The Price of Progress:

Valuation Issues in Airport Expansion

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Christopher Finan

Law & Valuation
Professor Palmiter
Spring, 2001

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Abstract:

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Air transportation is the fastest growing form of mass transit in the world today. The current airport infrastructure is out-dated and inadequate to deal with this increasing demand for air travel and air cargo. As a result, it is likely that in the near future, airports around the world will be forced to face the realities of airport expansion or relocation. When airports in the United States are forced to do so, they will be faced with the challenge of justly compensating those whose land is taken or adversely affected by the expansion or relocation.

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While valuation theories of the property owner's interest in land are extremely well developed in a direct taking (condemnation) context, the same cannot be said when the impact of a public project, like an airport, only affects the land owner indirectly (generally in the form of increased noise). There are three generally accepted methods of valuing real property in a condemnation setting: The Market Data Approach, The Income Approach and the Cost Approach.While these methods are extremely useful in the determination of value in a complete taking by eminent domain, they are only mildly helpful in determining the appropriate amount of compensation due to a landowner whose property has been indirectly taken or extremely de-valued due to the excessive noise created by low-flying aircraft.This paper concludes that these types of cases must be examined on an ad hoc basis and that while all of the above approaches are somewhat useful, the only method of valuation for this type of indirect harm that really counts is the jury's verdict - airport managers who are facing expansion, BEWARE!

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Text:

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Introduction

This paper is intended to serve as a primer on the "takings" issues surrounding airport expansion or relocation, with special emphasis being placed on methods used to value both direct and indirect impacts of such projects on landowners in the surrounding community. First, this paper will outline the growing problem of increased air travel.<![if !supportFootnotes]>[1]<![endif]> Next, background information on the law of takings and federal preemption of the aviation industry will be provided.<![if !supportFootnotes]>[2]<![endif]> Then, the methods used to value a direct taking of land will be detailed and explored.<![if !supportFootnotes]>[3]<![endif]> Finally, the valuation techniques applied to direct takings of land will be applied to causes of action sustainable by landowners suffering from the indirect effects of increased airport activity. These valuation techniques will also be analyzed in regard to their usefulness in determining the value of indirect harm.<![if !supportFootnotes]>[4]<![endif]>

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The Air Transport Growth Problem

Between the years of 1970 and 1990, air passenger travel increased by over 260% and air cargo grew over 220%, mostly as a result of the airline deregulation that took place in 1978.<![if !supportFootnotes]>[5]<![endif]> Many experts project that over the next ten to fifteen years, aggregate air travel and traffic will double.<![if !supportFootnotes]>[6]<![endif]> Developed nations, such as the United States, will likely continue to see the greatest growth, possibly reaching as great as 500% over the next 50 years.<![if !supportFootnotes]>[7]<![endif]> Airbus Industrie, a world leader in the production of commercial aircraft, has predicted that over the next 20 years, the world's major airlines will purchase over 15,000 new aircraft and that only a small percentage of those currently flying will be retired.<![if !supportFootnotes]>[8]<![endif]> Therefore, it is axiomatic that these planes need runways upon which to take off and land.

During the summer of 2000, nearly one out of every four flights taking off or landing in the United States was either cancelled or delayed.<![if !supportFootnotes]>[9]<![endif]> The cause of the majority of these delays or cancellations was the lack of capacity of the air traffic control system and the airport runways and other infrastructure.<![if !supportFootnotes]>[10]<![endif]> When the increase in demand for air travel exceeds the supply of available runways and infrastructure, delays are the natural result. Looking to the near future, it is clear that the demand for air travel and air cargo will not decrease. Thus, airport authorities must respond by attempting to increase the supply of additional air traffic capacity through airport expansion or relocation.

