DAVID T. PROSSER, J.
¶ 1 This is a review of an unpublished decision of the court of appeals, reversing an order of the St. Croix County Circuit Court, Howard W. Cameron, Jr., Judge. The circuit court dismissed the inverse condemnation claims of several landowners whose property is close or immediately adjacent to the New Richmond Regional Airport (Airport). The landowners alleged that an extension of the Airport's runway by 1500 feet amounted to the compensable taking of an easement because the resulting overflights had adverse effects on their properties, including diminished use and enjoyment and decrease of value.
¶ 2 The circuit court acknowledged that the subject properties had been adversely affected, but it concluded that "for a taking by the government to be compensable, the property owner must be deprived of all or practically all of the beneficial use of the property or of any part. The Court must consider the whole property and not just a portion of each ... property." The court of appeals reversed, holding that the "standard for regulatory takings does not apply to physical occupation cases." Brenner v. City of New Richmond, No. 2010AP342, unpublished slip op., ¶ 1, 2011 WL 1760465 (Wis.Ct.App. May 10, 2011).
¶ 3 We are presented with the following question: In airplane overflight cases, is the proper standard for determining a taking (1) whether the overflights are low enough and frequent enough to have a direct and immediate effect on the use and enjoyment of property, or (2) whether the overflights deprive the property owner of all or substantially all beneficial use of the property?
¶ 4 We conclude that a taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner's property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property. We remand the case to the circuit court to make further factual findings and apply this standard to determine whether there were takings of the properties in this case.
¶ 5 The New Richmond Regional Airport is owned and operated by the City of New Richmond (City) in St. Croix County. The Airport is located on the north end of the city on approximately 350 acres of land.
¶ 6 In September 2006 the Airport began a construction project to extend its 4000 foot Northwest/Southeast main runway by 1500 feet. The project was completed in June 2007. To make the extension possible, the City
¶ 7 The Airport and the Wickenhauser property are on the east side of CTH CC. Robert Brenner (Brenner) and Allan and Susan Seidling (the Seidlings) own properties on the west side of CTH CC.
¶ 8 The Brenner property consists of approximately 5 acres and includes his personal residence, a barn, and other miscellaneous improvements. The house is 816 feet from the closest point of the extended runway. The edge of the Brenner property borders CTH CC and is closer to the runway than the house.
¶ 9 The Seidling property consists of approximately 15 acres including their personal residence, crop fields, and pasture land. It borders CTH CC on the east and is directly south and west of the Brenner property. The Brenner property was once part of the Seidlings' acreage. The Seidlings' home is approximately 1503 feet from the runway. Susan Seidling indicated that she runs a daycare business out of her home.
¶ 10 Some of the Seidling land and much of the remainder of the Wickenhauser land are rented for crops or other agricultural uses.
¶ 11 Like the Wickenhausers, both Brenner and the Seidlings asked the City to condemn their land after they learned of the planned airport extension. The City declined.
¶ 12 The landowners and their witnesses testified in various proceedings about the adverse effects of the Airport expansion. In essence, the landowners complained that the extended runway led to noise, dust, dirt, flashing lights, disruption of their sleep, diminished enjoyment of their property, concerns about safety, direct overflights, and a decrease in property value.
¶ 13 As noted, the City condemned approximately 62 acres of the Wickenhausers' property and acquired an additional avigation easement. The State made a jurisdictional offer
¶ 14 The present case was filed December 13, 2007, by Brenner, the Wickenhausers, and the Seidlings. These landowners alleged inverse condemnation, nuisance, and trespass. To perfect their claim, they filed a verified petition for inverse condemnation, under Wis. Stat. § 32.10, in June 2008.
¶ 15 After a number of motions and pretrial proceedings designed in part to clarify the issues, the case proceeded to a court trial before Judge Cameron on June 10 and July 10, 2009. The landowners and their witnesses focused on the adverse effects created by additional aircraft flying in new flight patterns at the Airport, while the City emphasized that much of the value of the respective properties had not been lost.
¶ 16 Robert Brenner lived on his property with his fiancée and her daughter. A licensed pilot, Brenner testified that because of the runway extension, crosswinds caused aircraft to fly directly over his property, sometimes at less than 100 feet in altitude.
