Petition for Writ of Certiorari — City of Los Angeles v. Aaron

Supreme Court brief1975

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Questions Presented

Constitutional Provisions and Statutes Involved ....

Statement of Case

Prior Raising of Federal Questions

Reasons for Granting the Writ

A. |

Introduction

The Preemption Doctrine Acts so as to Pre-

clude Liability of the Airport Operator ....

1. Congressional Intent Is That of Pre-

emption

2. This Area Complies With the Tests of

Rice v. Santa Fe Elevator Corp. ........

To Impose Liability on the Airport

Operators Results in an Undue Burden on

Interstate Commerce .......................

The Supremacy Clause Prevents Effective

Local Control of Aircraft Noise ................

Griggs Must Be Reviewed in Light of De-

velopments Subsequent to 1962 ..................

Conclusion ..........................

ii.

INDEX TO APPENDICES

Page

Appendix “A.” Denial of Petition for Hearing by

California Supreme Court .................. App. p. 1

Appendix “B.” Opinion of the California Court

of Appeal 2

Appendix “C.” Opinion of the Superior Court of

the State of California -. 33

Appendix “D.” Federal Aviation Act of 1958. 49

U.S.C., 1301 et seq. Provisions Involved .......... 95

Appendix “E.” Airport“and Airway Development

Act of 1970. 49 U.S. Code 1701 et seq. Provi-

sions Involved 101

Appendix “F.” Noise Control Act of 1972. PL

92-574. Provisions Involved 102

TABLE OF AUTHORITIES CITED

Cases Page

Aerovias Interamericanas de Panama, S.A. et al.

v. Board of County Commissioners of Dade

County, Florida (1961) 7 Avi. 17,567, 197 F.

Supp. 230 (D.C. Fila.) 23

Air Transport Association of America, et al. v.

J. R. Crotti, Director of Aeronautics, of the State

of California, et al., No. C-72-2189WTS ....26, 27

All American Airways, Inc. v. Village of Cedar-

hurst, 106 F.Supp. 521 (E.D.N.Y. 1952), aff'd,

201 F.2d 273 (2d Cir. 1953) ... 20

American Airlines, Inc. v. City of Audubon Park,

272 F.Supp. 207 (W.D. Ky. 1968) aff'd, 407

F.2d 1306 (6th Cir. 1969) ..14, 20

American Airlines, Inc. v. Town of Hempstead, 272

F.Supp. 207 (E.D.N.Y. 1967), aff'd 398 F.2d

369 (2d Cir. 1968), cert. denied, 393 U.S. 1017

(1969) 14, 20

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520

CORFE: | cetisenensnintcescosadissicsitany 20

Burbank v. Lockheed Air Terminal, Inc. (1973)

411 U.S. 624, 36 L. Ed. 2d 547 ....9, 16, 19, 26

Castle v. Hayes Freight Lines, Inc., 347 U.S. 61

(1954) ; ee 22

Chicago & Southern Air Lines, sii v. Waterman

'§.S. Corp., 333 U.S. 103 (1948) 15

City of Chicago v. Atchison, Topeka & Santa Fe

OR 557 AE TT CRD pcrscseseesestemencessensine 15

Edwards v. California, 314 U.S. 160 (1941) .... 20

Hines v. Davidowitz, 312 U.S. 52 (1941) ............ 16

Griggs v. dread County (1962) 369 U.S. 84 ..

<i cesssicecnceliisleccel Sicacneasiocancnantte 3, 6, 24, 25, 26, 27

iv.

Page

Northwest Airlines, Inc. v. Minnesota, 332 U.S.

292 (1944) ...9, 21

Pennsylvania v. Nelson, 350 U.S. 497 (1956) ..13, 16

Railroad Company v. Husen, 95 U.S. 465 (1877)

=e 20

Rice v. Santa Fe Elevator Corp., 331 U.S. 281

CRN, seclaedadai Sick cetelemssncmphaicsiascniondeusbstqabe ma

Southern Pacific Company v. Arizona, 325 USS.

761 (1945) 19, 20

Sperry v. Florida ex Rel. Florida Bar, 373 U.S.

379 (1963) 22

Federal Register

35 Federal Register 6168, April 16, 1970 ........ 12

Miscellaneous

Senate Report No. 1353, 90th Congress, Second

Session. July 1, 1968 . 12

2 United States Congressional and Administrative

News (1968) pp. 2693-94 20... 12

Statutes

Noise Control Act of 1972, Sec. 611(b)(1) ........ 18

Public Law No. 91-258 ......... 12

Public Law No. 92-574 ae.

United States Code, Title'£8, Sec. 1257(3) ........ 2

United States Code Annotated, Title 49, Sec. 180

a ae

United States Code Annotated, Title 49, Sec. 1301

eens Sckinikaedecdyinaash 25

United States Code Annotated, Title 49, Sec.

1701 .. me. Ee

Page

United States Code, Title 49, Sec. 1301 ........ 3, 10

United States Code, Title 49, Sec. 15304 ........ 10, 25

United States Code, Title 49, Sec. 1348(a) ........ 10

United States Code, Title 49, Sec. 1348(c) ........ 10

United States Code, Title 49, Sec. 1371(g) .......... 23

United States Code, Title 49, Sec. 1431 -............ 11

United States Code, Title 49, Sec. 1701 ............ 25

United States Constitution, Art. I, Sec. 8 ............ 3

United States Constitution, Art. I, Sec. 8, Cl. 3

ster 3, 19

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IN THE

Supreme Court of the United States

October Term, 1974

FG, skinned

City oF Los ANGELES, a municipal corporation,

Petitioner,

vS.

IrvING D. A ARON, et al.,

Respondents.

Petition for a Writ of Certiorari to the Court of Appeal

of the State of California, Second Appellate Dis-

trict.

The Petitioner, City of Los Angeles, a municipal

corporation, prays that a Writ of Certiorari issue to

revicw the opinion and judgment of the Court of Ap-

peal (Second Appellate District) of the State of Cali-

fornia rendered in this proceeding on September 4,

1974.

Opinions Below.

The California Supreme Court denied a petition for

hearing on August 28, 1974. This denial is reported in

12 Cal.3d, Official Advance Sheets No. 26, dated Sep-

tember 19, 1974, page (2) of Supreme Court Minutes,

and appears at Appendix A. The opinion of the Court

of Appeal is reported in 40 Cal. App.3d 471 and for

the convenience of the Court appears at Appendix B.

The opinion of the Superior Court is not reported in

any official California reports but is reported in 11

Avi. 17,642 and for the convenience of the Court ap-

pears at Apendix C.

Jurisdiction.

The decision of the Court of Appeal, Second A»

pellate District, of the State of California, affirming the

trial court judgment, was entered on September 4,

1974. (See Appendix B.) A petition for hearing to the

California Supreme Court was denied. (See Appendix

A.) This Petition for Certiorari was filed less than 90

days from the date aforesaid. The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(3).

Q» ous Presented.

The judgment in the cu: | bar directs recovery

against the City of Los Angeles in favor of property

owners in the vicinity of Los Angeles International

Airport due to noise emanating from jet aircraft operat-

ing at the Airport. The City of Los Angeles owns the

Airport but not the aircraft operating at its facility.

Domestic air carriers operating at Los Angeles Interna-

tional Airport engage in interstate and international

commerce under the authority of Air Carrier Operating

Certificates issued by the Federal Aviation Adminis-

tration (the “FAA”). Foreign carriers are certificated

into Los Angeles under the provisions of international

treaties. Pacific Southwest Airlines holds a Commer-

cial Operating Certificate issued by the FAA. The

questions thereby arising are:

1. Whether or not the responsibility for the con-

sequences of jet noise must be borne solely by

the airport proprietor;

—

2. Whether the preemption doctrine of the United

States Constituticn acts so as to preclude liabil-

ity of the Airport proprietor in this action;

3. Whether the imposition of liability on the air-

port operator results in an undue burden on

interstate commerce in violation of Article I,

Section 8 of the United States Constitution;

4. Whether or not the doctrine announced in

Griggs v. Allegheny County (1962) 369 USS.

84 must be reviewed in light of develonments

subsequent to 1962.

Constitutional Provisions and Statutes Involved.

Constitution ofthe United States, Article I, Section

8, Clause 3:

“The Congress shall have power

To regulate Commerce with foreign Nations,

and among the several States, and with the Ii-

dian Tribes;”

Constitution of the United States, Article VI, Para-

graph 2:

“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the authority of the United States, shall

be the supreme Law of the Land; and the Judges

in every state shall be bound thereby, any Thing

in the Constitution or Laws of any State to the

contrary notwithstanding.”

Federal Aviation Administration Act of 1958, 49

U.S.C. §1301 et seq. (See Appendix D.)

Airport and Airways Development Act of 1970, 49

U.S.C.A. §1701 et seq. (See Appendix E.)

Noise Control Act of 1972 (PL 92-574). (See Ap-

pendix F.)

ae Se

Statement of Case.

The case at bar was instituted in 1964 sounding in

inverse condemnation. The Complaint alleged that due

to the flight of jet aircraft to and from Los Angeles

International Airport, properties in the vicinity of said

Airport had diminished in value resulting in the taking

of an easement in said properties. There was no claim

for physical damage to said properties. Approximately

750 parcels of real property are involved in the action

and damages were awarded to 520 property owners for a

total award of approximately $650,000. The final trial

court judgment was entered on March 15, 1972. This

followed an interlocutory judgment of August 10, 1970

wherein the trial court found a taking of an interest in

520 of the properties and awarded damages accord-

ingly.

The properties are located in the cities of Inglewood,

El Segundo and Los Angeles and in Lennox, which is

an unincorporated area of Los Angeles County. Ap-

proximately 500 of the total properties which sustained

diminution are outside the boundaries of the City of

Los Angeles.

The City of Los Angeles owns Los Angeles Interna-

tional Airport. The City, however, does not own or

operate the jet aircraft which utilize its facilities, nor

does the City of Los Angeles control the flight of jet

aircraft certified by the United States of America to

operate at the Airport.

Los Angeles International Airport is the second bus-

iest publicly owned, commercial airport in the word

from the standpoint of traffic. It serves approximately

22 million passengers a year and accommodates every

domestic major trunk air carrier in the United States,

oiliice

as well as numerous foreign flag carriers. The airport

serves all of Southern California and has a major im-

pact on interstate commerce and the economy of the

entire region. Each scheduled interstate carrier holds

an Air Carrier Operating Certificate issued by the

FAA, Pacific Southwest Airlines holds a Commercial

Operating Certificate issued by the FAA, and the

foreign carriers are certificated into Los Angeles under

the provisions of international treaties.

The FAA operates the control tower and the radar

and approach and departure control at the airport.

The Federal Government has spent millions of dollars

on navigational aids at the airport, which aids include

the Instrument Landing Systm (“ILS”), the Approach

Light System (“ALS”), Rum'way and Identification

Lights, and radar and radio equipment.

No aircraft may taxi or take off from the airport with-

out first receiving an appropriate clearance from the

air traffic control tower. When a commercial jet air-

craft is ready for departure from its terminal gate, it

makes radio contact with the tower, is assigned a run-

way for takeoff, and is given a clearance to taxi thereto.

Prior to taking its position on the runway the aircraft

is given departure clearance, which includes assign-

ment of departure procedures and assignment of the

radio beam intersection to which the aircraft is directed

to fly prior to making its turn.

On receiving its clearance to take off, each aircraft

is required to conform with all FAA takeoff proce-

dures, and upon reaching an altityde and position clear

of other traffic, control of the aircraft is passed from

Los Angeles Departure Control to the FAA Air Route

Control Center located at Palmdale, Cai‘‘ornia.

—-6

At all airports with control towers operated by the

United States, ‘such as Los Angeles International Air-

port, all operations to, from, or on the airport are regu-

lated by the FAA in an effort to maintain traffic sepa-

ration ard avoid collision. Landings and departures,

which are permitted only after clearance is obtained

from FAA personnel, are made pursuant to procedures

and regulations of the FAA, which prescribe in detail

such items as the route of the aircraft approaching or

leaving the airport, its angle of flight, altitude at any

given point, speed, and the runway the aircraft may use.

Standard Instrument Approach Procedures for Airports,

such as Los Angeles International, are published as

regulations by the FAA and are available to each pilot

in the form of charts.

Standard Instructions of Departure Procedure estab-

lished by the FAA are published by the Coast and Geo-

detic Survey, aad when incorporated in a departure

clearance issued by the tower must be complied with by

the pilot. The FAA tower at Los Angeles International

Airport has established noise abatement procedures

which are designed to reduce the community exposure

to noise, and which are required to be complied with

by the pilots.

However, the City of Los Angeles, due primarily to

the decision of this Court in Griggs v. Allegheny

County (1962) 369 U.S. 84 has been held solely liable

for the consequences of noise emanating from jet air-

craft. Indeed, the City of Los Angeles has actions

pending against it claiming hundreds of millions of

dollars in property damage and personal injury claims.

itis

Prior Raising of Federal Questions.

The City of Los Angeles has raised the applicabil-

ity of federal questions at each stage of the litigation:

Trial Court, Court of Appeal, and Supreme Court of

California. The questions were raised as follows:

A. Los Angeles County Superior Court (Trial

Court)

1. Answer to First Amended Complaint filed

June 15, 1964, Fourth Affirmative De-

fense;

2. Joint Pretrial Statement dated November

19, 1968, issue 6 under “Issues and Sub-

issues” and Contention 1 under “Defend-

ant’s Contentions.” Said Joint Pretrial

Statement was incorporated and made a

past of the First Pretrial Conference Order,

filed on December 2, 1968.

3. Defendant’s Opening Trial Brief, Topic IV,

filed on July 15, 1969.

The trial court disposed of these matters as fol-

lows: ;

a. Memorandum Opinion filed February

5, 1970 (See Appendix C.)

b. Conclusion of Law III filed August

7, 1970 which states:

“The flights of jet aircraft over and

above, around and near parcels of

real property set forth in Schedules A

and B, and otherwise listed in the

plaintiffs’ first amended complaint,

and the resulting noise, vibrations. or

emissions of unburned fuel oil or

(For Disposition, see Appendix A.)

ilies

smoke do not fall within an area pre-

empted by the Government of the

United States of America or the Gov-

ernment of the State of California un-

der any provisions of law existing at

the time of the flights complained of

by plaintiffs.”

B. California Court of Appeal, 2d Appellate Dis-

trict

Appellant’s Opening Brief served and filed

in January, 1973. (For war gee aes see

Appendix B.)

C. California Supreme Court

Petition for Hearing filed August 9, 1974.

cepa

REASONS FOR GRANTING THE WRIT.

A. Introduction. .

This Court, speaking through Justice Douglas, stated

in City of Burbank v. Lockheed Air Terminal, Inc.

(1973) 411 U.S. 624, 36 L. Ed. 2d 547, 556:

“What the ultimate remedy for aircraft noise which

plagues many communities and tens of thousands

of people is not known.”

However, the California Court of Appeal has decided

that the remedy is to assess damages against the propri-

etor of the airport, thereby assessing damages against

the one entity which has the least authority in the area

to reduce noise. The airport operator cannot control

the flight of jet aircraft. Such authority rests with the

United States. To effectively control noise, an entity

must control flight, aircraft certification and commerce

of the United States. A municipality which owns an air-

port is not such an entity, only the United States,

through the FAA has such authority and control.

Mr. Justice Jackson, concurring in Northwest Airlines,

Inc. v. Minnesota (1944) 322 U.S. 292 stated at page

303:

“, . . Planes do not wander about in the sky like

vagrant clouds. They move only by federal per-

mission, subject to federal inspection, in the

hands of federally certified personnel and under

an intricate system of federal commands. The

moment a ship taxis onto a runway it is caught

up in an elaborate and detailed system of con-

trols. It takes off only by instruction from the con-

trol tower, it travels on prescribed beams, it may

be diverted from its intended landing, and it obeys

signals and ordcis.”

——

B. The Preemption Doctrine Acts so 7s to Preclude

Liability of the Airport Operator. .

1. Congressional Intent Is That of Preemption.

The basic question here is whether Federal regula-

tion has so occupied the field that the consequences of

jet noise have been preempted by the United States.

Since preemption is essentially a question of Congres-

sional intent, we turn first to the Federal statutory

scheme.

The statutory scheme involved here begins with the

FAA Act of 1958, 49 U.S.C. §1301, et seq. (the

“Act”). The Act initially declares that “there is recog-

nized and declared to exist in behalf of any citizen of

the United States a public right of freedom of transit

through the navigable airspace of the United States.”

49 U.S.C. §1304. The Act then continues to authorize

and direct the Federal Aviation Administrator (the “Ad-

ministrator” ):

“. . . (T)o develop plans for and formulate

policy with respect to the use of the navigable air-

space, and assign by rule, regulations, or order

the use of the navigable airspace under such

terms, conditions, and regulations as he may deem

necessary in order to insure the safety of aircraft

and the efficient utilization of such airspace.” 49 : f

U.S.C. §1348(a).

