SARE IO 29 6 AS ARSE PR RL oe A * ee |

Mr. FRECHETTE. Iam sorry. I missed that.

Mr. DeEMayo. On page 17, Mr. Frechette, I think this will

be clear when you read it the second time.

Mr. FrecHETTE. What paragraph?

Mr. DeMayo. The third sentence of the first paragraph.

It says that the total width of the runway is 2,000 feet. The

runway is not 2,000 feet wide. It is the total width of the ap-

proach zone with the runway extended, in other words. I

think a word has been inserted or a parenthesis omitted (335a)

there.

If your Honor please, I have not gone into a description of

the property since it is in the report, but if you want it on the

record, I will have him go through a discussion of what the

property consists of, the cost factors, the footage, and so on.

Do you think it is necessary?

The Court. I hardly think so. It is all set forth in the

report, and Mr. Frechette can cross-examine about that aspect

of it if he wants to. We will give him a chance when you

are through to read all this before he has to cross-examine

about it.

By Mr. DeMayo:

Q. With respect to the next piece of property, 2 Meadow

Place owned by Mr. Amendola, is this the appraisal you have

prepared for that property? A. Yes.

Mr. DeMayo. I offer that, your Honor.

(DeMayo Exhibit 3 of 10/18/71: Appraisal Report of 2

Meadow Place owned by Leon Amendola. )

By Mr. DeMayo:

Q. With respect to that parcel, did you arrive at a market

value figure representing what you felt to be the reasonable

market value of that property? (336a) A. Yes, I did.

Mr. DeMayo. Does your Honor want to take time to set

that up? You will recall this piece of property is sort of off

the beaten path.

The Court. I remember where it was.

Mr. DEMayo. There is a map in the appraisal which might

be of assistance to your Honor. It is on the extension of the

other runway. Let me see if I can find the map.

The Court. It was Eastern Airlines Exhibit A at the trial,

which is the map we all used so much, I think, and it is true

that Mr. Amendola wasn’t even on the map, but the record

shows where he is.

The Witness. May I show your Honor?

The Court. I cansee.

The Wrirness. O.K.

The Court. If we could somehow or other display this

where we could all see it, it would be helpful. Have we got

a board or anything we could tack this to?

The Cierx. I can get one at recess.

The Court. This shows the runways and zones and all of

the things he is talking about.

Mr. DeMayo. Yes.

25a

(337a)

The Court. Let's get one now.

(Whereupon, a recess was taken at 10:40 o'clock a.m. )

(The Hearing resumed at 10:50 o'clock a.m. )

Mr. DeEMayo. Your Honor, I was talking with Mr. Fre-

chette about the question of whether we had to burden your

Honor with a recitation eight times. I was going to make this

suggestion, that the appraisals are all here, and Mr. Heberger

will testify that this formula was applied as he explained to

all of the properties. If your Honor thinks there is any merit

to it, 1 would offer all of them with the understanding this

was the way it was arrived at. Each appraisal has sub-

stantiating data as to how the original figure was obtained,

and unless your Honor would like to hear more on any one

of them, it would be merely a repetition of what he has said.

Mr. FrecHETTe. I have no objection. I know your Honor

would let the reports in anyway, and it would save time.

The Court. Very well. We can mark them all.

By The Court:

Q. Did you apply this formula to each of those properties?

(338a) A. Yes.

Q. Inthe same manner? A. Yes.

Q. The formula varies, I suppose, depending on the loca-

tion of the property? A. It does.

Q. You didn’t always use the cost approach to determine

the original value? A. Only in two cases, your Honor.

“ ns meee sto 2h ae

seni OREM AES AA SEMS SEN TO ELE tN 5 ET SR lias mane . —

26a

Q. We have already had one of them which is Jones. Which

is the other one? A. The one before you now, 2 Meadow

Place, your Honor. This is a unique pr. ty as the photo-

graph will show. It is a semi-luxury stone building, dwelling,

single-family residence with many rooms, and we could find

no comparable data of any kind to guide us in ascertaining the

value of the property. Therefore, we did this on the basis

of the cost approach.

The Court. I suggest you mark all of the appraisals. He

doesn’t have to explain the formulas in all of them each time,

but you might want to ask him something about how he reach-

ed the original value because, apparently, the first two are dif-

ferent than all of the others in that respect.

(339a )

Mr. DEMayo. Yes, your Honor.

This is the property at 110 Morgan Avenue owned by Leslie

Monroe.

(DeMayo Exhibit 4 of 10/18/71: Appraisal Report for 110

Morgan Avenue owned by Leslie Monroe. )

By Mr. DeMayo:

Q. With respect to that property at 110 Morgan Avenue

— and your appraisal is now Exhibit 4, Mr. Heberger — how

did you arrive at the starting point, the market value figure

for this subject property? A. By analyzing what sales were

available that we thought would indicate a value for this

property because they were similar to it, similar to it with re-

spect to many factors.

Mr. DeMayo. The next property would be 25 Holmes

Street, the property of Michael Fusco.

EERE REE SENG ELE LMI LIE LE LIES PIE LORS ETE

27a

The Court. You have another Monroe, don’t you?

Mr. DeMayo. Yes, your Honor.

The Court. Wouldn't it be a good idea to make that the

next one to keep all of the Monroes together?

Mr. DEMayo. Let’s make 114 Morgan Avenue Exhibit 5.

That would be the other Monroe property.

The Cenk. What is the first name?

Mr. DEMayo. It is also Leslie Monroe, the (340a) same

person.

(DeMayo Exhibit 5 of 10/18/71: Appraisal Report of 114

Morgan Avenue owned by Leslie Monroe. )

By Mr. DeMayo:

Q. With respect to the Monroe property at 114 Morgan

Avenue, what methods were employed to arrive at the market

value? A. We used the market data approach. I might say

that market data was limited in the area. We did find what

we felt to be a sufficient number of sales for the six properties

where the market data approach was applied, but the number

of sales was limited, and the sales were on somewhat varying

types of properties for the most part, especially those situated

on the water front, but we have interpreted the data to the

best of our ability.

Mr. DeEMayo. We will make 25 Holmes Street, Mr. Fusco,

Exhibit 6.

(DeMayo Exhibit 6 of 10/18/71: Appraisal Report of 25

Holmes Street owned by Michael Fusco. )

By Mr. DeMayo.

Q. Is there anything with respect to that property? A.

Again, we applied the market data approach to this property,

This is more, I suppose we could use the term, a standard type

of property. There was more market data available for this

property.

(34la)

Q. Holmes Street is at the opposite end of the north-south

runway, is it not? A. Yes, it is. 1 might say this property

is partly in New Haven and partly in East Haven.

Mr. DEMayo. Mr. Audette’s property on Silver Sands Road

would be Exhibit 7.

(DeMayo Exhibit 7 of 10/18/71: Appraisal Report of 735

Silver Sands Road owned by Louis Audette. )

By Mr. DeMayo:

Q. With respect to Mr. Audette’s property, what method

did you employ there? A. We employed the market data

approach. We had to go a little bit outside of the area to

get our market data because this property was rather unique

for the area. It is sort of an old farmhouse-type dwelling

on the property, and we had to go to Thompson Street to get

our comparison information.

Mr. DeMayo. The next parcel would be 72 Morgan Ave-

nue, the property of Michael Criscuolo. That would be Ex-

hibit 8.

DeMayo Exhibit 8 of 10/18/71: Appraisal Report of 72

Morgan Avenue owned by Michael Criscuolo.

29a

By Mr. DeMayo:

Q. How is your valuation determined there? (342a) A. By

the use of the market data approach. This property was

somewhat unique. It is split-level, single-family residence

on the shore, but we found what we believed sufficient sales to

estimate the market value through the use of this approach,

and in the analysis the pluses and minuses were the differences

likely between the property being appraised and the compari-

sion properties and how we analyzed the properties.

Mr, DeMayo. Finally, this is Exhibit 9, 6 Canna Drive,

the property of Mr. Alphonse Guidone.

(DeMayo Exhibit 9 of 10/18/71: Appraisal Report on 6

Canna Drive owned by Alphonse Guidone. )

By Mr. DeMayo:

Q. Was this also arrived at by the market data approach?

A. It was. There were quite a number of sales available for

comparison to his property. It is part of a residential sub-

division.

Q. With respect to all of these properties, you testi-

fied you applied the factor formula to each of these so

all of the same three elements were involvd, is that correct?

A. That is correct.

Q. With respect to the area in general, the Morgan Point

area in particular, would you describe this as a (343a) neigh-

borhood or an area which has been fully developed or com-

pletely developed, I should say? A. No, it has not been

completely developed if by developed you mean with respect

to improvements upon the land.

“ i |

Q. Yes, that is what I mean. Are there open stretches of

undeveloped land? A. Yes, there are.

Q. To what do you attribute this lack of development, shall

we say?

Mr. Frecuette. I would object. I don't think there is

any foundation.

The Court. Sustained without a further foundation.

By Mr. DeMayo:

Q. In the course of determining the data and evaluating

these properties and preparing these appraisal reports, did you

visit the Morgan Point, southend area of East Haven? A.

Yes, I did.

Q. Did you spend time yourself physically present in the

neighborhood and on these properties and on these streets?

