Click for next page ( 16


The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 15
15 classic taking."142 There is no use by the government of the [Fakes] accepted the home with the noise and all "its own property in such a way that it destroys pri- other effects of the Airport.149 vate property...."143 An airport disclosure act neither Furthermore, the Court of Appeals held that the would deprive an owner of all "economically beneficial Indianapolis Airport Authority (IAA) was a third party use of his property,"144 nor would the act cause a tak- beneficiary of the agreement between the Fakes and ing by recharacterizing "as public property what was the sellers.150 An addendum to the purchase agreement previously private property."145 stated: Furthermore, an airport disclosure law is not a re- The Real Estate described herein is located in the Sales striction on the use of property, nor does it have any Assistance Program area as defined in the Indianapolis effect on the level of airport noise affecting a prop- Airport Authority's Part 150 Noise Compatibility Study erty's value. Whatever noise impact there is remains Update dated October 9, 1998. The Sales Assistance Pro- the same regardless of whether a seller is required gram is a voluntary Program and Sellers have elected to to disclose the presence of an airport. As Justice avail themselves of the Sales Assistance Program bene- Scalia stated in SBR, "the property owner continues fits and obligations pursuant to which seller may receive to have [what] he previously had."146 a payment from the Indianapolis Airport Authority sub- ject to the terms of paragraph of the Participation IV. EFFECT OF AIRPORT DISCLOSURE Agreement Residential Sales Assistance Program of ten STATEMENT ON A LATER CLAIM FOR NOISE percent (10%) of the Contract Sales Price as specified in DAMAGES the Purchase Agreement or Closing Statement, whichever is less, in exchange for the placement of a Noise Disclosure A. Whether an Airport Disclosure Statement Statement in the Deed of Conveyance and such other Precludes a Buyer's Later Claim for Airport Noise documents transferring an ownership or fee interest in the Damages Real Estate to Purchaser (emphasis supplied).151 An airport disclosure act could require either that an Furthermore, the Fakes' deed, which also gave notice airport disclosure statement be recorded as part of a of the airport noise, stated that the Fakes were pur- deed or that the deed include a provision disclosing an chasing the property "with full knowledge and accep- airport in the vicinity of the property. The enactment of tance of the noise."152 an airport disclosure act places a prospective buyer on In commenting on the Court of Appeals' affirmance notice of an airport's proximity to property either be- of the trial court's dismissal of the Fakes' claim the Su- cause of the receipt of a disclosure statement or because preme Court of Indiana said nothing about the sellers a disclosure statement has become part of the deed and, having received compensation for noise. Rather, the therefore, of the title to the property. Indiana Supreme Court merely stated that the noise In Biddle v. BAA Indianapolis, LLC147 the issue was disclosure statement in the Fakes' purchase agreement whether the Fakes, two homeowners who had pur- and deed "specifically gave notice of the noise from chased a residence with knowledge that their sellers airport operations" and that the disclosure statement had been compensated for airport noise, could main- was intended "to prevent the Fakes from seeking com- tain a later inverse condemnation action because of pensation from IAA."153 As one court has stated, "[i]f a airport noise.148 grantor sells his property with restrictions which he The Indiana Court of Appeals affirmed the trial intends are for the benefit of his neighbor, the court's dismissal of the Fakes' claim. The court agreed neighbors, as beneficiaries, may enforce the benefit- that ing restrictions."154 Of course, an airport disclosure the language in the purchase agreement and warranty act could provide that airports and airport authorities deed through which the [Fakes] took possession of their are third party beneficiaries of airport disclosure state- residence precluded a claim for inverse condemnation be- ments. cause the language acted as a contractual agreement by In Biddle, as stated, the Fakes' sellers were com- which the sellers of the residence were compensated and pensated for noise impact by the IAA pursuant to the Sales Assistance Program. It is possible, however, for a 142 seller's property to have been taken by airport noise Id. (quoting Lingle, 544 U.S. at 539, 125 S. Ct. 2074, 161 L. Ed. 2d 876). 143 149 Id. (citing United States v. Causby, 328 U.S. 256, 261 Id. at 8586. 62, 66 S. Ct. 1062, 90 L. Ed. 1206, 106 Ct. Cl. 854 (1946) (air- 150 Id. at 86. port-related noise). 151 Id. at 8687. 144 Id. at 2601, 177 L. Ed. 2d at 196 (citing Lucas, 505 U.S. 152 Id. at 87. at 1019, 112 S. Ct. 2886, 120 L. Ed. 2d 798). 153 145 Biddle, 860 N.E.2d 570, 574 n.6 (Ind. 2007). The Indiana Id. (citation omitted). Supreme Court affirmed the trial court's dismissal of the other 146 Id. at 2613, 177 L. Ed. 2d at 208. homeowners' claims on the basis that there had not been a 147 830 N.E.2d 76 (Ind. Ct. App. 2005), aff'd in part, super- taking caused by noise associated with the airport. seded in part, 860 N.E.2d 570 (Ind. 2007). 154 Se. Toyota Distributors, Inc. v. Felton, 212 Ga. App. 23, 148 Biddle, 830 N.E.2d at 79. 25, 440 S.E.2d 708, 711 (1994).

