**The Fifth Amendment Takings Implications of Air Force Aircraft
Overflights and the Air Installation Compatible Use Zone Program**

[Major Walter S. King\*]{.smallcaps}

# I. Introduction

Although many Air Force bases were originally sited in remote areas in
order to have the least consequence on land owners and businesses, the
rapid growth and spread of major metropolitan areas has resulted in the
regular and expanding encroachment by private property owners in the
vicinity of Air Force bases. This encroachment could have a serious
operational impact at some Air Force installations where flying is an
active part of the mission. As this encroachment continues with
development in areas overflown by Air Force aircraft, the Air Force can
expect to see an increase in the number of Fifth Amendment[^1] claims of
inverse condemnation[^2] due to overflights.[^3]

In order to lessen the impact of encroachment on DoD facilities, the Air
Installation Compatible Use Zone program was developed to provide local
governmental authorities with information on aircraft accident potential
and the impact of aircraft noise on the lands surrounding air
installations. The aim of the program is for local governments to use
this information to zone the land surrounding air installations in such
a way as to prevent development that is incompatible with the flying
operations of the installation.[^4]

The Air Force's challenge will be to minimize potential takings
litigation while accomplishing its mission in the face of demands placed
upon it by encroachment. This article addresses the development of the
law governing Fifth Amendment takings for overflights of aircraft,
examines the potential impact that the Supreme Court's decision in
*Lucas v. South Carolina Coastal Commission*[^5] will have on future
litigation in this area, and discusses the defenses available to the Air
Force in such cases. The Air Force's Air Installation Compatible Use
Zone Program (hereinafter AICUZ), and the takings implications of the
program, are then discussed.

II\. Development of the Fifth AmenDment Jurisprudence Overflight Takings

# A. The Common Law Approach

The law governing U. S. airspace has undergone significant changes in
the past 50 years. Early American common law doctrine governing the
ownership of airspace was based on the Roman law maxim *cujus est solum,
ejus est usque ad coelum* (whoever has the land possesses all the space
upwards to an indefinite extent). This maxim became part of the English
common law and was eventually accepted as the predominant common law
airspace property rule in English courts.[^6] Like many common law
rules, this maxim became part of the American tradition[^7] and remained
the uncontested rule in airspace property rights until after the turn of
the century.[^8]

With the increase in military and civil aviation, American courts soon
faced a plethora of airspace trespass and nuisance cases.[^9] These
cases caught the American courts without a coherent legal doctrine with
which to address the clashes between landowners and aviators. "To hold
that every overflight was an actionable trespass would hamper the young
industry and the military's ability to train; yet, to allow every
low-flying barnstormer to terrorize rural communities with no
consequence seemed an equally bad alternative."[^10]

**B. Air Commerce Act of 1926Navigable Airspace Established**

Congress attempted to clarify the issue of airspace property rights in
the Air Commerce Act of 1926,[^11] which was initially proposed in order
"to encourage and regulate the use of aircraft in commerce and for other
purposes."[^12] As part of the Act, Congress established the "navigable
airspace" to provide the public with rights to the airspace above the
United States analogous to those enjoyed by the public in the use of
navigable waters.[^13] In fact, most of the provisions of the law were
modeled on and often paraphrased from existing maritime laws. The House
Report accompanying the bill stated:

> This is natural for the reason the airspace, with its absence of fixed
> roads and tracks and aircraft with their ease of maneuver, present as
> to transportation practical and legal problems similar to those
> presented by transportation by vessels upon the high seas. The
> declaration of what constitutes navigable air space is an exercise of
> the same source of power, the interstate commerce clause, as that
> under which Congress has long declared in many acts what constitute
> navigable or nonnavigable waters. The public right of flight in the
> navigable air space owes it source to the same constitutional basis
> which, under the decisions of the Supreme Court, has given rise to a
> public easement of navigation in the navigable waters of the United
> States regardless of the ownership of the adjacent or subjacent
> soil.[^14]

Relying on this power, Congress declared that the United States has
"complete and exclusive sovereignty in the air space."[^15] By defining
the navigable airspace in terms of minimum safe altitudes of flight,
Congress left the specific determination of what constitutes such
airspace to the Civil Aeronautics Authority, which defined the minimum
safe altitude of flight to be 500 feet above ground level.[^16]

# C. State Law Approaches

In response to the widespread use of aircraft and Congress' action in
declaring the airspace to be within the complete and exclusive
sovereignty of the United States, the States have also limited the scope
of a landowner's interest in airspace.[^17] For example, in Arkansas
"the ownership of the space over and above the lands and waters" of the
state are vested in the "owner of the surface beneath, but this
ownership extends only so far as is necessary to the enjoyment of the
use of the surface without interference and is subject to the right of
passage or flight of aircraft."[^18] Oklahoma defines airspace owned by
the surface owner as that which lies within the "vertical upward
extension of his or their surface boundaries."[^19] This definition,
however, is qualified − "in no way contravene, supersede, amend, or
alter . . . other provisions of statutory or common law pertaining to
aviation . . . . "[^20] Similarly, California defines land to include
"free or occupied space for an indefinite distance upwards as well as
downwards, subject to limitations upon the use of airspace imposed, and
rights in the use of airspace granted by law."[^21]

Other states limit the ownership of airspace by implication by codifying
limits of lawful flight. For example, in North Carolina, flight in
aircraft over the lands and waters is lawful, "unless at such low
altitude as to interfere with the then existing use to which the land or
water, or the space over the land or water, is put by the owner . . . .
"[^22] In addition, there is a vast amount of state case law which
addresses the property owner's rights in airspace. Although the states
have adopted differing approaches to the restrictions placed on the
ownership of airspace, there is agreement among the states and with
Congress that an individual's property interest in airspace is limited.

D.  **The Supreme Court Acts*United States v. Causby***

In 1946, the Supreme Court was presented with its first case dealing
with an overflight taking. In *United States v. Causby*, [^23] the
plaintiff's property was overflown during landing and takeoff by large
numbers of heavy bombers and smaller fighter aircraft. The overflights
were at very low levels just above the tree tops of plaintiff's
property. The Court found that the overflights interfered with the
normal use of the property as a chicken farm and with the owner's night
rest, thereby constituting a taking so as to give the owner a
constitutional right to compensation.

In *Causby*, the Court was called upon to weigh the conflicting
interests, on one hand, of the government (and, by implication, the
public) for the need to use the airspace for the passage of aircraft,
and on the other hand, of the owners of subjacent private property to
use and enjoy the subjacent land. The Court determined that the
landowner does have a property interest in the superadjacent
airspace.[^24] However, it noted that the airplane is part of modern
life and that "the inconveniences which it causes are not normally
compensable under the Fifth Amendment."[^25] The Court also found the
common law doctrine that ownership of the land extended to the periphery
of the universe "has no place in the modern world."[^26] In reaching
this decision, the Court deferred to Congress' conclusion that the
airspace above the United States is a valuable public resource analogous
to the navigable waters of the United States, an area where Congress'
vast authority to regulate is clearly recognized. The Supreme Court
described Congress' authority to regulate the navigable waters under the
Commerce Clause, in *Scranton v. Wheeler.* [^27]

> It is commerce, and not navigation, which is the great object of
> constitutional care. The power to regulate commerce is the basis of
> the power to regulate navigation and navigable waters and streams, and
> these are so completely subject to the control of Congress, as
> subsidiary to commerce, that it has become usual to call the entire
> navigable waters of the country the navigable waters of the United
> States. It matters little whether the United States has or has not the
> theoretical ownership and dominion in these waters, or the land under
> them; it has, what is more, the regulation and control of them for the
> purposes of commerce.[^28]

Similarly, the Court in *Causby*, when addressing the common law
doctrine that the landowner possessed the airspace from the surface to
the heavens found that:

> \[T\]his doctrine has no place in the modern world. The air is a
> public highway, as Congress has declared. Were that not true, every
> transcontinental flight would subject the operator to countless
> trespass suits. Common sense revolts against this idea. To recognize
> such private claims to the airspace would clog these highways,
> seriously interfere with their control and development in the public
> interest, and transfer into private ownership that to which only the
> public has a just claim.[^29]

In addition, the Court in discussing the Air Commerce Act of 1926[^30]
as amended by the Civil Aeronautics Act of 1938[^31] found that under
these statutes:

> \[T\]he United States has complete and exclusive sovereignty in the
> air space over this country. They grant any citizen of the United
> States a public right of freedom of transit in air commerce through
> the navigable airspace of the United States. And it is provided that
> such navigable airspace shall be subject to a public right of freedom
> of interstate and foreign navigation.[^32]

The Court also found that the navigable airspace which Congress has
placed in the public domain is "airspace above the minimum safe
altitudes of flight prescribed by the Civil Aeronautics Authority."[^33]
As mentioned previously, the Civil Aeronautics Authority established 500
feet above ground level as the minimum safe altitude of flight. The
Court stressed that "the flights in question were not within the
navigable airspace which Congress placed in the public domain."[^34]
Thus, by implication, the Court made clear that flights above that
level, because they are in the public domain, would not result in a
taking.

In *Causby*, "the United States conceded on oral argument that if the
flights over respondent's property rendered it uninhabitable, there
would be a taking compensable under the Fifth Amendment."[^35]
Accordingly, the Court held: "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."[^36] The
Court also held that continuous invasions of the superadjacent airspace
at low altitudes affect the use of the surface itself. Landowners were
determined to have an incident of ownership in the superadjacent
airspace such that invasions of it were "in the same category as
invasions of the surface."[^37] The Court then noted that it "is the
character of the invasion, not the amount of damage resulting from it,
so long as the damage is substantial, that determines the question
whether it is a taking."[^38] The Court found that the facts in *Causby*
established that there was a diminution in value of the property and
that the frequent, low-level flights were the direct and immediate
cause. These low level flights were found to impose a servitude upon the
land which amounted to the taking of an easement. The case was remanded
to the Court of Claims to determine an accurate description of the
easement which vested in the United States. Although the Court clearly
deferred to Congress' authority to regulate airspace under its Commerce
Clause authority, it also recognized landowners retain a property
interest in the airspace immediately above their property.

The Court in *Causby* clearly deferred to Congress' attempt to define
the limits of a landowner's property interest. However, the Court noted
that "while the meaning of property as used in the Fifth Amendment was a
federal question, it will normally obtain its content by reference to
local law."[^39] It also noted that under North Carolina law the flight
of aircraft is lawful "unless at such a low altitude as to interfere
with the then existing use to which the land or water, or the space over
the land or water, is put by the owner, or unless so conducted as to be
imminently dangerous to person or property lawfully on the land or water
beneath."[^40] North Carolina law also stated that "sovereignty in the
airspace rests in the State except where granted to and assumed by the
United States."[^41] Although it is clear that the Court in *Causby* did
not base its decision on North Carolina law, but on an act of Congress,
it found "if we look to North Carolina law, we reach the same
result."[^42]

**E. Limits on the Government's Ability to Define**

**the Scope of Fifth Amendment Protection**

The Court's deferral to Congress in establishing the limits of a
landowner's interest in airspace raises the issue of what limits should
be placed on a government's ability to legislatively define the scope of
Fifth Amendment protection. This issue was addressed by the Court in
*Ruckelhaus v. Monsanto Co.*[^43] and in *Lucas v. South Carolina
Coastal Council.*[^44] In both of these cases, it was necessary for the
Court to determine the extent of the plaintiff's property interest. In
*Ruckelhaus*, the Court determined that "property interests . . . are
not created by the Constitution. Rather, they are created and their
dimensions are defined by existing rules or understandings that stem
from an independent source such as state law."[^45] In *Lucas* the Court
stated:

> In light of our traditional resort to existing rules or understandings
> that stem from an independent source such as state law to define the
> range of interests that qualify for protection as property under the
> Fifth (and Fourteenth) Amendments, this recognition that the Takings
> Clause does not require compensation when an owner is barred from
> putting land to a use that is proscribed by those existing rules or
> understandings is surely unexceptional.[^46]

Both of these holdings require that a property interest be defined by
independent sources such as state law. These independent sources can
include common law and federal laws.[^47] *Lucas* places an emphasis on
the fact that these "existing rules and understandings"[^48] generally
provide an objective standard by which the landowner can determine the
nature of his property right. This approach is based on the theory that
the common law and recently enacted prospective legislation embody
traditions which a landowner should be aware of when he acquires
property.[^49]

In contrast, the Court in *Causby* rejected outright the common law
doctrine as having "no place in the modern world."[^50] As a result, the
independent source, absent state law,[^51] for determining one's
property interest in airspace was essentially destroyed. The Court then
deferred to Congress' definition of the relevant property interest. It
allowed Congress to restrict the common law notion of property in
airspace by declaring that airspace above a certain level was in the
public domain. Congress was essentially allowed to define the limit of a
constitutional right.