Background: Aviation "Takings" Law and Federal Preemption

In order to fulfill the growing need for an increase in airport capacity, it will become necessary for airport authorities to make plans for expansion or relocation. Inherent in this is the increased need for land upon which to construct new runways, taxiways, terminals and other airport infrastructure.New airports and new runways at existing airports require a great deal of land to construct. In addition to the land acquired directly for the construction of airport infrastructure, all runways are required to have large areas free of objects at either end, known as Runway Protection Zones (RPZ's).<![if !supportFootnotes]>[11]<![endif]> The FAA prefers RPZ's to be owned in fee by the airport.<![if !supportFootnotes]>[12]<![endif]> The FAA also recognizes that land that is very close to the airport will be exposed to a great deal of noise. To account for this, the FAA has established criteria for determining when the owners of such land will be entitled to compensation. A maximum average daily noise level of 65dB is the threshold used to determine which landowners are entitled to compensation.<![if !supportFootnotes]>[13]<![endif]>

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While airport authorities have the power to condemn land for airport use through eminent domain, they are also constitutionally required to pay a fair price for the land taken. The Fifth Amendment of the Constitution prohibits "takings" of land by the government for public purposes without the payment to the landowner of "just compensation."<![if !supportFootnotes]>[14]<![endif]> While it is clear that an airport authority which acquires fee simple to a piece of land "takes" the land and is required to pay the landowner "just compensation," courts have had more difficulty defining when land is indirectly "taken" for a public purpose, especially in the aviation context.<![if !supportFootnotes]>[15]<![endif]>

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For this reason, courts have created a bright-line test, stating that flights directly above a claimant's property which occur at a height of greater than 500 feet do not trigger a Fifth Amendment "takings" action entitling the landowner to payment of just compensation, but flights within the landowner's imaginary 500 foot cube do.<![if !supportFootnotes]>[16]<![endif]> The seminal case on this point is United States v. Causby.<![if !supportFootnotes]>[17]<![endif]> In Causby, the plaintiff instituted an inverse condemnation<![if !supportFootnotes]>[18]<![endif]> case against the Government seeking recovery for damages incurred to his chicken farming operation as a result of planes flying at very low altitudes directly above his property.<![if !supportFootnotes]>[19]<![endif]> The plaintiff claimed that the noise from low flying aircraft was so great that his chickens would becomes frightened and run into the walls of the chicken-house, killing themselves, and causing a loss of over $2,000.<![if !supportFootnotes]>[20]<![endif]> The Court held that because the flights over the plaintiff's land were so low and frequent as to directly and significantly interfere with his use and enjoyment of his land, the plaintiff was entitled to recover "just compensation" for his injury.<![if !supportFootnotes]>[21]<![endif]> While later courts have slightly expanded Causby,<![if !supportFootnotes]>[22]<![endif]> the "500 feet directly over" rule remains generally applicable, thus severely limiting what types of activity constitute compensable Fifth Amendment "takings" in the context of noise and other forms or pollution from airplanes and airports.

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Another player in the airport expansion game is the federal government. Congress has enacted a comprehensive set of laws governing virtually all aspects of airport construction, operation and aircraft noise generation.<![if !supportFootnotes]>[23]<![endif]> In many cases, local governments have attempted to regulate noise and other pollution created by the operation of an airport, with little or no success.<![if !supportFootnotes]>[24]<![endif]> The United States Supreme Court addressed this issue in City of Burbank v. Lockheed Air Terminal, Inc.<![if !supportFootnotes]>[25]<![endif]> At issue in Burbank was a city ordinance prohibiting jet flights from the Hollywood-Burbank Airport between the hours of 11:00 p.m. and 7:00 a.m.<![if !supportFootnotes]>[26]<![endif]> In striking down this local ordinance designed to control noise pollution, the Court noted that even though federal legislation failed to expressly preempt local legislation, the pervasiveness of federal management in the aviation arena left no room for states or local governments to regulate.<![if !supportFootnotes]>[27]<![endif]> Although a few local noise control ordinances have been upheld, it is generally recognized that the federal law governs the entire business of aviation.<![if !supportFootnotes]>[28]<![endif]>

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Finally, the federal government, specifically the FAA and DOT, are responsible for planning all major airport expansion projects.Their responsibilities include airport design, establishment of runway specifications and accounting for noise and other pollution impacts that the expansion will have on the surrounding community.<![if !supportFootnotes]>[29]<![endif]> While local airport authorities have some input into the types of improvements they wish to make on their premises, it is ultimately up to the FAA and DOT to approve all designs and supervise the construction of any new aircraft-handling facility (runways, taxiways, gates, etc...).<![if !supportFootnotes]>[30]<![endif]> This paper provides only a glimpse at the level of control the federal government has over all things aviation.