As one aspect of his authority to centralize and con-

trol airspace, the Administrator regulates the subject

matter of noise abatement. The 1958 Act directs the

Administrator to prescribe air traffic regulations:

“, . . for the protection of persons and property

on the ground. .. .” 49 U.S.C. §1348(c).

pa oe

Pursuant to this authority, the Administrator has

promulgated extensive regulations to carry out his re-

sponsibilities in the field of noise abatement. In addi-

tion, the authority of the Administrator to deal with

the problem of noise was increased by the Congress in

1968, when it amended the Act requiring the Ad-

ministrator to prescribe:

“, . . such rules and regulations as he may find

necessary to provide for the control and abate-

ment of aircraft noise. . . .” 49 U.S.C. §1431.

While recognizing that airport operators might

lessen the effect of aircraft ncise by zoning land areas

near airports to assure use compatible with aircraft

operations, the Senate Report on the 1968 Legislation

reflected the conclusion that the Federal Government

had preempted any power of the state and local govern-

ments to deal with aircraft noise by controlling the flight

of aircraft:

“In this regard, we concur in the following view

set forth by the Secretary [of Transportation] in

his letter to the committee of June 22, 1968:

“The courts have held that the Federal Gov-

ernment presently preempts the field of noise

regulations insofar as it involves controlling the

flight of aircraft. Local noise control legislation

limiting the permissible noise level of all over-

flying aircraft has recently been struck down

because it conflicted with Federal regulation of

air traffic. American Airlines v. Town of Hemp-

stead, 272 F.Supp. 226 (U.S.D.C.E.D., N.Y.

1967). The court said, at 231, ‘The legislation

operates in an area committed_to Federal care,

and noise limiting rules operating as do those

vise tie

of the ordinance must come from a Federal

source.’ H.R. 3400 would merely expand the

Federal Government’s role in a field already pre-

empted. It would not change this preemption.

State and local governments will remain unable

to use their police powers to control aircraft

noise by regulating the flight of aircraft.” (Sen-

ate Report No. 1353, 90th Congress, Second

Session, July 1, 1968, 2 U.S. Code Cong. § Ad.

News 2693-94 [1968].)

Under the terms of the 1968 regulation, the Adminis-

trator has promulgated aircraft type certification regula-

tions in accordance with his responsibilities in the field

of noise control and abaten‘eiit and has issued a Notice

of Proposed Rule Making to adopt a new Federal Avia-

tion Regulation in regard to sonic boom by civil air-

craft. 35 Fed. Register 6168, April 16, 1970.

In the Airport and Airway Development Act of

1970, Pub. L. No. 91-258, 49 U.S.C.A. §1701, et seq.,

Congress exercised further authority in the field of

aviation. In enacting this legislation, Congress ex-

pressly found and declared “that the Nation’s airport

and airway system is inadequate to meet the current

and projected growth in aviation” and “that substartial

expansion and improvement of the airport and airway

system is required to meet the demands of interstate

commerce, the postal service, and the national de-

fense.”

There can be no question but that Congress intended

to place exclusive control of the airspace with the Fed-

eral Government. This intent expands into the control

of noise from jet aircraft. This expression cannot be

ila ans

construed to place intolerable financial burdens on air-

port operators that are vital factors in carrying out

Congressional intent. :

2. This Area Complies With the Tests of Rice v. Santa

Fe Elevator Corp.

In Rice v. Santa Fe Elevator Corp., 331 U.S. 281,

230 (1947), this Court announced the three classic

tests for determining whether the Federal Government

has preempted an area: (i) whether the scheme of

Federal regulation is so pervasive as to make reason-

able the inference that Congress left no room for the

“touch a field” in which the Federal interest is so domi-

nant that the Federal system will be assumed to pre-

states to supplement it; (2) whether Federal regulations

clude enforcement of state laws on the same subject;

or (3) whether the state policy may produce a result

inconsistent with the objective of the Federal statute.

These three tests have been employed by the Supreme

Court in subsequent preemption cases such as Pennsyl-

vania v. Nelson, 350 U.S. 497 (1956). The above-

described pattern of comprehensive and complex Federal

regulation fulfills all three Rice tests.

The Federal scheme of regulation of air transporta-

tion is so pervasive as to compel the inference that Con-

gress left no room for the states to supplement it. In-

deed, the Federal District Court for the Eastern District

of New York, in invalidating the noise abatement ordi-

nance euacted by the Town of Hempstead directed at

the New York International Airport, reached this very

conclusion:

“, . . It would be difficult to visualize a more

comprehensive scheme of combined regulation, sub-

as ee

sidization and operational participation than that

which the Congress has provided in the field of

aviation. ...

“The federal regulation of air navigation and air

traffic is so complete that it leaves no room for

‘such local legislation as the Hempsted Ordinance.

...” (American Airlines, Inc. v.. Town of Hemp-

‘stead; 272 F.Supp. 226, 232-33 [E.D.N.Y. 1967],

aff'd without reaching preemption issue, 398 F.2d

369 [2d Cir. 1968], cert. denied, 393 U.S. 1017

[1969].) !

Federal preemption of airspace management was also

a basis of decision in American Airlines, Inc. v. City

of Audubon Park, Kentucky, 297 F Supp. 207 (W.D.

Ky. 1968), aff'd 407 F.2d 1306 (6th Cir. 1969), where

the Court invalidated an ordinance, making it unlawful

to fly any aircraft over the corporate limits of the City

of Audubon Park at a height of less than 750 feet. The

Court concluded that “the statutes enacted by the Con-

gress clearly expressed an intent fully to preempt the

field of law and regulation of interstate and foreign

air traffic.” 297 F.Supp. at 212.

In short, the Congress of the United States has en-

acted a comprehensive and pervasive scheme of air-

‘space management and control of aircraft. The Fed-

eral Aviation Act itself, the legislative history of the

Act, and the FAA regulations promulgated pursuant to

the Act, all indicate that Congress intended to confer

“plenary” authority upon the Administrator to deal

with air traffic airspace management, flight and noise

an YRS

' It seems equally apparent there that preemption has

occurred within the meaning of the second Rice tesi,

i.e., the act of Congress “touches a field” in which the

Federal interest is so dominant that the Federal system

will be assumed to preclude enforcement of state laws

on the same subject. National rather than state or local

control of interstate surface transportation has long

been the policy of Congress (See City of Chicago v.

Atchison, Topeka & Santa Fe Railway, 357 U.S. 77,

87 [1958]), and the Federal interest is even more

dominant in air transportation, as the Supreme Court

has emphasized in the Waterman S.S. Corp. case:

“Of course, air transportation, water transpor-

tation, rail transportation, and motor transporta-

tion all have a kinship in that all are forms of

transportation and their common features of pub-

lic carriage for hire may be amenable to kin-

dred regulations. But these resemblances must not

blind us to the fact that legally, as well as literal-

ly, air commerce, whether at home or abroad,

soared into a different realm than any that had

gone before. . . . A way of travel which quickly

escapes the bounds of local regulative competence

called for a more penetrating uniform and exclu-

sive regulation by the nation than had been thought

appropriate for the more easily controlled com-

merce of the past.” (Chicago & Southern Air

Lines, Inc. v. Waterman §.S. Corp., 333 U.S. 103,

107 [1948].)

Finally, application of the third Rice test—whether

the state or local regulation would produce a result in-

consistent with the objective of the Federal law—makes

it equally clear that a local ordinance must fall before

iia ain

the extensive Federal legislation on the subject of air

commerce. Cf., Pennsylvania v. Nelson, 350 U.S. 497,

508-10 (1956); Hines v. Davidowitz, 312 U.S. 52, 67

(1941).,The Federal Aviation Act was aimed at secur-

ing the “efficient” as well as the safe use of airspace,

and this objective was to be achieved by vesting “plen-

ary” control in the Administrator.

In the opening paragraph of City of Burbank v.

Lockheed Air Terminal, Inc. (1973) 411 U.S. 624,

36 L. Ed. 2d 547, this Court stated at 36 L. Ed. 2d

549:

“The Court in Cooley v. Board of Wardens, 12

How. 299, 13 L.Ed. 996, first stated the rule of

preemption which is the critical issue in the present

case. Speaking through Justice Curtis, it said:

‘Now the power to regulate commerce, em-

braces a vast field, containing not only many,

but exceedingly various subjects, quite unlike in

their nature; some imperatively demanding a

single uniform rule, operating equally on the

commerce of the United States in every port;

and some, like the subject now in question, as

imperatively demanding that diversity, which

alone can meet the local necessities of naviga-

tion.

‘. . . Whatever subjects of this power are in

their nature national, or admit only of one uni-

form system, or plan of regulation, may justly

be said to be of such nature as to require ex-

clusive legislation by Congress.’ Id. at 319,

13 L. Ed. 996.”

The Court in Burbank, supra, continued with the fol-

lowing statements in its opinion:

aes ain

“The Federal Aviation Act of 1958, 72 Stat

737, 49 USC §§1301 et seq. [49 USCS §§1301

et seq.], as amended by the Noise Control Act of

1972, 86 Stat 1234, and the regulations under it,

14 CFR Pts. 71-77, 91-97, are central to the

question of preemption. (Page 550.)

“As stated by Judge Dooling in American Air-

lines v. Hempstead, 272 F. Supp. 226, 230, aff'd.

398 F2d 369:

‘The aircraft and its noise are indivisible;

the noise of the aircraft extends outward from it

with the same inseparability as its wings and

tail assembly; to exclude the aircraft noise from

the Town is to exclude the aircraft; to set a

ground level decible limit for the aircraft is di-

rectly to exclude it from the lower air that it

cannot use without exceeding the decible limit.’

(Page 554).

“The original complaint was filed on May 14,

1970; the District Court entered its judgment No-

vember 30, 1970; and the Court of Appeals an-

nounced its judgment and opinion March 22,

1972—all before the Noise Control Act of 1972

was approved by the President on October 22,

1972. That Act reaffirms and reinforces the con-

clusion that FAA, now in conjunction with EPA,

has full control over aircraft noise, preempting

state and local control. (Page 553).

“Our prior cases on preemption are not precise

guidelines in the present controversy, for each case

turns on the peculiarities and special features of

the federal regulatory scheme in question. Cf.

Hines v. Davidowitz, 312 US 52, 85 L Ed 581,

_——

61 S Ct 399; Huron Portland Cement Co. v. De-

troit, 362 US 440, 4 L Ed 2d 852, 80 S Ct 813,

78 ALR2d 1294. Control of noise is of course

deep-seated in the police power of the States. Yet

the pervasive control vested in EPA and in FAA

under the 1972 Act seems to us to leave no room

for local curfews or other local controls. What the

ultimate remedy for aircraft noise which plagues

many communities and tens of thousands of people

is not known. The procedures under the 1972

Act are underway. In addition the Administrator

has imposed a variety of regulations relating to

takeoff and landing procedures and runway prefer-

ences. The Federal Aviation Act requires a deli-

cate balance between safety and efficiency. 49

USC §1348(a) [49 USCS §1348(a)], and the

protection of persons on the ground. 49 USC

§1348 (c) [49 USCS §1348 (c)]. Any regu-

lation adopted by the Administrator to control

noise pollution must be consistent with the ‘high-

est degree of safety.” 49 USC §1431 (d) (3) [49

USCS §1431(d)(3)]. The interdependence of

these factors requires a uniform and exclusive sys-

tem of federal regulation if the congressional ob-

jective underlying the Federal Aviation Act are to

be fulfilled.” (Pages 556, 557).

Subsection (b)(1) of Section 611 of the Noise

Control Act of 1972 states in part:

“In order to afford present and future relief and

protection to the public health and welfare from

aircraft noise and sonic boom, the FAA, after con-

sultation with the Secretary of Transportation and

with EPA, shall prescribe and amend standards

PO Sa a

for the measurement of aircraft noise and sonic

boom and shall prescribe and amend such regula-

tions as the FAA may find necessary to provide

for the control and abatement of aircraft noise

and sonic boom... .”

The United States Supreme Court in Burbank, supra

_concludes that the “FAA, now in conjunction with the

EPA, has full control over aircraft noise, preempting

state and local control.” (P. 553.) Jet aircraft are

inherently noisy objects. As long as they fly, they will

produce noise. Therefore, the only effective way to

control noise is to control the flight of jet aircraft. If

airport operators attempted to impose restrictions on

flight, such as imposing curfews, it would place a pro-

found effect on interstate commerce in the United States.

Yet, there is no way airport proprietors can bear the

entire financial burden for the consequences of jet

noise. Is the answer to financially cripple the airport

operators causing them to close?

C. To Impose Liability on the Airport Operators Re-

sults in an Undue Burden on Interstate Commerce.

The power given the Congress of the United States

in Article I, Section 8, Clause 3 of the United States

Constitution to regulate commerce among the several

states has frequently been held to invalidate attempts

by state and local governmental entities to regulate

facilities or instrumentalities of interstate commerce.

Thus, the Supreme Court of the United States has de-

clared unconstitutional such diverse statutes as those

regulating the length of railroad trains, Southern Pacific

Company v. Arizona, 325 U.S. 761 (1945); prohibitng

the conveying of specified types of cattle into the state

sceliiin

between March and November of every year, Railroad

Company v. Husen, 95 U.S. 465 (1877); and un-

reasonable interfering with the movement of trucks in-

volved in interstate commerce, Bibb v. Navajo Freight

Lines, Inc., 359 U.S. 520 (1959). Even more signifi-

cant for purposes of the present case are those cases in

which Federal courts have stricken down local ordi-

nances which, though enacted for aircraft noise-control

purposes, would have unreasonably burdened interstate

commerce. American Airlines, Inc. v. City of Audubon

Park, 272 F.Supp. 207 (W.D. Ky. 1968) aff'd, 407

F.2d 1306 (6th Cir. 1969); American Airlines, Inc. v.

Town of Hempstead, 272 F.Supp. 207 (E.D.N.Y.

1967), aff'd without reaching commerce clause issue,

398 F.2d 369 (2d Cir. 1968), cert. denied, 393 USS.

1017 (1969); All American Airways, Inc. v. Village

of Cedarhurst, 106 F.Supp. 521 (E.D.N.Y. 1952),

aff'd, 201 F.2d 273 (2d Cir. 1953).

The basic reason underlying such zealous protection

of the free movement of instrumentalities of interstate

commerce is stated in Edwards v. California, 314 US.

160 (1941), where the Supreme Court invalidated a

state statute prohibiting the knowing transportation

in California of indigent persons. The Court stated

that there is no boundary to th: permissible area of

state legislative activity “more certain than the prohibi-

tion against attempts on the part of any single state to

isolate itself from difficulties common to all of them by

restraining the transportation of persons and property

across its borders.” (314 U.S. at 173.)

The Supreme Court in Southern Pacific Compai:y v.

Arizona, 325 U.S. 761 (1945):

sna

“. .. (E)ver since Gibbons v. Ogden, 9 Wheat.

1, the states have not been deemed to have au-

thority to impede substantially the free flow of com-

merce from state to state, or to regulate those

phases of the national commerce which, because

of the need of national uniformity, demand that

their regulation, if any, be prescribed by a single

authority.” (325 U.S. at 767.)

If airport operators throughout the United States

could freely adopt regulations to curb flight to reduce

noise, the result is a substantial interference with the

free fiow of commerce among the several states. This is

precisely what the Commerce Clause of the Constitu-

tion prohibits. As Justice Jackson stated in his con-

curring opinion in Northwest Airlines, Inc. v. Minne-

| sota, 332 U.S. 292, 303 (1944):

“Air as an element in which to navigate is even

more inevitably federalized by the commerce

clause than is navigable water. Local exactions

and barriers to free transit in the air would nev-

tralize its indifference to space and its conquest

of time.”

| It necessarily follows that the imposition of severe

financial liability on the airport operator results in an

undue burden on interstate commerce.

—

D. The Supremacy Clause Prevents Effective Local

Control of Aircraft Noise.

The Supremacy Clause of the United States Constitu-

tion, Article VI, Paragraph 2, provides that the laws of

the United States shall be the supreme law of the land,

anything in the law of any state to the contrary not-

withstanding. The Federal Aviation Act declares that

there exists “in behalf of any citizen of the United

States a public right of freedom of transit through the

navigable airspace of the United States.” Contrary to

the declaration of this right in the Federal Aviation

Act, an airport operator cannot effectively deny access

to the federal airspace to commercial airline passen-

gers and other jet users. Any such state prohibition

of a federally guaranteed right must fall before the

Supremacy Clause. Sperry v. Florida ex Rel. Florida

Bar, 373 U.S. 379, 385 (1963).

Moreover, the interstate air carriers which use air-

ports and conduct business there are authorized to do

so by Certificates of Public Convenience and Necessity

issued by the Civil Aeronautics Board. The existence

of these federally conferred rights brings this case

squarely within Castle v. Hayes Freight Lines, Inc., 347

U.S. 61 (1954). There the Supreme Court held that

where an interstate motor carrier holds a Certificate of

Convenience and Necessity issued by the Interstate

Commerce Commission under the Federal Motor Car-

rier Act, the federal Supremacy Clause prevents a state

from suspending the carrier’s right to use the state’s

highways in its interstate operations as punishment for

repeated violations of state highway regulations. The

airport proprietor is in no different position.

In the case of commercial aviation it is equally clear

that placing an undue burden on jet operations is the

—23—

equivalent of «. partial suspension of the federally

granted certificates of the interstate air carriers which

operate in and out of commercial airports. The su-

premacy of federal law, as illustrated in the Castle

case, forbids such a partial suspension of the federally

conferred rights.’