A. Yes, I did.

Q. Had you had some previous knowledge of this (344a)

neighborhood? A. Yes, I had.

Q. How was that knowledge obtained previous to this? A.

I have been observing the neighborhood for a number of

years. As a matter of fact, during the Depression, my grand-

parents lived down at the southend. Since I have been mar-

ried and had children, I take my children to watch the planes

fly. I have been there more or less continually for a number

of years.

Q. In the course of your acting as an appraiser in the New

Haven area for some time, is it part of your continuing in-

3la

terest and pursuit of the real estate market to keep an eye on

areas such as this? A. Yes.

Q. As a result of all that background and your actual

physical presence, are you aware of what the area is actually

like? In effect, could you describe it to us? A. Yes, I could.

Q. For Mr. Frechette’s benefit, would you do that, please?

A. The area is heterogenous in character. Primarily, improve-

ments are single-family residential-type properties. These

properties vary considerably with respect to character. Along

the waterfront, there are some of the finer properties. There

are a few properties that are not so fine. In much of (345a)

the area, many of the homes, the single-family residential prop-

erties are, I would say, at the bottom of the real estate market

from a price standpoint. I think for the most part we are deal-

ing with properties that have a value of approximately $25,000

or so. I am speaking mostly now of the southerly approach

zone. This is where most of the subject properties are lo-

cated.

There are expanses of unimproved land. This is due to

several reasons. A lot of it is low land, sort of swampy, has

a tendency to be wet. 1 believe there is a tendency of some

people there to try and control their land.

Mr. Frecnetre. Your Honor, | would ask that be stricken.

There is really no basis for that comment.

The Court. I will let him answer it. You can cross-ex-

32a

By The Court:

Q. The land is swampy? Some of this is vacant land? A.

Yes, it is. It is covered with marsh grass.

By Mr. DeMayo:

Q. In your opinion, what other factors mitigate against full

utilization of all the availability realty?

Mr. Frecuette. I am going to object, your Honor.

The Court. Overruled.

( 346a )

A. The airport is undoubtedly a factor, the fact that peo-

ple don’t want to be located in an approach zone to an air-

port, generally speaking.

Mr. DeMayo. I have nothing further, Mr. Heberger, at

this time.

The Court. All right. We will take a recess to give Mr.

Frechette a chance to read some of these reports.

Mr. Frecuette. Thank you, your Honor.

(Whereupon, a recess was taken at 11:10 o'clock a.m.)

(The Hearing resumed at 11:30 o'clock a.m. )

Mr. Frecuetre. Your Honor, may | state this: I think it

will save your Honor some time: I am not seriously contest-

ing any of the market values this witness has given. I don't

want your Honor to think my appraisals are on the nose with

them, but they are close cnough as far as 1 am concerned,

and I state for the record I am in agreement with what he said

33a

with one exception, which is 110 Morgan Avenue in East

Haven.

The Court. When you say that you are not contesting

market values, do you mean the ultimate or original market

value?

Mr. Frecnette. The original market value.

(347a)

The Courr. What are you contesting is the ultimate mar-

ket values?

Mr. Frecuette. Yes, that is true.

The Court. Derived by applying his formula?

Mr. Frecnette Yes, that is true, with the exception of

110 Morgan Avenue, on which I might ask him a couple of

questions.

The Court. All right.

Cross-examination by Mr. F rechette:

Q. I notice, Mr. Witness, you use as sale number two 70

Seaview Avenue in Branford. That house, did it not, be-

longed to Charles Ely? A. Yes, it did.

Q. Have you been in that house? A. No.

Q. Seaview Avenue is in Hotchkiss Grove which is in Bran-

ford? A. Yes.

Q. Hotchkiss Grove itself is a rather lovely summer area

of Branford, is it not? A. I would say parts of it are.

a —

PETROS RE, Ea ee |

34a

Q. You don't think the whole of Hotchkiss Grove is? A.

As an entirety, not necessarily.

( 348a )

Q. Would you mind telling me, Mr. Witness, what part of

it you think is not? A. As I recall Hotchkiss Grove, there

are some parts out near the highway, 146, that are less desir-

able than other parts.

Q. By less desirable, what do you mean? A. Less expen-

sive, lesser value than the average.

Q. Is there anything in the entire Hotchkiss Grove that is

under $30,000? A. No, not to my knowledge.

Q. The Ely house has wall-to-wall carpeting throughout,

does it not?

Mr. DeMayo. 1 object. He has testified he was not in-

side the house.

The Court. He may answer that he doesn't know if he

doesn't.

A. I do not know.

By Mr. Frechette:

Q. Ely’s house, quite frankly, is a picture? It is lovely from

the outside?

Mr. DeMayo. I will object because Mr. Frechette through

this kind of questioning is testifying. I don’t think he should

be permitted to deliver this lecture.

—— P, ——— eee eee ee

35a

The Court. I will allow it. It is cross (349a) examination.

A. It is a nice home.

Q. There is nothing out of place as you look at it at all, is

there? A. I don’t know.

Q. Doesn't it have a stone wall in the front of Stony Creek

granite? A. I don’t know. I don’t recall.

Q. What color is it? A. I don’t recall that. I do not re-

call that.

Q. Can you tell us anything about the lawn and upkeep

of the property? A. Nothing. I viewed it briefly with Mr.

Nitz, and I cannot testify to that.

Q. Do you know how long it was on the market? A. No,

I don't.

Q. Referring to the sale number one which is on page 11 of

this report, the property that Dave Berdon purchased at 98

Morgan Avenue, comparing 98 Morgan Avenue with the sub-

ject property of 110 Morgan, is it a fair statement that 98

was considerably better kept? A. Possibly, yes.

Q. Isn’t it so that Dave Berdon also bought the furniture

that went with the house when he purchased it at the price

of 41-5? (350a) A. I am not aware that 41-5 included the furni-

ture.

Q. If it did, in fact, include the furniture, is it a fair state-

ment that would be anywhere from $3,000 to $5,000 on the

price?

Mr. DeMayo. I would object again unless Mr. Frechette

is prepared to state he is going to introduce this into evidence.

— LOL AOS By Ee

Mr. FRECHETTE. As a matter of fact, I am, but I think it

is a legitimate question in any event.

The Court. Overruled.

A. I would say probably $2,000 to $3,000, Mr. Frechette.

Q. Let me ask you this: Would you seriously object to

a value of 37-5 for the property at 110 Morgen Avenue with-

out the personalty thrown in? A. Yes.

Q. You would? You would object to it? A. I would ob-

ject. It is my opinion that the property is worth more than

that exclusive of the personalty.

Q. If we get to the 41-5, how much do you take off for

the personalty? A. I would say two to three?

Q. That would bring it down to either 39-5 or 38-5, isn’t

thatso? A. It would bring it down to 39 and 40.

(35la)

Q. Isn't it 41-5? A. 110 Morgan is at $42,000.

Q. That's right. You do tell me that 98 Morgan is at least

in better condiiton than 110 Morgan as far as you can see?

A. Yes. With regard to condition, they are fairly similar, I

would say.

Q. Which one is older, do you know that? A. I am not

certain at this time, no.

Q. Let me ask you, if I might, in this summary you are

using, you are testifying about a dimension of 25,000 feet from

the end of the runway which would be affected by this for-

37a

mula about which you spoke? A. That is correct. That is

considered to be the approach zone.

Q. It is considered to be the approach zone by whom? A.

Well, this is based upon factors that have been evolved through

the studies of other airports. It was built into the formula as

I described before by the two individuals that developed it,

and I believe this comes from F.A.A. criteria.

Q. What do you mean, the formula comes from the F.A.A.

criteria? A. No, the approach zone.

Q. Your answer to that is no, the 25,000 foot figure (352a)

is nothing that comes from the F.A.A. as far as this formula

goes, it is not an F.A.A. formula? A. No.

Mr. DEMayo. We don't make that claim, your Honor.

Q. Is it your statement that two people have come up with

this formula, one of the factors of which is 25,000 feet from

the end of the runway? A. Yes.

Q. What are their names? A. Thomas Hall and Professor

Beaton.

Q. Were you ever employed by them? A. No, I was not.

Q. Where did you get this information? A. From two

sources. I spoke to Mr. Hall on the telephone at length, and

he has written two articles, one in conjunction with Mr.

Beaton, that were in the Appraisal Journal. One was January

of 1965. That is essentially where the information came from.

Q. So to recap, this is the theory of two fellows, and you

read it in a real estate appraisal journal? A. Appraisal Jour-

nal.

See a

38a

Q. And you talked to them on the telephone? A. Yes.

Q. How long did you talk to them on the ‘phone? (353a)

A. Twenty minutes, half-an-hour perhaps.

Q. When was that? A. About three weeks ago, four weeks

ago.

Q. How long is that article that is in the Journal? A. Oh,

I would say about sixteen pages.

Q. Sixteen pages? A. Yes.

Q. What edition of the Journal is it? A. January of 1965.

Q. Let me ask you this, if 1 might: What airports formed

the basis for this formula? A. Well, the initial study was

based upon a military airfield somewhere in Georgia. I for-

get the name of the field, but in my telephone discussion —

Q. Let me stop you there if I may. Are you telling us,

then, as far as the article written in the Journal, that is based

only on a study at a military airfield? A. That is correct.