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Valuation Techniques in Condemnation Proceedings

With the basic principles of "takings" law and federal preemption in aviation in mind, we now explore the generally accepted methods used to value land that is taken directly by way of eminent domain in a condemnation proceeding. There are three generally accepted methods used to determine fair value for land taken by direct condemnation: 1) the market data approach or comparable sales method; 2) the income approach; and 3) the cost approach.<![if !supportFootnotes]>[31]<![endif]> Additionally, when using any of these methods, the land taken must be valued according to its "highest and best use," or the use that would likely bring the highest value.<![if !supportFootnotes]>[32]<![endif]> The goal of any valuation technique is to determine what a willing buyer would pay a willing seller in an arms-length transaction, where neither the seller nor the buyer is under a compulsion to enter into the transaction.<![if !supportFootnotes]>[33]<![endif]>

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A. The Market Data Approach

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"The market data or direct sales comparison approach is generally regarded as the most reliable method of determining fair market value for unimproved residential, commercial and industrial land."<![if !supportFootnotes]>[34]<![endif]> This approach is also used extensively in placing value on developed residential property and developed commercial property.<![if !supportFootnotes]>[35]<![endif]> The basic premise behind this approach is that when attempting to set a "fair market value" for a given property, "what better place to look than the market itself?"It is generally accepted that by looking at close-in-time sales of properties similar to the property taken by eminent domain, a reasonably accurate reflection of how the market would have treated the subject property can be determined.<![if !supportFootnotes]>[36]<![endif]>

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Courts generally agree that in order to be a valid "comparable sale," and therefore useful in determining the value of the taken property, there must be a minimum level of similarity between the "comparable sale" property and the property at issue.<![if !supportFootnotes]>[37]<![endif]> Some of the basic characteristics of a useful "comparable sale" property include: 1) the sale must be bona fide; 2) the sale must be voluntary and not forced; 3) the sale must be relatively contemporaneous with the date of taking; and 4) the sale must be of a property substantially similar to the subject.<![if !supportFootnotes]>[38]<![endif]> Once it has been determined that a property is generally "comparable," differences in the properties are accounted for in the form of adjustments. As no two properties are exactly alike, adjustments are typically made by appraisers to account for differences in market conditions, size differences, condition of improvements, location, parking, market appeal, date of sale, topography or any other difference between the taken property and the "comparable" property.<![if !supportFootnotes]>[39]<![endif]> Special consideration may also be given to land that has been, or will likely be, subdivided into smaller, individually salable lots.<![if !supportFootnotes]>[40]<![endif]> Using this market approach, a relatively accurate reflection of the fair market value of the taken property can be determined.

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B. The Income Approach

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A second method for valuing land taken directly is known as the income approach. This approach bases value for a given parcel upon the potential such land has for producing income, and is mainly used to value income producing properties such as apartment buildings, office buildings and shopping centers.<![if !supportFootnotes]>[41]<![endif]> Under this approach, value of a piece of land is determined by dividing the net income from the property by a capitalization rate.<![if !supportFootnotes]>[42]<![endif]> These two components critical to an accurate valuation of land under the income method are values computed based upon historical data from the given site.The net income factor is computed by deducting operating expenses for a given parcel from the gross rental income produced by the property. Determining the rate of return necessary to attract investment capital generally sets the capitalization rate.<![if !supportFootnotes]>[43]<![endif]>