The foreign carriers, of which there are many serv-

ing Los Angeles and other airports, are covered by the

convention of International Civil Aviation, dated De-

cember 7, 1944, with 144 signatories, known as the

“Chicago Convention.” In Aerovias Interamericanas de

Panama, S.A. et al. v. Board of County Commissioners

of Dade County, Florida (1961) 7 Avi. 17,567, 197

F.Supp. 230 (D.C. Fla.) it was held that such treaties

are the law of the land and supersede any state or

municipal laws in conflict therewith; and that the trea-

ties are self-executing and need no further implementa-

tion by Congress.

Based upon the foregoing discussion, there can be no

question that the airport proprietor cannot effectively

control noise from jet aircraft. This can only be done

by the Federal Government. Nor can the airport pro-

prietor effectively curb the effects of noise by land-use

planning. In the case of Los Angeles International Air-

port, only a portion of the complaints are from resi-

dents of the City of Los Angeles. The City of Los

Angeles cannot adopt zoning laws for its neighboring

cities. The City of Los Angeles cannot develop land-

use plans beyond its boundaries. Yet, in spite of all

The Federal Aviation Act provides that the Certificates of

Public Convenience and Necessity held by the interstate air car-

riers cannot be revoked unless the carrier fails to comply with

an order of the CAB requiring obedience to a federal rule found

to have been violated. 49 U.S.C. §1371(g).

this, the City of Los Angeles, as the proprietor of Los

Angeles International Airport, remains solely liable for

the consequences of jet noise. Such liability indeed is

contrary to the intent and purpose of the Supremacy

Clause of the United States Constitution.

E. Griggs Must Be Reviewed in Light of Develop-

ments Subsequent to 1962.

However, in spite of what has been said above, pri-

marily because of Griggs v. Allegheny County (1962)

369 U.S. 84, the airport proprietor must stand alone

in compensating properties adversely affected by jet

noise. Griggs, supra, is cited extensively by the Court

of Appeal and it is obvious that Griggs was given great

weight in the opinion.

Questions which must be answered are what is the

effect of Burbank, supra, and other developments since

1962 on the Griggs decision? Is Griggs equitable to-

day? In light of the waters which have been charted

since 1962, is Griggs in keeping with the times? It is

the position of the City of Los Angeles that this Court

should review the Griggs doctrine as it relates to the

field of liability.

In Griggs, supra, the factual situation occurred in

1952. At that tie “navigable airspace” as defined by

the United States Congress in 49 U.S.C.A. 180 was

limited to “airspace above the minimum safe altitudes

of flight prescribed by the Civil Aeronautics Board.”

The minimum safe altitude as defined by the CAB was

1,000 feet above congested and 500 feet over other

than congested areas. The flights in the Griggs case

which allegedly caused the injuries, involved takeoffs

and landings and were below said “minimum safe alti-

tudes.” These flights were found by the Pennsylvania

Supreme Court not to be within the public domain.

The Pennsylvania Supreme Court, for other reasons,

found against the plaintiffs in Griggs but were reversed

by the United States Supreme Court.

The United States Supreme Court concurred with

the Pennsylvania Supreme Court in finding that the

flights taking off and landing in the Griggs case were

not in the “public domain.” They analogized to the

necessity for a county to acquire approachts to a

bridge it had constructed in support of its ruling that

the airport authority had the duty to acquire the neces-

sary easements for the privilege of aircraft landing at

and approaching the airport. By not acquiring such

air easements, Allegheny County was, in effect, forc-

ing flights of aircraft in landing at, and approaching,

the airport to trespass over private property.

The Congress, in 1958, by legislation included, for

the first time, within the definition of “navigable air-

space,” “airspace needed to insure safety in takeoff

and landing of aircraft.” 49 U.S.C.A. 1301(24). Con-

gress has declared that there exists a “public right of

freedom of transit through navigable airspace.” 49

U.S.C.A. 1304. Consequently, as a result of this Con-

gressional action, an airport does not need to acquire

air easements for the privilege of aircraft approaching

and landing at airports. In making airspace necessary

for the landing of aircraft part of the “navigable air-

space,” said airspace needed for landing and taking

off is part of the “public highway.”

Further, the Congress adopted the Airport and Air-

way Development Act of 1970, 49 U.S. Code 1701

which is:

eu see wens

“An Act to provide for the expansion and im-

provement of the Nation’s airport and airway sys-

tem, ...”

In addition, the Congress adopted the Noise Control

Act of 1972. This Act was discussed extensively in

Burbark, supra, and is a positive expression of Fed-

eral control.

The Court of Appeal, in this action, 40 Cal.App.3d

47}, at page 490 of its opinion, states in part:

“California has adcptec extensive regulations for

the control of noise by aitport proprietors. (Pub.

Util. Code 21669; 4 Cal. Admin. Code §§5000-

5080.5;...”

Tue constitutionality of thes: noise regulations and

Section 21669 is currently ‘Yeing challenged in the

Tnited States District Court, Northern District of Cali-

fornia in an action entitied Air Transport Association

of America, et al. v. /. R. Crotti, Director of Aero-

nautics, of the State of California, et al., No. C-72-

2189WTS. On July 9, 1974, the Court’ heard oral

argument on Plaintiff's Motion for Summary Judg-

ment. The matter now stands submitted. If the statute

and the regulations are declared unconstitutional, what

will be the effect of the proprietors’ ability to control

noise? This action prcsents another development which

must be weighed when one speaks of the Griggs doc-

On page 491 of the California Court of Appeal opin-

ion (40 Cal.App.3d 471), the Court stated in part:

“Obviously a final solution to the problem will

requ’re numerous different approaches to it and

the cooperation of airplane manufacturers, the air-

{ 2A three-judge panel sat in this action.

‘sieges eae

lines, federal, state and local government. Al-

though many parties other than the City may have’

helped to create the problem, the City’s role as

planner, owner and operator of the airport is suf-

ficient to require it to compensate the plaintiffs

' in this case. (Griggs v. Allegheny County, supra,

369 US. 84, 89-90, 7 L.Ed.2d 585, 589.)” .

What type of cooperation does the Court envision

from the manufacturers and airlines? Progress in reduc-

ing jet noise in aircraft is, and has been, very slow.* In

suits in which the City of Los Angeles has filed cross-

complaints for indemnification against air carriers, they

seek the shield of Griggs and readily concur that the air-

port operator is liable.‘ Indeed, by its Seventh Affirma-

tive Defense in the case at bar, the City of Los An-

geles alleged that there was a defect of parties because

the airlines were not in the action. What cooperation is

envisioned between state, federal and local govern-

ments? All levels of government are willing to cooperate

as long as it is understood that the airport operator is

financially liable. This is the position taken by the

State of California in Air Transport Association of

America action, supra.

Therefore, it necessarily follows that a icieien should

be granted in this action to review Griggs, supra, in

si of developments “ the area since 1962.

*Perhaps this is because Griggs placed the liability for noise

on the entity least capable of solving the problem.

4E.g., City of Los Angeles v. Japan Air Lines, Inc., et al.,

wherein the airlines operating at Los Angeles luternational Air-

os have taken the position that they may operate uncurtailed at

the airport and are not liable in any manner for the consequences

of noise. The California Court of Appeal has denied i to

the City of Los Angeles in this action. 41 Cal.App.3d 416.

nary — for hearing to the California Supreme Court has

—28—

Conclusion.

For these reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the California

Court of Appeal. :

Respectfully submitted,

Burt Pings, ©

City Attorney,

MILTON N. SHERMAN,

Chief Assistant City Attorney,

Counsel for Petitioner.

APPENDIX “A.”

Denial of Petition for Hearing by California

Supreme Coart.

MINUTES

Supreme Court, San Francisco, Aug. 28, 1974.

(2d Civ. 40999, Div. 5)—Aaron, et al. v. City of

Los Angeles. [40 C.A.3d 471.] Appellant’s petition for

hearing denied.

ENE, ihe

APPENDIX “B.”

Opinion of the California Court of Appeal.

Irving D. Aaron et al., Plaintiffs and Respondents,

v. City of Los Angeles, Defendant and Appellant. [Civ. om

No. 40999. Second Dist., Div. Five, July 3, 1974.]

SUMMARY

Following a trial without a jury, the trial court en-

tered judgment holding a city, as owner and operator

of an airport, liable in inverse condemnation to owners

of residential property in the neighborhood of the air-

port which was damaged and reduced in market value

by the noise from jet aircraft taking off and land-

ing at the airport. Most of the trial was occupied by the

testimony of a team of appraisers for plaintiffs who

visited the properties of the named plaintiffs, heard the

jet noises themselves, and appraised the market values

of the property, and what their market value would

have been if unaffected by jet noise, based on sales of

comparable properties in other areas. (Superior Court

of Los Angeles County, No. 837799, Bernard S. Jef-

ferson, Judge. )

The Court of Appeal affirmed. After noting that

there is no appellate case in California squarely hold-

ing a municipal operator of an airport liable under

such circumstances, the court reviewed California de-

cisions implying that result and other authorities, and

concluded that the municipal owner and operator of an

airport is liable for a taking or damaging of property

when the owner of property in the vicinity of the air-

port can show a measurable reduction in market value

resulting from the operation of the airport in such

manner that the noise from aircraft causes a substantial

interference with the use and enjoyment of the prop-

erty, and the interference is sufficiently direct and suf-

ficiently peculiar that the owner, if uncompensated,

would pay more than his proper share to the public

undértaking. It rejected the city’s contentions that plain-

tiffs had failed to prove substantial damage to their

property and that its conduct was not the proximate

cause of the claimed damage. The court approved the

trial court’s finding as to the time of accrual of plain-

tiffs’ cause of action for purposes of the claim filing

requirements. It took the view that the cause of action

did not accrue at the point where the homeowners first

became annoyed, but only when the flights substantial-

ly interfered with the use and enjoyment of their prop-

erties and resulted in a diminution of their market

value. (Opinion by Ashby, J., with Kaus, P. J., and

Stephens, J., concurring. )

COUNSEL

Burt Pines, Roger Arnebergh, City Attorneys, Milton

N. Sherman, Principal Assistant City Attorney, and

\John F. Haggerty, Assistant City Attorney, for De-

fendant and Appellant.

Ellis & Sloan, Lyle C. Ellis and James E. Sloan for

Plaintiffs and Respondents.

OPINION

ASHBY, J.—Defendant appeals from a judgment in

inverse condemnation in favor of numerous individual

plaintiffs following a trial by the court. The issue in

this appeal iv whether the City of Los Angeles (City),

as owner and operator of Los Angeles International

Airport (LAX), is liable in inverse condemnation to

owners of residential property in th: neighborhood of

the airport which is damaged and +educed in market

pe oe

value by the noise from jet aircraft taking off and

landing at the airport. The trial court answered this

question in the affirmative, and granted judgment

against the City with respect to 520 parcels of such

property. We have concluded that the trial court was

correct and that the judgment should be affirmed.

FACTS

Between 1959, when jet aircraft first began using

LAX, and 1965, the City permitted gradually increas-

ing numbers of jet flights to and from the airport.’

These aircraft emit loud and disturbing noises. An

acoustical expert with the consulting firm of Bolt,

Beranek and Newman prepared a study for the Federal

Aviation Administration entitled “1965, 1970, and 1975

Noise Exposure Forecast Areas for Los Angeles Inter-

national Airport.” The purpose of the study was to

determine the effects of aircraft noise on land use in

areas surrounding the airport. The effective perceived

noise level (EPNL), which measures the annoyance

caused by such noise, was determined based on known

noise levels of the engines, altitudes, distances, flight

paths, and takeoff and landing patterns. Adjustments

were made to reflect the number of flights per day and

1The number of jet aircraft landing at Los Angeles Interna-

tional Airport was as follows:

Yearly Average Daily

Year Number Landings

1960 20,171 55

1961 33,932 93

1962 47,215 129

1963 59,776 164

1964 69,503 191

1965 86,855 238

oscil

the timing of the flights, since frequent flights and

nighttime flights are more annoying to residents. Based

on these values three noise exposure forecast (NEF)

areas were determined.* NEF area C was the one in

which jet aircraft noise had the greatest effect upon

people below. Single family construction is not recom-

mended in NEF area C because noise is likely to con-

stitute a severe interference with the use of land for that

purpose. The bulk of the properties originally involved

in this suit are in NEF area C.

A few of the individual plaintiffs testified about the

disturbing and annoying effects which the jet noise

had on conversations, radio and television viewing

and sleep. There was also some testimony that soot,

oil and fuel from the aircraft fell on so.ne of the parcels

involved causing damage to painted surfaces and pre-

venting homeowners from keeping their cars uncovered

or drying clothes in their yards. However, recovery is

not sought for the noise and other inconveniences as

such, but rather for the diminution in property value

caused by them.

Most of the trial was occupied by the testimony of a

team of appraisers for plaintiffs. They visited the proper-

ties of the named plaintiffs in 1963, heard the jet noise

themselves, and prepared appraisals of the properties in-

volved. They appraised the market value of these prop-

erties and what their market value would have been if

unaffected by jet noise, based on sales of comparable

properties in other areas. The trial court determined

that 581 of the parcels had been damaged and their

“For a readable explanation of this noise measurement tech-

nique, see Comment, Port Noise Complaint (1970) 6 Harv.

Civ. Rts.-Civ. Lib. L.Rev. 61, 65-74.

sellin

market value reduced by the jet noise.* The reductions

in market value ranged from $400 to $6,000 but were

preponderantly in the neighborhood of $1,000. In the

judgment the court also granted an easement to the

City for flights of jet aircraft in the air space over

and near the properties involved, to the extent of such

usage in May 1963, which was determined to be the

time of the taking or damaging of property in this case.

Jet Noise as a Taking or Damaging of Property

There is no appellate case in California that squarely

holds the municipal operator of an airport liable in

inverse condemnation to the owners of residential prop-

erty in the vicinity of the airport which is damaged and

diminished in market value by noise from jet aircraft

landing and taking off at the airport. The subject has

been treated by numerous legal commentators, how-

ever,‘ and we are guided to our conclusion by prior

This case originally involved some 750 Is. The trial court

found that some of them had not been Furthermore,

as to 61 of the 581 parcels, the intiffs presented

inadequate proof of ownership and therefore compensation was

granted only as to 520 parcels.

*Many useful authorities are collected in City of Oakland v.

Nutter, 13 Cal.App.3d 752, "61, fn. 7 (92 Cat Ror. 347]; and

in Berger, You Know I Can't Hear You When the Planes Are

Flying (1972) 4 Urban Lawyer 1, fn. 3. Additional authorities

not listed in those footnotes include Russell, Recent Develop-

ments in Inverse Condemnation of Air Space (1973) 39 J. Air

L. & Commence 81: Vittek, Airport Noise Control—Can Com-

munities Live Without It? Can Airlines Live With It? (1972)

38 J. Air L. & Commerce 473; Berger, The California Supreme

Court—A Shield Against Governmental Overreaching: Nestle v.

City of Santa Monica (1973) 9 Cal. Western L.Rev. 199; Note,

Airport Noise: An Inadequate Judicial Response (1972) 4 Conn.

og 634; Spater, Noise and the Law (1965) 63 Mich.L.Rev.

Although the subject was studied by the California Law Re-

vision Commission, the commission decided not to recommend

—— pending clarification by the courts. (10 Cal.L.Rev.

Com. Reports 1001, 1013 (1971).)

pe eu ee ee ee gee Be

Sandestin Eeain coins 0

niles

decisions of the California Supreme Court which imply

this result, as well as by other California decisional

and statutory law and decisions of the United States

Supreme Court and courts of sister states.

In the landmark case of United States v. Causby

(1946) 328 U.S. 256 [90 L.Ed. 1206, 66 S.Ct. 1062],

the Supreme Court held that frequent low flights over

the Causbys’ land by military aircraft landing at a near-

by airport operated by the United States constituted

a taking of the Causbys’ property without compensation

in violation of the Fifth Amendment of the United States

Constitution. The noise from the aircraft rendered it

impossible to continue the use of the property as a

commercial chicken farm. Although the flights did not

completely destroy the enjoyment and use of the land,

they were held to be so low and frequent as to con-

stitute a direct and immediate interference with the full

employment of the land, limiting the utility of the land

and causing a diminution in its value, and therefore

constituted a taking under the Fifth Amendment.

In the other major Supreme Court decisi:r on this

issue, Griggs v. Allegheny County (1962) 26> 24s. 44

[7 L.Ed.2d 585, 82 S.Ct. 531], the court hels shut

Allegheny County, which owned and operated the Great-

er Pittsburgh Airport, was liable for a taking of prop-

erty under the Fifth Amendment where the noise from

taking off and landing at the airport on flight paths

over the Griggs’ property rendered the property unde-

sirable and unbearable for residential use. The court

saw no difference between the county’s responsibility

to pay for the land on which the runways were built

and its responsibility for the air easements necessary

for operation of the airport. “The glide path for the

woes

northeast runway is as necessary for the operation of

the airport as is a surface right of way for operation

of a bridge, or as is the land for the operation of a

dam. [Citation.] As stated by the Supreme Court of

Washington in Ackerman v. Port of Seattle, 55 Wash.2d

401 [sic 400}, 413, 348 P.2d 664, 671, °... an ade-

quate approach way is as necessary a part of an airport

as is the ground on which the airstrip, itself, is

constructed. . . .’ Without the ‘approach areas,’ an

airport is indeed not operable. Respondent in designing

it had to acquire some private property. Our conclusion

is that by constitutional standards it did not acquire

enough.” (369 U.S. at p. 90 [7 L.Ed.2d at p. 589].)