Although courts should resist allowing the use of the legislative
process to define the scope of a constitutional liberty, when one
considers the compelling situation with which the Court was presented,
this outcome is not surprising. The common law doctrine that granted the
landowner ownership of all the airspace up to the heavens was apparently
created by men who never envisioned the airplane. In addition, as
discussed above, in light of the development of air commerce, the
airspace above the United States is very much analogous to the use of
boats on the navigable waterways. In light of Congress' vast authority
pursuant to the Commerce Clause it was probably no great leap for the
Court when it determined that Congress possessed the authority to
declare that the United States had "complete and exclusive sovereignty
in the air space"[^52] over this country, and that there was "a public
right of freedom of transit in air commerce through the navigable
airspace of the United States."[^53]

# F. The Federal Aviation Act of 1958

Following the decision in *Causby,* and faced with the rapid post-war
expansion of aviation, Congress in the Federal Aviation Act of 1958
reconsidered the regulation of airspace as contained in the Air Commerce
Act of 1926. In this new Act, Congress redefined navigable airspace to
mean "airspace above the minimum altitude of flight prescribed by
regulation (500 feet) and airspace needed to ensure safety in takeoff
and landing of aircraft."[^54] The definition of navigable airspace was
expanded to include that airspace below 500 feet needed for takeoff and
landing. This new definition of airspace raised the issue of whether
flights within the navigable airspace below 500 feet during takeoff and
landing could result in a taking of the land beneath.

# G. The Limits of the Supreme Court's Deference to 

**Congress*Griggs v. Allegheny County***

In *Griggs v. Allegheny County,*[^55] the Court dealt with Congress'
expansion of the definition of navigable airspace. In *Griggs*, the
flight pattern at the county airport required planes to takeoff and land
by passing within 30 to 300 feet above plaintiff's house. The noise was
"comparable to that of a noisy factory."[^56]

Although all the flights on takeoff and landing were within the
navigable airspace defined by Congress, the Court found that a taking of
an air easement had occurred. In reaching its decision the Court noted
that:

> At the time of the Causby case, Congress had placed the navigable
> airspace in the public domain, defining it as "airspace above the
> minimum safe altitudes of flight prescribed" by the C.A.A. 44 Stat.
> 574. We held that the path of the glide or flight for landing or
> taking off was not the downward reach of the "navigable
> airspace."[^57]

The Court then noted that the Act was amended in response to its holding
that the airspace needed for takeoff and landing was not included in the
navigable airspace. Although this airspace was now included in the
definition of navigable airspace, the Court referred to that portion of
its holding in *Causby* which states: "use of land presupposes the use
of some of the airspace above it otherwise no home could be built, no
tree planted, no fence constructed, no chimney erected . . . ."[^58] "An
invasion of the superadjacent airspace will often affect the use of the
surface of the land itself."[^59] The Court in *Griggs,* by reference to
*Causby*, made a point of distinguishing between the impact of flights
within the navigable airspace above 500 feet and those below 500 feet.
Although the Court in *Causby* was willing to defer to Congress in its
judgment of what constitutes navigable airspace, its refusal to defer to
Congress' expanded definition of airspace made clear that there were
limits to that deference.

# H. The Court's Test for Overflight Takings

*Causby* and *Griggs* essentially established the test now followed in
virtually all subsequent overflight takings cases.[^60] This test has
been interpreted to require a consideration of four factors: (1) a
flight directly over the claimant's land; (2) flights which were low and
frequent; (3) the flights directly and immediately interfered with the
claimant's enjoyment and use of the land; and (4) the interference with
enjoyment and use was substantial.[^61] In *A.J. Hodges Indus., Inc. v.
United States*,[^62] the court articulated this test as follows:

> \[T\]he courts have held that when regular and frequent flights by
> Government-owned aircraft over privately owned land at altitudes of
> less than 500 feet from the surface of the ground constitute a direct,
> immediate, and substantial interference with the use and enjoyment of
> the property, there is a taking by the Government of an avigation
> easement,[^63] or easement of flight, in the airspace over the
> property, and that this taking is compensable under the Fifth
> Amendment to the Constitution.[^64]

**I. The Impact of the 500 Foot Rule*Aaron v. United States***

In contrast to *Causby*, *Griggs*, and *Hodges*, which all dealt with
flights below the 500 feet minimum safe level of flight, the court in
*Aaron v. United States,*[^65] was squarely presented with the issue of
the effect of Congress' definition of "navigable airspace" to include
airspace over 500 feet. In *Aaron*, the Air Force took over operation of
a Los Angeles County airport and began using it to conduct
flight-testing of Air Force aircraft being produced at the adjacent Air
Force Plant No. 42. The flights from the airport passed over some of the
plaintiff's parcels below 500 feet, while the flights over other parcels
were above 500 feet.[^66] The court determined that only plaintiffs who
complained of overflights under the 500 foot level had stated a proper
cause of action. In reaching its decision, the court found:

> It is true that the inconvenience and annoyance experienced from the
> passage of a plane at 501 feet above a person's property is hardly
> distinguishable from that experienced from the passage of a plane at,
> say, 490 feet, but the extent of a right-of way, whether on the ground
> or on water or in the air, has to be definitely fixed. Congress has
> fixed 500 feet as the lower limit of navigable air space: what may be
> permissible above 500 feet is forbidden below it, unless compensation
> is paid therefore.[^67]

Plaintiffs may not recover for flights above the 500 minimum altitude of
flight which are in the public domain. Claims for a taking below 500
feet, where aircraft are taking off and landing, although statutorily
part of the public airspace, may be compensable if the flights are so
low and so frequent as to be a direct and immediate interference with
the enjoyment and use of the land.

**J. The Exception to the Rule*Branning v. United States***

The notable exception to this rule is *Branning v. United States.*[^68]
"The novelty of this decision is in its holding that defendant's use of
airspace at altitudes above 500 feet, and independent of landing and
takeoff, may be a taking of land beneath if the use is peculiarly
burdensome."[^69] In *Branning*, the plaintiff, a land developer, sought
recovery from the United States for the diminution in value of his land
due to regular and frequent overflights by Marine Corps F-4 aircraft.
The flights were from a Marine Corps training field for simulated
aircraft carrier landings.[^70] In order to perform this maneuver,
trainees were required to fly F-4 jets with their nose up and tails
down, with near maximum power applied, as they approached the simulated
carrier deck at low speeds and altitudes. Since training was conducted
squadron-by-squadron, and each plane repeated the maneuver several
times, the air traffic to the runway was virtually nose-to-tail over a
period of several days during each month in which the training was
conducted.[^71] The plaintiff in *Branning* owned 525 acres over which
these F-4 aircraft flew while practicing at the Marine field.[^72] A
claim was brought against the United States for the taking of an
avigation easement over the plaintiff's land.[^73] The overflights
complained of were at 600 feet above the plaintiff's property, while the
minimum safe altitude for that airspace was 500 feet.[^74]

According to the rationale of *Causby* and its progeny, which held that
a landowner had no property interest in the navigable airspace over 500
feet, *Branning* should have been dismissed. The court, however,
concluded: "It is clear that the Government's liability for a taking is
not precluded merely because the flights of Government aircraft are in
what Congress has declared to be navigable airspace and subject to its
regulation."[^75] The court determined that the flights over the
plaintiff's land resulted in "unavoidable damage (reduction of the
highest and best use) occasioned by the noise created during travel in
the navigable airspace which was so severe as to amount to a practical
destruction of the land."[^76] In support of this conclusion the court
stated:

> The question thus raised is whether the 500-foot altitude is so
> critical a measure of the avigational servitude that liability can be
> avoided simply by flying noisier aircraft at an altitude of 501 feet.
> Minimum safety altitude and minimum noise levels are concerned with
> two different things. While safety may be measured in terms of
> altitude, a reasonable noise level cannot be measured solely in terms
> of altitude. . . . Since the subjacent property owner has suffered a
> diminution of the value[^77] of his property . . . it is abundantly
> clear that under the law established by *Causby, Griggs*, and *Aaron*
> a taking has occurred in this case.[^78]

Although the *Branning* decision conflicted with that of *Aaron,* the
court refused to reject *Aaron* outright. The per curium opinion in
*Branning* very carefully explained that the holding was limited to the
specific facts of the case. "This hesitancy to reject the *Aaron*
opinion meant that *Branning* would have little influence on airspace
property issues in the future."[^79] In fact, courts can simply treat
*Branning* as the exception to the rule.

III. **Potential Impacts of the**

# Supreme Court's Decision in

***Lucas v. South Carolina Coastal Commission***

A.  ***Lucas v. South Carolina Coastal Commission*An Overview**

Having reviewed the development of the law in the area of overflight
takings, the Supreme Court's decision in *Lucas v. South Carolina
Coastal Council* [^80] must be examined to determine its impact on
future litigation in the area of overflight takings. In *Lucas,* the
plaintiff bought two residential lots on a South Carolina barrier
island, intending to build single-family homes similar to those on the
immediately adjacent property.[^81] At the time plaintiff bought the
lots, they were not subject to any coastal zone building permit
requirements.[^82] In 1988, however, the state enacted a statute which
barred the plaintiff from erecting any permanent habitable structures on
his property.[^83] Plaintiff filed suit contending that the statute
deprived him of all "economic viable use" of his property and therefore
effected a taking under the Fifth and Fourteenth Amendments.[^84]

*1. The Logical Antecedent Inquiry*

In *Lucas*, the Supreme Court was interested in the "pre-existing"
limitations on the landowner's title to determine the extent of his
property interest. The Court's focus was on the "landowner's
expectations as of the date on which he acquired his interest."[^85]
Pursuant to *Lucas*, a state may resist compensating property owners for
burdensome regulation:

> \[O\]nly if the logically antecedent inquiry into the nature of the
> owner's estate shows that the proscribed use interest were not part of
> his title to begin with. This accords, we think, with our "takings
> jurisprudence," which has traditionally been guided by the
> understandings of our citizens regarding the content of, and the
> State's power over, the "bundle of rights" that they acquire when they
> obtain title to property. . . . [^86]

The court, in *M&J Coal Co. v. United States,*[^87] interpreted *Lucas*
to create a two-tiered approach to analyzing takings claims:

> First a court must determine whether the claimant held a property
> right that is compensable under the Fifth Amendment. A compensable
> right does not exist if it was not part of the claimant's title at the
> time the claimant took title to the property. For example, if at the
> time of sale an existing law or regulation precluded a certain use,
> that use was never a "stick" in the purchaser's "bundle of rights."
> Second, if the claimant establishes the existence of a compensable
> right, the court must determine whether the governmental action
> constituted a taking of that right.[^88]

Under the "logically antecedent inquiry" required by these cases, the
court must first inquire into the "nature of the owner's estate" to
determine if the uses of the land proscribed by regulation were
originally part of the owner's title. As mentioned earlier, in
determining what is included in the owner's "bundle of rights," the
court looks to existing rules or understandings that stem from an
independent source such as state law to define the range of interests
that qualify for protection as property under the Fifth and Fourteenth
Amendments. These decisions attempt to define compensable property
according to the objective understandings of the property owners
themselves. In other words, the property must be defined based on the
objective manifestation of traditions found in the common law or
recently enacted prospective legislation. The Supreme Court believes
that these are manifestations and principles that owners should be aware
of when they acquire property.[^89]

*2.* *Per Se Takings*

In addition to its emphasis on the logical antecedent inquiry, the Court
in *Lucas* created a standard for a *per se* taking in cases involving a
physical invasion of land. The Court found:

> "Where permanent physical occupation of land is concerned, we have
> refused to allow the government to decree it anew (without
> compensation), no matter how weighty the asserted public interests
> involved - though we assuredly would permit the government to assert a
> permanent easement that was a pre-existing limitation upon the
> landowner's title."[^90]

The Court also created a standard for a *per se* confiscatory regulatory
taking ("*i.e*, regulations that prohibit all economically beneficial
use of land").[^91] "The new rule is that a regulation depriving a
landowner of all economically viable use of his property will be deemed
a taking without regard to the public interest served, except when a
nuisance or limitation on title imposed by \[pre-existing\] state \[or
federal\] law is involved."[^92] Thus, if a compensable property
interest is not established by the logically antecedent analysis, then
*Lucas*' *per se* takings would not apply.

*3. Applicability of the Penn Central Tripartite Test*

If the facts of a case do not meet the test of either of these *per se*
takings, the court examines the three factors set out in *Penn Central*
*Transportation Co. v. New York City*[^93] to ascertain if public action
works a taking. The factors to be examined include: the character of the
government action; the extent to which the regulation interferes with
reasonable investment-backed expectations; and the economic impact of
the government action.[^94] However, once again, the logically
antecedent inquiry must first be addressed to determine if the landowner
possesses a property right compensable under the Fifth Amendment.