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The income component of this valuation method is determined by totaling gross income and then subtracting for factors such as anticipated or projected vacancy and for various other expenses likely to be incurred by the landlord in maintaining and operating the property. Gross income is determined by adding all rent and other payments made to the landlord by the tenant. A touchstone of this method of real estate valuation is that the value of a property is directly related to the income that it is able to produce.<![if !supportFootnotes]>[44]<![endif]>

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In setting a capitalization rate, an expert appraiser is generally employed to determine the precise rate of return that an investor would require before undertaking to invest in the property.<![if !supportFootnotes]>[45]<![endif]> The capitalization rate selected by the appraiser should reflect the fact that an investment in real estate is inherently more risky than placing money in a savings account or purchasing a government treasury bill. Thus, if a savings account has a 4% rate of return and a treasury bill has a 6% return (both of which have little to no risk), an investor would require a higher rate of return than either of these in order to be induced into investing his or her money on this more risky proposition.<![if !supportFootnotes]>[46]<![endif]> The higher the expected rate of return, the more risky the investment is. As such, it is clear that this method of valuation places a great deal of emphasis on the opinion of an expert valuator.

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C. The Cost Approach

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The third method of valuing real estate is known as the cost approach or the depreciated reproduction cost method.<![if !supportFootnotes]>[47]<![endif]> This approach, although not considered to be a "market" based method, uses comparisons derived from the marketplace. Under this approach, an appraiser is employed to estimate the cost to reproduce any existing structures, including all direct costs, indirect costs and an allowance for an appropriate profit. After this is complete, the appraiser then deducts all accrued depreciation for the improvements to the property. After this is complete, the appraiser then adds in the value of the land and arrives at a final "fair market value" for the entire property.<![if !supportFootnotes]>[48]<![endif]>

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Not all courts will admit evidence of reproduction cost in determining the fair market value of a given parcel of land or piece of property.<![if !supportFootnotes]>[49]<![endif]> These courts generally feel that this method of valuing land may lead to excessive awards if the discounting and depreciation is not done correctly or fully.In depreciating for this method, adequate discounts for obsolescence and inadequacy as well as physical depreciation must be taken into account if a true "fair value" is to be determined.However, if the structure was reasonably well maintained and remained well-adapted for the special purpose for which it was employed, this method of valuation would likely be relevant and admissible.

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Application of Valuation Techniques to Indirect Takings

Now that the basic principles for determining the fair value of land in a direct taking (condemnation) situation have been introduced and detailed, the question of how, or if, these principles are applicable to an indirect, or constructive taking of land, by an increase in aviation activity remains. Three hypothetical situations are set out below. Each of these hypotheticals shows a different type of claim that might be brought by a landowner in each situation. While it is true that ultimately a jury would determine value under each of these situations, this analysis focuses on the methods expert witnesses might attempt to use to value the indirect harm caused by the airport.

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A. Valuing a Fifth Amendment "Taking"

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Hypothetical - Sam, the owner of a parcel of land 1000 feet from the end of a runway at Metropolis International Airport (MIA), is constantly bothered by planes flying directly over his property at very low altitudes. Over the past two years, air traffic at MIA has nearly doubled and has changed what used to be a tolerable noise situation into one that no one could be expected to live with without some compensation. Sam lives with his family on the property, which has been in his family for five generations, and has no desire to move. Sam also runs his family farm on the property. The farm is Sam's only source of income. Sam files an inverse condemnation suit alleging that the flights are so low and frequent that they constitute a taking of his property for a public purpose. Sam seeks payment for the damage.

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Analysis - As set out above, this situation would likely constitute a Fifth Amendment taking under the analysis set out in Causby.<![if !supportFootnotes]>[50]<![endif]> Assuming that Sam can prove that the planes flying directly over his property are flying at an altitude of 500 feet or less (which may be difficult), it is likely that a court would order just compensation be paid. The question now turns to the determination of just compensation.