A federal circuit court has narrowly interpreted Caus-

by and Griggs to mean that there is no taking under the

Fifth Amendment unless the aircraft invade the air space

directly over the plaintiff's property and the property

is rendered uninhabitable. (Batten v. United States

(10th Cir. 1962) 306 F.2d 580, cert. den., 371 U.S.

955 [9 L.Ed.2d 502, 83 S.Ct. 506], rehg. den., 372

U.S. 925 [9 L.Ed.2d 731, 83 S.Ct. 718].) However,

several states have interpreted their own constitutions

to require compensation under less strict circumstances

when the noise from aircraft has diminished the market

value of the homeowner’s property.

The leading case is Thornburg v. Port of Portland

(1962) 233 Ore. 178 [376 P.2d 100], second appeal

(1966) 244 Ore. 69 [415 P.2d 750]. There the Ore-

gon Supreme Court rejected any arbitrary limitations

based upon the altitude of the particular aircraft or

upon a technical trespass of the air space directly over

the homeowner’s land. The court held that there could

be a taking whenever the government acts in such a

way as substantially to deprive an owner of the useful

—9.

possession of his property. (Thornburg v. Port of Port-

land, supra, 376 P.2d at p. 106.) In the second appeal

the court held: “The proper test to determine whether

there has been a compensable invasion of the individ-

ual’s property rights in a case of this kind is whether

the interference with use and enjoyment is sufficiently

direct, sufficiently peculiar, and of sufficient magnitude

to support a conclusion that the interference has re-

duced the fair market value of the plaintiff's land by

a sum certain in money. If so, justice as between the

state and the citizen requires the burden imposed to be

borne by the public and not by the individual alone.”

(Thornburg v. Port of Portland, supra, 415 P.2d at p.

752.)

Similarly in Martin v. Port of Seattle (1964) 64

Wn.2d 309 [391 P.2d 540], cert. den., 379 U.S. 989

[13 L.8d.2d 610, 85 S.Ct. 701], the Supreme Court

of Washington held that there should be no arbitrary

distinction between property directly overflown by jet

aircraft and that which is not. The court noted that

article I, section 16, amendment 9 of the Washington

Constitution refers to a “taking” or “damaging” of

property (as does art. I, § 14 of the Cal. Const.) and

thus is broader than the “taking” provision of the

United States Constitution. The court found it unneces-

sary to become “embroiled” in this distinction, however,

because in the prior Washington decision of Ackerman

v. Port of Seattle (1960) 55 Wn.2d 400 [348 P.2d

664, 77 A.L.R.2d 1344] (quoted by the United States

Supreme Court in Griggs v. Allegheny County, supra),

property was defined to include the unrestricted right

to use, enjoy, and dispose of the land, and the frequent

flight of aircraft over the land reducing its market value

was held to be a compensable taking of an easement.

ii.

In Martin the court héld that where the flights in

question caused such interference with the use and en-

joyment of the property as to result in a measurable

diminishment in market value, the government and not

the individual homeowner should be required to bear

that burden.

Thornburg was followed in City of Jacksonville v.

Schumann (Fla.App. 1964) 167 So.2d 95, 99-102,

second appeal (Fla.App. 1967) 199 So.2d 727, 729,

cert. den., 390 U.S. 981 [19 L.Ed.2d 1278, 88 S.Ct.

1101], and in Johnson v. City of Greeneville (1968)

222 Tenn. 260 [435 S.W.2d 476, 478-480].

An examination of existing California law suggests

that California should adopt an approach similar to

that of Thornburg and Martin.

California’s landmark case dealing with the problem

of noise from jets taking off and landing at an airport

is Loma Portal Civic Club v. American Airlines, Inc.,

61 Cal.2d 582 [39 Cal.Rptr. 708, 394 P.2d 548]. In

that case the residents of a neighborhood in the flight

path of jet aircraft using Lindbergh Field in San Diego

sought to enjoin the airlines from flying at low alti- .

tudes in close proximity to plaintiffs’ residences in such

manner and times as to interfere unreasonably with the

normal use and enjoyment by plaintiffs of their homes.

The Supreme Court held “that under the facts of

this case, i.e., the operation of aircraft with federal

airworthiness certificates in federally-certificated, sched-

uled passenger service, in conformity with federal safe-

ty regulations, in a manner not creating imminent dan-

ger, and in furtherance of the public interest in safe,

regular air transportation of goods and passengers, an

injunction is not available.” (/d., at p. 591.)

oath sien

The court stressed, however, that plaintiffs did not

seek damages and had not named the operator of the

airport as a party. (/d., at pp. 585-586 and fn. 1.)

«In stating its holding the court emphasized: “Nothing

herein is intended to be a determination of the rights

of landowners who suffer from airplane annoyances

to seek damages from the owners or operators of air-

craft or to seek compensation from the owner or oper-'

ator of an airport.” (/d., at pp. 590-591.) The court

also stated: “Finally, it is clear, of course, that state

courts have jurisdiction to award compensation for a

‘taking,’ without regard to whether the overflights con-

form to federal law, when such relief is appropriate.”

(Id., at p. 594. See also Anderson v. Souza, 38 Cal.

2d 825, 838-839 [243 P.2d 497].)

_ Our Supreme Court faced this problem a second

time in Nestle v. City of Santa Monica, 6 Cal.3d 920

[101 Cal.Rptr. 568, 496 P.2d 480]. In that case prop-

erty owners in the vicinity of Santa Monica Airport

sued the city for both property and personal injury

damages on the ground that vibrations, fumes, and

noise from jets landing and taking off at the airport

caused damage to their property, interfered with free

enjoyment of the property and resulted in pain, suffer-

‘ing and emotional disturbance. They had four theories:

(1) inverse condemnation, (2) nuisance, (3) negli-

gence, (4) zoning violations. Only the inverse con-

demnation count went to trial, and as to it the trial

court gave judgment to the defendant on the ground ©

that plaintiffs had failed to prove their property was

damaged. The trial court dismissed the other counts,

rejecting the nuisance theory on grounds of govern-

mental immunity. |

on on

The Supreme Court’s opinion does not resolve the

question of liability in inverse condemnation which

faces us in this case. This is because the trial court had

found in favor of the defendant on the issues of exces-

sive noise and diminution in property values, and the

Supreme Court merely held that the trial court’s finding

was supported by substantial evidence. (/d., at pp.

925-928.) |

However, the Supreme Court reversed as to the nui-

sance count, holding that Government Code section 815

, does not give immunity to the city for operating an

airport in a manner constituting a nuisance. (Id., at

pp. 931-937.) The court felt its conclusion was “fur-

ther supported by the profound interest the 1970 Legis-

Jature demonstrated in the eradication of the evils

caused by the various forms of pollution, with particu-

lar emphasis on noise pollution. Since it is well-docu-

mented that a nuisance theory provides an effective

means for redress in a wide range of actions resulting

from pollution including noise disturbance, it appears

' that, in deleting the [Law Revision] commission’s rec-

ommendation to preclude governmental nuisance lia-

bility, the Legislature intended to preserve this addi-

tional weapon in the arsenal available to combat griev-

ous injury to the environment.” (/d.,' at pp. 936-937;

fns. omitted.)

The court’s discussion in Nestle indicates that public

policy does not preclude the imposition of liability on

the City in the instant case: There is a very close rela-

—13—

tion between the concepts of inverse condemnation and

nuisance by a governmental entity.°

Another recent case which suggests the result we

reach is City of Oakland v. Nutter, supra, 13 Cal.

App.3d 752. In that case the city brought an action

as condemner to acquire an air easement in the air

space above described real property for airport pur-

poses, in order to protect the approaches of the air-

port from hazardous encroachment of structures or

vegetable life, pursuant to Code of Civil Procedure sec-

tion 1239.2. The court held that the noise and other

interference with the remaining property engendered by

the use of this easement could be considered in de-

termining severance damages. (/d., at pp. 765-775.)°

Several California cases have found that zoning re-

structions intended to facilitate the operation of an air-

port and to protect the approaches to it may constitute

a taking of property. (Compare Sneed v. County of

®Van Alstyne, Just Compensation of Intangible Detriment:

Criteria for Legislative Modifications in California (1969) 16

U.C.L.A. L.Rev. 491, 525, fn. 130; Fadem and , A Noisy

Airport Is a Damned Nuisance! (1971) 3 S.W. . L. Rev.

39, 48, fn. 35; Stoebuck, Condemnation by Nuisance: The Air-

port Cases in Retrospect and Prospect (1967) 71 Dickinson L.

Rev. ; Thornburg v. Port of Portland, supra, 376 P.2d

at pp. 105-107. To date inverse condemnation has been the

irport

— Operations in California (1970) 1 Pacific L.J. 581,

°Mr. Justice Sims’ opinion in Nutter contains a thorough dis-

cussion of authorities relating to many of the issues raised in

this case. The question in Nutter, however, was narrowly framed

in the context of severance damages, and the court was not

quired to decide several of these issues.

SEE oon

Riverside, 218 Cal.App.2d 205 [32 Cal.Rptr. 318];

Peacock v. County of Sacramento, 271 Cal.App.2d

845 [77 Cal.Rptr. 391]; Kissinger v. City of Los An-

geles, 161 Cal.App.2d 454 [327 P.2d 10]; with Morse

v. County of San Luis Obispo, 247 Cal.App.2d 600

(55 Cal.Rptr. 710]; Smith v. County of Santa Bar-

bara, 243 Cal.App.2d 126 [52 Cal.Rptr. 292].)’

(1) We also find support for our conclusion in

Code of Civil Procedure section 1239.3. It provides:

“Airspace above the surface of property or an air

easement in such airspace may be acquired under this

title by a county, city, port district, or airport district

if such taking is necessary to provide an area in which

excessive noise, vibration, discomfort, inconvenience or

interference with the use and enjoyment of real prop-

erty located adjacent to or in the vicinity of an airport

and any reduction in the market value of real prop-

erty by reason thereof will occur through the operation

of aircraft to and from the airport.”

The enactment of section 1239.3 recognizes that the

use of air space in which excessive noise interferes

with the use and enjoyment of real property in the

vicinity of the airport may constitute a taking by the

airport. This section was enacted to permit the appro-

priate governmental bodies to take the initiative in se-

curing rights which might otherwise be subject to in-

verse condemnation proceedings. (City of Oakland v.

Nutter, supra, 13 Cal.App.3d 752, 766; Review of

Selected 1965 Code Legislation (Cont.Ed.Bar) pp. 88-

89.)

TThe airport approaches zoning law recognizes that zoning

restrictions may in some cases constitute a taking of property.

(Gov. Code, $§50485.2, 50485.13.)

SOAR iso naaiannae MARS

Although section 1239.3 was enacted in 1965, after

the cause of action arose in the instant case, it is indic-

_ ative of legislative policy. The court in City of Oakland

v. Nutter, supra, stated: “The adoption of section

1239.3 does not indicate that the factors set forth

therein are not to be considered in an action to con-

demn under the earlier adopted sections, either before

or after 1965.”

The City contends that the inconveniences and noise

damage suffered by residents near the airport do not

amount to a taking of property but instead are merely

“consequential” damages which plaintiffs must suffer

without compensation. The City relies upon People v.

Symons, 54 Cal.2d 855, 858-859 [9 Cal.Rptr. 363,

357 P.2d 451], where it is stated (quoting Eachus v.

Los Angeles etc. Ry. Co., 103 Cal. 614, 617 [37 P.

750]): “ “The Constitution does not, however, author-

ize a remedy for every diminution in the value of

property that is caused by a public improvement. The

damage for which compensation is to be made is a

damage to the property itself, and does not include a

mere infringement of the owner’s personal pleasure or

enjoyment. Merely rendering private property less de-

sirable for certain purposes, or even causing personal

annoy2nce or discomfort in its use, will not constitute

the damage contemplated by the Constitution; but the

property itself must suffer some diminution in sub-

stance, or be rendered intrinsically less valuable by rea-

son of the public use... .’”

In that case the court held that the homeowner,

whose neighbor’s property was taken for a freeway

and whose own property was partially taken in order

to provide a turn around area, could not recover sev-

erance damages for such general factors as noise,

ar See

fumes and dust from the freeway. Other freeway noise

cases are collected and thoroughly analyzed in People

ex rel. Dept. Pub. Wks. v. Volunteers of America,

21 Cal.App.3d 111 [98 Cal.Rptr. 423, 51 A.L.R.3d

844].

As the trial court found, however, the noise from

jet aircraft landing and taking off at the airport is a

severe disturbance to the enjoyment and use of resi-

dential property in the area and is significantly great-

er than the noise emanating from a freeway. (See Com-

ment, supra, fn. 5, 1 Pacific L.J. at pp. 591-592.) In

comparing highway and airport noise for this purpose

other courts have not treated them as the same. ( Thorn-

burg v. Port of Portland, supra, 376 P.2d 100, 106;

compare City of Jacksonville v. Schumann (Fla.App.

1964) supra, 167 So.2d 95, 97 with Northcutt v.

State Road Department (Fla.App. 1968) 209 So.2d

710, 711.)

(2) A property owner may be required to bear with-

out compensation incidental damages which are suf-

fered alike by the public in general, but he is entitled

to compensation for special and peculiar damage in-

flicted upon him. (Richards v. Washington Terminal

Co. (1914) 233 U.S. 546, 557 [58 L.Ed. 1088, 1093,

34 S.Ct. 654]; Stoebuck, supra, fn. 5, 71 Dickinson

L.Rev. at pp. 213-214.) In Richards the Supreme

Court held that a property owner near a railroad track

could not recover for the soot and smoke damage suf-

fered generally by all persons along.the track, but was

entitled to compensation for the special and peculiar

damage to his property arising from the fact that an

exhaust fan in a tunnel built by the railroad blew ad-

ditional smoke on his property. (/d., at pp. 555-557

[58 L.Ed. at pp. 1092-1093].) Similarly in this case

mel ahki Manto. ll

neti

the construction and operation of the airport by the

City causes special and peculiar damage to plaintiffs

which is not shared in common by all persons who live

along the airways. (United States v. Causby (1946)

supra, 328 U.S. 256, 262 [90 L.Ed. 1206, 1210].)

As stated by our Supreme Court in Loma Portal Civic

Club v. American Airlines, Inc., supra, 61 Cal.2d 582,

584: “The problems [of noise and vibrations from jet

aircraft] are peculiarly acute for landowners near air-

ports, who suffer not only from the increase in the

general noise level but particularly from their proxim-

ity to the low-level flying which is a necessary part of

takeoff and landing.” (Italics added.) Plaintiffs’ dam-

ages are not merely incidental and general. (See City

of Oakland v. Nutter, supra, 13 Cal.App.3d 752, 770,

771.)

Summary

(3a) Drawing upon the above precedents we may

state the rule in terms of California law as follows:

The municipal owner and operator of an airport is

liable for a taking or damaging of property when the

owner of property in the vicinity of the airport can

show a measurable reduction in market value result-

ing from the operation of the airport in such manner

that the noise from aircraft using the airport causes a

substantial interference with the use and enjoyment of

the property, and the interference is sufficiently direct

and sufficiently peculiar that the owner, if uncompen-

sated, would pay more than his proper share to the

public undertaking. (See Holtz v. Superior Court, 3

Cal.3d 296, 303 [90 Cal.Rptr. 345, 475 P.2d 441].)

Whether the interference is substantial enough to meet

this standard is a mixed question of fact and law for

the trial judge to determine. (See Breidert v. Southern

Pac. Co., 61 Cal.2d 659, 663-664 [39 Cal.Rptr. 903,

394 P.2d 719], second appeal 272 Cal.App.2d 398,

409 [77 Cal.Rptr. 262]; Riverside County Flood et-.

Dist. v. Halman, 262 Cal.App.2d 510, 516-517 [69

Cal.Rptr. 1].)

City’s Contentions

Direct Overflight Rule

The City contends that plaintiffs may not recover un-

less they can show their damages result from a physical

invasion by the aircraft of the air space directly over

plaintiffs’ property. (Batten v. United States (10th Cir.

1962) supra, 306 F.2d 580, 583-585; Spater, supra,

fn. 4, 63 Mich.L.Rev. at p. 1394.) We reject the Batten

rule as inappropriate for California. We agree with

the statement in Martin v. Port of Seattle, supra, 391

P.2d at page 545: “We are unable to accept the prem-

ise that recovery for interference with the use of land

should depend upon anything as irrelevant as whether

the wing tip of the aircraft passes through some frac-

tion of an inch of the airspace directly above the

plaintiffs land. The plaintiffs are not seeking recovery

for a technical trespass, but for a combination of cir-

cumstances engendered by the nearby flights which in-

terfere with the use and enjoyment of their land.”