¶ 17 While some of Brenner's testimony indicated that aircraft travelled over his house during the FAA recommended approach, he also indicated that some pilots did not follow "the standard traffic patterns" and showed "[t]otal disregard for any traffic regulations or rules."
¶ 18 During the first day of the trial, Brenner offered video evidence of this claim and testified: "[Y]ou will see how aircraft totally disregard the air traffic patterns that are ... set up by the FAA, and how they deliberately fly over either
¶ 19 Brenner also testified that "this is an uncontrolled airport; and so pilots can do basically whatever they want, and ... actually — you know, it's the pilot's responsibility, but it's also the airport's responsibility to ensure proper traffic patterns are followed."
¶ 20 Brenner testified that, after the expansion, residing in his home had been a "living nightmare." He testified about helicopters flying in and out at all hours of the night. He testified that jets that could not previously use the shorter runway are now flying in and out of the airport. He testified that, since the extension of the runway, air traffic has increased and that his whole family's sleep is interrupted because of the noise of the airport and the flashing strobe lights at night during landings and take-offs. He testified that he and his family cannot sit outside and have a conversation or a picnic or a cookout because of the noise. He testified to being concerned about safety issues because the planes fly close to the house, noting that the power lines in front of his home were lowered ten feet from their original level because the aircraft were getting dangerously close. He testified about the debris and dust kicked up by the jets, as well as the kerosene smell.
¶ 21 Brenner complained about vibrations in his home, particularly with the windows. The 9-year-old daughter of his fiancée testified that, at one time, she was mixing a cake for her grandmother and vibrations from a plane flying over caused the bowl of cake mix to vibrate off the table and break on the floor. She also testified that the noise often wakes her up at night and is scary.
¶ 22 The Seidlings have lived on their property since about 1991. Allan Seidling testified that he can feel vibrations while he is sitting in the house when planes come in. He described the odor drifting in from the east. He said he had installed air conditioning but would rather have his windows open. He testified it was hard to have conversations outside the house. Susan Seidling testified that she and her husband do not host family gatherings because people complain about the noise. She said the strobe light from the Airport is bothersome in the winter. She said that even with a fan in the house, the loud helicopters still create a noise problem. She also testified that aircraft caused her china hutch to shake.
¶ 23 Allan Seidling expressed fear about his family's safety because of the decreased altitude of the aircraft flying over their house and property. He testified that he was afraid to fly kites because they might hit approaching aircraft.
¶ 24 The Wickenhausers have lived on their property since 1987, although Steven Wickenhauser owned the property in the early 1980s. In addition to the house, there is a large dairy barn, bunker silos, and other improvements on the property. The Wickenhausers objected to diminution of their property value and "inconvenience, nuisance, annoyance, discomfort and emotional distress from the lights, smoke, noise, disruption, vibration, smell, trespass onto private property, and significant safety concerns" caused by the extension and increased use of the Airport. Respondent's Brief, at 14. Steven Wickenhauser indicated that planes sometimes disrupt his sleeping. He said his windows and china rattle because of vibration. The State
¶ 25 The City, of course, offered rebuttal testimony, and the circuit court was impressed by some of the remedial efforts that the Airport had taken, including the installation of a launch pad buffer zone, and a "blast pad ... to control dust and erosion." The court found that there is no longer a medical helicopter stationed at the Airport and that the main jet that used the Airport is no longer hangared there.
¶ 26 There was mixed testimony about the number of planes using the Airport following extension of the runway. The court found that "usage by jet aircraft had increased by 2/3," according to an exhibit, but that the number of aircraft on instrumental flight plans (IFP) appeared to decrease at night and was the same in 2008 as it was before the expansion. The City showed that recreational use of the Airport had declined.
¶ 27 The City was adamant that it should not be responsible for pilots who deviate from FAA flight patterns in taking off or landing. It also contended that there had been no taking of the respective properties because they had not been reduced to almost no value for all uses.