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A first attempt would be to use a modified version of the market method.<![if !supportFootnotes]>[51]<![endif]> A simple way this could be accomplished is to look for comparable sales of property in the area around the ends of the runways at MIA over the past two years and attempt to determine how much of a discount these properties were sold at as a result of the excessive noise resulting from the doubling of air traffic into and out of MIA. This discount may be a fairly accurate measure of the damage caused by low-flying aircraft. Although Sam is not selling his property (so we are not trying to find the "fair market value" of his entire property), this type of data may be useful to a fact finder in attempting to place a value on the value of the easement taken. While it is true that there will be discrepancies for market conditions over time, different levels of air traffic over different parcels of land and different noise tolerances of individuals, this method still may be useful in the determination of an adequate amount of "just compensation" to which Sam is entitled.

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Presently, neither the income method nor the cost method of valuation would be particularly useful in valuing the taking of an easement over Sam's property. The income method requires the determination of a net income and a capitalization rate for the property. Here, although Sam runs a farm on his land, this is not the type of property that could be accurately valued according to the income method as it is not generally what would be considered "investment property." No rent is being charged to anyone for any part of the family land and it is unlikely that such land would attract much investment capital, making the determination of both the net income and capitalization rate nearly impossible. Moreover, the cost method of valuation is similarly unhelpful in the present case as there is no need to reconstruct anything as Sam and his family are not leaving the land. The only relevant question is the difference in value of the land with and without the impact of the low-flying aircraft.The cost method would not be useful in this case.

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B. Valuing a Nuisance

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Hypothetical - Jim is the owner of a shopping center 1.5 miles from MIA. The shopping center was built 4 years ago, two years before the dramatic increase in air traffic into and out of MIA. Although no aircraft fly directly over the shopping center, the average noise level from aircraft taking off and landing at MIA is 63dB, only 2dB below the FAA maximum noise threshold. As a result of the noise, customers are more reluctant to shop at Jim's shopping center than at other competing shopping centers. This has caused 1/3 of the shops in Jim's shopping center to either close or relocate.Jim files a tort suit against the airport authority seeking damages on a theory of nuisance.

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Analysis - When an interference with the use and enjoyment of one's land does not result from a direct physical invasion of one's property rights, those causing the harm may still be held liable in tort under a nuisance theory.<![if !supportFootnotes]>[52]<![endif]> In bringing a nuisance action, there are several decisions that must be made by those bringing the suit. First, the landowners must determine if they will bring the suit as a public or private nuisance.<![if !supportFootnotes]>[53]<![endif]> A public nuisance is one that affects a large community of people. To bring a public nuisance suit, a landowner must show that he has incurred a greater harm than others in the community. The advantage of a public nuisance action is that the defenses of prescription, laches and the statute of limitations do not bar these types of actions.<![if !supportFootnotes]>[54]<![endif]> In a private nuisance action, a party seeking relief must show that there has been an impediment (by noise, smoke, vibration, etc...) upon the use and enjoyment of their land. Such harm must be both substantial and unreasonable. Thus, most nuisance actions brought by landowners complaining of airport noise are brought under a private nuisance theory.<![if !supportFootnotes]>[55]<![endif]>

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In this case, it appears that Jim will be able to show specialized, substantial and unreasonable harm and sustain a private nuisance action. This fact situation presents a case where the income approach to valuing land may be the most useful method. Since this property is traditional "investment property" and Jim has renters, it will be possible to determine a value for net income and a rate of capitalization. This measure of value could be compared to the same measure of value using figures from a time before the aircraft noise impact was so great. Again, this method will result in some inaccuracy. Adjustments must be made by an expert appraiser to take into account changes in market conditions, changes in interest rates of less risky investments and an allowance for time. Additionally, if it is determined that the harm in this case constitutes a permanent nuisance, an additional amount of permanent damages must be calculated. While these adjustments must be made in order to determine a fair value for the harm, this method is likely the most appropriate in this factual setting. Neither the market data approach nor the cost approach would likely yield values as fair or accurate as the income approach in this type of case.