Another commentator has said: “Restricting recovery

to damage caused by overflights makes no sense from

a scientific standpoint, and postulates an arbitrary line

between compensability and noncompensability that de-

fies logical justification. Technical studies demonstrate

that the ‘noise-affected’ area in the vicinity of airports

is not confined to the land directly below aircraft ap-

proach and departure paths, but extends for a consider-

. . Moreover, even relatively

minor but consistent deviations from prescribed flight

patterns may, under the overflight rule, arbitrarily en-

large or contract the group of property owners who may

assert recoverable claims, despite substantially equiva-

lent detrimental effects upon all.” (Van Alstyne, supra

fn. 5, 16 U.C.L.A. L.Rev. at p. 531.)

—19—

able distance to each side. .

Modern day noise measurement techniques provide

more sophisticated means of drawing the dividing line

between compensability and noncompensability.*

y. [tpt al faut ee a

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—20—

The Washington Supreme Court in Martin concluded

that the Batten rule is not compelled by Causby and

Griggs. As to those two cases the Martin court said:

“While a direct overflight or invasion in airspace is in

fact involved in each case, it is not clear that the rea-

soning and approach of those cases is so limited. Realis-

tically, it must be conceded that a major part of the

damage in either case was engendered by noise and

vibration, whether or not accompanied by a physical

displacement of air above the property.” (Martin v.

Port of Seattle, supra, 391 P.2d at p. 545.) Other

state courts have stated that the dissent in Batten repre-

sents the better view. (Thornburg v. Port of Portland,

supra, 376 P.2d at p. 104; Johnson v. City of Greene-

ville, supra, 435 S.W.2d at p. 479.) The Batten rule

has been criticized by most commentators.’

It should also be remembered that Batten is based

on the Fifth Amendment of the United States Constitu-

tion, which is limited to a “taking” of property, where-

as California, like Washington, has a broader provision

referring to the “taking” or “damaging” of property.

(Martin v. Port of Seattle, supra, 391 P.2d at p.

546; Cal. Const., art. I, § 14.)”

Finally, the adoption of Code of Civil Procedure

section 1239.3, referring to “an area in which exces-

sive noise, vibration, discomfort, inconvenience or inter-

°A collection of commentaries critical of Batten may be found

ee ee Western L.Rev. at pages

onsen

ference with the use and enjoyment of real property

located adjacent to or in the vicinity of an airport,” im-

pliedly rejects any requirement of direct overflights.

(City of Oakland v. Nutter, supra, 13 Cal.App.cd

752, 766.)

Substantial Damage

(4) The City contends that plaintiffs did not prove

there was damage ‘to the property in a substantial

amount. (Lombardy v. Peter Kiewit Sons’ Co., 266

Cal.App.2d 599, 602-603 [72 Cal.Rptr. 240], app.

dism., 394 U.S. 813 [22 L.Ed.2d 748, 89 S.Ct. 1486],

overruled on another ground, Southern Cal. Edison Co.

v. Bourgerie, 9 Cal.3d 169, 175 [107 Cal.Rptr. 76,

507 P.2d 964].) However, Lombardy was a case

which was decided upon the pleadings alone, in which

the plaintiffs merely claimed to have sustained dam-

ages to real property and person in the amount of

$5,000, and therefore it was impossible to tell to what

extent the property itself was damaged.

In this case, however, the trial court found that the

noise from the jet aircraft severely and substantially

interfered with the residential use and enjoyment of

the properties and founded measurable reductions in

market value in the amounts indicated in the judgment.

Whether the damage was substantial enough to be com-

pensable is a mixed question of fact and law for the

trial court to determine, and the court’s implied findings

on factual issues will be upheld on appeal if there is

substantial evidence to support them. (Riverside County

Flood etc. Dist. v. Halman, supra, 262 Cal.App.2d 510,

517.) In the absence of specific legislative standards

(see Van Alstyne, supra, fn. 5, 16 U.C.L.A. L.Rev.

at pp. 535-539) we cannot say the damage was insub-

stantial in this case.

_— 3

Proximate Cause

(5) The City contends that it should not be liable

because it does not build or fly the jet aircraft which

make the noise and therefore the City’s conduct is not

the proximate cause of plaintiffs’ damage. (Albers v.

County of Los Angeles, 62 Cal.2d 250, 263 [42 Cal.

Rptr. 89, 398 P.2d 129].) This argument is without

merit. The fact that the City plans, builds and op-

erates the airport is sufficient to impose liability.

(Griggs v. Allegheny County, supra, 369 U.S. 84, 89

[7 L.Ed.2d 585, 589].) The City’s operation of the

airport need not be the sole cause of the damage. It

need only be one substantial cause. (Holtz v. Superior

Court, supra, 3 Cal.3d 296, 304, fn. 9; Blau v. City of

Los Angeles, 32 Cal.App.3d 77, 84-85 [107 Cal.Rptr.

727}.)

Federal Pre-emption: Navigable Air Space

(6) The City contends that because Congress has

declared a public freedom of transit through the naviga-

ble air space, and has defined navigable air space to

include air space needed to insure safety in takeoff and

landing (49 U.S.C.A. §§ 1301, 1304) the City is im-

mune from liability. This is also without merit. The

fact that the flights are within the navigable air space

does not immunize the owner and operator of an air-

port for failure to appropriate the land and air space

necessary to provide an adequate approach way.

(Griggs v. Allegheny County, supra, 369 U.S. 84, 88

[7 L.Ed.2d 585, 588]; Loma Portal Civic Club v.

American Airlines, Inc., supra, 61 Cal.2d 582, 591-

inti

594; City of Oakland v. Nutter, supra, 13 Cal.App.3d

752, 763, fn. 12; Martin v. Port of Seattle, supra, 391

P.2d 540, 544-545; Thornburg v. Port of Portland,

supra, 376 P.2d 100, 108.)”

Federal Pre-emption: Noise Control

(7) The City contends that the extensive pattern of

federal regulation of air transportation pre-empts the

field and that “[s]ince it is the Federal Government

which controls the airspace it should be their responsi-

bility for what happens as a result of its use.” The

contention that federal preemption precluded all state

activity in aircraft noise control was rejected by our

Supreme Court in Loma Portal Civic Club v. Ameri-

can Airlines, Inc., supra, at pages 591-594. The court

found that the maintenance of an action for damages

by the property owners, such as this one, would not

conflict with federal law. The court said: “Moreover,

we note that noise abatement is a federal as well as a

state aim, and when not inconsistent with safety, the en-

forcement of a damage remedy under a nuisance theory,

for example, would not necessarily present a conflict

1 to distinguish Griggs on the that the

teat czaden arose prior to the 1958 nia defining

navigable air to include the air space necessary to insure

of Newark, New Jersey v. Eastern Airlines (D.N.J.

rane, 750, 756.) The flights in Griggs were not in violation

pilin

with federal law but might well reinforce it... . []

Only a compelling federal interest, e.g., where the state-

created liability would clearly frustrate federal pur-

poses, justifies our implying an intent on the part of

Congress to nullify common-law rights normally in the

state-law sphere.” (/d., at p. 592.)

The City relies on Allegheny Airlines v. Village of

Cedarhurst (2d Cir. 1956) supra, 238 F.2d 812, |

affg. (E.D.N.Y. 1955) 132 F.Supp. 871; and City of

Newark, New Jersey v. Eastern Airlines .(D.N.J.

1958) supra, 159 F.Supp. 750, cases in which mu-

nicipal ordinances attempting to regulate the altitude

at which aircraft flew over the city were invalidated.

As noted in Loma Portal Civic Club, supra, at pages

593-594, in both of those cases there was a direct

conflict with federal flight control and the courts ex-

pressly stated that their decision did not affect the right

of property owners to sue for damages.

In American Airlines, Inc. v. Town of Hempstead

(2d Cir. 1968) 398 F.2d 369, affg. (E.D.N.Y. 1967)

272 F.Supp. 226, cert. den., 393 U.S. 1017 [211

L.Ed.2d 561, 89 S.Ct. 620], the court struck down a

municipal ordinance which prohibited the operation of

any mechanism which created a noise within the town

exceeding a certain level. The court invalidated the

ordinance on the ground there was a direct conflict

with federal regulations controlling flight patterns and

procedures because it was impossible to comply with

the ordinance without changing altitudes, flight paths,

traffic patterns, and safety margins regulated by the

federal government. But the court noted that the case

had nothing to do with the question of landowners’

right to compensation for overflights which constituted

a taking of property. (398 F.2d at p. 372.)

ee NES y

In City of Burbank v. Lockheed Air Terminal

(1973) 411 U.S. 624 [36 L.Ed.2d 547, 93 S.Ct.

1854], the Supreme Court invalidated a municipal

ordinance which prohibited pure jet landings and take-

offs from Hollywood-Burbank Airport between 11 p.m.

and 7 a.m. The ordinance was invalidated because

such curfews, if enacted upon a widespread basis,

would result in bunching of flights which would be

inconsistent with the federal regulatory scheme. (Jd.,

at pp. 627, 639-640 [36 L.Ed.2d at pp. 550,, 557].)

The majority opinion went further, however, to declare

that section 611 of the Federal Aviation Act, as

_ amended by the Noise Control Act of 1972 (49

U.S.C.A. § 1431) impliedly pre-empted the field of air-

craft noise control. (/d., at pp. 628-640 [36 L.Ed.2d

at pp. 551-557].)

Nothing in Burbank or iis suggests, how-

ever, that the City of Los Angeles, as owner and oper-

ator of LAX, should be absolved of all responsibility

for the substantial interference with plaintiffs’ use and

enjoyment of their property which results from use of

the airport. The legislative history of section 611 ex-

pressly indicates that it is not intended to “affect. the

rights of a State or local public agency, as the pro-

prietor of an airport, from issuing regulations or es-

tablishing requirements as to the permissible level of

noise which can be created by aircraft using the air-

port.””

lows: “The bill is an amendment a statute describing the pow-

merce. As indicated earlier in this report, certain actions

(This footnote is continued on next page)

;

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craft were using. This was noted in Burbank, where

the court expressly avoided decision as to the powers

of a municipality as proprietor of the airport.” Like-

wise the town of Hempstead was not the owner and

operator of JFK International Airport in New York.

The difference between the power of the town of

Hempstead and the power of the Port of New York

Authority was noted by the trial court in Hempstead.

(American Airlines, Inc. v. Town of Hempstead

(E.D.N.Y. 1967) supra, 272 F.Supp. 226, 233.) In

Port of New York Authority v. Eastern Air Lines,

Inc. (E.D.N.Y. 1966) 259 F.Supp. 745, the court up-

“Of course, the authority of units of local government to con-

trol the effects of aircraft noise | the exercise of land use

18]

rules regulating the use of the airport. (Gov. Code,

§ 50474; Stagg v. Municipal Court, 2 Cal.App.3d 318,

322 [82 Cal.Rpir. 578].) California has adopted ex-

tensive regulations for the control of noise by airport

proprietors. (Pub. Util. Code, § 21669; Cal. Admin.

Code, tit. 4, §§ 5000-5080.5; Comment, We May Yet

Have a Quiet Environment: The New California Airport

Noise Regulations (1972) 12 Santa Clara Law. 79;

Vittek, supra, fn. 4 at pp. 509-514.)

There is no issue in this proceeding as to the validity

of California’s noise standards or of any rule or regu-

lation adopted by the City as proprietor of the airport.

We mention these matters only to suggest that the City

is not powerless to take steps to alleviate the problem

of jet noise. Indeed, over the years since the problem

was brought to the City’s attention it has taken sev-

eral constructive steps to attempt to ease this burden.

Obviously a final solution to the problem will require

numerous different approaches to it and the coopera-

tion of airplane manufacturers, the airlines, federal,

state and local government. Although many parties

other than the City may have helped to create the

problem, the City’s role as planner, owner and opera-

tor of the airport is sufficient to require it to compen-

sate the plaintiffs in this case. (Griggs v. Allegheny

County, supra, 369 U.S. 84, 89-90 [7 L.Ed.2d 585,

tack the problem of jet noise see Comment, supra, footnote 2, 6

Lip. Lev. 61. Se alo Laren, 1

instant case does not present the issue as

y cause of action against any other par-

ties such as the airlines, aircraft manufacturers, or the

—

iis

Statute of Limitations

(8) The City contends that plaintiffs did not timely

file claims within one year from the time the cause of

action arose. (Gov. Code, § 911.2; Mosesian v. County

of Fresno, 28 Cal.App.3d 493, 495 [104 CalRptr.

655].) The claims were filed in January and February

of 1964. The City contends that the cause of action

arose sometime in 1962 and therefore the claims were

not timely. The trial court determined that for pur-

poses of Government Code section 911.2 the cause of

action arose in May 1963 and thus the statute was

satisfied.

The question of when a cause of action arises in a

case such as this is a difficult one and the answer

necessarily depends upon a number of factors. In Jen-

sen v. United States (1962) 305 F.2d 444, 447 [158

Ct.Cl. 333], the court stated, “There is, unfortunately,

no simple litmus test for discovering in all cases

when an avigation easement is first taken by over-

flights. Some annoyance must be borne without com-

pensation [citations]. The point when that stage is

passed depends on a particularized judgment evaluat-

ing such factors as the frequency and level of the flights;

the type of planes; the accompanying effects, such as

noise or falling objects; the uses of the property; the

effect on values; the reasonable reactions of the hu-

mans below; and the impact upon animals and vege-

table life.” The determination necessarily depends

upon the facts of each case.

The City points to certain evidence that individual

plaintiffs were annoyed by>the jet noise in 1962 and

that they hired attorneys and appraisers in that year.

But the cause of action did not accrue at the point the

—30—

homeowners first became annoyed. As pointed out in

Jensen some annoyance must be borne without com-

pensation. It is only when the flights substantially inter-

fered with the use and enjoyment of plaintiffs’ proper-

ties and resulted in a diminution of their market value

that a cause of action arose. (Aaron v. United States

(1963) 311 F.2d 798, 800 [160 Ct.Cl. 295], second

appeal (1964) 340 F.2d 655, 658-659 [167 Ct.Cl.

818].)

Moreover, under the decision in Pierpont Inn, Inc. v.

State of California, 70 Cal.2d 282, 291-293 [74 Cal.

Rptr. 521, 449 P.2d 737], which relies in turn upon

United States v. Dickinson (1947) 331 U.S. 745, 747-

749 [91 L.Ed. 1789, 1793-1794, 67 S.Ct. 1382],

plaintiffs were not required to sue as soon as the dam-

aging flights began but were entitled to some extent to

wait until the situation became stabilized. (See also

Nestle v. City of Santa Monica, supra, 6 Cal.3d 920,

937.)

In the instant case, the trial court carefully weighed

a variety of circumstances including the increase in the

number of jet aircraft landings, the increase in the

number of fan jet aircraft (which are greatly more an-

noying than pure jet aircraft), and the effect upon the

residents, and determined that the statute of limitations

began to run in May 1963. Many of the individual

plaintiffs testified that although they were annoyed

by the noise in 1962, the frequency of the flights and

the damage caused by the noise jumped markedly in

1963. (See Jensen v. United States, supra.) There was

substantial evidence to support the trial court’s ruling

that plaintiffs’ claims were timely filed.

Since we uphold the trial court’s finding that for pur-

poses of the statute of limitations the taking or dam-

lis

aging of plaintiffs’ property occurred as of May 1963,

there is no merit to the City’s contention that the testi-

mony e¢f plaintiffs’ appraisers was defective in failing

to distinguish decreases in market value which the City

contends occurred in 1962. (See Pierpont Inn, Inc. v.

State of California, supra, 70 Cal.2d 282, 290-294.)**

Admissibility of NEF Area Study

(9) The City argues that the trial court should have

excluded from evidence the Bolt, Beranek and Newman

study of noise exposure forecast areas for LAX, be-

cause the earliest portion of that study was for the year

1965, whereas the taking or damaging in the instant

case occurred in May 1963. The City contends that the

study was therefore irrelevant. This argument is with-

out merit. The NEF area contours were based upon a

number of factors including frequency of jet flights,

timing of such flights by day and by night, types of jet

aircraft, operating conditions and procedures and flight

patterns. Although the number of flights increased be-

tween 1963 and 1965, the City points to no evidence

that the types of aircraft, operating procedures,

or flight patterns were substantially different in 1965.

That NEF area C was the neighborhood of the most

severe impact on land use was substantiated by the

testimony of the appraisers. The trial court took the

date of the study into account in determining the weight

of the evidence. The study was relevant. (Evid. Code,

§ 210.)

4*Another contention raised by the City as to the appraisal

testimony is that it should have been stricken as

oo ~

iit .

. CONCLUSION

(3b) In summary we hold that the municipal op-

erator of an airport is liable for taking or damaging

of property when the owner of property in the vicinity

of the airport can show a measurable reduction in

market value resulting from the operation of the air-

port in such manner that the noise from aircraft using

the airport causes a substantial interference with the

use and enjoyment of the property, and the inter-

ference is sufficiently direct and sufficiently peculiar

that the owner, if uncompensated, would pay more than

his proper share to the public undertaking. Whether

the interference is substantial enough to meet this stand-

ard is a mixed question.of fact and law for the trial

judge to determine. The owner need not prove there

were direct overflights of the property. The fact that

the federal government controls the flight of aircraft

does not relieve the airport owner and operator of lia-

bility where the operation of the airport is a substantial

cause of the property owner’s damage.

The judgfhent is affirmed.

Kaus, P. J., and Stephens, J., concurred.

a”

APPENDIX “C.”

Opinion of the Superior Court of the State

of California.

Irving D. Aaron, et al. v. City of Los Angeles.