OCR for page 15
16 without any compensation because of the doctrine of Thus, the well recognized rule is that if an owner adverse possession. For example, in Baker v. Burbank- acquires property, for example, after a government Glendale-Pasadena Airport Authority,155 in which the regulation effects a taking of an interest in the prop- plaintiffs' inverse condemnation claim was based on erty, a property owner "`cannot base a taking claim airport noise, smoke, and vibration, the court held upon an interest he never owned. The relevant prop- that the claim was barred by the law of adverse erty interests owned by [the property owner] are de- possession and the statute of limitations. In California, fined by those State laws enacted and in effect at the "[p]rescriptive easements are acquired by open and no- time he took title....'"162 A buyer has no claim for a torious use, hostile to the true owner, under a claim of prior taking because a buyer has "actual or construc- right, and continuous for the statutory five-year period. tive notice of all the information he needed to estimate Continuity of use is not broken by change in own- what the land was worth at the time he bought it."163 ership of the dominant tenement."156 Although the Nevertheless, there may be a taking after a buyer's court held that the airport authority was not required acquisition of property near an airport. to compensate the plaintiffs for an easement taken by Even if an airport disclosure statement may pre- prescription, the evidence also established that the air- clude a claim for a taking occurring prior to a buyer's port's takeoffs and landings and related flight paths acquisition of property, it is not clear that a disclosure were unchanged during the period about which the statement would bar a later claim if there has been a plaintiffs complained.157 substantial increase in airport noise resulting in a Just compensation for a taking is payable to the per- taking after the owner's acquisition of the property. son who owns the property at the time of the taking The Biddle court's opinion at least implies that a whether the taking is by a direct condemnation action home buyer who has received a disclosure statement or by inverse condemnation.158 If an owner sells the may have a claim for a future taking when there property after the taking but before receiving compen- is a sufficient increase in airport noise to result in a sation for the taking, the right to compensation "`does taking, even if there had been a taking prior to the not run with the land but remains a personal claim'" of buyer's acquisition of the property.164 Even if there has the former owner.159 If the government takes possession been an earlier, permanent taking because of airport of an owner's property prior to the owner's sale of the noise, the first taking is not an automatic bar to a claim property, the original owner is the one who is entitled for a second, comparable permanent taking.165 A new to any award of compensation.160 cause of action may accrue when "aircraft noise jumps [T]he government effects a taking when it requires the markedly."166 The introduction of larger, heavier, nois- landowner to submit to the physical occupation of her ier aircraft may constitute a taking of an additional land. Thus, where there is an entry into possession by easement even though the noisier aircraft do not violate the condemning authority prior to formal commendation the boundaries of an earlier easement.167 Thus, a prop- proceedings, the taking which occurs at the entry must be erty owner may establish an additional loss because of considered the taking for all purposes.... [T]he right to compensation remains with the vendor of 162 the land unless the contract of sale specifically provides to Gregory M. Stein, Who Gets the Takings Claim? Changes the contrary.161 in Land Use Law, Pre-Enactment Owners, and Post-Enactment Buyers, 61 OHIO ST. L.J. 89, 91 (2000), hereinafter cited as "Stein" (quoting Gazza v. N.Y. State Dep't of Envtl. Conserva- tion, 89 N.Y.2d 603, 615, 679 N.E.2d 1035, 1040 (1997)). 155 220 Cal. App. 3d 1602, 270 Cal. Rptr. 337 (1990). 163 Id. at 118 (citations omitted). 156 Id. at 1609, 270 Cal. Rptr. at 340 (citing CAL. CIV. CODE 164 Biddle, 830 N.E.2d at 87, n.13 (stating that "[o]nly if the 1007; CAL. CIV. PROC. CODE 321; Connolly v. McDermott, scope of the activities [were to] significantly change could the 162 Cal. App. 3d 973, 976, 208 Cal. Rptr. 796 (1984); Applegate landowner possibly be entitled to compensation for a further v. Ota, 146 Cal. App. 3d 702, 708, 194 Cal. Rptr. 331 (1983); taking"). Twin Peaks Land Co. v. Briggs, 130 Cal. App. 3d 587, 593, 181 165 Melillo v. New Haven, 249 Conn. 138, 732 A.2d 133 Cal. Rptr. 25 (1982). 157 (1999) (Air Wisconsin's operation of commercial jet service out Baker, 220 Cal. App. 3d at 1606, 270 Cal. Rptr. at 339. of Tweed-New Haven Airport between Feb. 15, 1985, and Dec. See also Biddison v. Chicago, 1989 U.S. Dist. LEXIS 9048 (N.D. 1986 held not to be another taking of the subject property that Ill. 1989). was first taken sometime between 1967 and 1975); Giuliano v. 158 Argier v. Nev. Power Co., 114 Nev. 137, 139, 140 n.2, 952 State, DOT, 2007 Conn. Super. LEXIS 3467, at *2425 (Conn. P.2d 1390, 1391, 1392 n.2 (1998). Super. Ct. 2007) (Unrept.) (finding no taking). 159 Id. at 139, 952 P.2d at 1391 (quoting 2 JULIUS SACKMAN, 166 Institoris v. City of L.A., 210 Cal. App. 3d 10, 18, 258 NICHOLS ON EMINENT DOMAIN 5.02[3] (1997); United States Cal. Rptr. 418, 423 (1989) (holding that a cause of action ac- v. Dow, 357 U.S. 17, 78 S. Ct. 1039, 2 L. Ed. 2d 1109 (1958); crues "when the flights interfered with the use and enjoyment Brooks Investment Co. v. City of Bloomington, 305 Minn. 305, of plaintiffs" properties and resulted in a diminution of their 232 N.W.2d 911 (1975)). market value"); Aaron v. City of L.A., 40 Cal. App. 3d 471, 115 160 Argier, 114 Nev. at 140, 952 P.2d at 1392 (citing Brooks, Cal. Rptr. 162 (1974). 232 N.W.2d at 918). 167 Branning, 228 Ct. Cl. at 259, 654 F.2d at 100 (citing 161 Id. at 141, 952 P.2d at 1392 (citations omitted). Avery v. United States, 165 Ct. Cl. 357, 330 F.2d 640 (1964)).