Court of Appeal Holds Required Overflight Easement in Exchange for Building Permit is Not a Taking

In Powell v. County of Humboldt, the First District Court of Appeal held that the required dedication of an airspace easement in exchange for a building permit was not an unconstitutional government taking under either state or federal law.

The Powells purchased a property containing a mobile home with an illegal attached covered porch and carport. When the Powells applied for an after-the-fact building permit, the County informed them that they would need to grant an airspace easement over their home in order to obtain the permit. The Humboldt County General Plan requires, as a condition for obtaining a building permit, that private property owners provide an aircraft overflight easement allowing planes from the nearby airport to fly overhead. The Powells sued, claiming the requirement was a government taking for which compensation was due.

The Fifth Amendment to the United States Constitution states that private property shall not be taken for public use without just compensation. Several Supreme Court cases have attempted to define what it means to “take” property. One way the government can effectuate a taking is through physical invasion of one’s property. (Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419.) Another way to take property is by depriving an owner of all economically beneficial use of that property. (Lucas v. S.C. Coastal Council (1992) 505 U.S. 1003.) The government can also effect a taking with regulation that interferes with investment-backed expectations of the property owner. (Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104.) Here, the Court of Appeal found there was no physical invasion, deprivation of all beneficial use of the property, or interference with the Powells’ investment-backed expectations.

The court also assessed the Powells’ claim within the framework of the Nollan/Dolan cases. (Nollan v. California Coastal Commission (1987) 483 U.S. 825; Dolan v. City of Tigard (1994) 512 U.S. 374.) Nollan and Dolan both involved regulatory takings resulting from government demands that a landowner dedicate an easement allowing public access to the owner’s property as a condition of obtaining a development permit. The court noted that in both of those cases the dedications were so onerous that the exactions were essentially deemed per se physical takings. Here, however, even under California’s more expansive takings clause (whereby property damage may be considered a taking), the easement did not rise to the level of a per se physical taking. There was no evidence that the overflight easement would invade the Powells’ private airspace, substantially interfere with the use and enjoyment of their property, or cause a measureable reduction in the property’s value.

The court noted that this easement could, under the right circumstances, be considered a taking. The Powells, however, failed to present sufficient evidence that at the time of their suit, the practical effect of the easement was to bring about such a taking. The court found nothing to preclude the Powells from seeking just compensation if airport operations substantially increased in the future.