California Superior Court, Los Angeles County, Feb-

ruary 5, 1970.

CALIFORNIA — AIRCRAFT NOISE — TAKING

OF PROPERTY — DIMINUTION OF VALUE.—

The noise from jet aircraft flying over and near resi-

dential properties located within and near the landing’

and takeoff pattern of an airport that resulted in a sub-

stantial diminution in the market value of these proper-

ties constituted a taking or damaging of these properties

within the purview of the state constitution. Since jet

aircraft noise creates a severe disturbance to the com-

fort, enjoyment and use of residential property by the

owner, it was not necessary that there be an actual in-

vasion of the landowner’s property to constitute a tak-

ing. Therefore, to the extent the landowners are able

to establish that jet aircraft noise has diminished sub-

stantially the market value of their properties they are

entitled to recover damages by inverse condemnation.

CALIFORNIA — AIRCRAFT NOISE — SUB-

STANTIAL DAMAGE — DIMINUTION OF VAL-

UE.—While property owners must suffer substantial

damage from jet noise in order to recover by inverse

condemnation, evidence that the market value of their

properties has been reduced by jet noise to an extent

that is reasonably measurable satisfies the requirement

of substantial damage.

CALIFORNIA — AIRCRAFT NOISE — NAVI-

GABLE AIRSPACE—DAMAGE LIABILITY.—

Even though the Federal Aviation Administration es-

tablishes the altitudes at which aircraft may fly in take-

offs or in landings, a state may impose liability for

damage caused by jet aircraft noise, even if the flights

are within the navigable airspace.

Back reference: 415,265.64.

CALIFORNIA — AIRCRAFT NOISE—DAM-

AGE—ACCRUAL.—A cause of action for damages

to real property due to aircraft noise accrued at the

time the annoyance and offensive features of the noise

became stabilized primarily because of the increased

use of fan jet aircraft‘and substantially diminished the

market value of the property. Therefore, a cause of

action filed within one year was not barred by the

statute of limitations.

CALIFORNIA — AIRCRAFT NOISE —DAM-

AGES—COMPUTATION.—Since the time of the sub-

stantial effect upon the market value cf property from

flyby and flyover jet aircraft noise occurred in 1963,

a method of determining.the effect of the noise upon

the market value in 1963 would be to consider sales

prices of property in the affected area in 1961 and

1962 and compare those sales prices with sales prices of

comparable property for the years 1963 and 1964.

CALIFORNIA — AIRCRAFT NOISE—COM-

PENSATION—EASEMENT—An award of compensa-

tion for diminution of the market value of residential

properties because of flyby and flyover jet aircraft

noise carried with it the grant of an easement for such

flights. However, if the property owner can subsequent-

ly establish a further diminution in the market value

by increases in the number of jet flights using the air-

space or the character of the noise created, the property

owner would be entitled to additional damages.

—35—

[Statement of case]

Jefferson, Judge: This is an action for damages for

inverse condemnation. There are approximately one

thousand five hundred plaintiffs who allege that they

are the owners of real property in the neighborhood of

the Los Angeles International Airport, sometimes here-

after referred to as the Airport, and that the City of

Los Angeles, the only defendant in this action, has

permitted and caused an increasing number of jet air-

plane flights over and in the immediate vicinity of the

plaintiffs’ properties, so that the noise, smoke, vibra-

tions and fumes from the aircraft have damaged these

properties. There are approximately seven hundred and

fifty separate parcels of real property involved in this

action. All of the parcels are residential in nature. Most

of these parcels are located east of the airport, with

the remainder being located west of the Airport and

in the beach area commonly known as Playa del Rey.

Besides denying the allegations set forth in the com-

plaint, the defendant City asserts a number of affirma-

tive defenses. The defenses raised by the defendant are

as follows: (1) that the complaint fails to state a cause

of action; (2) that the cause of action is barred by

the statute of limitations as set forth in sections 312,

318 and 319 of the Code of Civil Procedure; (3) that

the action is barred by the statute of limitations as set

forth in section 338, subidvision 2, of the Code of Civil

Procedure; (4) that the Federal Aviation Act of 1958,

as amended, has preempted control of airspace naviga-

tion; (5) that the defendant City has acquired by pre-

scription an easement in the airspace involved because

of more than five years’ adverse use by defendant

City; (6) that public convenience and necessity require

that defendant City use the airspace involved in this

action, and that the City is entitled to an easement

for continued use of this airspace.

A Pretrial Order was made which sets forth the var-

issues to the extent that they are not raised specifically

by plaintiffs’ complaint and defendant’s answer thereto.

and litigated in this case is the question of whether the

plaintiffs are barred from relief by the failure to file a

timely claim with the defendant City.

The basic theory of liability which plaintiffs advance

is that the noise from jet aircraft flying over and near

the residential properties of plaintiffs has resulted in a

substantial diminution in the market value of these

properties, which thus constitutes a “taking or damag-

ing” of these properties within the purview of Article

I, section 14, of the California Constitution.

[ Airport operation]

It is conceded that the Los Angeles International

Airport was in existence at its present location prior

to the acquisition by the plaintiffs of their residential

properties. The runways of the airport are located in

an easterly and westerly direction. Planes landing at

the Airport approach the runways from an easterly di-

rection. Planes leaving the Airport do so in a westerly

direction and fly out over the ocean. These are the

flight patterns of arrivals and departures for most of the

days in the year. Occasionally, because of wind condi-

tions, arrivals are directed to come from the west and

takeoffs toward the east. The times, however, when

these changes are made are rare enough that they need

not be given any consideration with respect to the issues

involved in this case.

in market

to the noi

parcels of property has been reduced because of noise

—3—

from. jet aircraft flying over and near these parcels

located within and near the landing and takeoff pat-

terns.

One of the crucial issues involved in this litigation

is whether noise from jet aircraft presents a proper

case for inverse condemnation. It is the contention of

the defendant City that the law does not sanction any

recovery for noise against a government entity, even

assuming that such noise has caused a diminution in

property values. There is yet no appellate court de-

cision in California on this point. The trial courts must

chart the theories of recovery or nonrecovery, and ul-

timately, the California Supreme Court will be asked to

determine this aspect of the law of inverse condemna-

tion upon appeals from judgments of the trial courts.

There are various alternatives which may be con-

sidered. The federal Constitution provides for the pay-

ment of compensation only when there is a “taking” o

private property for a public use. Under the federal

view, what is meant by the concept of the “taking”

of private property? The federal courts have made it

clear that there can be no recovery in eminent domain

or inverse condemnation proceedings unless the owner

of real property has been ousted or displaced by the

Government with respect to some portion of his prop-

erty, with the result that the Government occupies

what the owner once occupied or had the right to oc-

cupy. Under the federal cases, an injury to property

without displacement or ouster of the owner is not

compensable. .

pa” eae

[Taking theory) |,

With respect to the flight of aircraft and aircraft

noise, we have the problem of determining how noise

from the flight of aircraft which lowers the market

value of property can constitute a “taking” of’ such

property. The federal rule solved this problem by hold-

ing that the flight of aircraft over an owner’s property

constitutes an invasion of the owner’s airspace over his

surface property, and that this is a sufficient “taking”

to permit recovery by the owner who suffers a

market-value loss by such overflights. But the federal

rule does not allow any recovery to the owner who

suffers a loss in market yalue from horizontal noise,

or noise from flyby aircraft, even though it may be as

annoying to him as it is to the owner directly over

whose property the airplanes are flying. In United

States v. Causby [2 Avi. 14,189], 328 U.S. 256

(1946), the United States Supreme Court held that

flights on‘ takeoff and landing at low level over an

owner’s property could be considered a “taking” in

the nature of an easement of flight, and rendered the

Government liable for the decreased value of the

owner’s property. In Causby, the court made it clear

that this decision was being limited to permitting re-

covery by a property owner over whose land the

planes took off, and could not be considered as a

holding to protect nearby owners. The nearby owners

are considered to have suffered incidental damage for

which no recovery is allowed.

—O— ,

_ In Batten’ v. United States [8 Avi. 17,101], 306

F. 2d 580 (10 Cir. 1962), plaintiffs whose property

ment under the theory that there was a “taking” of

their property which was compensable under the fed-

eral Constitution. The majority of the court

Causby and held that damage from lateral flight noise

was not a “taking” by the Government. Plaintiffs

fren omen aE EY

[Nuisance Rowdy:

A second view would permit recovery in inverse

condemnation by property owners who suffer sub-

stantial diminution in market value from jet aircraft

noise, regardless of whether the planes fly directly

over the owner’s property or not. Under tuis view, it

is recognized that there can be no acceptable theory

of a “taking” of the owner’s property under such cir-

cumstances. This second view permits recovery on a

nuisance theory, which requires substantial damage to

the property owner. Is there any basis for sustaining

such a view under a state constitutional provision

which provides for compensation only when there is a

“taking” of property by a governmental entity? This

view of recovery is sanctioned in the State of Oregon.

This was the holding in Thornburg v. Port of Port-

land {8 Avi. 17,281], 233 Ore. 178, 376 P. 2d 100

(1962), In Thornburg, the plaintiffs owned property

near an airport which was owned and Operated by a

public agency, the Port of Portland. Oregon’s Constitu-

tion is similar to the federal Constitution, and provides

for compensation only for a “taking” of private prop-

damages so long as there is proof of real injury, wheth-

er resulting from noise coming from flyover or flyby

aircraft. ;

However, in a second appeal in Thornburg v. Port

of Portland [9 Avi. 18,248], 244 Ore. 69, 415 P. 2d

759 (1966), the Oregon court, although seemingly

has been a compensable invasion of the individual’s

property rights in a case of this kind is whether the

interference with use and enjoyment is sufficiently di-

rect, sufficiently peculiar, and of sufficient magnitude

to support a conclusion that the interference has re-

duced the fair market value of the plaintiff's land by

a certain sum in money. If so, justice as between the

state and the citizen requires the burden imposed to

be borne by the public and not by the individual alone.”

(Thornburg, supra, 415 P. 2d at p. 752.) See Mur-

rah, C. J., dissenting, Batten v. United States (8 Avi.

17,101], 306 F. 2d 580, 587 (10 Cir. 1962).

[Public benefit theory]

A third view is a further extension of the Oregon

rule. The Oregon view requires proof of substantial

damages. This. third view permits recovery for any

damage, whether substantial or not, which results to

the property owner from aircraft noise, regardless of

whether the noise comes from flyover or flyby aircraft.

This view is espoused by the State of Washington. In

Martin v. Port of Seattle [8 Avi. 18,324], 64 Wash.

2d 324, 391 P. 2d 540 (1964), plaintiffs were prop-

erty owners near the Seattle-Tacoma International Air-

port owned and operated by the Port of Seattle, a

municipal corporation. Some of the plaintiffs were lo-

cated underneath the flight patterns, while others were

not directly underneath but were near the flight pat-

terns, and all claimed a decrease in property values

from the jet noise. Here the question was whether the

plaintiffs’ complaint which set forth these facts stated

a cause of action. The Washington Constitution con-

tains a clause which requires compensation for “taking”

or “damaging” private property by governmental ac-

tion. The Washington court held that plaintiffs’ com-

plaint stated a cause of action. The court rejected as

purely legalistic any theory of trespass or easement or

a limitation of recovery to invasion of airspace above

an owner’s property. The court adopted the view of

the dissent in Batten v. United States, cited supra, that

there should be compensation whenever the interfer-

ence with the use of an owner’s land is of sufficient

directness, peculiarity and magnitude “that fairness and

justice, as between the State and the citizen, requires

the burden imposed to be borne by the public and not

by the individual alone.” (Martin, supra, 391 P. 2d

at p. 546.) However, the’ Washington court refused

to accept the principle that the plaintiffs must make a

showing that their damage is substantial before the

damage can be said to be a taking or damaging within

the meaning of the constitutional language. The Wash-

ington court rejected the view that less-than-substantial

damage would be considered noncompensable as inci-

dental damage, holding that any diminution of prop-

erty values, however slight, should be compensable.

[Catijornia theory]

We now turn to the law of California to determine

if California has embraced a particular theory for re-

covery in airport noise cases. We start with a considera-

tion of the street or freeway noise cases. To date, Cali-

fornia has taken the view that a property owner whose

property has not been taken for freeway or street pur-

poses, but whose property has been decreased in value

from the vehicular noise of a freeway or street, may

not recover from the governmental entity any damages

for such decrease in property valugs. This was the

holding in People ex rel. Dept. of Public Works v.

Symons, 54 Cal. 2d 855 (1960). In Symons, the court

quoted from Eachus v. Los Angeles, etc., Ry. Co., 103

Cal. 614, 617 (1894), as follows:

“‘The constitution does not, however, authorize

a remedy for every diminution in the value of

property that is caused by a public improvement.

The damage for which compensation is to be made

is a damage to the property itself, and does not

includ: a mere infringement of the owner’s per-

sonal pleasure or enjoyment. Merely rendering

private property less desirable for certain purposes,

or even causing personal annoyance or discomfort

in its use, will not constitute the damage con-

eee

—44—

templated by the constitution; but the property

itself must suffer some diminution in substance,

or be rendered intrinsically less valuable by rea-

son of public use. The erection of a county jail

or a county hospital may impair the comfort or

pleasure of the residents in that vicinity, and to

that extent render the property less desirable, and

even less salable, but this is not any injury to the

property itself so much as an influence affecting

its use for certain purposes... .’”

To the same effect is People ex rel. Dept of Public

Works v. Elsmore, 229 Cal. App. 2d 809 (1964).

A more recent case in point is Lombardi v. Peter

Kiewit Sons, 266 Cal. App. 2d 599 (1968), where it -

was held that a complaint did not state a cause of

Albers v. County of Los Angeles, 62 Cal. 24 250

(1960); and Frustuck v. City of Fairfax, 212 Cal.

App. 2d 345 (1963).

ts ef Pama cose, we have 2 shustion in which

--45—

for damages in inverse condemnation agaiinst the Coun-

ty and in favor of the landowners.

In Albers, the California Supreme Court interpreted

the California constitutional provisions with respect to

eminent domain to permit recovery for any actual physi-

cal injury to a landowner’s property caused by the im-

sented in Albers from that presented im Symons by

pointing out that in the latter instance tthe diminution

in property values resulting from such factors as high-

damage to the property itself but only a «diminution in

the enjoyment of such property.

[Physical invasion]

Aibers states the California law as going beyond

the federal cases. The theory of the federal cases re-

quires a physical invasion of realty by the governmental

entity. This is a trespass theory, which requires an

ouster of the owner of possession of some part of his

‘property, whether it be the surface of his: land or the

airspace above. This physical invasion tlheory is the

exclusive test under federal law: Albers can hardly

be said to involve a trespass or a physiical invasion

of the landowner’s property by the governmental en-

tity. The emphasis in Albers is upon physical injury or

damage to the realty. If there can be recove:ry for physi-

cal damage to realty without any actual trespass upon

or physical invasion 0‘ the landowner’s proyperty by the

governmental entity, i: would seem to folllow that an

invasion of the air surface above the land! by aircraft

overflights would be sufficient to permit recovery in

inverse condemnation, so long as there has been a loss

in market value resulting from such aircraft over-

ical

flight noise. It should be immaterial whether a loss of

market value from aircra‘t’ oveiflight noise is looked

upon as a “taking” or “damaging” of private property,

domain compensation where there is a “taking” or

“damaging.” (See California Constitution, Article I,

section 14.) Ps

A more serious question, however, is whether the

California cases, such as Albers, Lombardi and Sym-

ons, restrict recovery in inverse condemnation in the

aircraft noise situation to those cases in which the

market value of private property has been diminished

by noise from aircraft flyovers. The question to be

determined is whether the rule of Symons means that

aircraft noise falls in the same category as freeway

motor vehicle noise, so that in the absence of an in-

vasion of some portion of an owner’s property, no re-

covery may be had for a decrease in market value due

to noise, fumes, soot or vibrations of flyby jet air-

craft as distinguished from flyover jet aircraft. Is there

any rational basis for distinguishing freeway noise

effects from jet aircraft noise effects?

One justification for the Symons rule in freeway

noise cases is that property owners in the same position

are treated equally. Thus, all property owners adjacent

to the freeway are treated equally in not being per-

mitted to recover for any loss of market value due to

freeway noise or fumes. Such owners may logically be

set apart from those whose property is actually taken

by freeway construction, because the property owner

whose property is actually taken is ousted and deprived

of possession of that portion of his property. In the

case of jet aircraft noise, however, it is pure fiction to

—47—

claim that property owners directly under the flight

pattern have been ousted from the use of the airspace

above their properties by the flyover aircraft. In the

case at bench, for example, the property owners whose

properties are subject to flyover jet aircraft are still in

possession and use of their single-family and multiple-

unit properties to the same extent as are the owners

who suffer from jet aircraft flyby noise on'v.

The theory of a “taking,” enunciated by the federal

cases, is deemed necessary because of the federal con-

stitutional provision that a “taking” must occur in order

to permit recovery from the Government. Since the

California Constitution provides for compensation for

a “damaging” of private property as well as for a “tak-

ing” of private property, California is not required to

adopt the tenuous theory of the Federal courts that an

invasion of a tandowner’s property is necessary before

a “taking” takes place. Albers leads the way to this

result, since in Albers there was physical damage to the

citizen’s property but no real invasion or appropriation

of space by the County.

