# Petition for Writ of Certiorari — City of New Haven v. Town of East Haven > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0121%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 411 U.S. 965 ## Text inal § 4 3 EILE Copy FEB 16 AMIERAEL-RE DEK, a In the Supreme Court of the United States JANUARY TERM, 1973 ‘. YQ1137 Tue Ciry Or New Haven, Petitioners, v. 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 I. 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 11 11 13 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 15 17 18 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 iv 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. © iat EC beh Ro Ned UR TOE eee ee %4 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, v. 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). i 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 Dehn Mea Cy ade eae eiecea eOe eo ean meses J 4 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 t ¢ : ¢ . 5 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 2 EES oo - . ; ie... Ts FS At EPS Ee I RED PES C . e 4 Sey ON Soe X be Sn aan ee Pers aor meres a 6 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 7 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 PoP. grates al Ne ee | wet LEE RM SBI 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 -— e 5. *, a8 + 9 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 PA LIVERS PT, ~" _ SSRIS NB CRATE RYT ITE et AO Da EMA AE 6 NID a 10 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. 11 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. A. 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.” Ae ae 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, 13 “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. B. 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, Se cS ras PA Peete te mp scxgtey SARS PERSO REY ITAL, 7 EGER ee RGAE PO VAG RSRE A rr 14 “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 | 15 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... , | 16 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 . 17 (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 sf N ‘ fi) “ 18 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- 19 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 20 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 aR - 21 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 22 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. 12 ‘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, v. 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 ~~ i 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 : — a, 3a 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 re ' : 5a 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. 6a 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 7a 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 | 8a 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. wy —eSo7_—~—~™ SE EIS RK BN a oA RATT OIE CLEAN RAIL AD PEED SHAE TEN UO Re SIE NO UN om | 9 hme 9a 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, ‘ 4 i wail : ge rsaaee = = ~2egy ese $52 tet tater. tA? oo Saeed st ; Pe nan es Pe era ec a a eat tL Sa ae oT RR —_ lla 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 ei # * i 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 Sle oo ; 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 wa , 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. "Tr _ an cobliabbvies saben Masia vali I ME IS EE EL SRI 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. 2 “ 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 c e 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 ] z 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 ee NS 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 | So 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 ei 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0121%3A1. Public record. Not legal advice.