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C. Valuing a Regulatory Taking

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Hypothetical - MIA is in the process of expanding its capacity due to the dramatic increase in traffic into and out of the airport.As a part of this expansion, MIA has planned to build an additional runway. In conjunction with the construction of this new runway, the airport authority requested that the Metropolis city land use council re-zone property within 1 mile of the airport in such a fashion as to disallow any building taller than 5 stories to be built.

Jack is the owner of a parcel of land 0.9 miles from the airport.On this land, Jack had planned to place a new 25-story office building. He planned to rent out the space for a large profit. At the time the new zoning regulation went into effect, Jack had already begun the construction of the new office building, completing the first 3 stories. The re-zoning prevented Jack from building any taller than 5 stories. Jack completed the building up to the 5-story limit and rented out the space. He suffered a significant loss on the project and is now suing the airport authority and the city for damages.

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Analysis - When the enactment of a governmental regulation diminishes the value of private property, in some cases, a regulatory taking has occurred.<![if !supportFootnotes]>[56]<![endif]> The determination of whether or not a compensable "taking" has occurred partially depends on the reasoning behind the regulation. The Supreme Court has consistently held that a regulation designed to prevent a "harmful or noxious" use of land is in accord with the proper exercise of the state's police power and that no payment of just compensation is due.<![if !supportFootnotes]>[57]<![endif]> However, a deprivation of all economically beneficial use of property is a "taking" requiring the payment of just compensation, regardless of the state's motivation for the regulation.<![if !supportFootnotes]>[58]<![endif]>

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While cases in the aviation arena dealing with regulatory takings are split,<![if !supportFootnotes]>[59]<![endif]> for purposes of this paper, assume that Jack has won his case and is now attempting to determine just compensation for the taking. In this case, either the market data approach or the income approach may be an appropriate method for determining an amount of just compensation for the taking occurring as a result of the restrictive zoning ordinance. Jack still has the use and income from a 5-story office building, therefore, he is enjoying some benefit from the building and the taking is not complete. Under the market data approach, comparable office buildings in the same general area must be located and compared to Jack's building in terms of rental rate and cost of operation, together with all other factors distinguishing Jack's building from the comparable buildings, including time and market conditions, using the method described earlier. This method will likely yield a fairly accurate value for the 20 stories "taken" by the enactment of the zoning ordinance. Further, damages in this situation are not speculative as Jack had a plan for construction of the full 25 stories of the building. The "lot method" of valuation may also be useful in this type of case.

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The income approach to valuation is also likely to yield a fairly accurate result in this type of a case. An office building is specifically built for the purpose of being rented and producing income. It is clear that an additional 20 stories would have yielded additional rental income (assuming that demand for the space was constant) and cost more to operate. Both of these values could be quite easily determined. Further, an expert valuator could readily determine an adequate capitalization rate for the office space. Therefore, by determining the difference in the capacity to produce income between a 5-story building and a 25-story building, the appropriate amount of "just compensation" can be determined.

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Conclusion

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As the preceding examples have shown, the traditional methods for valuing a complete taking of land by eminent domain are only mildly helpful at best in determining the value of an indirect harm to property caused by aircraft noise. There exists no concrete method for determining the value of an indirect impact of noise on landowners surrounding an airport. Each case must be examined individually according to its own facts and circumstances. The position of an airport manager thinking of expansion or relocation is not an enviable one. There is a great deal of uncertainty as to the amount of money that will need to be set aside to deal with these noise-based, indirect harm claims. Ultimately, it is not an expert who will place a final value on the harm caused by increased aircraft noise - this is a question for the jury to decide.

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<![if !supportFootnotes]>[1]<![endif]> See infra. notes 5-10.

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<![if !supportFootnotes]>[2]<![endif]> See infra. notes 11-29.

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<![if !supportFootnotes]>[3]<![endif]> See infra. notes 28-49.

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<![if !supportFootnotes]>[4]<![endif]> See infra. notes 50-59.