¶ 28 The circuit court, relying on the testimony of James Rawson, a real estate appraiser, found that the highest and best use of the Wickenhauser property is agriculture and in ten years, light industrial. It added:
¶ 29 The court also found that airplanes and helicopters use the space above the home and property of each plaintiff. "The Defendants concede that as a result of the [runway] extension there has been a diminution in the peaceful and quiet use of the plaintiffs' homes for residential homes and there has been a reduction in the value of the homes and the Court would concur."
¶ 30 Nevertheless, the court distinguished United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), and said:
¶ 31 The court also dismissed the landowners' trespass and nuisance claims.
¶ 32 The court of appeals reversed. The court of appeals distinguished regulatory takings from actual occupation takings, determining that a party need not show that he or she has been deprived of all or substantially all value of his or her property in an actual occupation case. Brenner, No. 2010AP342, unpublished slip op., ¶ 9. The court said that in an actual occupation
¶ 33 In addition, the court of appeals noted that the circuit court did not address whether the FAA recommended flight path was over other parts of the landowners' properties or whether the aircraft deviated from that path. Id., ¶ 11. It determined that the Wickenhausers could not recover in this action for the 3.813 acres covered by the avigation easement, only the 77 acres not covered by the easement. Id., ¶ 13. The court of appeals remanded the case to the circuit court to make further findings of fact as necessary to determine whether a taking had occurred.
¶ 34 We accepted the Airport's petition for review and now affirm.
¶ 35 "Whether government conduct constitutes a taking of private property without just compensation is a question of law that this court reviews de novo." E-L Enters. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58, ¶ 20, 326 Wis.2d 82, 785 N.W.2d 409. Interpretation of statutes, such as Wis. Stat. § 32.10, also is a question of law that this court reviews de novo.
¶ 36 We accept the findings of fact made by the circuit court unless they are clearly erroneous.
¶ 37 The Fifth Amendment to the United States Constitution provides, in pertinent part, as follows: "Nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V.
¶ 38 The Takings Clause of the Fifth Amendment is applied to the States through the Fourteenth Amendment. Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., ___ U.S. ___, 130 S.Ct. 2592, 2597, 177 L.Ed.2d 184 (2010); Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897).
¶ 39 Article I, Section 13 of the Wisconsin Constitution provides as follows: "The property of no person shall be taken for public use without just compensation therefor." Wis. Const. art. I, § 13.
¶ 40 In Wisconsin, the government may acquire property by various means, including gift, purchase at an agreed price, or condemnation. Wis. Stat. § 32.02. When government condemns property for public use, it must act in conformity with the cited constitutional provisions on eminent domain and Chapter 32 of the Wisconsin Statutes. See, e.g., Wis. Stat. § 32.05: Condemnation for sewers and transportation facilities. Condemnation, which often involves an element of compulsion, frequently raises challenges about the purpose of the taking, the extent of the taking, and whether the compensation offered or paid for a taking is "just compensation."
¶ 41 There are other situations in which government does not seek to acquire property directly, but it effectively controls property by regulation, or takes property by other action, whether the government wishes to or not. In these situations, a property owner may bring suit for compensation from the government entity that "took" the owner's property without formally exercising its power of condemnation. These actions by property owners seeking compensation for takings are called inverse condemnation. See Black's Law Dictionary 332 (9th ed. 2010); Koskey v. Town of Bergen, 2000 WI App 140, ¶ 1 n. 1, 237 Wis.2d 284, 614 N.W.2d 845;
¶ 42 In Wisconsin, inverse condemnation claims are filed under Wis. Stat. § 32.10. This statute reads as follows:
¶ 43 In six places, Wis. Stat. § 32.10 uses some form of the word "occupy." The precise meaning of "occupy" is sometimes problematic. In any event, the procedure set out in § 32.10 has been used by property owners seeking compensation for a "taking," whether the alleged taking results from government regulation or from physical occupation.
¶ 44 This court discussed regulatory takings in Eberle v. Dane County Board of Adjustment, 227 Wis.2d 609, 595 N.W.2d 730 (1999). It explained that a taking need not arise from an actual physical occupation of property. Id. at 621, 595 N.W.2d 730 (citing Howell Plaza, Inc. v. State Highway Comm'n, 92 Wis.2d 74, 81, 284 N.W.2d 887 (1979) (Howell II)). However, "[a] taking can occur absent physical invasion only where there is a legally imposed restriction upon the property's use." Howell II, 92 Wis.2d at 88, 284 N.W.2d 887.