**B. Applicability of Lucas' *Per se* Takings to Overflights**

*1. Physical Invasion*

Having reviewed the Supreme Court's holding in *Lucas* and other modern
cases which applied its test, *Lucas'* impact on the *Causby* test must
be analyzed. Because Congress has declared the airspace above 500 feet
to be within the "complete and exclusive sovereignty of the United
States" it is clear that the *per se* takings under *Lucas* would have
no applicability to flights over 500 feet that occurred after enactment
of the Air Commerce Act of 1926. *Lucas* established that the government
is allowed to assert as a defense to a *per se* physical occupation
claim the fact that there is a permanent easement that was a
pre-existing limitation upon the landowner's title.[^95]

The Court cited *Scranton v. Wheeler* [^96] as an example where a
permanent easement was a pre-existing limitation on the landowner's
title. In *Scranton,* the Court found that even where the riparian
owner's[^97] title extends to the middle line of a lake or stream under
state law, his rights are subject to the "public easement of servitude
of navigation."[^98]

As discussed previously, the legislative history surrounding the Air
Commerce Act of 1926 clearly indicates that Congress determined
navigable airspace to be analogous to navigable waters. This is
reflected in its finding that "the public right of flight in the
navigable air space owes its source to the same constitutional basis
which . . . has given rise to a public easement of navigation in the
navigable waters of the United States."[^99] In fact, the legislation
creating and regulating the navigable airspace was patterned after that
controlling the navigable waters. Thus, it is logical to conclude that a
public easement for navigation of flight for flights above 500 feet
should be afforded the same status as the navigational servitude in
*Scranton*. The government, therefore, should be able to assert as a
defense a permanent easement regarding flights within the navigable
airspace over 500 feet.

*2. Confiscatory Regulation*

*Lucas'* other *per se* exclusion protects the landowner from
confiscatory regulations; that is, regulations that prohibit all
economically beneficial use of land. "Any limitation so severe cannot be
newly legislated or decreed (without compensation), but must inhere in
the title itself, in the restriction that background principles of the
State's law of property and nuisance already place upon land
ownership."[^100] Once again, it could be argued that pursuant to
pre-existing federal law, the limitation on the use of airspace over 500
feet inheres in the title itself; therefore, the government also has a
defense to this *per se* taking for flights over 500 feet.

However, the applicability of the *per se* takings tests remains an
issue for flights below 500 feet. Because overflights are not an actual
occupation of the land, it is hard to imagine that the *per se* physical
occupation test would have any applicability to an overflight case. This
follows the Supreme Court's analysis of overflight takingsthe *Causby*
test must first be applied to determine if the overflights have resulted
in interference with the land that is essentially equivalent to physical
occupation.

The application of the *per se* taking test for a confiscatory taking,
however, would appear to be consistent with *Causby*. This test requires
that a taking be found when regulation results in destruction of all
economically viable use of the property. A review of the cases reveals
that the use of this test and the "substantial interference" test under
*Causby* could yield similar results. In *Causby* and *Griggs,* the
flights so interfered with the land as to destroy its use for
agricultural or residential uses. While the Court in these cases did not
find that the plaintiff was denied all economically beneficial use of
the land, it is possible that flights could be so low and frequent as to
have such an effect. Thus, it is only logical to conclude that, if an
overflight denies a property owner all beneficial use of his property,
the overflights are no doubt causing a direct, immediate and substantial
interference with the enjoyment and use of the land as required by
*Causby*.

**C. *Lucas'* Applicability to Cases That Do Not Constitute a *Per se*
Taking**

Having discussed the effects of *Lucas'* *per se* takings test in the
area of overflights, the focus now turns to its application to
overflights which do not constitute *per se* takings. The courts have
rejected the common law doctrine, *ad coelum,* and deferred to Congress'
definition of navigable airspace as that which is above 500 feet.[^101]
In light of these findings, for flights above 500 feet,[^102] the
"logical antecedent inquiry" into the existence of compensable property
must be answered in the negative. Certainly Congressional action,
followed by years of deference by the courts, creates a principle of law
which serves as an objective manifestation to landowners that the
airspace over 500 feet is not part of their "bundle of rights." This
conclusion is also supported by *Lucas'* finding that the government, in
a case of physical occupation, may "assert a permanent easement that was
a pre-existing limitation upon the landowner's title."[^103] If,
however, the flights in question are below 500 feet, the "logical
antecedent inquiry" necessarily requires a finding that the landowner
does possess a compensable property interest. Once it is established
that the landowner does in fact have a compensable property interest,
the second test required by *Lucas,* as articulated by *M&J* *Coal,*
must be answered: Is the governmental action a taking of that right?

***D. Penn Central's* Applicability to Overflight Takings**

As discussed above, normally the *Penn Central* test should be applied
if a claim is not a *per se* taking. However, the United States Court of
Appeals' for the Federal Circuit post-*Lucas* decision in *Brown,*[^104]
suggests use of *Causby* as the takings test for overflight cases. A
comparison of the two tests, however, reveals that they would often
produce similar results when applied to overflight cases. The *Penn
Central* test requires an analysis of the character of the government
action; the extent to which the regulation interferes with reasonable
investment-backed expectations; and the economic impact of the
government action.[^105] The *Causby test* requires that aircraft
interference must be directly overhead, at low levels, frequent, and
represent a substantial interference with the use and enjoyment of one's
property.

Referring to *Causby*, the Court in *Penn Central,* while discussing the
character of governmental action, found that "a taking may more readily
be found when the interference with property can be characterized as a
physical invasion by government than when interference arises from some
public program adjusting the benefits and burdens of economic life to
promote the common good."[^106] As the basis for an overflight taking is
a physical invasion, the Penn Central Court implies that it would more
readily find a taking in an overflight case than in a case involving a
state's authority to zone property.

In addition, *Penn Central*'s test regarding interference with
investment-backed expectations is capable of yielding the same result as
*Causby*'s requirement for substantial interference with the use and
enjoyment of one's property. For example, in *Causby* there is little
doubt that the landowner's investment-backed expectation of using his
land for a residence and chicken farm were destroyed by the government's
actions. Although these two test are capable of yielding similar
results, it is clear that *Causby*'s definition of a taking is narrower
and more objective than that found in *Penn Central*. *Penn Central*
provides a broader, more subjective test which could theoretically lead
to a finding of a taking in more circumstances than *Causby*. However,
as illustrated above, when the *Penn Central* test is applied to an
overflight takings case, it is essentially equivalent to *Causby*'s
"substantial interference with use" test. In fact, it could be argued
that *Penn Central*'s emphasis on the financial impact of the
government's action is essentially another method of determining whether
the overflight's interference with the property is or isn't
"substantial."

# IV. Fifth Amendment Defenses Available Post-Lucas

**A. Statute of Limitations**

Having reviewed the law governing compensation for overflights and the
potential impacts of *Lucas*, defenses available to the government in
such cases must be examined. One procedural defense of particular
importance is the statute of limitations. Claims that the United States
has taken an avigation easement must be brought within six years of the
date of the alleged taking.[^107] Such claims in overflight cases begin
to accrue, and the 6-year period of limitations begins to run, when
regular and frequent intrusions by noisy aircraft into the airspace
above the land in question begin to interfere seriously with the use and
enjoyment of such land.[^108]

# B. Direct Invasion of Airspace Required

In addition to the statute of limitations defense, the four elements of
the *Causby* test necessarily create four substantive defenses. The
first element requires that aircraft "directly" invade the airspace over
the property. In *Batten v. United States,*[^109] plaintiffs resided
next to an active military installation. Operations at the base produced
"\[S\]ound and shock waves which cross plaintiffs' properties and limit
the use and enjoyment thereof. . . . Strong vibrations cause windows and
dishes to rattle. Loud noises frequently make conversation and use of
the telephone, radio, and television facilities impossible and also
interrupt sleep."[^110] The *Batten* court found a substantial
diminution in the value of the plaintiff's homes, however, there were no
flights over the plaintiffs' property. Noting that recovery had been
uniformly denied "absent invasion," the court dismissed the
complaint.[^111] The same result was reached where flights were
"alongside" plaintiff's property,[^112] and where engine test cell
operations adjacent to plaintiffs' property interfered with the subject
properties.[^113] Thus, even though the particular activity complained
of may interfere substantially with the use and enjoyment of the
property, the courts will not find a taking unless the airspace over the
property has been directly invaded.[^114]

# C. Low and Frequent Flights Required

The second element of the *Causby* test requires that the flights be
"low" and "frequent." As discussed above, *Causby* and its progeny
clearly indicate that flights above 500 feet are in the public domain,
therefore; a landowner would not have a compensable property interest in
airspace above 500 feet. The government has a defense in cases where the
flights involved are above 500 feet. However, where these flights are
below the navigable airspace, the landowner may be found to have a
compensable property interest and the "low" element of the *Causby* test
is present. Although the law is clear on what constitutes "low" flight,
there is little case law as to what constitutes "frequent" flying. In
addition, frequency only becomes an issue if the other *Causby* elements
are present. While it was evident in *Jensen v. United States*, that
seven hundred flights daily with a takeoff and landing every two minutes
was a taking,[^115] other cases have not been as evident. For example,
in *Aaron*, two flights per day under 500 feet were determined not to
have substantially interfered with plaintiff's property.[^116] However,
a dozen was enough to establish a taking where flights continued to
increase daily.[^117] As *Aaron* demonstrates, there is no ready rule as
to how frequently a plaintiff's property must be directly overflown at
low levels to constitute a taking, but it clearly indicates that an
occasional direct overflight is insufficient.

# D. Direct, Immediate and Substantial Interference Required

The third and fourth elements of the *Causby* test require that the
flights, having met all the other criteria, must result in "a direct and
immediate interference with the enjoyment and use of the land"[^118] and
that such interference be substantial.[^119] In *Causby*, the highest
and best use of the property as a chicken farm was destroyed. In *Speir
v. United States*[^120] the standard was "a direct, immediate, and
substantial interference with the use and enjoyment of property."[^121]
It is apparent that the language used to describe interference in these
cases is necessarily general, but a useful analogy can be drawn to
regulatory takings cases. These cases hold that diminution in value
alone, even if substantial, does not constitute a taking.[^122]
Arguably, plaintiffs must prove a substantial interference with the use
and enjoyment of their property that extends beyond the simple
diminution of property values. As discussed in the comparison of the
*Penn Central* and *Causby* tests, the *Causby* test is generally
consistent with these regulatory takings cases which require substantial
diminution in economic viability.

# Applicability of Defenses and *Causby* Test

# to Lands Purchased before 1926.

These defenses assume application of the *Causby* test to cases in which
the property was purchased after Congress exerted control over the
navigable airspace in the Air Commerce Act of 1926. Under a *Lucas*
analysis into the logical antecedent inquiry, this raises the issue of
what the rights are of those individuals who acquired property prior to
the government's exerting its control over the navigable airspace. Under
the logical antecedent inquiry, if the property was purchased prior to
1926, the owner under common law would have a protected property
interest in the airspace above his land;[^123] therefore, theoretically
the proper test to be applied to overflight takings cases involving
property purchased before 1926 would be *Lucas*. However, on a practical
level, one should expect the courts to continue to apply the
well-established *Causby* test to all overflight cases regardless of the
date the property interest was acquired.

As encroachment continues, the Air Force will continue to have changing
operational needs. This, coupled with ever changing technological
advances and tactics that often require changes in operations, will no
doubt mean that the Air Force will continue to face inverse condemnation
claims as a result of overflights. The outcome of future overflight
litigation, however, should be more predictable as a result of the
Supreme Court's holdings in *Lucas,* which combined with the *Causby*
test provides the modern framework for analyzing overflight taking
claims.

V. Air Installation Compatible Use Zone (AICUZ)

**Program**

A.  **The ProblemEncroachment**

    In response to ever increasing encroachment by local communities,
    the Air Force, in 1970, created the "greenbelt program" to provide a
    protective rectangular buffer area of about one mile on each side
    and two and a half miles from the end of base runways.[^124]

    This concept was later refined into the AICUZ program which was
    initiated by the Department of Defense in 1974.[^125] AICUZ is a
    planning program that attempts to determine the impact of aircraft
    operations on the communities around flying bases and then transmits
    this information to the local planning and zoning commissions to
    assist them in making local comprehensive planning and zoning
    decisions. The program has a twofold purpose: first, to protect Air
    Force installation operational capability from the effects of
    incompatible land use, and second, to assist local, state, and
    federal officials in protecting and promoting public welfare and
    safety by providing information on aircraft accident potential and
    noise.[^126]

    Each military department is required to develop, implement, and
    maintain an AICUZ program for each installation with a flying
    mission.[^127] The aim of the program is for local governments to
    use the information provided by the base to zone the lands
    surrounding air installations in such a way as to prevent
    development that is incompatible with the flying operations of the
    installation.