Q. Would you finish up what you were saying? A. Mr.

Hall told me in a telephone conversation —

Q. He told you this? A. Yes.

Mr. DEMayo. I object, your Honor. I would ask your

Honor not to permit him to testify.

The Court. I will allow it. You wanted to (354a) know

where he got it, and I will let him answer it.

Mr. DEMayo. I hate to press this, but I think he has an-

swered the where. What I would object to is his how.

The Court. I will let him answer,

LES ALGAE LEO ES LON EE YE BEET OSI

39a

A. (Continuing) He said that this has been reinforced

through other work he has done. He had another article, I

believe, in the April, 1971, issue of the Appraisal Journal where

he also went into this a little bit but not to as great an extent

as he had done in his 1965 article, but he came up with es-

sentially the same conclusions.

By Mr. Frechette:

Q. What airport did that cover? A. This was based upon

his experience since the initial study.

Q. I understand that. In what airport does he have the

experience? A. I cannot tell you any specific airports.

Q. In the 1965 article, that was at a field in Georgia? A.

I believe it was, yes.

Q. In that article that was published in 1965, I take it it

takes into consideration facts that pre-existed 1965? Wouldn't

that beso? A. Yes.

Q. Over what period of time at the military base did (355a)

these facts exist? I am not certain, but they covered the

transition from propeller driven to jet aircraft.

Q. You don’t know what year? A. I believe the initial

study took place about two years prior to the article, 1963

or '64, in that area.

Q. So it would be a 1963 or 1964 study of one airport; is

that right? A. I cannot say if the whole study is based upon

one airport. This article was written in conjunction with

that one airport, but according to my conversation with him,

he has been doing this type of study for a number of years

and may have done others prior to that.

oe ]

CMPIR AS LON ERR ic OYE OAL SANTEE TERME STAINS

40a

Q. But as far as you are concerned, the 1965 article covers

one airport, is that so? A. Yes.

Q. Let me ask you this: What type of planes were flying

into that one airport, do you know that? A. The article

stated, I believe, it was varying types of aircraft, probably jet

bombers and fighter aircraft, and so on.

Q. Do you know that? A. I do not know that to be a fact.

Q. Can you tell Judge McLean what kind of aircraft were,

in fact, involved in the study that was written in 1965? (356a)

A. Not for sure. I believe he stated it in the article.

. Can you tell us for a fact, not what you haliows? A.No.

y y'

Q. Can you tell us how many flights per minute were in-

volved in the 1965 study? A. No, I cannot.

Q. Have you testified in any other courts besides this one

in Connecticut? A. Yes.

Q. Where? A. I testified in the Court of Common Pleas.

Q. What County, at New Haven? A. New Haven and

Hartford both.

Q. How often? A. I have been in Court in Connecticut

probably twenty, twenty-five times.

Q. Over what period of time? A. Three years.

Q. Let me ask you this: As an expert in real estate apprais-

ing — and I am going to have to go a little bit afield, but not

too far — in Bethany, for example, there is a substantial tract

of property, probably forty acres, about one-half of which has

been developed for housing, and the other half of this tract

which is zoned commercial has (357a) not been developed for

4la

housing and, in fact, is going to be used for commercial, as an

expert in the real estate appraisal business, if you were to ap-

praise the houses that are in this tract, you would have to dis-

count the fact of the zoning of the entire tract, wouldn’t you?

A. Not necessarily.

Q. Let me ask you another question: Wouldn't you as a real

estate expert be interested in the zone in which the properties

are located? A. Yes.

Q. The reason for that would be if a house was in an area

which had commercial zoning, it could have next to it, for ex-

ample, a shopping center with the lights, noise, and exhaust

pollution, couldn’t it? A. It could.

Q. Of course, that would decrease the value of the house,

would it not? A. Not necessarily.

Q. You don’t think so? A. I do not.

Q. But you think airplanes do? A. Perhaps —

Q. Just answer that yes or no. But you think airplanes

do? A. Yes.

(358a )

Q. Is it your testimony that what something is zoned for

has no bearing at all on the market value of the house in that

zone? A. That is not my testimony.

Q. It would be important to you to know what the zoning

was, wouldn't it? A. Absolutely.

Q. And the reason is that something next to it that is not

desirable might depreciate it, mightn’t it? A. It might.

Seen are Y AD A AAT ALPE

42a

Q. Being a real estate expert, you would know that before

the first house was built, wouldn't you? A. Possibly.

Q. When you say, “Possibly,” don’t you mean, “Certainly”?

A. I mean I take every factor into consideration.

Q. That is a factor you take into consideration? A. De-

‘finitely.

Q. So your answer would be yes, wouldn’t it? A. Would

you restate the question?

Q. What I am asking is simply this: If a house is in a com-

mercial area, even before it is built, you know it is going to

be worth less just because of its location, don’t you? A. No.

(359a )

Q. You don’t? Therefore, it would appear to you that the

zoning would have no effect on it? A. No.

Q. That is not so? A. May I explain?

Q. No. Let me ask you this: Is it your testimony that this

formula that you are using applied only to jet airplanes? A.

No.

Q. The values you gave Judge McLean are based on Sep-

tember 15 of 1971, is that right? A. That's correct.

Q. They have nothing to do with the commencement of

jet operations at this airport, do they? You didn’t make their

appraisal then, did you? A. The appraisal date — as of the

appraisal date, there were no jet aircraft flying, except for one

appraisal. The appraisal of 52 South End Road was dated —

I forget the exact date, but it was a 1969 date.

UF Pa ite id LE HE A ER BR SA Seal SNR Raed Ly BR ADAMI LP IN aE RT ate dha ae

43a

Q. Maybe I am misunderstanding. Doesn’t your appraisal

report speak as of September 15, 1971? A. Not in the case

of 52 South End Road.

Q. What dates does your appraisal report speak of? A.

With respect to 52 South End Road, we dated the appraisal

report January 1 of 1965. All of the other (360a) appraisal

reports are dated September 15 of 1971.

Q. They speak as of that date? A. With respect to the

market value, yes, sir.

Q. And with respect, I take it, to the diminution of value?

A. Yes.

Q. Is there any question about that? A. No.

Q. What you are telling us is that your market value and

your diminution of value both speak as of September 15 of

1971, is that right? A. That is correct.

Q. That is despite the fact no jets are flying? A. That is

correct.

Q. In your judgment, if a house was worth “X” in 1915 be-

fore an airport was there, would there be a minus factor for

that house’s value in 1931, for example, when the airport was

there? A. That is a variable factor. It depends upon —

Q. I tried to phrase it so you could answer it yes or no.

It is, I think, a simple question.

Mr. DeMayo. If your Honor, please, I will object. It is

impossible for anyone to give an answer to that. He doesn't

know the distance from the airport.

se i ste ntbhabiy bak

shinobi i Sea Bh NGS At

44a

(36la)

The Court. Please read the question.

(Whereupon, the question referred to was read by the

Court Reporter. )

Mr. DeMayo. You see my objection, your Honor. In

1915, you could have Mr. Audette’s house, and he wouldn't

be aware of the fact there was an airport at the other end of

the runway.

The Court. I think the question would have to be related

to the facts found way back in ancient history.

By The Court:

Q. Before you go any further, where in your reports

does it say your appraisal is as of September 15, 1971? A. I

believe it is on the final page (looking through documents).

The Court. I see.

Mr. DeMayo. On the signature page, your Honor.

By The Court:

Q. 1 am looking at Exhibit 4, and it appears on page twenty-

four of that one? A. That's right.

Q. That is true of all of them except Exhibit 2, 52 South

End Road, where you say you are appraising it as of January

1, 1969, is that right? A. That is right, your Honor.

45a

(362a )

Q. You used the same formula in each one of these? A.

That is correct.

Q. What puzzles me is did you use this formula without re-

gard to what type of airplane was flying on these dates? A.

No, your Honor.

Q. Can you explain what you did with it? A. Yes. The

formula can be modified according to the circumstances as

they exist. At the time we inspected the properties, there

was just these prop jets that were flying. The jet —

Q. You are speaking now of September or October, 1971?

A. Yes, your Honor, and pure jet aircraft were not flying from

the airport at that time. We modified the formula as set

forth in the original article according to several things: Number

one, my conversation with Mr. Hall on the telephone, and we

analyzed all of the sales in the area that had occurred in the

las three or four years. We saw by the analysis of these sales

that the formula as set forth in the article would not work

beeause the damages would have been substantially greater

that we had estimated them to be. We modified the factors

based in part upon what our market study showed. Essen-

tially, our market study — I probably shouldn’t say, “Showed.”

It was inconclusive. There were an insufficient number of

sales to really come up with a definitive study, and sales and

resales (363a) varied with respect to the average annual in-

crement in value.

In one case, I can't remember the specific property right

now, but there had been little or no increment in value over

a five-year period. In another case, there was a $500 increase

over a three-year period. We found ten or twelve sales and

OT ALA IEEE ES AP Ere OS a am

ba tie ea er eee

46a

resales in recent times. In some cases, there was a normal

increment in value, approximately five to seven percent per

year, in some cases three percent per year. The sales were

of varying types of properties, so it was difficult to relate

one to the other.

