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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 419 U.S. 1122

## Text

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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

8
8

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.

q

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

oe

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

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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

fa

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].)
I
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-

NL

. . 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.*

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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

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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

ae

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).

a,

[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.
i
[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

7
i

—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

in

—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

oe

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

Se

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

a

| —

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.

ES
[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

a

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-
craft there has been a gradual increase in the number
of jet aircraft takeoffs and landings at the Los Angeles
International Airport: The number of jet aircraft land-
ings, exclusive of propeller jets which are not true jet

i , for the years 1960 through 1965 are as fol-
lows:

Year Number
NUDE TERY SPRL DE I 20,171
Ne haste Laie 33,932
Bore basi eek 47,215
| SEES ctee ee eee re cae 59,776
a wll iach disstioginit 69,503

sia ies

By mathematical computation, the above yearly num-

bers produce an average of daily landings for the same __

years as follows:
Year Daily Landings
1960
1961
1962
1963
1964
1965

The number of jet aircraft flights per day, month
and year is obviously an important factor to be con-
sidered in determining when the noise situation stabi-
lized to create a cause of action for inverse, condemna-
tion. A factor of even greater significance, however, is
the difference in the character of the noise created by
the pure turbojet engine and that created by the turbo-
fan jet engine. The turbojet engine was introduced first.
It has already been indicated that the jet aircraft en-
gine produces a broad-band noise spectrum dominated,
however, by high frequency sound components. This
description has reference to the turbojet engine, which
also may be referred to as the pure jet engine. The
turbofan jet engine was introduced after the use of the
turbojet engine. The turbofan jet engine constituted a
significant improvement in thrust in relation to fuel
consumption. The turbofan jet engine is generally con-
sidered a more efficient engine than the turbojet engine.

Unfortunately, however, the turbofan jet engine was
not an improvement insofar as noise considerations are
concerned. The turbofan jet engine produces essentially
the same range of frequency components of sound «:
that produced by the pure or turbojet engine. The noise

ansalpiiis

characteristics, however, of the two engines are start-
ingly different. The turbofan engine introduced a noise
charasteristic which may be described as a monstrous
siren effect and also a whining sound. Another perti-
nent description is to say that the turbofan engine intro-
duced a propeller effect into the pure turbojet engine.
Although the sound frequency range of the two engines
is substantially the same, the active band levels in deci-
bels are vastly different. The noise from the turbofan
engine is much greater in intensity or magnitude. The
common expression would be that there is a loudness
feature of the turbofan engine over the turbojet engine
by quite a large amount. Since there is a higher intensity
or magnitude of sound from the high frequency com-
ponents of the turbofan jet engine, the conclusion fol-
lows that the turbofan. jet engine produces a much
greater annoying, irritating and offensive effect than
the pure or turbojet engine produces.

Studies of the two types of engines made with air-
craft at an altitude of 300 feet during landing opera-
tions established that at that altitude the Effective Per-
ceived Noise Level rating in decibels of the four-engine
turbofan jet aircraft was 117.5, while the four-engine
turbojet aircraft was rated at 112. Thus, the noise
magnitude of the turbofan jet aircraft was 5.5 decibels
higher than that of the turbojet or pure jet aircraft. This
5.5 decibel difference in the Effective Perceived Noise
Level rating is highly significant in the effect of aircraft
noise upon the human reaction to sound. It has pre-
viously been pointed out that an increase of 10 deci-
bels in noise level is considered as a doubling of the
annoying and irritating effect of noise. In view of this
relationship, an increase of 5.5 decibels in the noise
level caused by the use of the turbofan jet engine means

ss

Bh

that the turbofan jet noise constitutes a 55 percent in-
crease in annoyance and offensiveness to residents af-
fected over that produced by the turbojet aircraft. This
means aiso that the screaming and whining sounds
produced by turbofan jet aircraft have caused a 55 per-
cent increase in interference with speech communica-
tion, telephone communication and radio and television
reception.