    Air Force bases were typically constructed with plenty of open space
    between the base and the local communities.[^128] However, since
    these bases are employment centers for the surrounding communities,
    nearby land holdings are attractive investments for housing
    developments, supportive business activities, and service
    industries.[^129] This typically results in the expansion of local
    communities in the direction of bases. Historically, bases that were
    once far removed from nearby communities have been encroached upon
    by shopping centers, condominiums, industries, schools, hospitals,
    hotels, and residential areas.

    This steady encroachment has often progressed to the point where
    bases find themselves involved in confrontations with local
    residents who are concerned with the noise emanating from Air Force
    bases and potential aircraft accidents. Complaints from local
    residential and business owners have caused such actions as reduced
    takeoff weight, restriction of hours of operation, reduction of the
    number of flights, changes in takeoff and landing patterns, and
    noise abatement procedures.[^130] "This type of action results in
    declining operating efficiencies which sometimes lead to closure or
    reduction in mission capability of multimillion dollar
    installations."[^131]

    In fact, encroachment by civilian communities has resulted in the
    cessation of flying operations at a number of bases. For example,
    during the 1970s and 80s, Chanute, Lowry, Hamilton, and Laredo Air
    Force Bases all ceased flying operations, in part, as a result of
    encroachment.[^132] All of these bases have since been closed. More
    recently the Air Force, during the base closure process, used
    current and probable future encroachment as well as current
    incompatible development existing in areas covered by AICUZ as
    factors in considering recommendations for base closure.[^133]

**B. AICUZPlanning and Implementation**

The AICUZ program makes use of graphic contours placed on a map of the
installation and surrounding areas. These maps depict those areas
impacted by noise from aircraft and areas within which accidents are
most likely to occur, known as the Accident Potential Zone (hereinafter
APZ). AICUZ studies also include matrices of minimum compatible land
uses, which are based on the amount of noise and/or the aircraft
accident potential of the area. In general, AICUZ plans advise reduced
population density in APZs and elimination of noise sensitive activities
in areas exposed to maximum overflight activity. Each Air Force Major
Command[^134] Civil Engineer (hereinafter MAJCOM/CE) is given primary
responsibility for ensuring that installations prepare and update AICUZ
studies.[^135] Although the data needed for completion of an AICUZ study
is collected by base personnel or contractors, MAJCOM/CE gathers,
updates, and analyzes installation AICUZ data and certifies its
accuracy. At the discretion of MAJCOM/CE, the final AICUZ study is
prepared by either MAJCOM/CE, the Air Force Center for Environmental
Excellence (hereinafter AFCEE), or a contractor.[^136] The Air Force
requires that all AICUZ studies be reviewed at least every two years to
determine if changes in aircraft or operations require an AICUZ
update.[^137] When developing an AICUZ plan, there are three areas of
overlapping concern that planners must address: obstructions, accident
risks, and noise.

1.  *Obstructions*

    Obstructions are natural objects, man-made structures, and
    activities which present safety hazards to takeoff and landing
    operations because they penetrate into the navigable airspace
    surrounding a base. An object such as a factory smokestack, a
    powerline, antenna or a tall building may be an obstruction based on
    its height.[^138]

    Other forms of obstructions include visible emissions and electronic
    emissions. For example, a visible emission could result from a
    factory smokestack that is under the height limitations but emits
    smoke that reduces visibility in the airspace concerned. Electronic
    emissions, though invisible, can also be obstructions because they
    can interfere with the safe operation of and communication with
    aircraft, or set off explosive devices in or being carried by the
    aircraft.

2.  *Accident Potential Zones*

Another planning consideration is potential accident zones. The Air
Force has conducted studies to determine the likely locations of
aircraft accidents in the area of Air Force runways.[^139] These studies
revealed that most accidents occur at the ends of the runway, with the
number of accidents decreasing as the distance from the runway
increases. The most recent update of the Air Force's accident
studies,[^140] revealed that 28.1 percent of all the accidents studied
occurred in the Clear Zone (hereinafter CZ),[^141] a zone 3000 feet long
and wide at both ends of the runway. The next zone, APZ I,[^142]
measures 5000 feet long and 3000 feet wide and accounts for 10.4 percent
of all the accidents. APZ II,[^143] an area 7000 feet long and 3000 feet
wide, accounts for 5.6 percent of the accidents studied. The statistics
also revealed that 24.7 percent of the accidents occurred on the runway;
and 31.2 percent occurred outside the runway, CZ, and APZs, but within a
10 nautical mile radius of the airfield. APZs (which include the CZ) are
based on accident data collected and accumulated at the DoD level and do
not reflect the actual accident patterns occurring at the individual
installation preparing an AICUZ study.[^144]

As a result of these studies, the boundaries of the CZ, APZ I and APZ II
have become formalized as the accident potential zones within which
development should be discouraged.[^145] Referring to these areas, 32
C.F.R. 256.3(c) states that:

> Areas immediately beyond the ends of runways and along primary flight
> paths are subject to more aircraft accidents than other areas. For
> this reason, these areas should remain undeveloped, or if developed
> should be only sparsely developed in order to limit, as much a
> possible, the adverse effects of a possible aircraft accident.

In order to limit development in the most dangerous of these areas, the
CZ, the DoD policy establishes as a first priority "the acquisition in
fee and/or appropriate restrictive easements of lands within the clear
zones whenever practicable."[^146] As for APZ I and APZ II, the DoD
policy is to acquire these areas "only when all possibilities of
achieving compatible use zoning, or similar protection, have been
exhausted and the operational integrity of the air installation is
manifestly threatened."[^147] In addition, only the minimum property
interest needed to protect the Government is to be acquired.[^148]

In order to assist local governments in making land use decisions, DoD
has developed "Land Use Compatibility Guidelines for Accident
Potential"[^149] which categorize possible land uses as compatible or
incompatible with the CZ, APZ I or APZ II. These guidelines are included
in the final AICUZ document. Only very limited forms of development,
(e.g., railroads and two lane highways) are allowed in the clear zone.
Generally, residential development is incompatible in the CZ or APZ I.
Single family dwellings, however, may be compatible in APZ II subject to
any necessary noise abatement procedures.

*3. Noise Contours*

The third parameter of consideration in AICUZ development is the impact
of aircraft noise on the areas surrounding the installation. The
Department of Housing and Urban Development (hereinafter HUD) has
determined that noise is a major source of environmental pollution which
represents a threat to the serenity and quality of life in population
centers and that noise exposure is a cause of adverse physiological and
psychological effects as well as economic losses.[^150]

On a physiological level, temporary shifts in hearing thresholds and
sleep loss have been documented.[^151] Studies have also implicated
noise as a factor producing stress-related health effects such as heart
disease, high-blood pressure, and ulcers.[^152] "On a behavioral level,
interruptions in human activities, such as work or speech, that result
in greater stress"[^153] have been documented. The scientific evidence
on noise impacts clearly points to noise as not simply a nuisance but as
an important health and welfare concern.[^154]

Studies conducted on the impacts of noise, however, often assess the
impacts of noise based on annoyance. For example, studies on the effects
of noise on people in residential areas have revealed significant,
severe, and very severe annoyance in areas of day-night average decibel
levels of 65, 70, and 75 decibels, respectively.[^155] To determine the
extent of the noise generated at DoD air installations, the amount and
location of noise surrounding an airfield is computed using the "Ldn"
method,[^156] a method recommended by the Environmental Protection
Agency.[^157] Ldn is the yearly day-night sound level in decibels and
results from the yearly average of daily traffic and use of runways and
flight paths. It measures ambient noise including aircraft noise and
other noises within the same community setting and imposes a penalty for
nighttime (10 P.M. - 7 A.M.) operations, the duration of noise events,
and aircraft noise that is above the ambient background level.[^158] It
measures noise in terms of decibels.[^159]

In response to concerns regarding the impacts of noise, the Federal
Interagency Committee on Urban Noise was established in 1979 to
coordinate various federal programs, including an "interagency program
designed to encourage noise sensitive development, such as housing, to
be located away from major noise sources."[^160] The Committee members
included the Environmental Protection Agency, DoD, Department of
Transportation (hereinafer DoT), HUD, and the Veterans Administration
(hereinafter VA).

In June, 1980, the Committee published the *Guidelines for Considering
Noise in Land Use Planning and Control* (Noise Guidelines). These
guidelines attempt to orchestrate the activities of the major federal
agencies and their programs that are either sources of noise (e.g. DoD
and DoT) or sources of noise sensitive development (e.g. HUD and VA).
These Noise Guidelines contain a list of land use compatibility
guidelines based on noise zones.[^161] Land use compatibility is
expressed as being "compatible," "compatible with restrictions," and
"incompatible."[^162] For example, virtually all forms of development
are compatible with noise levels below 65 Ldn. Levels of 66 Ldn to 75
Ldn, with certain restrictions, are compatible with most forms of
development. Levels of 76 to 85 are not compatible with most types of
development that involve residential uses or access by the general
public. Very few forms of development are compatible with noise levels
above 85 Ldn.

The first step in defining the noise aspect of an AICUZ study is data
collection. Installation personnel or a contractor collect data
regarding a wide range of activities including the type of aircraft,
number of flights, flight tracks, time of day, atmospheric conditions
and ground operations. At MAJCOM/CE's discretion, all of this data is
then submitted to AFCEE; a contractor; or MAJCOM/CE for preparation of a
noise contour map.[^163] At a minimum, contours for Ldn 65, 70, 75, and
80 must be plotted on maps as part of the AICUZ study.[^164]

The noise contour maps in conjunction with the APZs form the basis to
determine what type of development is compatible with flying operations
in the areas surrounding the base. In areas where the noise and accident
areas overlap, the more stringent guideline is applied.[^165]

**C. AICUZ** **ImplementationCoordination with Local Authorities**

The AICUZ program objective is to "assist local, regional, state, and
federal officials in protecting and promoting the public health, safety,
and welfare by promoting compatible development within the AICUZ area of
influence."[^166] Similarly, "DoD policy is to work toward achieving
compatibility between air installations and neighboring civilian
communities by means of a compatible land use planning and control
process conducted by the local community."[^167] Federal Management
Circular 75-2, *Compatible Land Uses at Federal Air Fields*,[^168]
provides that:

> Operating agencies shall develop procedures for coordinating airfield
> plans with the land use planning and regulatory agencies in the area.
> Developing compatible land use plans may require working with local
> governments, local planning commissions, special purpose districts,
> regional planning agencies, state agencies, as well as other regional,
> and state agencies to assist them in developing their land use
> planning and regulatory processes, to explain an airfield plan and its
> implications, and to generally work towards compatible planning and
> development in the area of the airfield.[^169]

Thus, the AICUZ program is implemented through the local government's
powers over land use, planning, zoning ordinances and building codes.
The air installation gives the AICUZ study to the local community
planners[^170] and encourages them to incorporate the recommendations
into the overall local land use planning process and into their
comprehensive plan, if they have one.

The publication of the AICUZ plan by itself has no legal effect; but the
Air Force, as an interested landowner, is entitled to participate in the
local zoning process and to attempt to persuade the local government to
accept its recommendations.[^171] The Air Force's goal, however, is that
the Air Force not have to "sell" the program, but "to assist local,
regional, state and federal officials in protecting and promoting public
health, safety and welfare, by promoting compatible development within
the AICUZ area of influence."[^172]

To assess the effectiveness of an AICUZ study, the Air Force requires
that a review be conducted every two years to determine in detail how
the local government has used the most recent AICUZ study
recommendations. The review contains a thorough analysis of the
successes, actions and policies by local communities to implement the
AICUZ study recommendations. This review, at a minimum, includes a
review and synopsis of all affected local government comprehensive land
use plans, development plans, zoning plans, zoning maps and ordinances.
It also includes transportation plans, subdivision plots, and other
proposals within the airfield area pertinent to the AICUZ study.

If the Air Force discovers that AICUZ development guidelines are not
being properly implemented, the Air Force has no direct means of
requiring implementation. There are, however, several limited checks on
local communities that fail to incorporate an AICUZ study into local
planning. "The Noise Guidelines evidence both HUD's and VA's intention
to follow DoD's accident potential zones, and noise contour
studies."[^173] HUD and the VA, therefore, refuse to provide assistance
for construction within accident potential zones, and noise contour
areas 65 Ldn and higher.[^174] Federal agencies can also formally oppose
inconsistent sitings through local zoning boards or other regulatory
agencies (e.g. FAA, FCC).