We had the waterfront properties that had substantial

value. There were properties that were worth $20,000 to

$25,000, five-room ranch type structures, inexpensive, relatively

inexpensive type homes. We investigated everything that we

could, and we made an attempt to key the formula to the

market as it existed in the sections of East Haven that are af-

fected by the approach zones to the runways, and this we

have done based in part upon judgment and in part upon

what some of the market sample told us. The formula we

have tried — again, to use the term — to modify to reflect

the circumstances as they existed with respect to these proper-

ties on the approach zones of the New Haven airport. Again,

if we had not modified that formula, the damage estimate

would have been substantially greater.

The Covrt. Forgive me if I pursue this for (364a) a min-

ute, Mr. Frechette.

Mr. Frecuette. Yes, your Honor.

The Court. I am just trying to understand it.

} By The Court:

You read about a formula by a man named Hall who wrote

an article about 1965? A. It was one of a number of articles.

Q. You recently called up Mr. Hall and asked him about it?

A. I did.

OO OES ECR IE OS FE BES IS

Sree

47a

Q. Do I understand the formula expounded in his article

differs from the one you testified to? A. No. The formula

isthe same. The weight of the factors varied.

Q. How have you varied Mr. Hall’s formula? A. Mr. Hall,

if | can refer your Honor again to, I believe, it was page 15

of the 110 Morgan Avenue, that will show the same — page

17, your Honor, I am sorry. It is on item three of the three

items at the top of the page, that fifty percent factor there is

the same. For item two—

Q. 1 will have to get the same exhibit. A. I have 110

Morgan Avenue.

Mr. DeMayo. Exhibit 4, your Honor.

Q. Page 17? A. Page 17.

(365a )

Q. All right. A. At the top of the page under the first

factor that we considered, we have used a 20 perceni weight.

The initial article called for a 5 percent weight for that fac-

tor. Under the second item, we have used a 30 percent weight

factor. The Hall-Beaton article called for a 45 percest factor,

and the third item, the 50 percent factor, is the same.

Q. The distances Mr. Frechette asked you with respect to

the first item, where did you get the 25,000 feet, and you

said you got that from Mr. Hall? A. That is correct.

Q. 1 will ask you where did you get the 2,000 in the sec-

ond factor? A. That was also derived from the article

48a

Q. All right. Where did you get the figures in the third

factor? A. The 500 feet in the third factor was also derived

from the article as well as other readings.

Q. So what you varied from the Hall formula was the

weight to be attributed to each factor? A. Yes, your Honor,

and there was one other change. The divisor was three rath-

er than ten. We have used a final divisor of ten rather than

three. As you can see, were a three to be used, the damage

also would have been greater. (366a) Those are the only vari-

ations.

Q. You don’t know exactly what kind of airplanes were fly-

ing at the fields Hall was considering when you developed

this formula? A. There was a reference in the article he did

mention jet aircraft, your Honor.

Q. What we are trying to do here is ascertain the damage

which these various parcels have sustained through the op-

eration of jet aircraft and turbo-jet aircraft. Do you under-

stand that? A. Yes.

Q. This case was tried in October, 1970, just about a year

ago, and my opinion citing the merits of that case is based

on fact which had occurred up to the time of the trial as it so

stands. Do you understand that? A. I do, your Honor.

Q. Apparently, since the trial, for reasons with which I have

no concern, the jets have stopped fly ing, but that doesn’t affect,

as I see it, the damages that | am trying to ascertain. 1 want

to know the situation as it existed at the time of the trial just

as though you had testified at the trial in October, 1970.

Now, you confuse me when you say your figures are all as

of September, 1971, when there are no longer any jets. Can

49a

you explain that? (367a) A. Yes, 1 can, your Honor. As stated

previously, we had read and, hopefully, digested your decision,

and these appraisal reports are tailored to those factors. The

date in the certificate does not state in most cases September

15, 1971. However, the factors are reflective of the jets, and

this was part of the reason why we did a three or four-year

study of sales. We interviewed a number of people, and it is

my opinion that this estimate of damage is effective as of

October of 1970, despite the date of September 15, 1971. We

have attempted to take the jet aircraft into consideration in

our appraisal report.

Q. Of course, if you were really doing it as of September,

1971, as your report states, and if it is true, as I assume it is,

that there are no jet flying now and were not in September,

1971, then your figures it seems to me would inevitably be

much lower than the figures I am talking about because I was

concerned in this trial with a situation where the properties

were damaged by the use of jets. Do you understand that?

A. Yes. A number of people pointed out the damage to us,

your Honor.

Q. You are telling me now you are reflecting the jet opera-

tion in your figures, despite the date on your reports, is that

right? A. Yes. There was a problem, if I may explain,

(368a) because of the length of time the jets flew and the lack

of the number of sales during that time period. These dam-

age figures could be substantially greater if jet service is re-

instated, and depending upon the frequency of flights, and

so on. As near as we can compute from the market evi-

dence we did have plus our judgment, these figures are re-

flective of the circumstances at that time.

merren ea |

Q. Let me just press this once again because I want to get

this clear. You said these figures could be different if jet

service was reinstated. I can’t accept that. I am talking

about the time when jet service was in operation. Do you

understand that? A. I do, your Honor.

Q. So there wasn’t any question of reinstating it, was there?

A. That is correct.

Q. And your figures you tell me are as of that time, namely,

October, 1970? A. Right. Again, we read your Honor’s de-

cision, and that was the basis. We built upon the decision

to the best of our ability.

Q. Is this the first time you have testified as to this formula?

A. Yes, it is, your Honor.

Q. This is your first testimony in an airport case? (369a) A.

Yes, it is.

Q. One more thing and then I will keep quiet. The factor

to which you attribute the greatest weight is the height of

the planes? A. That is correct.

Q. And your formula assumes a glide angle of two to one,

doesn't it? A. Yes.

Q. Two percent? A. Two percent. A fifty to one glide

angle is two percent.

Q. A two percent glide angle? A. That is correct.

Q. The testimony in the case was uncontroverted and I also

found that, in fact, the glide angle was three percent. Are

you aware of that? A. Yes, I recall a three percent.

. PE OE eS 2) Re ee cucu

5la

Q. If it is three percent, the planes would be higher when

they pass over the houses than they would be if it is two

percent, would they not? A. They would.

Q. Don’t you think you ought to modify your formula a lit-

tle bit to take into account the actual facts? A. All right.

Everything that we read, your Honor, indicated that the

fifty to one glide angle was the accepted (370a) glide angle.

The three percent — I forget just how that was phrased, but

we did use the two percent, your Honor.

Q. Under the figures that you used, you assumed planes

passing over the properties at a lower point than they actually

do, isn’t that so? A. No, your Honor. It is the glide angle

path, as I understand it, which is the path below which no

plane can fly. Usually, they are higher. Usually, they are

higher. They are above the glide angle plane. This the path

below which no plane can fly nor can any obstructions be con-

structed.

The Court. I was given the benefit of exhaustive testimony

on this subject by people who know all about this, and they

certainly made clear to me that the angle which the planes

actually follow is three percent above the horizontal. There

isn’t any doubt about that, is there, Mr. DeMayo?

Mr. DEMayo. That was all the testimony about the VASI

system, your Honor, and every plane doesn’t come in on the

VASI.

Mr. Frecuetre. As I recall it, your Honor, we had this red,

white and pink thing so much before us that we were seeing

it in our sleep. I thought the magic figure was three. I

think (37la) the touchdown point was considerably different

ee eieaiianel WROD TIN SALA BP TPA dy ET PEL GE

52a

than this gentleman has testified to; the end of the runway

vis-a-vis where the plane actually touches down was further

away, I think.

The Court. Let me just find that. On page eight of my

opinion in this case, I found that the VASI device was set for

a glide slope at an angle of three percent above the hori-

zontal, which was the angle approved by the F.A.A., and we

went into a discussion of the red lights and white lights and

pink lights, all of which was testified to at great lengths, and

the airlines testified that their pilots followed this glide slope.

I found in the main they did, although they may have failed

to occasionally, but substantially they followed it, so I would

think that it is somewhat artificial to assume a lower glide

slope than the evidence indicated actually occurred.

Mr. DeMayo. If your Honor please, may I point out some-

thing? We have a photostat of the exhibit that was entered

by the City of New Haven, Defendant’s Exhibit A-7, Eastern

Airlines, showing the glide slopes for Tweed-New Haven Air-

port. The only one that is any different is the fifty to one

that is the threshold for the ultimate runway for the (372a)

next expansion which they claim is not going to happen. They

are also fifty to one. I think the three percent is not at

variance with the fifty to one.

Mr. FRECHETTE. Iam sure it is.

Mr. DeMayo. The three percent is a more gradual one

they use with the VASI if they are using it.

The Court. I can’t recreate the case, and I have already

made my findings. I am going to have to go by that. J am

satisfied there was ample evidence to support the finding that

53a

the glide slope was three percent. Now, how much difference

this makes in my opinion I don’t know. It happens that this

height factor is the most important of these three factors, the

one to which you attribute the greatest weight, and if the glide

slope were, in fact, three percent as I found it was instead of

two percent, I don’t know how much higher that makes the

plane or whether it makes any real difference.

By The Court:

Q. I don’t suppose you have computed that, have you? A.

I have not, your Honor.

