Sunday, May 26, 2013

Airport officials to rethink legal course after appeal loss: Lenawee County (KADG), Adrian, Michigan

By Dennis Pelham,  Daily Telegram
Posted May. 26, 2013 @ 1:00 pm

ADRIAN  —  County, state and federal officials are to rethink their approach to a legal battle over the Lenawee County Airport’s impact on several homes at Lake Madison.

 A May 21 ruling by the Michigan Court of Appeals upheld a circuit court jury verdict that the airport must buy a house at Lake Madison. The ruling, however, did reverse the trial judge’s decision to add 25 percent to the $470,000 value the jury gave the home of David and Barbara Wagley.

“Obviously there is some disappointment,” county administrator Martin Marshall said in reaction to the ruling. “We’re going to have to take a long look at it.”

The county’s federal and state partners in the airport will probably get together soon to review options, Marshall said.

“Furthering the appeal, of course, is always an option,” he said.

Cases involving three other houses in addition to the Wagley home are still in court.

The owners of a fifth home, Richard and Mary Baron, settled with the county in December for $259,360.

An appeal is still pending of a verdict in a second jury trial last year in which the county was ordered to pay $737,500 for a house owned by Robert and Michelle Gardner. Trials in Lenawee County Circuit Court are yet to be scheduled for two other houses impacted by easements to airspace above them for an expanded runway protection zone. One house is owned by Mary Halstead and one by Robert Sellers.

Easements for airspace above the five houses were acquired in an eminent domain action filed by the county in 2005. The easements were needed when the airport runway was lengthened. Federal Aviation Administration rules required a larger object-free safety zone at the end of the longer runway.

Owners of the five houses claimed the enlarged runway put their property at risk and destroyed the value of the houses. They demanded the county buy the entire property rather than an easement to airspace over their roofs.

The county’s appeal of the verdict in the Wagley case centered on claims of errors by visiting judge William Collette of Ingham County. A primary complaint was that the county was unable to show the jury that the FAA had approved plans to leave the houses in the new runway protection zone.

A three-judge Appeals Court panel ruled Collette did not prejudice the jury against the airport’s case.

“That the FAA had approved the easement was squarely before the jury from the outset,” the opinion stated.

It also rejected an appeal claim that an expert for the Wagleys should not have been allowed to testify the easement permitted pilots to fly three feet above the Wagleys’ roof.

Experts for the airport testified such an unsafe practice would spark FAA action against a pilot. The easement allows the airport to keep the space clear of trees and other objects, they said, not to permit aircraft to fly in it.

“Disagreements pertaining to an expert witness’s interpretation of the facts are relevant to the weight of that testimony and not its admissibility,” the court panel ruled.

The panel unanimously agreed to reverse Collette’s decision to add 25 percent to the property value found by the jury. A state law requiring governments to pay an additional 25 percent for residential property taken by eminent domain was enacted a year after the county filed claims in the airport case, the judges ruled.

The judges split 2-1 on whether Collette was correct in ordering the county to pay interest to the Wagley’s on the judgment amount from the date the easement was ordered in court on Nov. 21, 2007.

The county opposed interest because the Wagleys remained in possession of the house.

Collette ruled there was no evidence on record the Wagley’s were still living in the house after Nov. 21, 2007, saying, “...of course you can’t live there because you can’t have people congregate there. Who knows.”

Judges Elizabeth L. Gleicher and Stephen L. Borrello upheld the ruling, reasoning interest was owed to the Wagley’s “as of their loss of use and right to possess the air space above the property.”

Judge Kristen Frank Kelly disagreed. In a separate opinion she said the law is clear in saying “an owner remaining in possession after the date that the complaint is filed waives the interest for the period of possession.”

Title to the easement passed in 2007, she wrote, but not possession of the house. 


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