# D. Fifth Amendment Takings Claims Resulting From AICUZ

1.  *Applicability of Lucas*

    Landowners whose lands are zoned by local authorities based on an
    AICUZ study may have a claim against the zoning authority for a
    regulatory taking under the Fifth Amendment. The proper test to
    apply to determine if such a taking has occurred is the analysis
    articulated by the Supreme Court in *Lucas*.[^175] As previously
    discussed, the court must first examine the owner's estate to
    determine if the proscribed use interest was originally part of the
    title.[^176] If the interest was part of the owner's title, then the
    court addresses the question of whether the regulation of the land
    affects a *per se* confiscatory taking of the land. If it does not,
    then the court applies the *Penn Central*[^177] tripartite analysis
    to determine if a taking has occurred. Historically, however, the
    Court has presumed zoning ordinances to be valid unless the
    plaintiff can show them to be arbitrary, unreasonable and lacking a
    substantial relationship to public health, safety, morals or
    welfare.[^178] Generally, if the land can economically be used for
    some purpose, then a taking will not be found.[^179]

    In some circumstances, a local zoning authority may require a
    developer to give land or an easement to the local government. The
    courts have generally held that there must be a nexus between the
    proposed development and the dedication of land or exaction. For
    example, the developer may be required to give land for a park or a
    school site to fulfill the need created by his development and for
    the benefit of the development. However, if that nexus is not
    present, a local government may not require a property owner to give
    a property interest without compensation as a condition for a
    rezoning or building permit.[^180]

2.  Air Force Liability for Local Government Zoning Decisions:

De-Tom Enterprises, Inc v. United States

Landowners not only bring suit against the local zoning authority, but
on occasion they will also file suit against the Air Force alleging
inverse condemnation. In such a case, the landowner usually argues that
the Air Force, in its attempts to have its AICUZ study implemented,
exerted undue influence over the local zoning authority. *De-Tom
Enterprises, Inc. v. United States* is an example of such a case.[^181]
In *De-Tom,* the plaintiff argued that the United States should be held
liable for a taking of its property because the Air Force influenced
Riverside County, California, to refrain from changing the zoning of an
area based on recommendations set out in the AICUZ report from nearby
March AFB. De-Tom's argument was that the Air Force prevented the
company from obtaining a change of zoning that would have permitted the
property to be developed for high density residential purposes.[^182]
De-Tom petitioned the Riverside County Board of Supervisors for a change
of zoning for the property from that designating the land as
residential/agricultural to residential/single-family dwellings.[^183]
The County Planning Commission and the local Airports Land use
Commission approved the application, but the Riverside County Board of
Supervisors denied De-Tom's request to rezone the area.[^184]

The only property owner to appear before the Board of Supervisors to
voice opposition to the rezoning was the United States Air Force,
represented by the Staff Judge Advocate (hereinafter SJA) from March
AFB.[^185] The SJA reminded the Board of the large amounts of money
invested by the Air Force in the base itself, and of the millions spent
on operations at the base. He noted that if the area adjacent to the
base were to be developed for high-density residential use, complaints
about noise might compel the Air Force to curtail, or even discontinue,
operations at the base.[^186] The March AFB commander also submitted a
letter to the Board of Supervisors expressing the view that because of
the high level of noise at that end of the base, the property adjacent
to it would be "highly undesirable for any type of residential
use."[^187]

The Court found that: "If plaintiff's position is that the Air Force
necessarily took plaintiff's property (in the constitutional sense)
simply by persuading the County board not to change the zoning of the
property, we must reject such a claim on its merits."[^188] Contrasting
the case with a situation in which the Government has taken land through
its own extensive or intrusive regulatory activity, the court found
that:

> \[I\]t is quite different when neither Congress nor a federal agency
> puts any regulatory burden on the owner but the agency, as an
> interested landowner, does no more than convince a state or local
> agency to impose such a burden, in the same way as might any other
> neighboring property owner or citizen. Here the Air Force was a
> powerful adjoining landholder, but so could be a large private
> manufacturer or comparable enterprise, or an organized group of
> citizens intent on preserving the environment or the character of
> their locality. In none of these cases would the intervention of the
> neighbor to persuade a county entity against rezoning the claimant's
> land constitute an eminent domain taking by the neighbor-whatever else
> it might be. The United States is thought to be a deep pocket and it
> is tempting for owners to try to shift to it the cost which they
> cannot or do not wish to impose on the local entity which actually
> undertakes the zoning, but the fundamental point is that it is that
> agency (here the County Board) which adopts, and has the power to
> adopt, the allegedly injurious course, and the federal agency (here
> the Air Force) is only playing the role of an influential affected
> landowner trying to persuade the county body to accept its
> position.[^189]

As a result of this case and others like it, it is well-established that
the Air Force can participate in local land use proceedings and stands
in the position of any other landowner who attempts to persuade the
local legislative body to regulate land uses in a manner which is
consistent with his use of the land.[^190] As long as there has been no
overreaching or improper conduct, such as denying a property owner the
due process of a zoning hearing by entering into an outcome-influencing
Memorandum of Understanding with the county before a zoning hearing is
held, plaintiffs are generally unsuccessful.[^191] On a few occasions,
however, federal agencies have been held liable where they have gone
beyond mere participation in the zoning process and taken affirmative
egregious steps to lower property values.[^192]

*3. Air Force Liability for Publication of AICUZ Studies*

In some cases, plaintiff's base their claims on a theory that
publication of AICUZ study data itself accomplishes a denial of their
property rights under the Fifth Amendment. AICUZ studies, however, are
planning efforts and do not control or regulate the use of private
lands. In *Stephens v. United States*[^193] the court recognized that
AICUZ studies are "advisory only" and that the authority to permit or
restrict development or use of private lands is left to the local
jurisdiction. Other courts have specifically held that the publication
and dissemination of AICUZ plans did not violate private landowner's
Fifth Amendment rights.[^194] In such cases the plaintiffs cannot
seriously dispute the advisory nature of an AICUZ study or any of the
study elements. Obviously, the noise study itself does not zone or
regulate land. It is merely part of the AICUZ planning document that
contains the Air Force's recommendation to state and local land use
planning authorities for compatible land uses around the installation
that state and local land use planning officials are free to disregard
or voluntarily adopt in whole or in part.

In *Branning*,[^195] discussed previously, the court in its analysis of
the nature and purpose of the AICUZ program, found that:

> The Air Installation Compatible Use Zone Program has been instituted
> in an effort to coordinate the requirements of the missions of
> military air installations, with the development of the surrounding
> communities. The AICUZ is a concept of identifying compatible and
> incompatible land use around an air station, the purpose being to
> guide compatible private development through the cooperation with
> local jurisdictions in order to minimize public exposure to aircraft
> noise and accident potential, while at the same time maintaining the
> operational capability of the station.[^196]

Although the court in *Branning* found that the manner, frequency and
number of Marine Corps aircraft flights over plaintiff's land did
constitute a taking, it specifically held that publication of the AICUZ
study, in and of itself, was not sufficient to violate plaintiff's Fifth
Amendment rights.[^197]

The treatment of AICUZ studies in these cases is consistent with the
treatment of Fifth Amendment claims in cases based on other planning
efforts. Courts have had frequent occasion to consider whether the
publication of a local government's comprehensive plan, an acquisition
plan, a proposed condemnation plan, or an urban renewal plan, by itself,
constitutes a taking. Although private property may suffer a diminution
in value as a result of the publication of these planning efforts,
courts have routinely recognized the importance of informing the public
of proposed projects and have refused to find that the publication of
such plans by themselves constitutes a taking.[^198]

# Potential Impact of AICUZ Studies in

**Overflight Takings Cases**

Although an AICUZ study does not in and of itself constitute a taking,
courts have allowed AICUZ information to be used as evidence to prove
the last two elements of the *Causby* test. Although the *Branning*
decision is considered to be the exception to the rule that flights
above 500 feet are not compensable, the case also raised the issue of
AICUZ studies as evidence in an overflight taking case. In *Branning*,
the plaintiff asserted that flights by Marine Corps aircraft over its
land reduced or destroyed the value of the property for its highest and
best use, namely, for single family residential use and development as
provided in plaintiff's master plan for development of its lands. In
support of its position the plaintiff relied on AICUZ studies published
by the Marine Corps. These studies established that portions of the
plaintiff's land had been listed as "clearly unacceptable"[^199] for
low, medium, or high density residential use as a consequence of
aircraft overflights. Other portions of the plaintiff's property had
been declared "normally unacceptable"[^200] for residential use. The
court held that the information in the AICUZ study "is not, in and of
itself, sufficient to establish a taking of plaintiff's property by the
defendant. It does, however, constitute valuable evidence of the impact
of defendant's aircraft operations on that part of plaintiffs property
over which defendant's A-4 and F-4 jet aircraft were operating."[^201]

The court also held in its listing of ultimate facts that:

Defendant has not only intruded upon plaintiff's property but has also
given public notice of the adverse effect thereof upon plaintiff's
property by adopting, publishing, and approving for implementation the
AICUZ study of 1976 in which at least part of plaintiff's property has
been designated as unsuitable or unacceptable for medium density
housing.[^202]

Based on this holding, it would appear that plaintiff's in overflight
cases may use an AICUZ study to prove the last two prongs of the
*Causby* test; that is, that the flights directly and immediately
interfered with the claimant's enjoyment and use of the land, and that
the interference was substantial.

Although the AICUZ study was permitted as evidence supporting
plaintiff's claim in *Branning*, the purpose of the AICUZ program, to
achieve compatible use of public and private lands, is not served by
permitting introduction of the AICUZ as evidence against the government
in litigation. In fact, some have argued that as a result of the
*Branning* court's reliance on the AICUZ study to find a taking
occurred, the DoD should seek an exclusionary rule prohibiting the use
of AICUZ studies in litigation against the United States.[^203] Such an
exclusionary rule, however, would probably have very little impact on
the outcome of overflight takings cases. It is likely that in most
cases, where an AICUZ study categorizes lands as unacceptable for
residential development because of noise, the plaintiff's would be able
to produce sufficient evidence of substantial interference with the use
of land for residential purposes without relying on AICUZ data.

While AICUZ studies have the potential to be used as evidence against
the United States to prove a taking due to overflights, they can also
serve to reduce potential overflight takings cases when they are used in
the zoning process. Zoning pursuant to AICUZ should limit land uses that
are incompatible with the noise generated from overflying aircraft. This
in turn limits uses of land to those that would not normally be
disturbed by overflying aircraft.

# F. Acquiring Property Interests as a Result of {#f.-acquiring-property-interests-as-a-result-of .unnumbered}

# AICUZ or Overflights

As mentioned above, with the exception of the CZ,[^204] the Air Force
policy is generally not to acquire property interests in land.[^205] DoD
guidance allows for the acquisition of lands in APZ I and APZ II and in
high noise areas, but "only when all possibilities of achieving
compatible use zoning, or similar protection, have been exhausted and
the operational integrity of the air installation is manifestly
threatened."[^206] In addition, under DoD policy only the minimum
property interest needed to protect the Government is to be
acquired.[^207] DoD guidance also cautions that "the acquisition of
property rights on the basis of noise . . . may not be in the long-term
interest of the United States."[^208] When it is determined to be
necessary for the government to acquire interest in land, the interest
acquired is not necessarily a fee simple interest. For example, it may
only be necessary to acquire an easement to make low and frequent
flights over said land and to generate noise.[^209]

The military's ability to acquire real property not currently owned by
the United States is generally prohibited unless the acquisition is
specifically authorized by law,[^210] as such an acquisition of a real
property interest normally requires authorization and appropriation by
Congress. This is generally accomplished as part of the military
construction process.[^211]

There is, however, one notable exception to this rule that is
occasionally used to acquire land within an APZ or land affected by
overflights. 10 U.S.C. §2672 provides that: "The Secretary of a military
department may acquire any interest in land that the Secretary
determines is needed in the interest of national defense; does not cost
more than \$200,000, exclusive of administrative costs and the amounts
of any deficiency judgments." The funds used to acquire lands under this
authority come from the military department's operating and maintenance
funds. Although used sparingly, this authority gives the Air Force the
flexibility within its prescribed limits to deal with unique situations
that may arise. For example, Altus AFB, OK, recently began flying
operations on a newly constructed runway. After flying operations began
on the runway, a nearby landowner began complaining about the flights of
the Air Force's C-5, C-141, and KC-135 aircraft which passed some
385-415 feet over his residence. Because the flights satisfied the
requirements for a taking under the *Causby* test, relying on the
authority contained in 10 U.S.C. § 2672, the Air Force purchased the
property in order to avoid the cost of litigation.[^212] However, the
Air Force is currently only exercising this discretion when it is faced
with serious litigation jeopardy involving overflights of residential
structures. In cases involving vacant lands, the Air Force continues to
apply its policy of requiring landowners to prove their case in
court.[^213]

# 

# VI. Conclusion

The Air Force will continue to face takings claims associated with the
effects of encroachment. However, the future of litigation in these
cases should be predictable. The Supreme Court's holding in *Lucas*
should strengthen the Government's argument that inverse condemnation
claims for flights above 500 feet are not compensable. For those cases
below 500 feet, *Causby* and its progeny provide a well-defined body of
case law which should allow the Air Force to determine, with some
predictability, the legal consequences of its actions when flying low
over private lands.

