Fair Disclosure and Airport Impact Statements in Real Estate Transfers (2012)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

18 Second, it is arguable that an airport disclosure law benefits a buyer by focusing the buyer’s attention on the impact of existing or potential airport noise on property that the buyer is considering purchasing. If so, the benefit conferred by disclosure should be an offset against compensation claimed for noise dam- ages. As the court stated in Schooner Harbor, an owner’s knowledge is a factor that should be considered. The benefit of a regulation to an owner as compen- sation for an alleged harm caused by a regulation was addressed in the SBR case. At oral argument, Jus- tice Scalia stated that when “[t]he state gave you some quid pro quo for [protecting property from further erosion]…maybe that’s sufficient compensation” for installing the public beach.178 As one commentator argues, Florida’s beach renourishment program does confer substantial benefits on private littoral own- ers. The restored beach protects their adjacent land from erosion and storm damage. The Act also provides specific legal protections to the littoral owners, such as guar- antees of their unimpeded views of and access to the sea. No private land actually is taken, as the beach has to be eroded to qualify for restoration, and the new dry land was previously under water.179 Likewise, one who receives notice of the possible im- pact of an airport prior to the purchase of real property has been benefited. There is authority holding that, although a regulation may diminish a property’s value, a property owner, who has received an “average recip- rocity of advantage” from the regulation, may not be entitled to compensation.180 In sum, if a subsequent buyer purchases property after having been given notice that it is subject to air- port noise, especially if the buyer acquired the land under terms reflecting the economic impact of airport noise on the property, a claim in inverse condemnation for noise damages will most likely be denied. Moreover, when a disclosure statement has been recorded as part of the land records, there is precedent holding that the disclosure statement precludes a claim for noise damages, particularly when the buyer’s seller has been compensated for noise damages. Alternatively, assuming there is a taking because of airport noise af- ter a buyer has received an airport disclosure state- 178 Stop the Beach Renourishment, Inc., 130 S. Ct. 2592, 177 L. Ed. 2d (2010), United States Supreme Court, Oral Argu- ment, Transcript at 18. 179 J. Peter Byrne, Rising Seas and Common Law Baselines: A Comment on Regulatory Takings Discourse Concerning Cli- mate Change, 11 VT. J. ENVTL. L. 625, 628 (2010) (footnote omitted) (discussing the Florida Supreme Court decision in SBR). 180 Resource Investments, Inc. and Land Recovery, Inc. v. United States, 85 Fed. Cl. 447, 471 and 471 n.35 (2009) (quot- ing in part Creppel v. United States, 41 F.3d 627, 631 (Fed. Cir. 1994) (stating that “[m]ere diminution” occurs when the property owner has received the benefits of a challenged regu- lation, such that an “average reciprocity of advantage” results from it). ment, any compensation should be reduced to reflect the actual investment-backed expectations the buyer had when purchasing the property, particularly when the buyer’s purchase price reflected the effect of airport noise on the property. V. EFFECT OF NOISE STUDIES AND CONTOUR MAPS ON CLAIMS FOR AIRPORT NOISE DAMAGES A. Introduction Because the Typical Fair Airport Disclosure Act Pro- visions in Section VI use the terms noise exposure map and AICUZ to define residential real property in the vicinity of an airport, the effect of those terms is discussed briefly in this part of the d i g e s t . Impor- tantly, it does not appear that the development and publication of a noise exposure map for a public airport or of an AICUZ study or map gives rise to a claim for a taking of an owner’s property that is determined to be within the contours of a noise exposure or AICUZ map or chart. B. Noise Exposure Maps Under Federal Aviation Regulations, Part 150 The Aviation Safety and Noise Abatement Act re- sulted in the Federal Aviation Regulations (FAR) Part 150 Noise Compatibility Program.181 Part 150 provides for a public airport’s voluntary creation of and submis- sion to the FAA of a noise exposure map, which is a standardized map showing aircraft noise levels in areas around an airport.182 When an airport authority chooses to submit a noise exposure map the authority creates the map by inputting sound data and other physical factors affecting noise levels into a computer program called the Integrated Noise Model.183 The pro- gram produces noise exposure lines similar to a physical contour map showing banded regions of prop- erty that are subject to the same noise exposure levels. The Vision 100–Century of Aviation Reauthorization Act184 requires the FAA to make noise exposure maps and land use information based on the maps available to the public on the FAA’s Web site.185 If a noise exposure map has been submitted by an airport authority, the ability of nearby property owners to recover damages for airport noise after the date of the submission of the map is limited. Section 47506(a) provides that a person who acquires an interest in property after February 18, 1980, in an area sur- rounding an airport who has actual or constructive knowledge of the noise exposure map may recover damages for noise attributable to the airport only if the 181 14 C.F.R. § 150. 182 Id. App. A. 183 Id. § 150.21. 184 Pub. L. No. 108-176, 117 Stat. 2490 (Dec. 12, 2003). 185 Available at http://www.faa.gov/airports/ environmental/airport_noise/noise_exposure_maps/.