There is every reason to believe that the citadel of

Symons must crumble and fall in the face of changing

conditions created by the advent of jet aircraft. The

Symons rule must be restricted in its application to the

narrow factual situation presented in that and similar

cases. In addition to Albers, other California Supreme

Court decisions leave little doubt as to the demise of the

Symons doctrine in other factual contexts. In People ex

rel. Dept. of Public Works v. Ramos, 1 Cal. 3d 261

(1969), Symons was distin,ui and any implica-

tions to the contrary found in People ex rel. Dept of

Public Works v. Elsmore, 229 Cal. App. 2d 809

—43—

(1964), were disapproved. But of greater significance

is the language found.in Loma Portal Civic Club v.

American Airlines, Inc. {9 Avi. 17,156], 61 Cal. 2d

582 (1964), a case in which property owners sought

an injunction against various airlines to prohibit an-

not sought against the owner and operator of- the air-

port. Although denying the injunctive relief sought, the

court made this highly significant observation:

“Nothing here is intended to be a determination

of the rights of landowners who suffer from air-

plane annoyances to seek damages from the. own-

ers or operators of aircraft or to seek compensa-

tion from the owner or operator of an airport.”

(Loma Portal Civic Club, supra, at p. 591.)

[Noise measurement]

Furthermore, there is a significant difference between

the noise emanating from jet aircraft and that coming

from automobiles and trucks on a street or freeway.

This difference is so pronounced that the legal conse-

quences of jet noise should not be the same as the legal

consequences of street and freeway noise of cars and—

trucks as enunciated by cases such as Albers, Lombardi.

and Symons. Scientific studies demonstrate that jet

aircraft noise creates a severe disturbance to the com-

fort, enjoyment and use of residertial property by the

«owners affected. The sounds emanating from cars and

iecks on streets apd freeways are simply minor con-

trasted with the irrhating and offensive sounds emanat-

ing from jet aircraft. Scientific evaluation of sound and

noise establishes a significant difference between the

two types of sounds and noises and their effects upon

human beings. Studies made by acoustical scientists

—49

of different sounds is capable of measurement by ac-

cepted standards of numerical ratings.

Noise is simply one type of sound. Noise is commonly

considered as unwanted sound because of the ear’s re-

ception and reaction to different kinds of sounds. In

dealing with noise, whether it be from automobiles or

aircraft, we are concerned with its annoyance and of-

fensive effect upon people, and whether such noise re-

sults in a substantial interference with the comfort, en-

joyment or use of one’s home.

There are two components of sound in terms of the

ear’s reception and reaction. One is the intensity, magni-

tude or loudness of sound, and the second component

is the frequency band or frequency range of sound.

The high frequency components of sound are the ele-

tensity or loudness is also involved in the human judg-

ment of offensiveness, the high frequency aspect of

sound creates, by far, the greater irritating effect upon

human beings. Thus, the screech of crayon upon a

blackboard is a typical example of significant annoy-

ance from a high frequency sound of low intensity or

loudness.

The hue and cry over aircraft noise did not develop

until the coming of jet aircraft. The explanation is that

propeller aircraft creates sounds that are predominant-

ly in the low frequency range, and low frequency

sounds are not as disturbing to the-ear-as~are~ high

frequency sounds. Likewise, the sounds from automo-

biles and trucks traversing the streets and freeways are

predominantly low frequency or low pitch sounds, and

hence do not begin to have the annoyance and offensive

——-50—

consequence to the human ear as the high frequency

sounds made by jet aircraft. Tests conducted by acous-

tical experts indicate that if the average person hears

two sounds of the same intensity or loudness and one is

a high frequency sound and the other a low frequency

sound, such person will believe that the high frequency

sound is louder than the low frequency sound.

The sound frequencies, or the differences in high

pitch tones or low pitch tones, are measured by the

number of vibrations or cycles per second. The inten-

sity or magnitude or loudness of sound is measured in

' terms of a logarithmic scale of decibels. The sound or

noise from jet engines creates what is called a broad

band noise in the sound spectrum. An orchestra with

all of its instruments playing represents a picture of a

broad band sound spectrum. That is, the flutes and

piccolos make high frequency sounds, while the tubas,

bases and cellos create low frequency sounds. The

broad band sound of jet engines produces tones of

various frequencies. However, the dominant tones of

jet engines are in the high frequency range. It is this

factor of the concentration of jet noise in the high fre-

quency portion of the sound spectrum which creates

the disturbing and annoying feature to the ear.

Acoustical experts have developed the term “Effective

Perceived Noise Level,” abbreviated EPNL. Effective

Perceived Noise Level represents a noise scale which

provides a means for comparing the relative noise con-

tent of sounds on the basis of the two components,

intensity and frequency. The EPNL rating of noise

sounds represents the annoyance or offensive value

which hearers place on the noise spectrum. It represents

the hearer’s interpretation of the sound spectrum. It is

elles

a conversion of a physical measurement of sound in

terms of frequency in cycles per second and intensity in

decibels to a hearing interpretation of sound. Sound

experts rate noise with an EPNL single numerical num-

ber in decibels, which represents the individual's reac-

tion or annoyance to the particular sound spectrum.

The higher the EPNL rating, the greater the annoy-

ance feature of the noise which is transiated into the

EPNL rating. The EPNL numerical rating, which is

expressed in terms of decibels, fixes a value which takes

into account, where jet aircraft are concerned, factors

such as the duration of the particular sound, the num-

ber of flights, whether the flights are daytime or night-

time flights, and the type of aircraft engine, such as the

fan jet engine or the pure jet engine.

[ Annoyance features of aircraft noise}

What are the annoyance or offensive features of

noise? One of the important considerations is the in-

fluence of noise upon the ability of persons to com-

municate with each other. If the noise is such that per-

sons engaged in conversation must talk louder to be

heard, or get closer together to be heard, or cease talk-

ing altogether, then the noise has clearly interfered

with normal commun.cation between persons in a home.

Interference with normal communication may also be

considered in terms of its effect upon telephone con-

versations and the ability to hear and enjoy radio and

television programs. Another annoyance feature of

noise is involved if there is an interruption of a person’s

sleep.

The physical factors which go into the calculations

to arrive at an EPNL rating are obtained in part from

field tests, which record by means of instruments and

mallee

cameras the jet noise from flyover and flyby aircraft

at various land points in the takcoff and landing pat-

terns. The EPNL value determined at a particular land

location takes into consideration factors such as the alti-

tude of the aircraft and its distance from the land loca-

tion as it approaches and leaves the specific location

on its flight, and duration of the sound, the type of

sound produced by different types of aircraft and the

number of flights of different types of aircraft per day

and night.

The reason that the number of operations.per day of

jet aircraft is important in a determination of the

EPNL rating of jet aircraft noise is that if the noise of

a single aircraft is such that it interfercs with normal

communication in a home, an increase in the number

of flights thereby increases the chances of an interfer-

ence with normal communication, and hence increases

the annoyance effect of jets. Thus, several flights a day

of jet aircraft may constitute little interference with

normal communication. But if there are hundreds of

flights per day, the interference with normal communi-

cation obviously becomes substantial.

[Noise exposure study]

An expert in applied acoustics and aircraic and ve-

hicle noise sound measurements testified for the plain-

tiffs. This expert was the co-author of a study made

by the firm of Bolt, Beranek and Newman, Inc., for the

Federal Aviation Administration. The study was made

to determine Noise Exposure Forecast areas resulting

from aircraft takoff and landing operations at the Los

Angeles International Airport for the year 1965. The

purpose of the study was to determine the effects of air-

craft noise upon various land uses in areas surrounding

celles

the Los Angeles International Airport. To what extent

is commercial use of land different from residential use

insofar as aircraft noise is concerned? Determination of

the effects of jet noise upon different land usages fur-

nishes a good guide to better land-use planning and

zoning in areas surrounding an airport. The Noise Ex-

posure Forecast areas, hereafter referred to as NEF

areas or contours, were determined and based upon air-

craft noise measured numerically in terms of Effective

Perceived Noise Levels, and which thus took into con-

sideration factors such as the number of jet flights per

day as compared to the number at night, the various

types of jet aircraft, operating conditions, such as take-

off and landing thrust and performance and the alti-

tudes of aircraft at various locations in the takeoff and

landing patterns.

The NEF areas delineated as a result of the study

constitute a measuring of the nojse environment sur-

rounding the Los Angeles International Airport, us-

ing the EPNL standard of measurement. The study re-

sulted in the designation of three NEF areas or zones.

An inner zone, designated NEF Area “C,” constitutes

a zone of the highest noise level, in which jet aircraft

would have the greatest impact on people living within

that area. An outer area, designated NEF Area “A,”

was the zone of the lowest noise level, in which it was

determined that there should be no annoyance from

aircraft noise to the persons living in that zone. In be-

tween these two NEF areas was a third zone designated

NEF Area “B.” The middle zone was one in which it

was concluded that ‘t wouid be difficult to predict to

what extent persons living in that area would be af-

fected by jet aircraft noise.

oiiine

In the zone designated NEF Area “C”, it was the

recommendation of the authors of the study that no

new single-family residences or apartment houses, should

be constructed because of the severe noise impact from

jet aircraft upon residential living in this area.

In the zone designated NEF Area “B,” the opin-

ion was that apartment house construction could be per-

family construction should generally be avoided. So far

as noise levels are concerned, the expert witness indi-

cated, that there was a 15 decibel difference in noise

level rating resulting from jet aircraft’ between NEF

Area “A” and NEF Area “C.” In other words, in NEF

Area “C,” where jet aircraft noise had its greatest an-

noyance value to residents, the EPNL ‘rating was 15

decibels higher than the noise level in NEF Area “A,”

where there should be no substantial effect upon resi-

dential living. The three NEF area depict, therefore,

areas of significant difference in terms of the delete-

rious effects of aircraft in ise. The 15 decibel difference

between an area seriously affected by jet aircraft noise

and an area not materially affected has significance

because of the accepted principle that an increase of

10 decibels in the Effective Perceived Noise Level rat-

ing corresponds to a doubling of the annoyance effect

upon persons subjected to a noise level increase of 10

decibels.

For the purpose of the case at bench, a profile map

delineating the NEF Areas “A,” “B” and “C” was

superimposed on geodetic maps so that the location of

the approximately seven hundred and fifty parcels of

_ property involved in this litigation could be determined

with reference to the three Noise Exposure Forecast

areas.

alin

The study of the impact of aircraft noise upon land

which the Effective Perceived Noise Level is such that

a substantial interference with residential living results

from jet aircraft noise caused by the landings and take-

offs in the vicinity of Los Angeles International Airport.

iodiiticns

It is suggested that unless recovery in inverse con-

demnation is limited to landowuers suffering from fly-

over aircraft, there will be no seasonable way to draw

a line to distinguish between those landowners who

would have a cause of action and those who would not.

The development of the NEF contour areas provides

a good means of drawing a reasonable line between

those landowners who may establish a cause of action

for inverse condemnation and those who may not. All

landowners who suffer from substantially the same .

noise level are treated on an equal basis. Thus, all land-

owners located in NEF Area “C” are subjected to noise

from jet aircraft which substantially interfers with resi-

dential comfort, enjoyment and use oi their property

and which is substantiated by the Effective Perceived

Noise Level rating in decibels used to delineate NEF

Area “C.” To the extent that they are able to establish

that jet aircraft noise has diminished substantially the

market value of their property, they should be entitled

to recover damages in inverse condemnation. The own-

ers whose property is located outside of NEF Area “C”

would not ordinarily be entitled to recover because

the jet noise in areas outside of NEF Area “C” does

not constitute normally a substantial interference with

residential comfort, enjoyment and use of their property.

The testimony of the appraisers for the plaintiffs

substantiates the findings of the acoustical expert

whose studies produced the suggested NEF Areas “C,”

“B” and “A.” Without being aware of these areas, the

appraisers testified that at the various locations of most

of the parcels involved in this suit they heard the

noise of the planes, felt vibrations at some locations,

and observed the nearness of the planes and their fly-

over or flyby routes. Even though it is coincidental, it

turns out that the bulk of the parcels of real property in-

volved in this lawsuit is located in the area or zone

designated as NEF Area “C.”

One of the reasons advanced by those who favor

limiting recovery to those landowners who are in the

overflight patterns only is that of administrative con-

venience. Unquestionably, administrative convenience is

served by a rule of law that can be easily administered

by the courts. To hold that the right to possession of

real property is the sole constitutionally protected in-

terest in real property does have administrative conven-

ience in its favor. However, since the Effective Per-

ceived Noise Level rating offers a comparative measure

of annoyance and offensiveness for areas subjected to

the same kind of flight operations, the use of such a

standard is not ruled out through administrative incon-

venience. On the contrary, the Effective Perceived Noise

Level rating scale offers a practical means for com-

paring noise environments. Conditions which occur im-

mediately below the line of flight appears also at lateral

points along the surface. The Effective Perceived Noise

Level scales permit the making of practical noise esti-

mations and depicting this situation by contour maps

of the surface. This has been done through the develop-

ment and delineation of NEF Area “A,” “B” and

“C” with respect to land adjacent to and near the Los

Angeles International Airport.

[Legislative support]

The view of this Court that landowners who are

damaged by noise from flyover or flyby aircraft should

have a cause of action for inverse condemnation re-

ceives support from legislation enacted by the California

Legislature. Section 1239.3 was added to the Code of

—

Civil Procedure in 1965. This section provides that a

condemning agency, such as a city or airport district,

may acquire airspace or an air easement in the air-

space above the surface of property in the vicinity of

an airport in which excessive noise, vibration, discom-

fort, inconvenience or interference with the use and en-

joyment of real property produces a reduction in the

market value of real property and occurs because of

the operation of aircraft to and from an airport.

Prior to the addition of section 1239.3, the power

to condemn airspace and air easements was granted to

condemning agencies operating airports only to protect

runway approaches from encroachment of structures

or vegetation. Section 1239.3 is a legislative recognition

of the principle that jet aircraft noise may be such that

a landowner’s property adjacent to an airport may be

decreased in market value by reason thereof and result

in a cause of action for damages for inverse condemna-

tion. Section 1239.3 is significant because it does not,

by its terms, limit the power of condemnation to the air-

space in which overflights occur. Thus, this section

appears to constitute a legislative recognition that land-

owners whose properties are reduced in market value

by noise from jet flyby aircraft are entitled to considera-

tion to the same extent as those who are affected by

the noise from jet flyover aircraft.

[Substantial damage]

Objection was made to the testimony of the expert

who developed the NEF contour areas “C,” “B” and

“A” on the ground that his testimony pertained to the

aircraft noise situation as it existed in 1965, whereas

the thrust of plaintiffs’ cause of action related to the

aircraft noise situation in the year 1963. It is true that

5 pe tenn

——

the 1965 noise problem would not be identical with the

1963 situation. The evidence indicates that in 1965

there were 113,061 jet landings at the Los Angeles

Airport, inclusive of propeller jets, and that of this total

number 86,855 were pure jet aircraft. In 1963, the total

number of jet landings, inclusive of propeller jets, was

76,724, of which 59,776 were pure jet aircraft. The dif-

ference between the number of pure jet aircraft in 1965

as compared with 1963 is not so great that the 1965

study lacks significance for 1963 conditions. The in-

crease in the number of jet flights in 1965 over 1963

would i» cicate an increase in the annoyance factor of jet

noise ketween the two years, but such increase is not of

sufficient quantity to materially change the jet noise an-

noyance effect of 1963. To state the matter in reverse,

as will be discussed infra, the number of jet flights to

and from the airport in 1963 was large enough to create

a substantial interference with the comfort, enjoyment

and use of residential property situated within NEF

Area “C.”

The land area described as NEF Area “C” consists of

portions of the cities of Los Angeles, Inglewood, El

Segundo and unincorporated Los Angeles County ter-

ritory. That portion of NEF Area “C” east of the Air-

port is in the shape of a wedge, and may be generally

described as follows: The narrowest and most distant

point east of the Airport begins at Avalon Boulevard

and Golden Avenue, and then stretches in a generally

southwesterly direction toward the Airport. There is a

gradual widening of NEF Area “C” from Golden Ave-

nue and Avalon Boulevard to the Airport. This gradual

widening results from the fact that airplanes are grad-

ually descending as they approach the Airport for

their landing. At Vermont Avenue, the northerly bound-

—

ary of NEF Area “C” is approximately at 94th

Street, and its southern boundary is approximately at

103rd Strect. At Western Avenue, the northern bound-

ary is approximately at 95th Street, and the southern

boundary is approximately at 105th Street. At Cren-

shaw Boulevard, the northern boundary is approximate.

ly at 98th Street, and the southern boundary is ap-

proximately at 108th Street. At Hawthorne Boulevard

and La Brea Boulevard, which are extensions of each

other, the northerly boundary is approximately at 99th

Street, and the southern boundary is approximately at

110th Street. At the San Diego Freeway, the northerly

boundary is approximately at 99th Street, and the

southern boundary is approximately at 111th Street.

The northerly boundary of NEF Area “C” to the

west of the Airport is approximately along a line just

south of Waterview Street and just north of Napoleon

Street in the Playa del Rey community. The southerly

boundary of NEF Area “C” to the south and west of

the Airport is approximately at Mariposa Avenue in

El Segundo.