¶ 45 Citing Zealy v. City of Waukesha, 201 Wis.2d 365, 374, 548 N.W.2d 528 (1996), the Eberle court recognized the sine qua non for a regulatory taking — a regulation must deny the property owner all or substantially all practical uses of a property in order to be considered a taking for which compensation is required. Eberle, 227 Wis.2d at 622, 595 N.W.2d 730.
¶ 46 The Supreme Court's decision in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537-38, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), discussed other standards related to regulatory takings, including "regulations that completely deprive an owner of `all economically beneficial us[e]' of her property." (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). But the standard to be applied in Wisconsin is stated in Eberle and Zealy.
¶ 47 The circuit court concluded that the circumstances in this case do not show a regulatory taking. We agree. Consequently,
¶ 48 The other form of taking involves "actual physical occupation" of private property. E-L Enters., 326 Wis.2d 82, ¶ 22, 785 N.W.2d 409 (quoting Howell Plaza, Inc. v. State Highway Comm'n, 66 Wis.2d 720, 726, 226 N.W.2d 185 (1975) (Howell I)); see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).
¶ 49 The Loretto Court observed that "a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve." Loretto, 458 U.S. at 426, 102 S.Ct. 3164. Something less than permanent occupation of property also can amount to a taking. "[E]ven if the Government physically invades only an easement in property, it must nonetheless pay just compensation." Kaiser Aetna v. United States, 444 U.S. 164, 180, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979).
¶ 50 In E-L Enterprises, the Milwaukee Metropolitan Sewerage District drained groundwater near and under E-L's building to facilitate the construction of sewer pipe parallel to E-L's property. Removal of the groundwater caused 14 wood piles that were supporting E-L's building to rot. E-L's takings claim fluctuated between a "taking" of the wood piles and a "taking" of the groundwater. Because E-L did not prove "the value of the extracted groundwater," E-L Enterprises, 326 Wis.2d 82, ¶ 5, 785 N.W.2d 409, the court focused on the alleged taking of the wood piles and concluded that "the Sewerage District did not physically occupy the property for which E-L seeks compensation." Id. (emphasis added). It decided the case by denying compensation for "mere consequential damages to property resulting from governmental action." Id.
¶ 51 The property owners here assert that the extension of the Airport runway has led to actual occupation of the airspace over their land — airspace in which they have a recognized property interest. This thesis rests in part on the landmark Supreme Court decision in Causby.
¶ 52 Causby involved frequent and regular flights of Army and Navy aircraft over a residence and chicken farm in North Carolina. Id. at 258, 66 S.Ct. 1062. The aircraft passed directly over the property at a height of 83 feet, along a path approved by the Civil Aeronautics Authority.
¶ 53 The Causby Court addressed whether a taking had occurred and what the test for such a taking would be. The Court needed to grapple with common law doctrine relating to land ownership. Justice William O. Douglas wrote:
Id. at 260-61, 66 S.Ct. 1062.
¶ 54 The Court recognized that Congress had placed into the public domain, as a public highway, the navigable airspace above the minimum safe altitude of flight — then 500 feet by day and 1000 feet by night for air carriers. Id. at 263, 66 S.Ct. 1062. However, the Court recognized that if a property owner is to have full enjoyment of his land, he must have "exclusive control of the immediate reaches of the enveloping atmosphere," the "superadjacent airspace" below the altitude that Congress appropriately determines to be a public highway. Id. at 264-65, 66 S.Ct. 1062.
¶ 55 Thus, the Court determined that, "Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land." Id. at 266, 66 S.Ct. 1062 (emphasis added). The Court agreed with the Court of Claims that "a servitude" had been imposed upon the Causby land. Id. at 267, 66 S.Ct. 1062.
¶ 56 While Causby involved flights by government aircraft, the United States Supreme Court later addressed the applicability of Causby to private flights landing at and departing from airports owned and operated by local municipalities. Griggs v. Allegheny Cnty., 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962).