The Court. Maybe you ought to try to before (373a) you

get through. It may not make any practical difference on

these properties.

Iam through, Mr. Frechette, excuse me.

By Mr. Frechette:

Q. I did want to talk about one other question. You have

taken this fifty to one, whatever it is, from the end of the

runway, have you not? A. I have.

Q. Not from the touch-down point? A. That is correct.

Q. You know there is a difference? A. Yes.

Q. You know they are geared to come down at the touch-

down point, not at the end of the runway? Do you know

that? A. Yes.

Q. So that would make them even higher under your for-

mula? A. Yes.

we Sh ts

a ee

54a

Q. Because the height is the important thing, it would

have a further variance on your figures, wouldn’t it? A. It

could, yes.

Q. It would, wouldn't it? A. Depending on the distance, it

would have a slight deviation.

(374a)

Q. It would affect it, wouldn’t it? A. Yes.

Q. So Judge McLean would have no question in his mind,

I thought you told me before that you have no knowledge of

what airplanes were involved in this Atlanta test, isn’t that

so? A. Nospecific knowledge, that is so.

Q. What I started to do with you before is this: If you take

the airport in 1915 with the subject houses the way they are;

in other words, there is no airport, just vacant land; you are

not going to have to depreciate that land at all because of air-

port purposes, are you? A. I would say probably not.

Q. It is not there, so you can’t, can you? A. Right.

Q. You wouldn’t depreciate it for something not there,

would you? A. No.

Q. But when you get te 1931 and there is an airport there,

is it your testimony you wouldn't depreciate these properties

in 1931 merely because of the airport? A. Considering the

type of aircraft in 1931?

Q. In 1931, would you depreciate it as an expert in this

field? A, I would say probably not.

55a

(375a)

Q. O.K. Then it would mean nothing to you as to what

these zoning laws of the properties that are adjacent and

close to the subject properties, isn’t that so? A. This is not

$0.

Q. How can you square your prior answer to me in which

it would make no difference for market value in 1931 when

an airport was there? A. It depends on the highest and best

use of the property, if it is consistent with the zoning. It has

to be consistent with the zoning.

Q. That has nothing to do with the neighboring property,

does it? The highest and best use has nothing to do with

value on the neighboring property?

Mr. DeMayo. If your Honor please, I will make the same

objection I made earlier, that the operation of an airport in

1915 or 1931 is considerably different than forty years later.

There is no possible way that that question can be accurately

answered or answered with any attempt at being professional.

The Court. I will let him answer it anyway he likes.

Do you want it read back?

The Witness. Please.

The Court. Please read the question.

(376a)

(Whereupon, the pending question was read by the Court

Reporter. )

A. It does.

Ve WO. AR ie wo ls MnO TELA yk) A Shope

56a

By Mr. Frechette:

Q. If the use isn’t good, it depreciates it, doesn’t it? A. It

may, yes.

Q. And a real estate expert in 1931 with these properties

would have to depreciate them as far back as that because of

the existence of the airport, according to you, wouldn't he?

A. Not necessarily, Mr. Frechette.

Q. Wouldn't he probably do it? A. He might.

Q. Wouldn't the prudent real estate appraiser foresee air-

planes coming into an airport? A. Yes.

Q. For that reason, according to you, wouldn’t he de-

preciate it, or don’t you think it has any effect on it at all?

A. It definitely has an effect, but you have to consider the

circumstances as of that time.

Q. Does it have an adverse effect? A. In 1931?

Q. Yes, sir. (377a) A. Considering the properties we are

talking about today, it may not have had an adverse effect in

1931. Idonot know. My guess is it would not.

Q. Taking it up to 1951, would it have an adverse effect

then? A. On the properties we are discussing?

Q. Yes. A. Probably not.

Q. Did you know in 1951 that the runways were paved, that

the 2200 runway was 4,771 feet, and there were commercial

flights coming in? A. Yes.

Q. You say that had no effect on — A. (Interposing) I am

talking about the stuff down along the water.

ae UND idl Lb NANO ROUND Mamma werkt VN) Ne ww

57a

Q. I am talking about these eight properties we are dis-

cussing. Is it your testimony that they were not affected by

the aircraft use in 1951? A. Some of them may very well

have been.

Q. May very well have been? They were, weren't they?

A. Yes, some were.

Q. How much? A. I cannot say.

Q. What percent? A. I cannot say.

(378a )

Q. Five percent? A. I do not know.

Q. Taking this to 1960, would they be affected at that time?

A. Yes, somewhat.

Q. All of them would, wouldn’t they, according to your

theory? A. I would have to do an investigation, Mr. Fre-

chette.

Q. In other words, is it your testimony you don’t know? A.

In 1960, I do not know.

Q. You are unprepared as an expert in this field to venture

an opinion as of 1960, is that so? A. That is not so. Some

properties would be affected.

Q. Which ones? A. Those closest to the airport, closest to

the end of the runway directly under the flight path of the

airport.

Q. Which ones? Tell us which ones were affected in 1960?

A. I would say 52 South End Road may have been affected,

735 Silver Sands Road, 6 Canna Drive.

58a

Q. That's all? A. Yes; 25 Holmes Street possibly.

Q. In 1960, they were affected, is that right? A. I would

say they were.

(379a)

Q. Did you know we had scheduled commercial flights com-

ing in at thattime? A. I don't recall.

Q. That would be important to your determination as to

whether or not they would be affected? A. Definitely. I am

assuming they were.

Q. If they were coming in at that time, it would affect the

value of them? A. Yes.

Q. How about in 1965 when you get up to perhaps ten

flights a day from one and four from another, would that have

an adverse effect on the subject properties we are here about

today? A. Yes.

Q. Quite frankly, any real estate man would forsee this

coming because of the zoning analogy from 1931 on, wouldn't

he? A. Yes.

Mr. Frecuette. Thank you. May I have just a moment

to look over my notes, if it please the Court?

The Court. Yes.

( Pause. )

By Mr. Frechette:

Q. Are you familiar with Walters’ study of the effect (380a)

of jets on airports? A. Yes, I am.

en as shaentien Se - a

59a

Q. Do you agree with this? A. With respect to the study

he prepared for Chicago, I would say he is probably correct.

Q. Denver? A. I am not acquainted with his Denver study.

Q. Dallas? A. I am not acquainted with that.

Q. At least the one you are acquainted with is Chicago?

A. [have read three of his articles.

Q. He said that they did not depreciate, is that correct? |

A. Yes.

Mr. Frecuette. Your Honor, I have one other question I

can’t think of at the moment.

The Court. Very well. We will adjourn now for lunch.

You can think of the question over the lunch hour, and you

can ask it when we get back.

If it is feasible, it would be helpful to me if Mr. Heberger

could study these computations and see how much effect

there would be, if any, if we assume a three percent glide

angle instead of a two percent, and if we assume that planes

touch (38la) down 200 feet from the end of the runway — is

that the figure — rather than at the exact end of the runway,

I would like to know that. It may be those variances from

the actual facts of this case don’t make much of any difference

in the theoretical results but if you could figure it out, fine.

The Witness. I can.

Mr. FRECHETTE. May I ask one more question?

The Court. All right.

ISR LE LAE IRE RS ELE RIOTS een ee |

60a

By Mr. Frechette:

Q. Is it a fair statement that this area — and by, “This

area,” I mean south of runway 2200, the Morgan Point area —

as a general thing shows as much real estate activity as other

areas? A. By other areas, you mean the City or Town of

East Haven?

Q. Anywhere from West Haven through Branford. A. |

would say activity is reduced in that area as compared to

the general New Haven area, compared to the Town of East

Haven as a whole and the general New Haven area.

Mr. Frecuetre. Thank you.

The Court. We will adjourn until 1:30. That will give

us a little extra time.

(Whereupon, a recess for lunch was taken at 12:20 o'clock

p-m. )

(382a )

AFTERNOON SESSION

1:30 O’cLocK P.M.

Epwarp F. HEesercer, resumed the witness stand, testifying

further on his oath as follows:

Cross-examination continued by Mr. Frechette:

Q. Mr. Heberger, isn’t it a fact in the Macon study they

took into consideration 60,000 flights per year? A. Yes.

6la

By The Court:

Q. What is the Macon study? A. That was the study, your

Honor, that was the basis of the original article with the mili-

tary air base.

Mr. FrecHETTE. Thank you. You may inquire.

Redirect examination by Mr. DeMayo:

Q. During the recess, Mr. Heberger, in accordance with

his Honor’s suggestion, did you recompute the damage fig-

ures you came up with earlier, assuming in every case the

three percent as opposed to the previous two percent com-

putation? A. Yes, I did.

Q. With one exception, I believe you did this? (383a) A.

Yes.

Q. What was the exception? A. The exception was the

Amendola property at 2 Meadow Place where, according to

the graphs and charts that were introduced into testimony at

the previous hearing, there was a twenty to one glide angle.

Q. There was a different runway? A. Yes.

Q. To your knowledge, it does not have any VASI indicator

or any other landing guides? A. That is correct.

Q. For the ones you did recompute to make a Schedule A,

I guess, would you tell his Honor what differences resulted

first with the computation for Erle Jones, 52 South End Road?

A. All right. With respect to 52 South End Road, I com-

puted a damage of $2,250.