The view of many courts, regardless of the theory

of recovery, is that property owners must suffer sub-

stantial damage from jet noise in order to recover for

inverse condemnation. This was the view enunciated

by the Oregon court in the first appeal in Thornburg,

which adopted a nuisance theory and permitted re-

covery by property owners who suffered damage from

jet aircraft noise, whether the noise came from flyover

aircraft or flyby aircraft. How is substantial damage to

be defined? The cases dealing with the law of nuisance

do not indicate any clear concept of what is meant

by substaniial damage. A reasonable view is one which

hoids that damage is substantial if it is measurable as

contrasted with that which is merely nominal. Under

this view, no particular dollar amount or percentage of

reduction in the market value of property from jet

noise is required for proof of substantial damage. Evi-

dence that the market value of real property has been

reduced by jet noise to an extent which is reasonably

measurable satisfies the requirement of substantial

damage.

[Federal preemption]

One of the defenses raised by the defendant City is

that the Federal Aviation Act of 1958 has preempted

for the federal government the cagtrol and regula-

tion of ihe use of navigable airspace. The Federal

Aviation Act of 1958, 2s amended, declares that there

exists in behalf of the citizens of the United States a

public right of freedom of transit through the navigable

airspace of the United States. This act defines “naviga-

ble airspace” to be the “airspace above the minimum

altitudes of fight prescribed by regulations issued under

this chapter, and shall include airspace needed to in-

sure safety in take-off and landing of aircraft.” (48

U. S. C. § 1301(24).) Defendant City correctly points

out that it has no control over setting the uititudes at

which aircraft may fly in takeoffs or in landings. How-

ever, the fact that the federal government establishes

the altitudes of flight does not answer the question of

whether state law may impose liability for damage

caused by jet aircraft noise. In Aaron v. United States

[8 Avi. 17,421], 311 F. 2d 798 (Ct. Cl. 1963), the

federal court indicated that a right of recovery for dam-

age from aircraft flyover noise was limited to flights

below the navigable airspace designated by Congress.

The theory that there can be no taking of private prop-

erty and hence no liability for noise from aircraft

—62—

within the designated airspace was considered to be

derived from the precedents existing for highways.

Every citizen is entitled to use the highways, regard-

less of the noise made by his automobile. Similarly, it

was said that citizens should be entitled to fly in the

navigable airspace without liability. It is obvious that

airplanes must fly at low altitudes for a certain distance

adjacent to the runways upon making a landing

and upon takeoff. If we accept the defendant City’s

contention, it would mean that the only liability for air-

craft noise, regardless of the amount of damage in

terms of diminution in market value, would come from

aircraft which flew at lower altitudes than those desig-

nated. In Aaron, although the federal court accepted

the preemption theory generally, it rejected the conten-

tion of immunity for flights within the navigable air-

space at least to the extent of st-ting that a property

owner’s constitutional rights would have to be consid-

ered if it could be shown that a property owner suf-

fered substantial impairment of his property rights from

aircraft flights within the designated navigable airspace.

With respect to state law imposition of liability, it

could be reasonably asserted that if an owner’s prop-

erty is destroyed or damaged by aircraft noise, any im-

munity granted by Congress would be null and void

because it would constitute a taking or damaging of

private property without due process of law guaran-

teed by the Fourteenth Amendment to the United States

Constitution.

State courts have rejected this theory of federal pre-

emption for aircraft flying within the navigable air-

space. In Thornburg, the Oregon court rejected the doc-

trine of federal preemption creating an immunity from

liability on the ground that such immunity is predicated

| —

on the view that there can be no trespass from planes

flying in the navigable airspace, and, without a tres-

pass, there can be no damage to the landowner. Since

the Oregon court rejected the trespass\ and taking

theory and relied upon a nuisance theory\for recovery,

it concluded that the nuisance theory would permit

recovery for damage to property from aircraft noise

even if flights are within the navigable airspace desig-

nated pursuant to congressional legislation. In Ander-

son v. Souza [3 Avi. 17,887], 38 Cal. 2d 825, 839

(1952), it was stated that the federal declaration with

respect to navigable airspace was “not intended to

and do not divest owners of the surface of the soil of

their lawful rights incident to ownership.” a

In Loma Portal Civic Club v. American Airlines,

Inc. [9 Avi. 17,156], 61 Cal. 2d 582 (1964), the

California Supreme Court again rejected the conten-

tion of federal preemption. The Loma Portal Civic Club

case determined that Congress had not indicated any

‘intent to establish a federal preemption policy so that

state action would be precluded because of an exten-

sive pattern of federal regulation in the field. The court

said that Congress had not indicated such a federal

preemption because the Federal Aviation Act contained

an express declaration that nothing therein contained

should, in any way, abridge or alter remedies existing

at common law or by statute. The court aiso reached

the conclusion that there was no federal preemption

by applying the test of whether the enforcement of

state law would conflict with the purposes of the fed-

eral legislation, whether by frustrating an affirmative

purpose or by interfering with a matter left intentional-

ly unregulated by Congress. The court concluded

that only a compelling federal interest, as where a state-

‘

‘aeliieas

created liability would clearly frustrate tederal pur-

poses, would justify inferring an intent on the part of

Congress to nullify righis normally considered in the

state-law sphere. The definition and adjustment of

property rights and the protection of health and wel-

fare are matters primarily of state law. Thus, state

courts may entertain wrongful death actions against air-

lines (Porter v. Southeastern Aviation Inc. [7 Avi. 17,-

187], 191 F. Supp. 42 [M. D. Tenn. 1961]). In

Huron Portland Cement Co. v. City of Detroit, 362

U. S. 440 (1960), it was held that a city was not

precluded from applying its antismoke ordinance to a

ship whose boiler was built in compliance with fed-

eral safety requirements and had received federal ap-

proval after inspection. Huron indicates that the pres-

ence of a federal license is not, therefore, all-controlling

in deciding the question of federal preemption.

Closely allied with the defense of federal preemption

is the contention of defendant City that it cannot be

held liable for damage to property owners from jet

aircraft noise because it has no control over the air-

lines’ choice of aircraft engines or the flight altitudes

on the glide paths to and from the Airport. Although

these are matters regulated by the Federal Aviation

Administration, they offer no valid defense to the de-

fendant City. The United States Supreme Court re-

jected such a defense in Griggs v. Allegheny County

{7 Avi. 17,866]. 369 U. S. 84 (1962). There it was

held that Allegheny County, whica owned and operated

the Greater Pittsburgh Airport, was bound under the

Fourteenth Amendment to the United States Constitu-

tion to compensate a property owner who was dam-

aged as a result of aircraft flights over his land. The

fact thai approach patterns were within the navigable

: —65—

airspace declared by Congress did not preclude the

holding that there had been a “taking” of private prop-

erty by the governmental owner and operator of the

airport. The reasoning of the Supreme Court was that

the County exercised the sole discretion to place the air-

port in the specific location, and that had it not so

located the airport, there would have been no federal

licensing of airplanes or fixing of navigable airspace to

and from the specific location. Thus, in the case at

bench, the City of Los Angeles made the decision to

locate the Los Angeles International Airport where it

now stands, and, as a result of that decision, must com-

pensate those who own property adjacent to and near

the Airport and who can establish that they bave

been damaged as a result of noise from jet aircraft. ~< '

[Easement by prescription}

One of the defenses asserted by the defendant. City

is that the defendant has acquired an easement by

prescription because aircraft has used the airspace

above plaintiffs’ properties for more than five years

preceding the filing of the complaint, and that the use

of this airspace has been open and notorious and ad-

verse to any interests claimed or asserted by plaintiffs.

There is a serious question of whether it is legally pos-

sible for an operator and owner of an airport to obtain

an easement by prescription with respect to aircraft

flights over an owner's land. It is generally held that

an easement in the air may not be obtained by pre-

scription. See Hinman v. Pacific Air Transport [1 Avi.

640], 84 F. 2d 755 (9 Cir. 1936). However, defend-

ant City offered no evidence to support this defense,

and the matter requires no further consideration.

[Statute of limitations] _ 3

Another defense, urged by defendant City is that

plaintiffs are barred from relief by virtue of the statute

of limitations provisions found in sections 312, 318,

319 and 338 of the Code of Civil Procedure. Asserted

with this defense is the claim that plaintiffs are barred

from relief by failing to file a claim with the City with-

in one year after the accrual of a cause of action as

required ‘by Government Code section 911.2, formerly

section 644. The evidence establishes that some of the

_ plaintiffs filed claims with the defendant City on Jan-

uary '2, 1964, and the remainder on February 7, 1964.

Obviously, if plaintiffs’ cause of action arose more than

one year prior to the above dates, the claims were not

filed within the one-year period following-the accrual

of the cause of action. If the claims statute is applicable

to a cause of action in inverse, condemnation, and plain-

‘tiffs have not:complied with the statute, plaintiffs have

failed to prove a cause of action, and the statute of

limitations provisions of the Code of Civil Procedure

need not be considered. On the other hand, if the

plaintiffs filed claims with deferidant City within the

prescribed one-year period, plaintiffs’.complaint was

filed within the requisite period following the denial of

the claims so as to render inoperative any of the statute

of limitations sections of the Code of Civil Procedure.

No authority has been cited by plaintiffs to justify a

position that the one-year claims statute is inapplicable

to a cause of action for inverse condemnation against

a governmental entity. It appears to be an accepted

rule of law that plaintiffs must file a claim for dam-

ages in inverse condemnation with the government

agency under Government Code section 911.2' as a

condition precedent to filing a lawsuit. See Peacock: v.

1 ‘ f

pa ae

County of Sacramento [10 Avi. 18,385], 271 A. C. A.

987, 993 fn. 5 (1969). Plaintiffs in this action assert

that their cause of action for damages from jet aircraft

noise arose in the year 1963, and that their claims filed

in January and February of 1964, respectively, were

thus filed in time. The defendant, while offering evi-

dence tending to show that plaintiffs suffered no dam-

age at all from jet aircraft noise, also offered evidence

seeking to establish that any cause of action for dam-

ages from jet aircraft noise arose prior to the year

1963, with the Consegient result that plaintiffs did not

file their claims within the required one-year period.

Although plaintiffs sought to prove that the year 1963

was the accrual date of their cause of action, no partic-

ular time in 1963 was sought to be established as the

accrual date for the cause of action.

The question of when does a cause of action arise

for damages to real property due to aircraft noise is a

difficult and troublesome one and not easy of solution.

However, this Court is satisfied that the cvidence in

this case establishes that plaintiffs’ cause of action

against the defendant City for damages to their prop-

erties from jet aircraft noise accrued in the month of

May 1963. It follows that the clsims filed by plaintiffs

on January 2, 1964 and February 7, 1964, respectively,

were filed within one year from the accrual of the

cause of action. We now turn to a consideration of

the evidence and authorities which support this conclu-

sion. It cannot be contended with any degree of lozic

that when the first jet aircraft flew from the Los An-

geles International Airport in 1959 a cause of action

arose at that time. It is true that the evidence before

this Court demonstrates that the same type of jet

aircraft engine, regardless of the number of flights

—68—

and regardless when tested, makes the same broad-band

noise in the sound spectrum and will produce the same

numerical rating in terms of frequency in cycles per

second and intensity decibels. However, the annoying,

irritating and offensive factors involved in jet engine

noise, insofar as interference wi |: residential living is

concerned, come into significan play because of the

multiplication of the number oj lights and the hours

during the day or night when s.ch flights take place.

The number and timing of flights, as has been indicated

before, become important because of the increased

chances and opportunities for interference with normal

communication and sleep, together with the ear’s simple

dislike of the type of noise generated by jet engines.

The increase in the number of jet landings and take-

offs at the Los Angeles International Airport has been

a gradual development from year to year since 1959.

With this gradual process taking place, the issue to be

decided is, at what precise month and year did the jet

noise become so offensive and annoying that it substan-

tially diminished the market value of plaintiffs’ proper-

ties so as to create a cause of action for damages in

inverse condemnation? It is without dispute and a mat-

ter of common knowledge that persons living near

major airports have disliked the sounds emanating from

the whining and screaming jets almost from the mo-

ment of their introduction. The evidence in the case at

bench is to the effect that beginning with the year

1959 persons living within NEF Area “C” began to

complain to Los Angeles city officials and other gov-

ernment officials about the noise from jet aircraft. The

evidence also proves that in 1959 citizens adjacent to

the Airport formed a Citizens Health and Welfare

Council for the purpose of determining whether or not

SLO PONE TL TT LOOT,

—69—

some group action was available because of the jet

aircraft noise condition. Individual plaintiffs attended

meetings of this property owners’ group from time to

time, and individual plaintiffs joined the organization

at various times. There is indication that prior to 1963

some of the plaintiffs may have believed that their

properties were being reduced in market value by jet

aircraft noise. Also, the Citizens Health and Welfare

Council employed, prior to 1963, the attorneys who

represent the plaintiffs in this case. Paes

As the residents of the areas adjacent to the Airport

made complaints to various government officials regard-

ing the airport noise situation, they were advised that

steps to reduce the jet noise were being taken by groups

such as the Los Angeles Airport Commission and the

Sound Abatement Coordinating Committee, and that

progress was being made in the direction of aircraft

noise reduction and abatement. However, the combina-

tion of these matters and events does not establish

that a cause of action for damages resulting from jet

aircraft noise arose while these matters and events

were taking place. A cause of action for damages to

real property resulting from jet aircraft noise does not

arise from a landowner’s belief that his property has

been damaged by such noise. During the time of the

formulation of this opinion of damage by various plain-

tiffs, Los Angeles city officials and other government

officials were indicating that steps were being taken to

alleviate and abate the problem of jet aircraft noise.

[ Stabilization theory] \

One accepted and tenable view is that a cause of

action for inverse condemnation arises at such time as

the particular damage factor involved becomes stabi-

a ee

lized. Applying this principle to jet aircraft noise as the

damage factor, the inverse condemnation cause of ac-

tion arises at such time when it can be said with

some assurance that the annoyance factor of jet noise

has become stabilized and has reached the point of

causing the market value of the landowner’s real prop-

erty to be substantially reduced. This requires a factual

determination. A landowner’s personal opinion about

whether and when his property became reduced in

market value is of little assistance to the trier of fact

unless the particular landowner is an appraiser, real

estate broker or otherwise possesses expertise in the

field of market-value determination.

Prior to the time when this stabilization of jet air-

craft noise and its substantial effect upon the market

value of real property have been reached, there is

annoyance and irritation from jet aircraft noise and, at

some point, a beginning effect upon the market value

of real property, but this is non-compensable damage

at this fluid state of events. How many flights per year,

month or day must exist before the noncompensable

annoyance and damage ripens into a cause of action?

In Jensen v. United States [8 Avi. 17,127], 305 F. 2d

444 (Ct. Cl. 1962), the court espouses the view that

the determination of when the point in time beyond

noncompensable annoyance and damage is reached de-

pends on making a judgment evaluating a variety of

factors. The factors to be considered include “the fre-

quency and level of flights; the type of planes; the

accompanying effects, such as noise from falling ob-

—, 5

jects; the use of the property; the effect on values; the

reasonable reactions of the humans below; and the

impact upon animals and vegetable life. . . .” (Jensen

v. United States, supra, at p. 447.) In evaluating such

factors, it is obvious that sound judgment and discre-

tion must be exercised in order not to overstress some

of these factors and neglect ethers. Some factors may

be more critical than others under the circumstances

involved.

That California has adopted this stabilization the-

ory for determining when a cause of action arises for

inverse condemnation is evidenced by the case of Pier-

pont Inn, Inc., v. State of California, 70 A. C. 293

(1969). In Pierpont Inn, a cause of action for inverse

condemnation resulted from the conctruction and oper-

ation of a freeway. At the time construction of the

freeway began and at the time the landowner filed

his claim with the state and commenced the action,

section 644 of the Government Code required that a

claim be presented to the State Board of Control “with-

in two years efter te clete first arose or accrued.”

The state contemded that @= aatwery period began to

run at the ert of sont om. The court, however,

sustained the rule = =s—(i(“(wsi‘“(;ésd «cmt: that thee cause of

action for mvers: comm....etiem begims only when the

situation +: aet@iee’ aed bere the completion and

operation of the freeway comstituted the stabilization

time, not the commencement of the work. Hence, the

claims were filed within the appropriate time limit. In

reaching this conclusion, the California Supreme Court

ii css

recognized that “There is a paucity of authority dealing

with the probiem of determining the exact date upon

which a claim or cause of action for inverse condemna-

tion arises. Prior to the age of the freeway, most in-

advertent or intentional trespasses by authorities with

the power to condemn were of such a nature that ihere

was only a relatively brief interval of time between

the first invasion upon the land and the completion of

the project itself. Such authority as does exist, however,

supports the holding of the trial court herein.” (Pier-

pont Inn, Inc., supra, at p. 298.) Aaron v. United

States [8 Avi. 17,421], 311 F. 2d 798 (Ct. Cl.

1963), also involved the problem of determining at

what point in time land owners were affected by the

noise from flights over their lands from an airport to

such an extent as to create a cause of action for in-

verse condemnation. In that case, the trial judge fixed

August 1953 as the beginning period for the cause of

action and the statute of limitations to start running.

[Jet aircraft noise]

It is conceded that since the introduction of jet air-

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