Plaintiffs introduced evidence of a comparison of jet
aircraft landings per day at the Los Angeles Interna-
tional Airport for the months of May and October of
1962 and for the months of May and October of 1963,
with particular reference to the percentage of fan jet
aircraft to the total number of jet aircraft. This study
revealed that in the month of May 1962 there were 121
daily jet landings, of which 34 were fan jet aircraft,
which constituted 28 percent of the daily jet landings
for that month. In October 1962, the daily landings of
all jet aircraft were 133 in number, of which 53 were
fan jet aircraft, constituting 40 percent of the total jet
aircraft landings. In the month of May 1963, the num-
ber of landings per day of all jet aircraft was 148, of
which 78 were fan jet aircraft, constituting 53 percent
of the total jet aircraft daily landings. In the month of
October 1963, the total number of daily jet aircraft
landings was 156, of which 84 were fan jet aircraft,
constituting 54 percent of the total daily jet aircraft
landings. This study indicates a substantial increase in
the annoyance and offensive features of jet aircraft in
1963 over 1962. The daily landings of jet aircraft in-
creased from 121 in May of 1962 to 148 in May of
1963. In the same yearly period, the number of fan jet
aircraft increased from 34 to 78, which is more than a
doubling of the number of daily fan jet aircraft land-

eer ee

ings. The percentage of fan jet aircrait out of the total
of all jet aircraft increased from 28 percent to 53 per-
cent during this same one-year period. The total in-
crease in all jet aircraft landings in May of 1963 as
compared to May of 1962 means there was a cor-
responding increase in the number of cccurrences of
irritating jet noise resulting solely from the increase in
the number of aircraft flights. However, the more than
doubling of the number of fan jets operating in May
of 1963 over the number operating in May of 1962
introduced not only the greater frequency of annoying
and irritating noise but also a greater annoyance effect
because of the increase in the magnitude of the noise
resulting from the greater use of fan jet engines in jet
aircraft. Because of the two factors of an increase in
the number of flights of all jet aircraft and an increase
in the noise magnitude or intensity from the larger
number of fan jet aircraft being used, the conclusion
follows that from the standpoint of human body reac-
tion, the annoyance effect from jet aircraft in 1963 was
approximately three times greater than it was in 1962.

It appears that the month of May 1962 is the most
important consideration in comparing the year 1963
with the year 1962 with respect to jet aircraft noise
effects. From May 1963 to October 1963 the change
in the number of daily fan jet aircraft being used was
slight, and the percentage of fan jet aircraft to total jet
aircraft changed only slightly. During this five-month
period, the total number of daily fan jet flights changed
from 78 to 84, while the percentage of fan jet aircraft
to total jet aircraft changed only from 53 percent to 54
percent. It thus appears that as of May 1963, primarily
because of the increase in the use of fan jet aircraft,
the annoyance and offensive features of jet aircraft be-

winiins

came stabilized. Testimony of the real estate appraisers
for plaintiffs was to the effect that market prices of
real property within NEF Area “C” showed a notice-
able drop in 1963 compared to market prices in 1962.
A finding is thus made by this Court that noise from
jet aircraft, as it interfered with residential living and
substantially affected the market value of real property
in the area described as NEF Area “C,” became stabi-
lized in the month of May 1963. This is the date which
this Court finds to be the time of accrual of plaintiffs’
cause of action for damages for inverse condemnation.
The claims of the plaintiffs filed with the defendant
City in January and February of 1964 were filed,
therefore, within the time required by law. It follows
that the plaintiffs’ cause of action is not barred by any
statute of limitations provisions of the Code of Civil
Procedure relied upon by defendant City.