Q. So there is a difference of $50, is that correct? A. Yes.

62a

Q. Meadow Place, we did not recompute, is that right? A.

There is no change.

Q. Exhibit 4, Leslie Monroe, 110 Morgan Avenue, was there

a difference there? A. Yes. The damage was $2,843. |

suggest rounding it to $2,850.

(384a)

Q. The 114 Morgan Avenue, Mr. Monroe's other parcel?

A. I came up with a damage of $2,062, which could be round-

ed to $2,050 or $2,100.

Q. And the 25 Holmes Street property, Michael Fusco?

A. $2,503, which I recommend rounding to $2,500.

Q. And the Audette property, 735 Silver Sands Road? A.

$2,184, which could be rounded to $2,200.

Q. And 72 Morgan Avenue, Michael Criscuolo? A. $3,217,

which would round to $3,200.

Q. Finally, 6 Canna Drive, Mr. Guidone? A. $2,250.

Q. I note as you gave these revised figures, Mr. Heberger,

that the differences are in most cases small differences. What

does this indicate to you about the formula? A. Well, the

formula is weighted to reflect various factors. I think it indi-

cates that the formula is relatively realistic with respect to the

particular properties in question.

Q. Which would further indicate to you it would take

substantial distances to change the figures drastically? A. Yes.

Q. Just to clear up one thing that was touched upon by Mr.

Frechette in his cross-examination and in answer to his Honor's

a, Xm GI ARR Na RES OL OEE AEE BAS EEE EMR NOR IS EA ERT AE a

;

questions about the situation that you attempted (385a) to

evaluate with respect to the time of your appraisal, I believe

you testified you read his Honor’s judgment in this case, or

decision? A. Yes, I did

Q. The 64-page document? A. Yes.

Q. You took this set of facts as described in this document

into account when you performed these appraisals? A. They

were taken into account, yes.

Q. And you also examined the neighborhood situations that

were described in that document? A. Yes.

Q. Is it your best belief that you attempted to duplicate

the situation that existed as of the time of which this judgment

speaks? A. Yes.

Q. Now, Mr. F rechette asked you about your conversa-

tion with Mr. Hall. Did Mr. Hall indicate to you the extent

to which he has put this formula to use?

Mr. FRECHETTE. May I object to that, your Honor?

The Court. I will let him answer. I realize this is sec-

ond hand.

A. He did not specifically mention the number of times.

He said he has used it several times since.

( 386a )

Q. In what parts of the country, did he indicate? A. No,

he did not.

Q. At any rate, in your use of the formula prior to imple-

menting it, did you do other independent reading in conjunc-

Be foe x

Pi a a ATP IR ORD DRO EF AE, BTN SIT PRE ayo

ee en ee hE ou 7 pra E PV ig BOL, TSF DAIL PEI ES ER CE gn 5S AF OPE POE are a

AMEE ORG AEP LADO REL ON LOLI. NN LIEN LRA SPRL SN AEE oe PP ROLE TANT,

64a

tion with your reading of the Hall-Beaton articles? A. Yes,

I am not sure how many articles, probably thirty articles. |

wrote to the Library of the National Association of Real Es-

tate Boards and asked them to send me copies of any articles

pertinent to the problem and any books they had on hand,

which they did.

Q. Some place in your appraisal, I believe, you have de-

fined the avigation easement you attempted to be guided by,

is that correct? A. Yes.

Q. Is that definition in all of the appraisals? A. Yes, it is.

Q. Mr. Frechette questioned you with respect to residen-

tial property located near commercial property and sought to

elicit a yes or no statement with respect to the effect on the

residential property of the commercially zoned property.

What would be some of the considerations that would have to

be taken into account before you could make a definitive de-

termination as to what the effect on residential was of a com-

mercial zone nearby? A. Demand, growth factors, highest

and best use the (387a) zone itself would have permitted.

Q. What about the possibilities that the commercial prop-

erty nearby offers such as services that are not generally

available to those residential properties, would that be a fac-

tor that should be considered? A. Yes.

Mr. DeMayo. I have nothing further.

Recross examination by Mr. Frechette:

Q. I did have one other question. Did you refigure the

formula based on the point of touch down rather than the end

of the runway? A. Yes. I made a 200-foot definition.

Oo tes SP RECARO AGATE MORN MARE EEE REAR 8 LEE IR ON TEE,

Hoe

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65a

Q. Was that in the figures you gave? A. Yes.

Mr. FrecueETtTe. I have nothing further.

Mr. DeMayo. I might just comment with respect to that

that there was no evidence that I recall at the trial to indicate

what the actual touch down point was nor that the touch down

point was always the same. As a matter of fact, we had evi-

dence quite to the contrary, as your Honor will recall.

Mr. FrECHETTE. It makes no difference anyway.

(3882 )

Mr. DeMayo. Did you take it into account?

The Witness. Yes.

Mr. DeMayo. I have nothing further.

Mr. FrecueTte. Nothing further.

(Witness excused. )

The Court. The Plaintiffs rest?

Mr. DeMayo. I have one short witness to put on, your

Honor. Lhope it is short. Mr. Nitz.

The Court. All right.

(4232 )

Mr. FrECHETTE. The Defendants rest.

The Court. Both sides rest?

or So eee ee - — F

OE NER AIEEE LES EPI INE ELE TOES NEI

Patera he. QANTAS CORR a

Mr. DEMayo. Yes. The only thought I had was whether

you would be interested in reading the appraisal journal that

outlines this formula situation?

The Court. I think it will stick to the evidence at this

hearing.

Mr. DEMayo. I would like to comment very briefly. 1 am

not sure I can call this argument, but since the Defendants

have rested, I would like to ask your Honor to take into ac-

count in particular your Honor’s own observations with respect

to these properties, and I think at page 28 of your Honor’s de-

cision, it sums up the situation about as succinctly as I could

if I reproduce the testimony here.

Your Honor took into account on page 28 the testimony of

these people, which I believe your Honor observed, was at all

times assumed to be truthful and very candid. Despite any

claims by the City of New Haven and the airlines their planes

flew in these neat, regular little patterns, we had a multitude

of contradiction to those claims, and your Honor I think felt

this because on page 28 (424a) you say that this is a theo-

retical standard not invariably adhered to, and I think this

was a general trend of the testimony.

I think your Honor took this into account in filing — and

properly so, I claim — there was a taking.

The Court. That was with respect to the Audette prop-

erty?

Mr. DeMayo. Yes. This is true of other people. Other

people testified what they estimated the distances to be. I think

the only thing we are here for today is to determine not

whether there was a taking, but the value of that taking.

67a

Now, I submit to your Honor that to indulge in the niceties

of this appraisal world and assume they can prove these things

to the last nickel, basically I think it is obvious the appraiser's

methods are inexact at best.

Since I have tried this case last fall, I have been in Court

with respect to redevelopment property in the Town of East

Haven, and I am aghast and amazed at the fantastic differ-

ences appraisers can come up with on the same piece of prop-

erty, utilizing different methods.

Mr. Parente and I spent several days in Court (425a) this

past week and had a 100 percent discrepancy between two

apparently unbiased, unprejudiced appraisers. We had

$88,000 from one appraiser and $173.000 from another. You

couldn’t believe it was the same piece of property when it was

described. For this reason, the attempts to reconsider these

entirely on the basis of market data are not entirely infallible.

I submit to your Honor that what we have attempted to do

with the formula is something that may be novel, it may be

different, but if you take the basic concepts of the formula and

ask yourself what it basically attempts to do, I think it is the

closest thing to a standard measuring, the closest thing to a

standardized set of conditions we have come up with in the

appraisal field, and this is merely a part, but 1 think it is much

more reliable than looking at a list of sales and purchases and

not having before us the other factors which determine why

people buy houses, why they sell houses, why certain prop-

erties move, why certain properties don’t move. I am con-

vinced after listening to these appraisers testify that no one

can properly evaluate all of these sales and give any substan-

tial credence to the varying (426a) factors that go into them,

UNG eS OG TAT I AB AARC Seth CU MEE S88 AOL ALLL HE EPA a

68a

and I claim that this formula represents the closest thing to

a valid measuring stick that applies equally to all properties

under all conditions.

The one thing I point out to your Honor is I am aware of

the fact that my two appraisers weighted two of these factors

differently in assigning the weight, but the total they put to

them was not different. The 50 percent for height was the

same as the original, and the two other factors which Mr. He-

berger explained to your Honor that he assigned different

weights to was because he felt they were more significant in

this situation than the other, but the sum total is the same, and

the three elements are the same.

I think Mr. Heberger was very candid in pointing out to

your honor he had taken an approach on a hard, cold line

without taking into account the peculiarities of this situation,

what the market data indicated might be trends and he would

not be using sound judgment and sound principles, so he at-

tempted to apply less weight to certain of those factors.

I feel we have given the Court a logical, a (427a) plausible,

and a fairly accurate gauge of what we claimed all along

these people have been damaged by, no matter what Mr. Pa-

rente says, and I respect him as a gentleman and an appraiser.