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<![if !supportFootnotes]>[5]<![endif]> See Dempsey, Paul Stephen; TRADE & TRANSPORT POLICY IN INCLEMENT SKIES--THE CONFLICT BETWEEN SUSTAINABLE AIR TRANSPORTATION AND NEO-CLASSICAL ECONOMICS, 65 J. Air L. & Com. 639, 653 (2000).

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<![if !supportFootnotes]>[6]<![endif]> See id.

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<![if !supportFootnotes]>[7]<![endif]> See id.

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<![if !supportFootnotes]>[8]<![endif]> See id.

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<![if !supportFootnotes]>[9]<![endif]> http://www.msnbc.com/news/559614.asp - BODY.

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<![if !supportFootnotes]>[10]<![endif]> See id.

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<![if !supportFootnotes]>[11]<![endif]> See http://www.faa.gov/arp/ace/611/611rpz.htm.

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<![if !supportFootnotes]>[12]<![endif]> See id.

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<![if !supportFootnotes]>[13]<![endif]> See Falzone, Kristen L.; AIRPORT NOISE POLLUTION: IS THERE A SOLUTION IN SIGHT?, 26 B.C. Envtl. Aff. L. Rev. 769, 775 (1999).

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<![if !supportFootnotes]>[14]<![endif]> See U.S. Const. amend. V.

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<![if !supportFootnotes]>[15]<![endif]> See Zambrano, Luis G.; Balancing The Rights of Landowners With The Needs of Airports: The Continuing Battle Over Noise, 66 J. Air L. & Com. 445 (2000).

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<![if !supportFootnotes]>[16]<![endif]> See United States v. Causby, 328 U.S. 256 (1946); but see also Branning v. United States, 654 F.2d 88 (Ct. Cl. 1981) and Argent v. United States, 124 F.3d 1277 (Fed. Cir. 1997).

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<![if !supportFootnotes]>[17]<![endif]> 328 U.S. 256 (1946).

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<![if !supportFootnotes]>[18]<![endif]> An "inverse condemnation" action is a suit brought by a landowner claiming that his land has been taken for a public purpose but that he has not received "just compensation" for the taking.

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<![if !supportFootnotes]>[19]<![endif]> See id. at 259.

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<![if !supportFootnotes]>[20]<![endif]> See id.

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<![if !supportFootnotes]>[21]<![endif]> See id. at 267.

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<![if !supportFootnotes]>[22]<![endif]> In Branning v. United States, 654 F.2d 88 (Ct. Cl. 1981), the Court found there to be a "taking" of an easement from flights which were flying at an altitude greater than 500 feet. The Court noted that noise from the aircraft was so great that the landowner's property value was significantly impacted.

In Argent v. United States, 124 F.3d 1277 (Fed. Cir. 1997), the Court announced a new test which focused on the "disproportionate burden" placed on one landowner who was benefited by the airport as opposed to other landowners who enjoyed the benefits of the airport as well, yet were not forced to bear the burden of noise from aircraft flying overhead.These two cases, while unique, are not the majority rule - Causby still generally controls.

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<![if !supportFootnotes]>[23]<![endif]> See Stein, Pamela B.; THE PRICE OF SUCCESS: MITIGATION AND LITIGATION IN AIRPORT GROWTH, 57 J. Air L. & Com. 513, note 28 (1991).

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<![if !supportFootnotes]>[24]<![endif]> See Stein, 57 J. Air L. & Com. at 519.

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<![if !supportFootnotes]>[25]<![endif]> 411 U.S. 624 (1973).

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<![if !supportFootnotes]>[26]<![endif]> See Burbank, 411 U.S. at 627.

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<![if !supportFootnotes]>[27]<![endif]> See id. at 633.

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<![if !supportFootnotes]>[28]<![endif]> See Stein, 57 J. Air L. & Com. note 29.

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<![if !supportFootnotes]>[29]<![endif]> The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370d (2000), mandates that an Environmental Impact Statement (EIS) must be completed any time the federal government undertakes to complete a project that has the potential to significantly affect the quality of the human environment. The federal agency, however, need not choose the most environmentally sound alternative.It is only mandated that the agency consider several alternatives, including a "no action" alternative.