[Public convenience]

Another defense urged by defendant City is that
public convenience and necessity for more than five
years preceding the filing of the complaint required,
and still requires, the use of the airspace over and ad-
jacent to the‘properties of plaintiffs for public aviation
purposes. We all recognize that jet aircraft is a modern
necessity and convenience for public travel. Some in-
convenience, discomfort and annoyance from the noise
of such aircraft must be borne and tolerated by citizens
as a part of urban living. There is a limit, however, to
the annoyance and damage from aircraft noise which
residents must tolerate and bear without compensation.
This limit is reached as to those property owners lo-
cated in the vicinity of the flight paths of the landing
and takeoff aircraft who suffer from jet aircraft noise
out of proportion to other residents of the community

a eM

who are inconvenienced and annoyed by jet aircraft
noise. Public convenience and necessity cannot be per-
mitted to justify the damaging, without compensation,
of the property of persons living in close proximity to
the landing and takeoff aircraft patterns. However, be-
cause of the great public convenience and necessity
for jet aircraft and air travel, the public in general who
benefit from the existence of jet aircraft and air travel
must pay for this convenience and necessity through
the compensation allowed to the few who are dam-
aged by virtue of the chance selection of their place of
abode.
[Diminution of market value]

We now come to the question of whether there has
been proof of substantial diminution in the market
value of the various parcels of property involved in this
case. We have the testimony of two real estate ap-
praisers for the plaintiffs. The approach of the ap-
praisers for the plaintiffs was to select comparable areas
not affected by jet aircraft noise, consider sales of com-
parable property in the unaffected areas, and then de-
termine a fair market value of plaintffs’ parcels as of
the year 1963, assuming that such parcels were not af-
fected by aircraft noise. Then the appraisers considered
1962 and 1963 sales of comparable properties located
within the area designated NEF Area “C” and reached
an opinion of the fair market value of plaintiffs’ par-
cels in the year 1963 as affected by jet aircraft noise.
Using this difference in the fair market value of the
plaintiffs’ parcels of property as if they were not af-
fected by the jet aircraft noise and the fair market
value as affected by the jet aircraft noise, an opinion
was reached as to the damage in terms of the dollar
amount of the diminution in market value. On the

sere reonmencae or ECTS ESE REeeR

J Quan

other hand, the defendant City offered evidence to es-
tablish that there had been no diminution in market
value of the plaintiffs’ properties because of noise from
jet aircraft.

The approach and opinions of plaintiffs’ appraisers
leave much to be desired. Thus, in seeking and using
comparable properties in areas-not affected by jet air-
craft noise, no consideration was given to the fact that
plaintiff owners originally purchased their properties in
the areas adjacent to the Airport and in the vicinity of
the flight paths of propeller-driven aircraft. Such a loca-
tion made these homes less desirable than residences
located on quiet streets unaffected by noise from free-
ways, busy streets or commercial development, which
were used as unaffected comparable areas. For most
of the parcels of property appraised, plaintiffs’ ap-
praisers reached opinions of a range of ‘market values,
both as unaffected by jet noise and as affected, rather
than a single value. As an illustration, an opinion was
stated that a particular parcel had an affected market
value from $22,000 to $24,000 and an unaffected
market value of $25,000 to $27,000. Then a single
damage figure was given, such as $2,000. The testi-
mony indicated that the range of market values de-
veloped because one appraiser’s opinion was the lower
figure in the range, and the other appraiser’s opinion
was the higher figure. The appraisers were unable to
testify as to which appraiser used the lower figure and
which the higher figure. The testimony was that they
appraised all of the properties as a team, but at the
time of trial, they had no memoranda or recollection of
the separate opinions as to market value of each ap-
praiser. The dollar amount agreed upon as the amount
of damages for each parcel appraised appeared to be

a compromise reached by the two appraisers, in many

. imstances, as the dollar amount of damages did not

_ coincide with a figure reached by simply subtracting

the n:arket values as affected from the market values as
unaffected.