¶ 57 In Griggs, Allegheny County in Pennsylvania owned and operated the Greater Pittsburgh Airport, which the county had designed in conformance with Civil Aeronautics Administration rules and regulations. Id. at 85, 82 S.Ct. 531. The county designed the airport in such a way that one approved glide angle for aircraft was 81 feet above the ground or 11.36 feet above the chimney of a property owner. Id. at 86, 82 S.Ct. 531. All flights remained within Civil Aeronautics Administration recommendations, but they were regularly at an altitude of 30 feet above the property owner's residence. Id. at 86-87, 82 S.Ct. 531.
¶ 58 The Griggs court dealt with the questions of whether Causby remained good law after Congress had redefined navigable airspace to include space necessary for takeoffs and landings, and whether a county could be liable for flights that take off and land at its airport. The Court concluded that the legislative definition of navigable airspace did not necessarily determine whether a taking could occur. Id. at 88-89, 82 S.Ct. 531. The Court also held that, on the facts and law before it, the county could be liable for a taking. Id. at 89-90, 82 S.Ct. 531.
¶ 59 One of the early United States Court of Appeals decisions interpreting Causby and Griggs was Palisades Citizens Association v. Civil Aeronautics Board, 420 F.2d 188, 192 (D.C.Cir.1969). The court said:
Id. (citations omitted).
¶ 60 Causby and Griggs represent the controlling law with respect to "takings" of private property by aircraft overflights. In applying these cases to the present litigation, we underscore the fact that our analysis is directed to three purported uncompensated "takings" of private property under constitutional standards. Our analysis does not address potential remedies a property owner may have in tort. It is confined to whether the Airport is responsible for a partial "taking" of plaintiffs' property in a "constitutional sense."
¶ 61 Causby concluded that the overflights of military aircraft had imposed a "servitude" upon Causby's land. Causby, 328 U.S. at 267, 66 S.Ct. 1062. The Court added that, "The Court of Claims held ... that an easement was taken." Id. In Griggs, the Court described the Causby taking as the "`taking,' in the constitutional sense, of an air easement for which compensation must be made." Griggs, 369 U.S. at 88, 82 S.Ct. 531. The Court added, upon the facts of that case:
Id. at 89, 82 S.Ct. 531 (emphasis added). The Court went on:
Id. at 90, 82 S.Ct. 531 (citation omitted).
¶ 62 Strict adherence to property principles limits the application of eminent domain. The government cannot "take" private property from a person if the person does not have an interest in the property. Generally speaking, a landowner has a three dimensional property interest in airspace: The person has a property interest in the block of air that is bounded by the length and width of the person's land holdings (i.e., Brenner's five acres) and rises up to approximately the height of the government-defined minimum safe altitude of flight. Physical invasions of this superadjacent airspace may constitute a taking. Generally speaking, actions that occur outside or above this block of air do not constitute a taking, even if the actions have adverse consequences to the person's property.
¶ 64 Thus, the standard for a taking in an airplane overflight case is very different from the standard applied by the circuit court. The standard for a taking in an airplane overflight case is whether the overflights have been low enough — that is, invasions of a person's block of superadjacent airspace — and frequent enough to have a direct and immediate effect on the use and enjoyment of the person's property. If this standard can be satisfied, the government has "taken" an easement without paying compensation for it. Because the circuit court applied the much more stringent standard of a regulatory taking, the circuit court erred. As the court of appeals directed, this case must be remanded to the circuit court to apply the correct standard.
¶ 65 The principles stated about the taking of an avigation easement have engendered considerable controversy throughout the nation. We discuss several of the attendant issues in an effort to assist the circuit court.
¶ 66 There is some uneasiness in a holding that courts will recognize damages for a taking caused by government-authorized action that occurs inside a block of air but not recognize damages emanating from government-authorized action outside that block of air, even though the consequences for property owners may be identical. The theory behind the dimensional distinction is set out in Batten v. United States, 306 F.2d 580 (10th Cir.1962), the leading case in disallowing claims of noise and smoke damage from a nearby airport when direct overflights were not at issue. In Batten, the majority said:
Id. at 583-85.
¶ 67 7A Nichols on Eminent Domain § G14.02[2][a] (3d ed. 2012) views Batten as the majority rule but quotes at length from the dissenting opinion of Judge Alfred Murrah and cites exceptions.