In order to lessen the potential for overflight takings claims, the Air
Force must continue to aggressively augment the AICUZ program. The
program's land use compatibility guidelines, when implemented as part of
the local zoning process to limit incompatible development in the area
of air bases, serve to reduce the Air Force's potential liability for
overflight takings claims that arise on lands covered by the program.
The AICUZ program also serves to protect air installations from
encroachment by local communities. An active AICUZ program, coordinated
effectively with local government officials can serve to greatly reduce
potential tension between air installations and local development. If
the program is not coordinated effectively, or if local authorities fail
to implement AICUZ findings, the potential for conflicts between the
installation and the local community are greatly increased.

[^1]: \* *Major King, (B.A., Auburn University, J.D., Cumberland School
    of Law, Samford University, LL.M., George Washington University) is
    the Deputy Staff Judge Advocate at Air Force Center for
    Environmental Excellence, Brooks Air Force Base, Texas. He is a
    member of the Alabama Bar.*

    ^?^ The Fifth Amendment to the United States Constitution provides:
    "No person shall . . . be deprived of life, liberty, or property,
    without due process of law; nor shall private property be taken for
    public use without just compensation." U.S. C[onst]{.smallcaps}.
    amend V.

[^2]: Inverse condemnation is a cause of action against a government
    agency to recover the value of property taken by the agency, though
    no formal exercise of the power of eminent domain has been
    completed. B[lack's]{.smallcaps} L[aw]{.smallcaps}
    D[ictionary]{.smallcaps} 424 (5th ed. 1983).

[^3]: *See* Persyn v. United States, 935 F.2d 69 (5^th^ Cir. 1991). The
    plaintiffs in *Persyn* argued that the increased decibel levels and
    risks associated with the introduction of C-5 and B-1 aircraft to
    Kelly AFB, TX had diminished the value of their property and
    resulted in a taking. The court dismissed the claim based on the
    statute of limitations. In Jensen v. United States, 305 F.2d 444
    (Ct. Cl. 1962) the court found a taking had occurred based on the
    increase in the number of flights of B-47 aircraft at McConnell AFB,
    Kansas. *See also* Branning v. United States, 654 F.2d 88 (Ct. Cl.
    1981); Bacon v. United States, 295 F.2d 936 (Ct. Cl. 1961); A.J.
    Hodges Indus., Inc. v. United States, 355 F.2d 592 (Ct. Cl. 1966);
    Aaron v. United States 311 F.2d 798 (Ct. Cl. 1963).

[^4]: *See* Air Installation Compatible Use Zone Program, Air Force
    Instruction 32-7063 ¶ 1.2.3. (Mar. 31 1994) \[hereinafter AFI
    32-7063\].

[^5]: Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

[^6]: *See* [R. Wright]{.smallcaps}, T[he]{.smallcaps} L[aw]{.smallcaps}
    [of]{.smallcaps} A[irspace]{.smallcaps} 11-30 (1968).

[^7]: *See* Colon Cahoon, *Low Altitude Airspace: A Property Rights
    No-Man's Land*, J. A[ir]{.smallcaps} L. & C[om]{.smallcaps}., Fall
    1990, at 157, 161.

[^8]: *See* Portsmouth Harbor Land & Hotel Co. v. United States*,* 260
    U.S. 327 (1922) (holding that every firing of artillery projectiles
    over claimant's land constituted a trespass).

[^9]: Cahoon, *supra* note 7, at 162.

[^10]: *Id.* at 161.

[^11]: Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568
    (1926).

[^12]: 67 [Cong. Rec]{.smallcaps}. 9386 (1926).

[^13]: *Id.* at 9391.

[^14]: H.R. Rep. No. 572, 69th Cong., 1st Sess. 9-10 (1926).

[^15]: Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568
    (1926).

[^16]: The Federal Aviation Administration has succeeded the Civil
    Aeronautics Authority regarding the authority to designate minimum
    safe altitudes of flight. Although the minimum safe altitude of
    flight has changed over the years, most recently it has been defined
    as:

    > \(b\) Over congested areas. Over any congested area of a city,
    > town, or settlement, or over any open air assembly of persons, an
    > altitude of 1,000 feet above the highest obstacle within a
    > horizontal radius of 2,000 feet of the aircraft.
    >
    > \(c\) Over other than congested areas. An altitude of 500 feet
    > above the surface except over open water or sparsely populated
    > areas. In that case, the aircraft may not be operated closer than
    > 500 feet to any person, vessel, vehicle, or structure.

    Federal Aviation Administration, 14 C.F.R. § 91.119 (1985). The
    statutory definition of navigable airspace was amended by the
    Federal Aviation Act of 1958 to read: "Navigable airspace means
    airspace above the minimum altitudes of flight prescribed by
    regulations issued under this act, and shall include airspace needed
    to insure safety in take-off and landing of aircraft." 49 U.S.C. §
    1301(29) (1982).

[^17]: *See* Ark. Code Ann. § 27-116-102 (1995); [Cal. Civ.
    Code]{.smallcaps} § 659 (1995); [Ga. Code Ann]{.smallcaps}. § 6-2-5
    (1995); Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245
    (1942); [Idaho Code]{.smallcaps} § 55-101A (1995); [Ind. Code
    Ann]{.smallcaps}. § 8-21-4-3 (1995); [Md. Code Ann.
    Transp]{.smallcaps}. § 5-104 (1995); [Mich. Stat. Ann]{.smallcaps}.
    § 10.111 (1994); [Mont. Code Ann]{.smallcaps}. § 67-1-203 (1995); 60
    [Okla. Stat]{.smallcaps}. tit. 60, § 802; Antonik v. Chamberlain, 78
    N.E.2d 752 (1947).

[^18]: Ark. Code Ann. § 27-116-102 (1995).

[^19]: 60 [Okla. Stat]{.smallcaps}. tit. 60, § 902 (1995).

[^20]: *Id.*

[^21]: Cal. Civ. Code § 659 (1995).

[^22]: N.C. Gen. Stat. § 63-13 (1995).

[^23]: United States v. Causby, 328 U.S. 256 (1946).

[^24]: Superadjacent airspace is the airspace directly above the land at
    low altitudes. *See* *Id.* at 265.

[^25]: *Id*. at 266.

[^26]: *Id.* at 260.

[^27]: Scranton v. Wheeler, 179 U.S. 141 (1900).

[^28]: *Id.* at 160.

[^29]: 328 U.S. at 261.

[^30]: Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568
    (1926).

[^31]: Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. 401.

[^32]: 328 U.S. at 260 (citations omitted).

[^33]: *Id*. at 261.

[^34]: *Id*. at 264.

[^35]: *Id.* at 261.

[^36]: *Id.* at 266.

[^37]: *Id.* at 265.

[^38]: *Id.* at 266.

[^39]: *Id.* at 265.

[^40]: *Id.*

[^41]: *Id.*

[^42]: *Id.*

[^43]: Ruckelhaus v. Mansanto Co., 467 U.S. 986 (1984).

[^44]: Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

[^45]: *Id.* at 1001.

[^46]: *Id*. at 1029.

[^47]: Presault v. United States, 27 Fed. Cl. 69 (1992).

[^48]: 505 U.S. at 1029.

[^49]: *Id.* at 1027.

[^50]: 328 U.S. at 261.

[^51]: At the time the Air Commerce Act of 1926 was passed, those states
    that had codified a definition of land generally applied the common
    law approach considering the property to include the upper reaches
    of the airspace above it. Thus, state law at the time was consistent
    with the common law approach.

[^52]: 328 U.S. at 260.

[^53]: *Id.*

[^54]: Federal Aviation Act of 1958, Pub. L. No. 85-726, 72 Stat. 739
    (1958).

[^55]: Griggs v. Allegheny County, 369 U.S. 84 (1962).

[^56]: *Id.* at 86.

[^57]: *Id*. at 88 (citing United States v. Causby, 328 U.S. 256, 264
    (1946)).

[^58]: 328 U.S. at 264.

[^59]: *Id.* at 265.

[^60]: *See* Matson v. United States, 171 F. Supp. 283 (Ct. Cl. 1959);
    Aaron v. United States, 311 F.2d 798 (Ct. Cl. 1963); A.J. Hodges
    Indus., Inc. v. United States, 355 F.2d 592 (Ct. Cl. 1966); Lacey v.
    United States, 595 F.2d 614 (Ct. Cl. 1979); Brown v. United States,
    73 F.3d 1100 (Fed. Cir. 1996).

[^61]: Brown v. United States, 73 F.3d 1100 (Fed. Cir. 1996).

[^62]: A. J. Hodges Indus., Inc. v. United States, 355 F.2d 592 (1966).

[^63]: Takings that result from overflights are often referred to as
    "avigation easements" (by analogy to the sovereign's right of
    navigational servitude in navigable waters of the sovereignty) and
    as an "easement of flight" (by analogy to easements taken by the
    sovereign in the airspace over land for public purposes). *See*
    Branning v. United States, 654 F.2d 88, 91 n.1 (Ct. Cl. 1981).

[^64]: 355 F.2d at 594. *See also* Bacon v. United States, 295 F.2d 936
    (Ct. Cl. 1961); Lacey v. United States, 595 F.2d 614, 616 (Ct. Cl.
    1979); Bodine v. United States, 210 Ct. Cl. 687, 688 (1976);
    Mid-States Fats & Oils Corp. v. United States, 159 Ct. Cl. 301, 309
    (1962).

[^65]: Aaron v. United States, 311 F.2d 798 (Ct. Cl. 1963).

[^66]: *Id.* at 801.

[^67]: *Id*.

[^68]: Branning v. United States, 654 F.2d 88 (Ct. Cl. 1981).

[^69]: *Id.* at 90.

[^70]: *Id*. at 91.

[^71]: *Id.*

[^72]: *Id.*

[^73]: *Id.* at 90-91.

[^74]: *Id*. at 91-92.

[^75]: *Id*. at 99.

[^76]: *Id*. at 102.

[^77]: It should be noted that the court in *Branning* did not rely on
    diminution of value alone to reach its decision. The court focused
    on the impacts that the flights had on the land and the owner's use
    of the land. The court also relied heavily on the fact that the
    Marine Corps had published a study which indicated that the noise
    from that aircraft made the land unsuitable for residential use.
    Thus, the court's reference to "diminution in value" does not
    conflict with the Supreme Court's decisions in *Pennsylvania Coal
    Co. v. Mahon*, 260 U.S. 393 (1922), and *Penn Cent. Transp. Co. v.
    New York City*, 438 U.S. 104 (1978), which establish that mere
    diminution in value alone will not constitute a taking.

[^78]: 654 F.2d at 102.

[^79]: Cahoon, *supra* note 7, at 191.

[^80]: Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

[^81]: *Id.* at 1006-07.

[^82]: *Id.* at 1007.

[^83]: *Id.* at 1008.

[^84]: *Id.*

[^85]: Presault v. United States, 27 Fed. Cl. 69, 86 (1992).

[^86]: 505 U.S. at 1026.

[^87]: M&J Coal Co. v. United States, 30 Fed. Cl. 360 (1994). In *M&J
    Coal*, the court held that enforcement actions of the Office of
    Surface Mining did not amount to a taking of the mine operators
    property.

[^88]: *Id*. at 367.

[^89]: *See* Ruckelhaus v. Mansanto Co., 467 U.S. 986, 1001, 1005
    (1984); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,
    161 (1980); Board of Regents v. Roth, 408 U.S. 564, 577 (1980);
    PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83 (1980); Kaiser
    Aetna v. United States, 444 U.S. 164, 175 (1979); Pennsylvania Cent.
    Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).

[^90]: 505 U.S. at 1028.

[^91]: *Id.* at 1029.

[^92]: 27 Fed. Cl. at 86 (1992). In *Presault*, Plaintiff's claimed
    compensation for efforts by the federal government to use portions
    of a railroad right of way as a bicycle path. Applying the Supreme
    Court's *Lucas* analysis, the court held that the plaintiff's could
    have no reasonable expectation of compensation at the time they
    acquired the property. This was based on the historic extensive
    federal regulation of the railroad industry and the nature of the
    easement. *See also* M&J Coal Co. v. United States, 30 Fed. Cl. 360
    (1994).

[^93]: 438 U.S. at 124.

[^94]: *Id*.

[^95]: H.R. Rep. No. 572, 69th Cong., 1st Sess. 9-10 (1926).

[^96]: Scranton v. Wheeler, 179 U.S. 141 (1900).

[^97]: A riparian owner is "one who owns land on bank of river, or one
    who is owner of land along, bordering upon, bounded by, fronting
    upon, abutting or adjacent and contiguous to and in contact with
    river." [Black's Law Dictionary]{.smallcaps} 690 (5th ed. 1983).