The combined approach and compromise of the two
appraisers for plaintiffs placed the Court in a difficult
position in evaluating the opinions of the two apprais-
ers. It would seldom happen in a trial that the opinions
of two appraisers would be given equal weight by the
trier of fact. Had each appraiser given his separate

. Opinion ‘of value, the plaintiffs’ evidence of damages
would have been more credible. In ‘dealing with the
appraisal of apartment houses and rental units as con-
trasted with single-family homes, plaintiffs’ appraisers
at no time used the two methods of a reproduction cost
approach or the capitalization of income approach.
even though in many instances it was conceded that.
sales of comparable properties were not readily avail-
able. Also, in the appraisal of some rental units, plain-
tiffs’ appraisers applied a gross multiplier method for
the purpose of aiding them in the formulation of their
opinions of value. It is true that this method does have
some usefulness in the market place, but it is subject
to the criticism that it is too rough a measuré to be
given much weight in arriving at market value opinions.
Also, in appraising some multiple units, plaintiffs’ ap-
praisers used a price per unit approach by computing
the sales price per unit on sales of multiple units which

‘ were not really comparable to the apartment buildings

_ being appraised. Opinions predicated on this approach
are not entitled to a great deal of weight, since a per-
unit sales price approach fails to adequately take into
account varying factors, such as differences in sizes of

i

selltbiate

units, in room size and arrangement and in the num-
ber of bedrooms per unit.

The approach of defendant City in presenting evi-
dence tending to show that plaintiffs’ properties were
not reduced in market value by jet aircraft noise was
entirely different from the approach of plaintiffs. An
appraiser for defendant City testified and expressed an
opinion that the residential properties in NEF Area
“C” did not decrease in market value at all in 1963,
and hence were not damaged by the noise from jet
aircraft. The reasons given in support of this opinion
were manifold. The City’s appraiser made no appraisal
of separate parcels of property. However, he studied
that portion of NEF Area “C” east of the Airport, par-
ticularly with respect to factors oi new construction of
residential properties, loans made by lending institu-
tions, whether rental units appeared to be fully oc-
cupied and whether the residential properties appeared
to be well kept to indicate a pride of ownership and a
healthy economic condition. All of these factors were
considered for the years 1963 to 1968. For the years
indicated, his testimony was that permits for new con-
struction amounted to $8,957,956. These permits in-
cluded 868 residential units, of which there were 45
apartment houses, 63 duplexes, 67 single-family resi-
dences and 32 swimming pools. Loans were granted by
lending institutions in substantial amounts on the var-
ious types of residential properties, from single-family
to large apartment houses and for the construction of
new swimming pools. The opinion of the City’s ap-
praiser was that all of these factors indicated that in
the period 1963 through 1968 there was a healthy
condition with respect to residential property in NEF
Area “C,” and that there was confidence in the real

—82—

estate market on the part of persons owning residential
property in this area. There was evidence tending to
show that there were few “For Sale” or “For Rent”
signs in this area, and no indication of any abnormal
vacancy factor in rental units. The evidence disclosed
that many parcels in NEF Area “C” sold on the open
market fairly soon after they were disted for sale with
real estate brokers, a further indication of an active real
estate market. There can be no dispute that NEF Area
“C” has continued to be fully utilized for residential
purposes in spite of the noise from jet aircraft.

[Price-trend studies |

The opinion .of the City’s appraiser that property
parcels involved in this case suffered no market dam-
age at all from jet aircraft noise is based in part on the
résults of price-trend studies of sales and resales of
parcels in selected portions of NEF Area “C” east of
the Airport and sale and resale price-trend studies of
parcels in comparable areas outside of NEF Area “C.”
Four selected portions of NEF Area “C” east of the
Airport were considered. The most distant portion from
the Airport is a section immediately west of Western
Avenue. A second portion is located between Crenshaw
Boulevard on the west and Van Ness Avenue on the
east. A third portion studied is located west of Cren-
shaw Boulevard, with Doty Avenue being the westerly
line and Yukon Avenue the easterly line. The portion
closest to the Airport is located between Inglewood
Avenue on the west and Mansel Avenue on the east.
The three test areas outside of NEF Area “C” used by
the appraiser include two areas south of NEF Area
“C” and one area north of NEF Area “C”. One of the
southerly areas is in Inglewood south of 115th Street,
between Crenshaw Boulevard on the west and Western

nile

Avenue on the east. A second test area is Hawthorne
south of El Segundo Boulevard, between Prairie Ave-
nue on the west and Yukon Avenue on the east. The
nort

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0032%3A1. Public record. Not legal advice.