19 person is able to show a significant change in the air- port.186 Specifically, in addition to any other elements required for the recovery of damages, a plaintiff must show a change in the type or frequency of air- craft operations at the airport, a change in the airport layout or flight patterns, or an increase in nighttime operations and that the damages resulted from the changes or increases.187 Constructive knowledge of a noise exposure map is imputed if “before the person acquired the interest, no- tice of the existence of the map was published at least 3 times in a newspaper of general circulation in the county in which the property is located” or if “the per- son is given a copy of the map when acquiring the inter- est.”188 Also important to the Typical Airport Fair Disclo- sure Act Provis ions contained in Section VI of this digest is that noise exposure maps and related informa- tion are inadmissible as evidence in civil actions seek- ing relief for airport noise.189 As held in City of At- lanta v. Watson,190 the Aviation Safety Noise Abatement Act of 1979, of which Section 47506 is a part, preempts state law “with regard to the admissibil- ity of airport noise exposure maps and related infor- mation in state suits seeking damages due to airport noise.”191 C. AICUZ Studies and Inverse Condemnation Claims The Code of Federal Regulations (C.F.R.) in Title 32, § 256.1, et seq., sets forth the policy of the Department of Defense “on achieving compatible use of public and private lands in the vicinity of military airfields.”192 Pursuant to the regulations, each of the military branches must study their air installations and develop an AICUZ for each installation. The process requires a detailed study of flight operations, actual noise and safety surveys, best available projections of future fly- ing activities, and desirable restrictions on land use because of aircraft noise and safety.193 AICUZ studies are 186 49 U.S.C. § 47506(a) (2010). 187 Id. §§ 47506(a)(1) and (2) (2010). 188 Id. § 47506(b) (2010). 189 Id. § 47507 (No part of a noise exposure map or related information de- scribed in section 47503 of this title that is submitted to, or pre- pared by, the Secretary of Transportation and no part of a list of land uses the Secretary identifies as normally compatible with various exposures of individuals to noise may be admitted into evidence or used for any other purpose in a civil action asking for relief for noise resulting from the operation of an airport.). 190 267 Ga. 185, 191, 475 S.E.2d 896, 901 (1996). 191 Id. at 191, 194, 475 S.E.2d at 901, 904 (holding that a “land use compatibility guideline chart prepared by the city as part of its noise exposure map” was inadmissible at trial). 192 32 C.F.R. § 256.1(a) (2010). 193 Id. § 256.5(a)(1) (2010). instituted in an effort to coordinate the requirements of the missions of military air installations, with the devel- opment of the surrounding communities. The AICUZ is a concept of identifying compatible and incompatible land use around an air station, the purpose being to guide compatible private development through the cooperation with local jurisdictions in order to minimize public expo- sure to aircraft noise and accident potential, while at the same time maintaining the operational capability of the station.194 An AICUZ for a military air installation consists of land areas where certain uses may obstruct or other- wise be hazardous to aircraft operations and land uses in the vicinity that are exposed to the health, safety, or welfare hazards of aircraft operations.195 The regulations direct that as part of an AICUZ study, con- tours for noise zones must be plotted on maps.196 Fur- thermore, land use compatibility guidelines are speci- fied for each Clear Zone, Accident Potential Zone, Noise Zone, or combination thereof as appropriate.197 The first priority is given to safety and noise problems.198 AICUZ studies have led to inverse condemnation claims by property owners. In Branning, supra, the court held that there had been a taking of the plaintiff’s property because low-level flights rendered “the prop- erty clearly unacceptable for normal residential use.”199 The AICUZ study showed that part of the plaintiff’s property was in the Composite Noise Rating (CNR) Zone 3, the area with the highest aircraft noise im- pact—115 decibels and above at ground level, and that part of the property was in the CNR Zone 2, the area with modest noise impact—100 to 115 decibels.200 Although publication of an AICUZ study was not sufficient to establish a taking of the plaintiff’s prop- erty,201 the court did agree that the study was at least valuable evidence of the impact of aircraft op- erations on the property in the zones.202 It has been alleged also that there was a taking when a local zoning board was influenced to adopt AICUZ recommendations. In De-Tom Enterprises, Inc. v. United States203 a property owner claimed that the Air Force’s involvement in a local zoning board’s deci- sion not to rezone its property for residential use amounted to a taking. The court rejected the claim, stating that “[i]f plaintiff’s position is that the Air Force necessarily took plaintiff’s property (in the constitu- tional sense) simply by persuading the County board not to change the zoning of the property, we must reject 194 Branning, 228 Ct. Cl. at 250, 654 F.2d at 95. 195 32 C.F.R. § 256.3(a) (2010). 196 Id. § 256.3(d)(2)(i) (2010). 197 Id. § 256.4(b) (2010). 198 Id. § 256(f)(1) (2010). 199 Branning, 228 Ct. Cl. at 252, 654 F.2d at 96. 200 Id. 201 Id., 228 Ct. Cl. at 250–51, 252, 654 F.2d at 95, 96. 202 Id., 228 Ct. Cl. at 252, 654 F.2d at 96. 203 213 Ct. Cl. 362, 552 F.2d 337 (1977).