[^98]: 179 U.S. at 161.

[^99]: H.R. Rep. No. 572, 69th Cong., 1st Sess. 9-10 (1926).

[^100]: 505 U.S. at 1029.

[^101]: H.R. Rep. No. 572, 69th Cong., 1st Sess. 9-10 (1926).

[^102]: This would be the case in non-congested areas. For congested
    areas, the navigable airspace is defined to be 1000 feet above the
    highest obstacle within a horizontal radius of 2,000 feet of the
    aircraft. *See* 14 C.F.R. § 91.119, *supra* note 16.

[^103]: 505 U.S. at 1028.

[^104]: Brown v. United States, 73 F.3d 1100 (Fed. Cir. 1996). *Brown*
    is the only reported overflight taking case decided in federal court
    since the Court's *Lucas* decision. The court in *Brown* continued
    to apply the *Causby* test post-*Lucas.* The Browns owned a 6,858
    acre ranch near Del Rio, in West Texas. The Air Force since January
    1991 used a small airfield, Wizard Auxiliary Airfield, near the
    Browns' ranch, to train its pilots. Flights out of Laughlin Air
    Force Base, about 25 miles to the northwest of Wizard, conducted
    "touch and go" exercises on the Wizard airstrip. On take off and
    landing from Wizard's airstrip, planes flew less than 500 feet above
    ground level over at least 100 acres of the Browns' property. At
    trial, the U.S. Court of Federal Claims held that pursuant to
    *Causby,* "the Browns could not recover as a matter of law, because
    although the occurrence of frequent and low overflights was
    undisputed, the Browns had not shown substantial interference with
    their present enjoyment and use of the overflown surface property."
    Brown v. United States, 30 Fed. Cl. 23, 26 (1995). On appeal, the
    court determined that summary judgment was improperly granted. The
    court found that the proper test to be applied was indeed the
    *Causby* test. The case was remanded for further findings regarding
    *Causby*'s requirement that the flights directly, immediately, and
    substantially interfered with the claimant's enjoyment and use of
    the land. 73 F.3d at 1106.

[^105]: Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124
    (1978).

[^106]: *Id.*

[^107]: 28 U.S.C. § 2501; *See* Powell v. United States, 1 Cl. Ct. 669
    (1983); Hero Lands v. United States, 1 Cl. Ct. 102, 106-07 (1984).

[^108]: *See* Brin v. United States, 159 Ct. Cl. 332, 339 (1962). The
    courts have also recognized that there may be a prior, or
    incremental taking. This is to say that if aircraft flights
    occurring before the six year statute of limitations created
    substantially the same level of interference, the action would be
    barred. If, however, there has simply been an increase in the amount
    of interference over that which existed prior to the six years, the
    courts may find only a partial taking, and compensation would be
    calculated accordingly. *See* Hero Lands v. United States, 1 Cl. Ct.
    102, 106-107 (1984); Hodges Indus., Inc. v. United State*s,* 355
    F.2d 592, 594 (Ct. Cl. 1966).

[^109]: Batten v. United States, 306 F.2d 580 (10th Cir. 1962), *cert.
    denied*, 371 U.S. 955 (1963).

[^110]: *Id.* at 582.

[^111]: *Id.* at 584.

[^112]: Freeman v. United States, 167 F. Supp. 541 (W.D. Okla. 1958).

[^113]: Pope v. United States, 173 F. Supp. 36 (N.D. Tex. 1959).

[^114]: Plaintiffs would not be able to recover under the Federal Tort
    Claims Act (FTCA), 28 U.S.C.A. §§ 1346(b) (1976), 2671-2680 (1994),
    if the overflights are within the navigable airspace or conducted
    pursuant to other Federal Aviation Administration (FAA) regulations.
    The FTCA only allows recovery

    > for injury or loss of property, or personal injury or death caused
    > by the negligent or wrongful act or omission of any employee of
    > the Government while acting within the scope of his office or
    > employment, under circumstances where the United States, if a
    > private person, would be liable to the claimant in accordance with
    > the law of the place where the act or omission occurred. 28
    > U.S.C.A. § 1346(b) (1976).

    Flights conducted within the navigable airspace, or pursuant to FAA
    regulations, are lawful and would not satisfy the FTCA's requirement
    that the damage or injury result from a negligent or wrongful act.
    For a thorough discussion of the FTCA's applicability to aircraft
    operations, *see* Robert A. Shapiro, *Federal Tort Claims Act:
    Claims Arising Out of Operation of Aircraft,* [5 A.L.R. Fed. 440
    (1970).]{.smallcaps}

[^115]: Jensen v. United States, 305 F.2d 444, 445 (Ct. Cl. 1962). In
    *Jensen,* the Government argued that the statute of limitations
    should bar the plaintiff's claim. The Government contended that
    flights of B-47 aircraft from McConnell Air Force Base began to
    interfere with plaintiff's land in 1951. The plaintiff asserted that
    the interference did not take place until sometime after 1952. The
    court found that in 1950, 1951 and early 1952, there were only about
    two tests of new aircraft a day at the base. The court compared that
    to the daily average of 700 flights per day occurring in 1958. In
    reaching its decision the court found:

    > "There is, unfortunately, no simple litmus test for discovering in
    > all cases when an avigation easement is first taken by
    > overflights. Some annoyance must be borne without compensation.
    > The point when that stage is passed depends on a particularized
    > judgment evaluating such factors as the frequency and level of the
    > flights; the type of planes; the accompanying effects, such as
    > noise or falling objects; the uses of the property; the effect on
    > values; the reasonable reactions of the humans below; and the
    > impact upon animals and vegetable life." *Id.* at 446.

[^116]: Aaron v. United States, 311 F.2d 798, 800 (Ct. Cl. 1963).

[^117]: *Id.*

[^118]: 328 U.S. at 266.

[^119]: 305 F.2d at 447-48.

[^120]: Speir v. United States, 485 F.2d 643 (1973). In *Speir*, the
    court found that flights by Army helicopters at altitudes as low as
    250 feet and generally below 500 feet over the plaintiffs residence
    and 683 acre farm constituted a taking. The helicopters involved
    overflew plaintiff's land to reach a temporary training strip
    constructed for use during the Vietnam war. During the 4 1/2 year
    period that the temporary landing site was in use the flights
    averaged between 9,434 to 11,533 flights per month. The court found
    that the flights interfered with television reception, telephone
    conversations and personal conversations. In addition, because the
    noise from the helicopters caused dove and quail to leave the land,
    the hunting on the land was ruined. The court found that this
    evidence supported a finding that there was a direct, immediate, and
    substantial interference with the land. Although the taking was
    temporary (4 1/2 years) the court found that it was compensable
    under the fifth amendment.

[^121]: *Id.* at 646.

[^122]: *See* Agins v. City of Tiburon, 447 U.S. 255, 261-62 (1980)
    (zoning that greatly reduced value of property not a taking where
    plaintiff could still build up to five homes on property); *see
    also*, Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978)
    (diminution in value alone does not affect a taking); Deltona v.
    United States, 657 F.2d 1184 (Cl. Ct. 1981) (diminution in value by
    itself cannot establish a taking).

[^123]: Prior to 1926, all the states essentially followed the common
    law doctrine, relying on state law to determine a property owner's
    compensable property interest. However, after the Air Commerce Act
    of 1926, Congress pre-empted regulation of the airspace; therefore,
    any state laws conflicting with the federal statute after that point
    would not serve to define the compensable property interest of the
    landowner.

[^124]: C. V. Glines, *Closing in on the Airfields*, [A. F.
    Mag.]{.smallcaps}, Jan. 1989, at 74.

[^125]: Air Installations Compatible Use Zones, 32 C.F.R. § 256 (1977)
    \[hereinafter AICUZ\].

[^126]: AFI 32-7063, *supra* note 4, ¶ 1.2.3.

[^127]: *See* AICUZ, *supra* note 125.

[^128]: *See* Glines, *supra* note 124.

[^129]: *Siting of HUD Assisted Projects in Runway Clear Zones at Civil
    Airports and Clear Zones and Accident Potential Zones at Military
    Airfields*, 24 C.F.R. § 51, subpart D (1984) \[hereinafter *Siting
    of HUD Projects*\].

[^130]: *Id*.

[^131]: *Id.*

[^132]: *See* Glines, s*upra* note 124.

[^133]: *See* 5 [Department of Defense, Base Closure and Realignment
    Report, Department of the Air Force Analyses and
    Recommendations]{.smallcaps} at 8 (Mar. 1995) (on file with author).
    DoD considered eight selection criteria to determine which bases to
    recommend for closure or realignment. The first four of these
    criteria were classified as "military value." They consisted of:

    > The current and future mission requirements and the impact on
    > operational readiness of the DoD's total force; 2) The
    > availability and condition of land, facilities and associated
    > airspace at both existing and potential receiving locations; 3)
    > The ability to accommodate contingency, mobilization, and future
    > total force requirements at both existing and potential receiving
    > locations; 4) The cost and manpower implications. *Id.* at 5-1.

    These four criteria were given priority consideration by the
    Commission. *Id*. The remaining four criteria included:

    > 5\) The extent and timing of potential costs and savings,
    > including the number of years, beginning with the date of
    > completion of the closure or realignment, for the savings to
    > exceed the costs; 6) The economic impact on communities; 7) The
    > ability of both the existing and potential receiving communities'
    > infrastructure to support forces, missions and personnel; The
    > environmental impact. In order to evaluate these selection
    > criteria, the Air Force identified 250 sub-elements to be
    > considered. *Id.,* app. 1 at 57.

    The sub-elements for the second criteria include, in part, existing
    local community encroachment and future local community
    encroachment, each of which require evaluation of development in
    each of the AICUZ zones.

[^134]: A major command is an Air Force command that is established by
    the authority of, specifically designated by, and directly
    subordinate to, Headquarters, Department of the Air Force.

[^135]: *See* AFI 32-7063, *supra* note 4, ¶ 1.3.4.3.

[^136]: *Id.*

[^137]: See AFI 32-7063, *supra* note 4 at ¶ 1.3.5.1., which requires
    that: "Each MAJCOM/CE and Director of Operations (MAJCOM/DO) reviews
    AICUZ aircraft operational and maintenance data at least every two
    years or as part of an Environmental Impact Analysis Process (EIAP)
    evaluation to determine the need for an AICUZ update." *Id.*
    (citations omitted).

[^138]: AICUZ*,* *supra* note 125, § 256.3(b) references the regulatory
    criteria for determining height restrictions. *See also*, 32-7063,
    *supra* note 4, ¶ 2.2., which directs that AICUZ study preparers are
    to use the land area and height restrictions explained in AFI
    32-1026, Planning and Design of Air Fields, for determining airspace
    obstructions. The Federal Aviation Administration's 14 C.F.R., FAR
    Part 77, Subpart C (1965) establishes standards for determining
    obstructions in navigable airspace.

[^139]: Bernard K. Schafer, *The Air Installation Compatible Use Zone
    Program: The Science and the Law*, [A.F. L. Rev.]{.smallcaps} 165,
    166 (1989).

[^140]: The location and size of APZs was initially determined based on
    the results of an Air Force study of 369 aircraft mishaps from 1968
    to 1972 that occurred within a 10 nautical mile radius of airfields.
    This study was updated in 1990. There were, however, no changes made
    to the geographical parameters of APZs as a result of the updated
    information. Telephone Interview with John Baie, Program Manager,
    Air Force Environmental Planning Division, HQ USAF/CEVP, (May 29,
    1996).

[^141]: The area immediately beyond the end of a runway is the "Clear
    Zone," an area which possesses a high potential for accidents, and
    has traditionally been acquired by the Government in fee and kept
    clear of obstructions to flight. *See* AICUZ, *supra* note 125, §
    256.3(c)(2)(i).

[^142]: Accident Potential Zone I is the area beyond the clear zone
    which possesses a significant potential for accidents. *See* AICUZ,
    *supra* note 125, § 256.3(c)(2)(ii).

[^143]: Accident Potential Zone II is the area beyond APZ I having a
    measurable potential for accidents. *See* AICUZ, *supra* note 125, §
    256.3(c)(2)(iii).

[^144]: Schafer, *supra* note 139, at 170.

[^145]: The location and size of an APZ depends on whether the runway is
    Class A or B. The only Class A runway currently operated by the Air
    Fore is at Patrick AFB, Fl. *See* AICUZ*, supra* note 125, §
    256.3(c). DoD Fixed wing runways are separated into two types for
    the purpose of defining accident potential areas. Class A runways
    are those restricted to light aircraft and which do not have the
    potential for development for heavy or high performance aircraft use
    or for which no foreseeable requirement for such use exists. *See*
    AICUZ, *supra* note 125 § 256.6. Typically, these runways have less
    than 10% of their operations involving Class B aircraft and are less
    than 8000 feet long. *Id.* Class B runways are all other fixed wing
    runways. As for Class A runways, the dimensions of these zones were
    reduced to reflect the equally reduced size and danger of the
    aircraft operating there. As a result, for Class A runways, the CZ
    is 3000 feet long, but only 1000 feet wide; APZ 1 is 2500 feet long
    and 1000 feet wide; and APZ II is 2500 feet long and 1000 feet wide.
    *See* Schafer, *supra* note 139, at 170.

