After more than five years in the courts, a lawsuit filed by landowners living near the New Richmond Regional Airport landed back in Judge Howard Cameron’s courtroom on Friday.
Only the first half of the case was heard during more than three hours of testimony. The second half of the case, presented by the city in its defense, will be heard Monday, June 3, at 10 a.m.
After that Cameron will consider the facts of the lawsuit and determine if property owners will be compensated for a perceived loss in value of their homes due to increased airport activity over the past five or six years.
The conflict began in 2007, after the local airport completed a 1,500-foot extension of this main runway. Because their home and property was directly under the flight path of aircraft landing and taking off from the airport, Steven and Christy Wickenhauser were paid $24,700 for an “avigation easement” to compensate them for the inconvenience of planes and helicopters flying overhead.
Other neighbors, however, were not provided such compensation.
In the months following the runway extension, the Wickenhausers claimed that airport traffic negatively impacted a larger portion of their property than originally included in the avigation easement.
Also, nearby homeowners Robert Brenner and Allan and Susan Seidling said they noticed an increase in the number of airplanes and other craft that were flying at low altitudes directly above their homes. They also noted that an increase in odors, dust, vibration, noise and runway strobe lights occurred after the runway was finished.
The families claimed that the nuisance caused by the airport limited their enjoyment of their property and asked for compensation to be awarded.
When Cameron heard the case in the summer of 2009, he eventually dismissed the lawsuit. He claimed that a complete “taking” of the neighboring properties had not occurred and the plaintiffs were not entitled to payments.
The three families appealed and Cameron’s decision was reversed in 2011. Wisconsin’s District III Court of Appeals sent the case back to county court for further findings of fact and to determine if there was a partial taking of the landowners’ property.
The Wisconsin Supreme Court agreed in a 2012 ruling, sending it back to Cameron.
Supreme Court Justice David Prosser noted that property owners could be compensated for a “partial taking” by a governmental entity. He noted that the Fifth Amendment of the Constitution prohibits private land from being taken for public use if no compensation is provided.
Prosser noted that the question of a “taking” is especially complicated when dealing with the airspace above a home or property.
The standard for how low aircraft need to fly over a property before homeowners are eligible for compensation is a bit unclear, Prosser noted. In some cases it could be 1,000 feet (urban areas), but in other cases it could be 500 feet (rural areas) or less, he wrote.
Another factor in determining whether compensation is warranted is how often flights fly overhead.
When the parties gathered for the first time in several years on Friday, Cameron said he wanted to gather as much new testimony as possible so that the case would be solved once and for all.
“This was a tough case for a new judge to be stuck with,” said Cameron, who had only been on the job for a short while in 2009 when the lawsuit came to trial. “We’re going to do it right this time. We want this done with.”
As the plaintiffs presented their case, much of the testimony was similar to that presented in 2009. The Seidlings, Brenner and Wickenhausers said the expanded runway took away their ability to fully enjoy their homes and their properties.
Robert Strachota, an appraiser with Shenehon Co., was called to provide his estimate on the loss of value suffered by the Wickenhausers on the 77 acres of land not included in the previous avigation easement.
He said a previous appraisal in 2007 set the land’s value at $1.7 million. Because the land would not likely be a good place to construct a commercial building any more due to safety concerns, Strachota said the land is now valued at $975,000. Thus, he estimated, the Wickenhausers have suffered a loss in value of about $780,000 due to the airport expansion.
Using 2009 valuation numbers, Strachota said the Wickenhausers suffered a $636,000 loss.
Local farmer Roger Neumann, along with his sons Bjorn and Brett, farm the Wickenhauser property involved in the dispute. They each testified that airport traffic and low-flying aircraft numbers increased after the runway extension.
Roger Neumann said the noise generated from airplanes is more of an issue when they take off rather than land. Even when sitting inside the cab of a tractor, Roger Neumann said, the airplane noise is significant.
In cross examination, the Neumanns testified that they usually witnessed zero to five airplanes a day that would approach or leave the airport outside the established flight pattern.
They also said they are only working the Wickenhauser and Seidling fields less than 10 days a year.
Brenner testified that the traffic over his property is “constant” since the runway expansion was completed. Weekends are busier than weekdays, he added.
He said pilots seem to be leaving the established flight pattern in an effort to catch the updraft of prevailing winds.
Because of the flyover issue, Brenner said there are times when family members have to stop their conversations as an airplane passes. People inside the home also report strong vibrations and noise issues from airplanes flying directly above, he noted.
“It shouldn’t be part of our daily lives,” he said.
Steven Wickenhauser said he’s noticed a “big difference” between the noise levels prior to the runway extension and the noise afterwards.
He noted that his diary barn, which is currently being used for a storage business, his shop and a granary are underneath the path of many airplanes that stray from the established flight pattern.
Allan Seidling agreed that the frequency of airplanes flying overhead and the noise from it has disturbed his life. He said when airplanes fly by, he often can’t hear his television.
He said he’s concerned for his and his neighbors’ safety because many airplanes are just 100 feet above the ground when they pass.
“I’m just waiting for one of them to hit his (Brenner’s) house,” he said. “They come so close sometimes it’s amazing.”
As the plaintiff’s attorney, Phillip Krass, rested his case, the city’s attorney, Ben Southwick, outlined his intention to bring four witnesses to the June 3 trial.
He said one expert conducted three separate three-day observations of air traffic over the properties in question. Southwick said he would like to present those findings.
But Cameron has previously said testimony in the case should be limited to the timeframe between 2007 and July of 2009, when the first trial was conducted.
It remained unclear if Cameron will allow the observations to be presented.
“The defendant has a right to put its case on,” Southwick urged.
Cameron questioned whether more recent numbers would give a clear picture of how airplane traffic has changed over the homes. He said if pilots are now avoiding the practice of deviating from the established flight pattern due to the lawsuit, the study’s findings might be compromised.
Source: http://www.newrichmond-news.com
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