I heard these people. The fact is we heard them testify

in the Courtroom, and we know what they look like, and you

heard them testify, and I think they impressed you with the

fact they had something to talk about and were deprived of

something. Mr. Heberger makes the point that the sum total

of the prices which these people started with has been reduced

by one. I think we have given your Honor something to be

guided by.

rae iss

69a

The Court. May I ask one question: In Exhibit 2, which

is the appraisal report on 52 South End Road, Mr. Jones’ gas

station, he winds up by saying that as of January 1, 1969, the

subject property had a market value of $25,000 which was re-

duced by the taking to $22,700, or a difference of $2,300.

Those figures were changed very slightly after lunch today,

and the damages claimed were reduced to $2,250 instead of

$2,300, but the value prior to the taking is still $25,000.

The fact is as I found and as shown by the evidence at the

trial was that on January 2, 1969, (428a) this property was

sold by Mr. Jones for $25,000, so how has he been damaged?

Mr. DeMayo. Well, I think the problem there was — may-

be I should address this to Mr. Heberger, but it is too late

for that — he had disposed of the property while this was in

Court, and the continuing situation which your Honor heard

described to you in 1970 had terminated as to him, his inability

to put up with it a year before, so there has to be a projection

backward to countenance Mr. Jones’ selling. It was also in-

dicated by Mr. Jones that included in that $25,000 sales price

was something for equipment.

The Court. No. The sales price was 27-5 to which he

ascribed $2,500 to the personal property, leaving $25,000 to

the real estate. He said that at least twice.

Mr. DeMayo. I honestly don’t remember that.

The Court. It appears on page 238 of the record which I

will show you.

Mr. DeEMayo. Iam sure your Honor is correct.

The Courr. Of course, the testimony goes on and on and

on, and he was asked about it again on cross-examination,

ee na

70a

but to the best of my knowledge and belief, he never waiver.

ed from the fact he got (429a) $27,500, and $2,500 was for

— I think at one point he said he got $27,000 and $2,000 of it

was for personal property, but he never waivered from the fact

that what he got for the real estate was $25,000. If I missed

some answer, whether he changed that, please let me know,

but I don’t think he did.

I said in my opinion on page 55 that if Jones can prove

because of the flights he received less for the property which

he sold than he would otherwise have received, an easement

may be granted binding on the purchaser and Jones may be

compensated for it. I said that in reliance on one case which

much to my surprise so held.

Now, leaving out the question as to whether you have

proved that the purchaser paid less than he otherwise would

have paid, which is what you have to prove under that case,

leaving that to one side, the evidence is he sold it for exactly

the figure which your expert says was its fair market value

before the taking.

Mr. DeMayo. I would have to concede, your Honor, that

would indicate he did not suffer that $2,300 worth of dam-

ages in view of the fact it had been sold, and —

(430a )

The Court. It indicates in my mind he didn’t suffer any

damage. If you can find some place where he changed the

figures in his testimony, please let me know and I will read

it again, but certainly on page 238 he said that flatly, that

$25,000 was the building and real estate, and I am sure he re-

ye eee dae —

SRA REE PTS NEA ERIE ARRAN TR OREN) SO ON

7la

peated that later on, so as far as I can see at the moment,

Mr. Jones is out.

Now, as to the others, the evidence here this time certainly

has more to support the experts’ opinion than it had last

time, and I am interested to see that the figures as to damages

are considerably lower than your previous expert testified to.

Granted that no expert is infallible and no formula is perfect,

still I feel as I said in my opinion, that these people have suf-

fered some damage. I will give Mr. Frechette a chance to

tell me why I shouldn’t accept substantially the figures which

this present witness or expert has testified to.

Mr. FrecHette. I think for this reason, if it please your

Honor, and this is subject to my recollection of the evidence,

I think both of the Plaintiffs’ witnesses said the same phras-

ing, the results were inconclusive in analyzing comparable

(43la) sales. I think basically that is what Mr. Parente said

the first time, and I think basically that is the fact; there is

no conclusion to be drawn from the evidence in this case

as to what happens to market values near the airport. I

wouldn't want to live near the airport, your Honor, but per-

haps your Honor wouldn't want to live on the corner of

Edgewood Avenue and hear the buses go by, but it hasn't

hurt the market value of my house.

Your Honor took an arrow from my quiver. I cite Jones as

authority for the proposition that the formula does not work,

and this is quite frankly the reason I stayed away from that

on my examination. They said before the taking the value

was $25,000, that is what he got. The formula didn’t work

for Jones. The formula doesn’t work.

iit. |

has Dap mt BOARS OLED 9th aT EE FARR ELIE DG AE

72a

Why doesn’t it work? That formula that has been put

forth before your Honor takes into consideration nothing that

is in this small regional airport. Your Honor will recall the

evidence about 20 flights per day. There aren't. I think at

the most there are 14, but taking 20 times 365 comes out to

about 7,000. This formula is based on a military operation of

60,000 flights per year. (432a) There is no similarity.

The Courr. Well, I found there was a taking with respect

to certain Plaintiffs. You don’t have to agree with that, but

so far that is what I found.

Mr. FRECHETTE. I understand that.

The Court. I found it on the basis of the number of flights

we have in this case.

Mr. Frecuetre. For these purposes, I agree with your

Honor. Your Honor has found the taking and should mea-

sure damages, and this is a hearing in damages.

What I am suggesting is that the formula used by the Plain-

tiffs witnesses does not apply to this airport. There is nothing

similar about it. It takes into consideration ten times the

amount of activity there is here for the measure of damages,

and in the one place we can measure the formula’s effective-

ness, is sales, and I would point out to your Honor the formu-

la that has been used here has never been used to your

Honor’s information in any courtroom; it has never been

used by these two witnesses in a courtroom. Your Honor

is hearing something published in a journal. Quite frankly, I

had something published in a law journal, and I (433a) hope

won't be used in a courtroom. All a journal article is is that

somebody has an idea and they run it in a journal. It is not

BLEED THROUGH POOR COPY

73a

proof of anything. The proof of this thing, which they all

agree to, is cost, comparables and income. Everybody, Pa-

rente and the other two, throw out income; it didn’t apply.

The cost, we have no problem. We agree for the purposes of

argument how much it cost to build a house, and we agree on

market value with one exception. The thing we get into is

where is the value of taking? They can’t substantiate the

formula with sales, and they admit they can’t. In fact, I ob-

jected to the offer of proof, and your Honor sustained me.

The Court. You can’t disprove it with sales either.

Mr. FrecHETTE. Yes, you can. I respectfully cite Jones.

That is proof to the contrary. What does Mr. Parente say —

and I cannot disprove it except for Jones. Jones in my opinion

disproves it.

I think Mr. Parente’s candid comment disproves it, which

is the two houses that were sold there went from $58,000 to

$70,000. That in my judgment disproves it.

The other thing I am relying on is Mr. Parente’s

Orie ere sé: . :

FE IERIE I IEG IOI LE TORT ADEE RE TELNET RR een i,

. res RS SE OS REN ea

a IONE, PTE TEAL ATI NTE I NE PR a TIM RTO ae 0 EY . —

74a

(460a )

(624a)

VOL. 7 — DEFENDANT’S APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

THE Town oF East HAVEN, ET ALS)

Plaintiffs

vs. . Civil Action No. 12175

EASTERN AIRLINES, INC., ET ALS

Defendants 4

MOTION TO DISMISS

Pursuant to the Federal Rules of Civil Procedure, the de-

fendant The City of New Haven hereby moves this court to

dismiss the complaint of Michael Fusco, Leslie Munro, Earl W.

Jones, Michael Criscuolo, Alphonse Guidone, Jr., Leon Amen-

dola and Louis G. Audette for the following reasons:

1. As to the plaintiffs Michael Criscuolo and Alphonse

Guidone, Jr., the principle of res adjudicata applies and they

are barred from recovery.

2. As to the plaintiffs Michael Fusco, Earl W. Jones, Al-

phonse Guidone, Jr., Louis G. Audette and Leslie Munro, their

claimed damages are insufficient to invoke the jurisdiction of

this court.

3. As to the plaintiffs Michael Criscuolo and Leon Amen-

dola, there is no federal question involved and the jurisdiction

should be in the State court.

, , MR ANTES EEOS

ESSER a RS BE EES RAR ESS PINES

BLEED THROUGH POOR COPY

75a

Dated at New Haven, Connecticut, this 21st day of Sep-

tember, 1971.

Defendant City of New Haven

By /s/ Rocer J. FRECHETTE

Rocer J. FRECHETTE

Its Attorney

Service certified pursuant to Rule 12a of F.R.C.P.

/s/ Rocer J. FRECHETTE

RoceR J. FRECHETTE

(625a )

NOTICE OF MOTION TO DISMISS

Please take notice that the defendant, The City of New

Haven, will bring its motion to dismiss before the United

States District Court for the District of Connecticut for a

hearing on the 24th day of September, 1971, at 2:00 p.m. at

New York, New York, or as soon thereafter as counsel may be

heard.

Dated at New Haven, Connecticut, this 21st day of Sep-

tember, 1971.