[^146]: AICUZ*,* *supra* note 125, § 256.4(b)(2)(ii)(A).

[^147]: *Id.* § 256.4(b)(2)(ii)(B).

[^148]: *Id.* § 256.4.

[^149]: *Id.* § 256.8.

[^150]: Environmental Criteria and Standards, 24 C.F.R. § 51.100 (1979).

[^151]: *See* Schafer, *supra* note 139, at 172.

[^152]: Federal Interagency Committee on Urban Noise, Guidelines for
    Considering Noise in Land Use Planning and Control, Table D-1, Note
    (1980) (on file with author) \[hereinafter *Guidelines*\].

[^153]: Schafer, *supra* note 139, at 172.

[^154]: Guidelines*, supra* note 152, at 1.

[^155]: *Id*. at Table D-1.

[^156]: Schafer, *supra* note 139, at 172.

[^157]: *Id.*

[^158]: *See* J. Scott Hamilton, *Allocation of Airspace as a Scarce
    National Resource*, 22 [Transp. L.J.]{.smallcaps} 251, 260 (1994).

[^159]: *Id.*

[^160]: *Guidelines, supra* note 152, at iii.

[^161]: *Id*. at Table 2.

[^162]: *Id*. at Table D-2.

[^163]: *See* AFI 32-7063, *supra* note 4, ¶ 1.3.4.3. The noise contour
    maps are generated by placing the data related to a specific base
    into a standard computer model.

[^164]: AICUZ*,* *supra* note 125, § 256.3(d)(2)(i). S*ee also* AFI
    32-7063, *supra* note 4, ¶ 2.4.

[^165]: Telephone Interview with John Baie, Program Manager, Air Force
    Environmental Planning Division (HQ USAF/CEVP) (May 29, 1996).

[^166]: AFI 32-7063, *supra* note 4, ¶ 1.2.3.

[^167]: AICUZ, *supra* note 125, § 256.4(b)(1)(i).

[^168]: Compatible Land Uses at Federal Airfields, Federal Management
    Circular 75-2, (Sept. 30, 1975).

[^169]: *Id.* ¶ 4.b.

[^170]: *See* AFI 32-7063*, supra* note 4, ¶ 1.3.4.3. "MAJCOM/CE
    releases the installation AICUZ update study in a public meeting
    with local and areawide officials. HQ USAF/CEV coordinates with the
    congressional delegations (before public release) and federal
    officials (after public release) in Washington D.C." The Air Force
    Center for Environmental Excellence, Regional Compliance Office
    "coordinates the study with federal regional offices after public
    release. The MAJCOM/CE ensures coordination of the study with the
    Executive Order (EO) 12372, Interagency Review of Federal Programs,
    state single point of contact immediately after public release."
    *Id*.

[^171]: *See* De-Tom, Enters., Inc. v. United States, 552 F.2d 337 (Ct.
    Cl. 1977).

[^172]: AFI 32-7063, *supra* note 4, ¶ 1.2.3.

[^173]: Schafer, *supra* note 139, at 178.

[^174]: *See*, *Siting of HUD Projects*, *supra* note 129. There is,
    however, a limited exception to this policy if noise attenuation
    construction techniques are used to reduce decibel levels. *See
    supra* note 158 and accompanying text for an explanation of Ldn.

[^175]: Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

[^176]: *Id*. at 1027.

[^177]: Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).

[^178]: *See* Nectow v. City of Cambridge, 277 U.S. 183 (1928).

[^179]: *See* Hadacheck v. Sebastian, 239 U.S. 394 (1915), in which the
    Supreme Court upheld an ordinance that prohibited the operation of a
    brickyard in residential neighborhoods. The effect of the ordinance
    was a dramatic reduction of the value of plaintiff's property. The
    Court held there was no taking, even though the plaintiff's brick
    yard pre-dated the residential neighborhood. As a result, the
    plaintiff received no compensation.

[^180]: *See* Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987).
    In *Nollan*, the California Coastal Commission granted a permit to
    appellants to replace a small bungalow on their beach front lot with
    a larger house upon the condition that they allow the public an
    easement to pass across their beach, which was located between two
    public beaches. The Court found that although the outright taking of
    an uncompensated, permanent, public-access easement would violate
    the Takings Clause, conditioning appellants' rebuilding permit on
    their granting such an easement would be a lawful land-use
    regulation if it substantially furthered governmental purposes that
    would justify denial of the permit. The government's power to forbid
    particular land uses in order to advance some legitimate police
    power purpose includes the power to condition such use upon some
    concession by the owner, even a concession of property rights, as
    long as the condition furthers the same governmental purpose
    advanced as justification for prohibiting the use. *Id.* In
    *Nollan,* the Court found that none of the State's justifications
    for requiring the easement were plausible. The State had argued that
    the easement was necessary to protect the public's ability to see
    the beach; to assist the public in overcoming a perceived
    "psychological barrier to using the beach; and to prevent beach
    congestion." *Id*. at 835. *See also* Dolan v. City of Tigard, 572
    U.S. 374 (1994). In *Dolan*, the plaintiff challenged the decision
    of the Oregon Supreme Court which held that the City of Tigard could
    condition the approval of her building permit on the dedication of a
    portion of her property for flood plain control and for a
    pedestrian/ bicycle pathway. The Court in *Dolan* found that the
    city must make some sort of individualized determination that the
    required dedication is related both in nature and extent to the
    impact of the proposed development. The Court called this a "rough
    proportionality" test. The Court found that the first issue to be
    determined is whether the essential nexus exists between the
    legitimate state interest and the permit condition exacted by the
    city. The second part of the analysis requires a determination
    whether the degree of the exaction demanded by the city's permit
    conditions bears the required relationship to the projected impact
    on petitioner's proposed development. The Court found that the
    city's justifications did not show the required reasonable
    relationship between the floodplain easement and the petitioner's
    proposed new building. The case was remanded for further proceedings
    consistent with the Court's opinion.

[^181]: De-Tom Enters., Inc. v. United States, 552 F.2d 337 (Ct. Cl.
    1977).

[^182]: *Id*. at 341.

[^183]: *Id.*

[^184]: *Id.*

[^185]: *Id.*

[^186]: *Id.*

[^187]: *Id*

[^188]: *Id.* at 339.

[^189]: *Id*. at 339-40.

[^190]: *See* Blue v. United States, 21 Cl. Ct. 359 (1991); De-Tom
    Enters., Inc. v. United States, 552 F.2d 337, 339 (Ct. Cl. 1977);
    Lynch v. United States, 221 Ct. Cl. 979, 981 (1979); Nalder v.
    United States, 217 Ct. Cl. 686 (1978); Gilliland v. United States,
    215 Ct. Cl. 953 (1977).

[^191]: *See* Gilliland v. United States, 228 Ct. Cl. 709 (1981) In
    *Gilliland*, the plaintiffs owned a 33 acre tract close to an Air
    Force Base near Palmdale, California, known as plant 42. The court
    found that although the Air Force strenuously objected to the
    plaintiffs' applications in 1973 to the authorities in the county of
    Los Angeles and the City of Palmdale for a rezoning from
    agricultural to commercial, no improprieties were shown. *See also*
    NBH Land Co. v. United States, 576 F.2d 317 (Ct. Cl. 1978). In *NBH
    Land Co*., the plaintiffs claimed that announced plans by the Army
    to expand Fort Carson, Colorado, by acquiring plaintiffs' land, and
    the Army's public opposition to zoning changes which would allow the
    plaintiffs to develop their lands as a private subdivision, amounted
    to a taking of their land. The court found that "use and
    exploitation of local zoning along with other acts and omissions,
    can make up a combination that, all taken together, effectively
    deprives the owner of the benefit and use of his property, and
    constitutes a taking." *Id.* at 314. However, the court found that
    the Army's actions did not rise to this level, and no taking
    occurred. The court stressed the fact that the plans to expand the
    Fort had been abandoned as a result of Congress' refusal to fund the
    project. *Id.*

[^192]: *See* Drakes Bay Land Co. v. United States, 424 F.2d 574 (Ct.
    Cl. 1970). In this case, the plaintiff, a corporation, purchased a
    tract of land in 1960 with the intention of subdividing it. In
    November 1962, legislation was passed which authorized the National
    Park Service to acquire lands for the creation of the Point Reyes
    National Seashore. The legislation specifically set out the metes
    and bounds for the seashore which included the plaintiff's land. The
    National Park Service, however, took no action to acquire the
    property. The court found that where "Congress authorized the
    acquisition of lands by purchase, exchange or otherwise to create a
    national seashore and where the government refused to purchase
    plaintiff's land contrary to the intent of the Act, the government
    effectively acquired the use of the land without payment, and must
    pay just compensation." *Id*.

[^193]: Stephens v. United States, 11 Cl. Ct. 352, 363 (1986). In
    *Stephens*, the plaintiff alleged that overflights from nearby Hill
    AFB had resulted in a taking of his land. In determining that there
    was no taking, the court examined the noise impacts on the
    plaintiff's land as recorded in the base's AICUZ study. In
    discussing the impacts of an AICUZ study, the court noted that
    "\[t\]he reports are advisory only, and the determination to build
    is ultimately left to the local jurisdiction." Id. at 363.

[^194]: *See* Branning v. United States, 654 F.2d 88 (Ct. Cl. 1981).

[^195]: *See supra* notes 68-78 and accompanying text.

[^196]: 654 F.2d at 95.

[^197]: *Id*. at 96.

[^198]: *See* Mesa Ranch Partnership v. United States, 2 Cl. Ct. 700
    (1983); Sayre v. United States, 282 F. Supp. 175 (N.D. Ohio 1967);
    NBH Land Co. v. United States, 576 F.2d 317 (Ct. Cl. 1979); Barsky
    v. City of Wilmington, 578 F. Supp. 170, 174 (D. Del. 1983).

[^199]: 654 F.2d at 92 n.4 ("Clearly UnacceptableΤhe noise exposure at
    the site is so severe that construction costs to make indoor
    environment acceptable for performance of activities would be
    prohibitive. \[Residential areas: The outdoor environment would be
    intolerable for normal residential use.\]").

[^200]: *Id.* n.5 ("Normally unacceptableThe noise exposure is
    significantly more severe so that unusual and costly building
    constructions are necessary to insure adequate performance of
    activities.").

[^201]: *Id.* at 96.

[^202]: *Id.*

[^203]: *See* Charles W. Gittins, *Branning v. United States: The Sound
    of Freedom or Inverse Condemnation*, [Naval L. Rev.,]{.smallcaps}
    Winter 1986, at 109.

[^204]: AFI 32-7063, *supra* note 4, ¶ 4.1. states:

    > MAJCOM/CE must acquire real property interest over all property
    > within the clear zone. . . . The only real property interests
    > acquired are those necessary to prevent incompatible land use in
    > the end-of-runway clear zone. MAJCOM/CE is responsible for
    > identifying private lands within the clear zone, for determining
    > the real property interests in accordance with AFI 32-9001,
    > Acquisition of Real Property*. Id*.

[^205]: AICUZ*, supra* note 125, § 256.4(b)(iii)(d)(1) states that:

    > Any actions taken with respect to safety of flight, accident
    > hazard, or noise which involve acquisition of interests in land
    > must be examined to determine the necessity of preparing an
    > environmental impact statement in accordance with DoD Directive
    > 6050.1, Environmental Considerations in DoD Actions, March 19,
    > 1974 (32 C.F.R. part 214). *Id.*

[^206]: AICUZ, *supra* note 125, § 256.4(b)(2)(ii)(B).

[^207]: *Id*. § 256.4.

[^208]: *Id*. § 256.4(b)(2)(i).

[^209]: *Id*. § 256.9 contains a listing of possible interests which
    should be examined for applicability.

[^210]: *See* 10 U.S.C. § 2676 (1996).

[^211]: This limitation, however, does not apply "to the acceptance by a
    military department of real property acquired under the authority of
    the Administrator, General Services, to acquire property by the
    exchange of Government property pursuant to the Federal Property and
    Administrative Services Act of 1949, as amended (40 U.S.C. 471 et
    seq.)." 10 U.S.C. § 2676(a) (1996).

[^212]: Telephone Interview with Ronald A. Forcier, Chief, Real Property
    Branch, Air Force Legal Services Agency, Environmental Litigation
    Division (May 3, 1996).

[^213]: *Id.*