¶ 68 Some of these exceptions rely on tort theories to provide a remedy. In this case, the circuit court should adhere to property principles in determining whether there have been "takings" of air easements by invasions of the property owners' superadjacent airspace. This decision is not intended to address possible tort claims.
¶ 69 On remand, there may be a dispute about the height of the property owner's superadjacent airspace — namely, where does it end? Throughout the country, there have been disagreements about whether takings could ever occur above the minimum safe altitude of flight, and what the minimum safe altitude of flight is in a given circumstance.
¶ 70 In 1946, Causby identified the minimum safe altitude as 500 feet by day and 1000 feet by night. Causby, 328 U.S. at 263-64, 66 S.Ct. 1062. In 1962, Batten, 306 F.2d at 585, identified the minimum safe altitude as 1000 feet over congested areas and 500 feet over sparsely populated areas, citing a section of the Code of Federal Regulations.
¶ 71 We take note of 14 C.F.R. § 91.119, which reads as follows:
14 C.F.R. § 91.119 (2011).
¶ 72 One commentator has suggested that tying takings to the minimum safe altitude of flight — known as the "fixed height" theory — "misread[s] the Supreme Court's analysis." Colin Cahoon, Comment, Low Altitude Airspace: A Property Rights No-Man's Land, 56 J. Air L. & Com. 157, 171 (1990). The Cahoon article, which lays out six separate theories of airspace ownership, asserts that the Supreme Court rejected the "fixed height" theory by its reasoning in such cases as Griggs. Id. at 179-81. "If the `fixed height' theory were to be followed to its logical conclusion, no taking could have occurred, since the planes flying over Mr. Griggs' house were within navigable airspace." Id. at 180. The Cahoon article cites Section 159 of the Restatement (Second) of Torts (1965),
¶ 73 There are competing answers in the case law regarding whether the congressional definition of navigable airspace and the minimum safe altitude of flight preclude a taking at a height greater than the minimum safe altitude of flight.
¶ 74 First, Wis. Stat. § 114.03 provides:
This section, as well as sections 114.04 and 114.07,
Cahoon, supra, at 164.
¶ 75 Interpretation of Wis. Stat. § 114.03 has to mesh with the Supreme Court's interpretations of Congress's power to regulate air navigation under the commerce clause. However, unless Congress has adopted the minimum safe altitude of flight as the ceiling to a property owner's superadjacent airspace, the Wisconsin statute may permit the recognition of direct and immediate injuries to property from overflights above the minimum safe altitude of flight.
¶ 76 Second, the minimum safe altitude of flight for helicopters can be less than the minimum safe altitude of airplanes, provided that "each person operating the helicopter complies with any routes or altitude
¶ 77 Third, setting a "fixed height" ceiling for a property owner's superadjacent airspace may facilitate a relatively easy determination of one factor in an overflight takings analysis. However, arbitrary lines can produce unfair results, and arbitrary height lines are likely to accelerate the development of tort remedies. Consequently, some think it would be better for the law to presume a non-taking by overflights above the minimum safe altitude of flight, but permit property owners to overcome the presumption with compelling proof in egregious circumstances. See Cahoon, supra, at 188.
¶ 78 There is another critical consideration for the circuit court that injects a fourth "dimension" into the determination of a taking. That dimension is time, evidenced by the element of "frequency."
¶ 79 As noted, the Loretto Court concluded that "a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve." Loretto, 458 U.S. at 426, 102 S.Ct. 3164 (emphasis added.) "When faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invariably found a taking." Id. at 427, 102 S.Ct. 3164 (emphasis added). "We affirm the traditional rule that a permanent physical occupation of property is a taking." Id. at 441, 102 S.Ct. 3164 (emphasis added).
¶ 80 Loretto discussed Causby approvingly, noting that there was a "distinction between a permanent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property." Id. at 430, 102 S.Ct. 3164. Loretto stressed the "frequent flights" in Causby, id., and asserted that the damages to the respondents in Causby "were not merely consequential. They were the product of a direct invasion of the respondents' domain." Id. at 431, 102 S.Ct. 3164 (quoting Causby, 328 U.S. at 265-66, 66 S.Ct. 1062).