Defendant City of New Haven

By /s/ Rocer J. FRECHETTE

Rocer J. FRECHETTE

Its Attorney

76a

This is to certify that a copy of the within has been mailed

this 21st day of September, 1971 to:

AnTuHony V. DEMayo, 129 Church St.,

New Haven, Conn., and

TyLer, Cooper, GRANT, BOWERMAN & KEEFE

205 Church Street, New Haven, Connecticut

/s/ Rocer J. FRECHETTE

Rocer J. FRECHETTE

(626a )

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

1. The defendant The City of New Haven is once again

raising the defense of res adjudicata as to the two plaintiffs

Michael Criscuolo and Alphonse Guidone, Jr., as both of them

were plaintiffs in the original suit in the Superior Court in

the State of Connecticut in which they, through their lawyer,

admitted they could prove no damages and consequently the

Superior Court awarded them no damages, all of which was

filed as a special defense and the complaint and judgment of

the state court case were offered and accepted as exhibits in

this case.

2. As to the plaintiffs Michael Fusco, Earl W. Jones, Al-

phonse Guidone, Jr., Michael Criscuolo and Leslie Munro,

both in their answer to interrogatories and their appraiser's

testimony their damages do not attain the required jurisdic-

tional minimum of this court and as a result thereof their

cases should be dismissed.

City of Boulder v. Snyder, 396 F.2d 853 (10th Cir., 1968),

cert. den. 393 U.S. 1051;

Jaconski v. Avisum Corporation, 359 F.2d 931 (3rd Cir.,

1966 );

F & S Construction Company v. Jensen, 337 F.2d 160

(10th Cir., 1964).

(627a)

3. As to the plaintiffs Amendola and Criscuolo their reme-

dy, if any, lies in the state court inasmuch as they are Con-

necticut residents and this defendant is a municipal corpora-

tion in the State of Connecticut and they have not made any

allegations of violation of federal statutes or the federal Con-

stitution which would place jurisdiction in this court as op-

posed to the state court. This defect also applies to all

plaintiffs.

Defendant City of New Haven

By /s/ Rocer J. FRECHETTE

RocerR J. FRECHETTE

Its Attorney

Service Certified pursuant to Rule 12a of F.R.C.P.

/s/ Rocer J. FRECHETTE

RoGcER J. FRECHETTE

SION T TAT IE LLIN OT TELS RI RR FIENNES li

78a

(628a )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

THE Town oF East HAVEN, ET AL

Plainti

Pa won - t Civil Action No. 12175

EASTERN AIR LINES, INC., ET AL January 9 » 1968

Defendants |

AMENDED MOTION OF THE CITY OF NEW HAVEN TO DISMISS

AND FOR OTHER RELIEF

The City of New Haven (“defendant”) respectfully moves

the court as follows:

1. To dismiss the action because the complaint fails to state

a claim against defendant upon which relief can be granted.

2. To dismiss the action on the ground that the court lacks

jurisdiction in that the action does not arise under the Con-

stitution and laws of the United States, there is no diversity of

citizenship, exclusive jurisdiction of plaintiffs’ action if any

is vested in the Civil Aeronautics Board and the Federal Avia-

tion Administration of the Department of Transportation, de-

fendant is immune from plaintiffs’ action if any, and the court

lacks the power to grant the relief requested.

(629a)

3. To dismiss the action on the ground that the plaintiffs

have failed to join the United States of America, the Civil

Aeronautics Board and all owners, users and operators of air-

craft at the airport, which are indispensable parties.

BLEED THROUGH POOR COPY

RD Tt : ¥ PM TRF OCIA RR a ee

79a

4. To dismiss the action of plaintiff Town of East Haven

on the ground that it is not the real party in interest as re-

quired by Rule 17 (a) of the Rules of Civil Procedure.

5. To dismiss the action of plaintiff Town of East Haven

on the ground that it does not have the capacity to sue in a

representative capacity.

6. To dismiss the action of plaintiffs New Haven-Com-

mittee Against Airport Expansion and East Haven-Committee

Against Airport Expansion on the ground that they are not the

real parties in interest as required by Rule 17 (a) of the Rules

of Civil Procedure.

7. To dismiss the action of the plaintiffs New Haven-Com-

mittee Against Airport Expansion and East Haven-Committee

Against Airport Expansion on the ground that they do not have

the capacity to sue in a representative capacity.

8. To dismiss the action of plaintiff Michael Rascati on the

ground that he is not the real party in interest as required by

Rule 17 (a) of the Rules of Civil Procedure and does not have

the capacity to sue in a representative capacity.

9. To strike plaintiffs’ prayer for money damages on ‘he

ground that the complaint fails to state specifically items of

special damage as required by Rule 9 (g) of the Rules of

Civil Procedure.

(630a )

10. To dismiss the complaint insofar as it purports to be a

class action on the grounds that the plaintiffs do not constitute

a class, the persons plaintiffs purport to represent are not so

numerous as to make it impracticable to bring them all before

ESSE DLO IIE ELIE LL TEESE LIN LES FE REET I Se RN et AOD Parr, |

PN ES Lod ARN NR NEY PRL 8 one ORDERS Eo TINE NTE i |

the court, and the character of the right alleged to be enforced

is not comprehended within Rule 23 (a) of the Rules of Civil

Procedure.

11. To dismiss the complaint on the ground that there js

improper venue and failure of service of process.

The Defendant City of New Haven

By Tuomas F, Keyes, Jr.

Its Attorney

(63la)

MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANT CITY OF

NEW HAVEN, CONN. TO DISMISS AND FOR OTHER RELIEF

I. Jurisdiction

Plaintiffs have recognized in their Memorandum in Support

of Plaintiffs’ Motion to Add Defendant’ that in adding the

City of New Haven as a defendant diversity jurisdiction under

28 USC Sec. 1332 is wholly defeated, which of course it is.

Plaintiffs allege no jurisdiction of the City of New Haven

under 28 USC Sec. 1343. Therefore, the sole possible ground

for this court's jurisdiction owed the City of New Haven is

under 28 USC Sec. 1331: tag

“(a)The district courts shall have original jurisdiction

of all civil actions wherein the matter in controversy ex-

ceeds the sum or value of $10,000, exclusive of interest

and costs, and arises under the Constitution, laws, or

treaties of the United States.”

1 Neither the Memorandum nor Motion was served on The

City of New Haven. The Court’s action granting the motion

was without the benefit of a response by the City.

8la

(632a )

Plaintiffs seek no injunctive relief against the City as, in-

deed, plaintiffs cannot, since there is nothing the City could

do to stop the present or future “turbo-jet and jet operations of

the defendants to and from the Tweed-New Haven Airport.”

Plaintiffs’ claim against the City are solely the claims of al-

leged trespass, nuisance, and “taking”. Trespass and nuisance

involve no federal question.

The question, then, is whether each of the plaintiffs have

sufficiently alleged a cause of action as to the City of New

Haven which (a) exceeds $10,000 and (b) arises under the

Constitution, laws, or treaties of the United States.

Looking beyond the conclusory allegations of paragraphs 18,

19, 20, 25, 29, and 33, we find no statement constituting a

claim which arises under the Constitution, laws, or treaties of

the United States.

There is no reference to any federal law or treaty under

which the plaintiffs have a claim against the City of New

Haven. The reference to the Fifth Amendment to the Consti-

tution of the United States must be considered an inadvertent

mistake since the Fifth Amendment applies to the federal

government and not to the City of New Haven.

The question is thus reduced to whether each of the plain-

tiffs have sufficiently alleged a “taking” of each of their “prop-

erty” by the City of New Haven in violation of the Fourteenth

Amendment.

* The City of New Haven is obligated by federal law and its

grant agreements with the FAA to keep the airport open for

all users.

sete , rane a

(633a )

The New Haven-Committee Against Airport Expansion and

the East Haven-Committee Against Airport Expansion must

clearly be dismissed as plaintiffs against the City of New

Haven because neither of these plaintiffs have any “Property”

which even allegedly could be “taken” by the City of New

Haven.*

82a

The remaining plaintiffs at least allegedly have “property”,

with the exception of Plaintiff Michael Rascati who has already

stated in a deposition before this court that he does not own

any property which allegedly was “taken”. As to these re-

maining plaintiffs, the court must decide whether the com-

plaint sufficiently alleges a “taking” under the Fourteenth

Amendment.

Even if plaintiffs have sufficiently alleged a “taking”, which

as shown below they have not, the law is clear that since plain-

tiffs would have adequate redress under state law there is no

violation of the Fourteenth Amendment of the Federal Con-

stitution. The Fourteenth Amendment was intended to pro-

tect a citizen against state action which is in accordance with

state law and therefore no redress on the state’s courts would

be available. Plaintiffs believe and have stated that the City

of New Haven has “deprived the plaintiffs of their rights and

* To the extent that the Committee claim to represent persons

having “property” which could be “taken”, the property-hold-

ing persons are the real parties in interest who must bring

the action. Rule 17 (a), Federal Rules of Civil Procedure.

This same rule forbids the action by the named plaintiffs

who claim to bring their action on behalf of “those similarly

situated.” Para. 4 of Amended Complaint.

83a

privileges guaranteed by the laws and Constitution of the

State of Connecticut... .” (Paragraph 33 of Amended Com-

plaint ). If so, plaintiffs can and must go to the courts of

Connecticut for redress. They have no federal claim under

the Fourteenth Amendment.

(634a )

In Barney v. New York, 193 U.S. 430 (1904), plaintiff

claimed that the routing of a rapid transit railroad in front of

his house was a “taking” under the Fourteenth Amendment as

well as illegal under state law. The Supreme Court held that the

Fourteenth Amendment applie

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