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For an example of an EIS, a complete copy of the Draft EIS for the proposed Piedmont Triad / Federal Express airport expansion can be found on the web at http://www.news-record.com/news/indepth/fedex/documents.html.

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<![if !supportFootnotes]>[30]<![endif]> See id.

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<![if !supportFootnotes]>[31]<![endif]> See Masterman, James D.; REAL PROPERTY VALUATION AND HIGHEST AND BEST USE: THE BASICS, SF54 ALI-ABA 233, 235 (2001).

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<![if !supportFootnotes]>[32]<![endif]> See id. at 253.

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<![if !supportFootnotes]>[33]<![endif]> See id. at 235.

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<![if !supportFootnotes]>[34]<![endif]> See id.

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<![if !supportFootnotes]>[35]<![endif]> See id.

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<![if !supportFootnotes]>[36]<![endif]> See id.

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<![if !supportFootnotes]>[37]<![endif]> See id. at 236.

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<![if !supportFootnotes]>[38]<![endif]> See Masterman, SF54-ALI-ABA at 236; citing Board of Commissioner v. Acosta, 562 So.2d 15 (La. App. 1990); U.S. v. 47.3096 Acres, Erie County, Ohio, 583 F.2d 270 (6th Cir. 1978); Southwestern Bell Tel. Co. v. Ramsey, 542 S.W.2d 466 (Tex. App. 1976).

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<![if !supportFootnotes]>[39]<![endif]> See Masterman at 238.

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<![if !supportFootnotes]>[40]<![endif]> See id. at 244.

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<![if !supportFootnotes]>[41]<![endif]> See Masterman at 248.

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<![if !supportFootnotes]>[42]<![endif]> See id.

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<![if !supportFootnotes]>[43]<![endif]> See Masterman at 249, citing State ex. Re. Filler v. Miller, 812 P.2d 620 (Az. 1991); Board of Assessors of Brookline v. Buehler, 487 N.E.2d 493 (Mass. 1986); General Elec. Co. v. Board of Assessors of Lynn, 472 N.E.2d 1329 (Mass. 1984).

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<![if !supportFootnotes]>[44]<![endif]> See Masterman at 248.

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<![if !supportFootnotes]>[45]<![endif]> See id.

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<![if !supportFootnotes]>[46]<![endif]> See id.

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<![if !supportFootnotes]>[47]<![endif]> See Masterman at 251.

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<![if !supportFootnotes]>[48]<![endif]> See id.

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<![if !supportFootnotes]>[49]<![endif]> See Masterman at 252, citing Lipinski v. Lynn Redev. Auth., 246 N.E.2d 429 (Mass. 1969).

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<![if !supportFootnotes]>[50]<![endif]> See United States v. Causby, 328 U.S. 256 (1946).

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<![if !supportFootnotes]>[51]<![endif]> See note 36, supra.

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<![if !supportFootnotes]>[52]<![endif]> See Stein, Pamela B., 57 J. Air L. & Com. 513, 546 (1991).

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<![if !supportFootnotes]>[53]<![endif]> See id.

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<![if !supportFootnotes]>[54]<![endif]> See id. at 547.

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<![if !supportFootnotes]>[55]<![endif]> See Baker v. Burbank-Glendale-Pasadena Airport Auth., 705 P.2d 866, 869 (Cal. 1985).

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<![if !supportFootnotes]>[56]<![endif]> See generally Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

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<![if !supportFootnotes]>[57]<![endif]> See Mugler v. Kansas, 123 U.S. 623 (1887).

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<![if !supportFootnotes]>[58]<![endif]> See Lucas, 505 U.S. at 1015.

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<![if !supportFootnotes]>[59]<![endif]> See Zitter, Jay M., ANNOTATION: ZONING REGULATIONS LIMITING USE OF PROPERTY NEAR AIRPORT AS TAKING OF PROPERTY, 18 A.L.R.4th 542.

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