¶ 81 In airplane overflight cases, a "permanent" occupation of property is not necessary. However, the second sentence in Causby speaks of "frequent and regular flights," Causby, 328 U.S. at 258, 66 S.Ct. 1062, and the Court's holding refers to flights that are "so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land." Id. at 266, 66 S.Ct. 1062 (emphasis added). In short, isolated, irregular invasions of a property owner's superadjacent airspace may be annoying but they do not necessarily amount to a taking in a constitutional sense. "Frequency" is an important element of proof in overflight cases.
¶ 82 The City has urged the court to add another factor to the test for whether a taking has occurred. It contends that only those overflights that follow FAA-approved flight plans should be considered in determining a taking — that the City cannot be held responsible for overflights that disregard FAA-approved flight plans. We cannot agree with this contention.
¶ 83 It is true that government action of some sort is a prerequisite for a taking under the constitution. Cases applying Causby often involve government aircraft.
¶ 84 In this case, the Airport manager testified that pilots were following the FAA recommended approach patterns and that he worked to enforce those standards. Brenner testified that pilots would deviate from those standards, especially in high winds. A city cannot operate an airport and permit some of the aircraft that use it to disregard established FAA flight paths. The City bears responsibility if aircraft are regularly deviating from FAA flight patterns and those deviations result in invasions of the superadjacent airspace of neighboring property owners with adverse effects on their property. The City is in a far superior position to enforce the FAA's flight standards than the property owners. Placing the burden on the property owners to seek enforcement against individual airlines or pilots would effectively deprive the owners of a remedy for takings of their property.
¶ 85 The record does not contain sufficient factual findings by the circuit court to resolve this case. We remand to the circuit court to make further factual findings and to determine whether takings have occurred. After the circuit court has made further factual findings, it must apply the standard set forth in this decision.
¶ 86 We note that the Wickenhausers' claim in this action relates only to the 77 acres not included in the separate condemnation action. Direct condemnation actions and inverse condemnation actions are mutually exclusive. See Maxey v. Redevelopment Authority of Racine, 94 Wis.2d 375, 288 N.W.2d 794 (1980); Wis. Stat. § 32.10. Should the circuit court find that a taking occurred with respect to the 77 remaining acres of the Wickenhauser property, it must consider that severance damages were paid on that property when it calculates just compensation. See, ¶ 13 n.5, supra.
¶ 87 The Takings Clause of the Fifth Amendment and the equivalent provision in Article I, Section 13 of the Wisconsin Constitution do not prohibit the taking of private property for public use, but instead place a condition on the exercise of that power. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). These provisions are designed "not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking." Id. at 315, 107 S.Ct. 2378.
¶ 88 The creation and expansion of airports is usually deemed a public good. But that good frequently comes at a significant cost to neighboring landowners. This cost cannot be ignored.
¶ 89 "One of the principal purposes of the Takings Clause is `to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Dolan v. City of
¶ 90 We affirm the decision of the court of appeals. We conclude that a taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner's property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property. We remand the case to the circuit court to make further factual findings and to hold additional hearings, as necessary, to determine whether a taking occurred in this case.
The decision of the court of appeals is affirmed.
Severance damages are defined in Wis. Stat. § 32.09(6)(e) as:
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
The City asserts that the severance damages paid to the Wickenhausers preclude an inverse condemnation claim for the 77 remaining acres. The City relies on Hoekstra v. Guardian Pipeline, LLC, 2006 WI App 245, ¶ 13, 298 Wis.2d 165, 726 N.W.2d 648, which states that "[s]everance damages are defined as `the diminution in the fair market value of the remaining land that occurs because of a taking.'" (citations and internal quotation marks omitted). However, severance damages represent the loss of the value to the land due to the severance of the land, not the loss of value due to new or increased overflights. Therefore, the Wickenhausers' claim is still alive for the land not included in the direct condemnation action. However, if the court calculates diminution of the fair market value of the land, it must consider that damages were already paid for the diminution of value that was attributable to the severance.
Wisconsin Stat. § 114.07 provides:
