Present: All the Justices 

VIRGINIA HIGHLANDS AIRPORT AUTHORITY 

 OPINION BY 

v. Record No. 080286 JUSTICE LEROY F. MILLETTE, JR. 

 January 16, 2009 

SINGLETON AUTO PARTS, INC. 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Larry B. Kirksey, Judge 

This appeal involves the interaction of a local zoning 

ordinance establishing an airport safety overlay zone and an 

avigation easement1 sought by the Virginia Highlands Airport 

Authority2 (Airport Authority) to remove obstructions on the 

property of Singleton Auto Parts, Incorporated (Singleton), 

which were preserved pursuant to a grandfather clause in the 

ordinance. We are presented with the novel issue whether the 

easement constitutes a taking of airspace requiring compensation 

when the property was already subject to preexisting 

restrictions on development imposed by the ordinance. 

We hold that the easement constituted a taking only to the 

extent that it created a right in the Airport Authority to 

remove the grandfathered obstructions situated on the property 

which penetrated the existing approach zone for incoming and 

 1

 An avigation easement is defined as “[a]n easement 

permitting unimpeded aircraft flights over the servient estate.” 

Black’s Law Dictionary 549 (8th ed. 2004).

2

 The Virginia Highlands Airport Commission’s name was 

changed to the Virginia Highlands Airport Authority by action of 

the Board of Supervisors of Washington County, Virginia.
outgoing aircraft. We therefore will reverse the trial court’s 

judgment entering the jury’s verdict and remand for a new trial 

on damages resulting from the limited taking. 

BACKGROUND

In 1998, the Town of Abingdon enacted the Virginia 

Highlands Airport Safety Overlay Zone (the Ordinance), which was 

“designed to identify and regulate obstructions within that 

airspace” with the intent of “prevent[ing] any obstruction that 

has the potential for endangering the lives and property of the 

users of the Virginia Highlands Airport [(the Airport)] and the 

residents of the Town of Abingdon” or “reduc[ing] the size of 

areas available for landing, takeoff and maneuvering of 

aircraft, thus tending to destroy or impair the utility of the 

airport and the public investment therein.” The Ordinance was 

enacted in compliance with former Code § 15.1-491.02, 

predecessor of Code § 15.2-2294 (“Airport safety zoning”).3

 3 Code § 15.2-2294 reads in its entirety: 

Every locality (i) in whose jurisdiction a 

licensed airport or United States government or 

military air facility is located or (ii) over 

whose jurisdiction the approach slopes and other 

safety zones of a licensed airport, including 

United States government or military air facility 

extend shall, by ordinance, provide for the 

regulation of the height of structures and natural 

growth for the purpose of protecting the safety of 

air navigation and the public investment in air 

navigation facilities. The ordinance may be 

adopted regardless of whether the local governing 

2
“Approach zone” is defined by the Ordinance as “[a] zone that 

extends away from the end of the primary surface with the floor 

set by the approach surface for a distance set by the 

regulations” and “approach surface” is defined as “[a] surface, 

whose design standards are set by the regulations, 

longitudinally centered on a runway centerline, extending 

outward and upward from the end of the primary surface, and at 

the same slope as the approach zone height limitation slope.” 

(Emphasis added). Pursuant to the Ordinance, both the approach 

surface and approach zone, which together provide an area of 

clearance for incoming and outgoing aircraft, are set by 

“regulations,” defined therein as “Part 77.25 et seq., 

Subchapter E (Airspace) of Title 14 of the Code of Federal 

Regulations and/or its successor federal regulations, as they 

may be amended or substituted from time to time.” 

The Ordinance also provides that 

in any zone created by th[e] ordinance . . . no 

vegetation shall be allowed to grow to a height so 

as to penetrate any referenced surface . . . of 

any zone provided for in this article at any 

point. The height restrictions, or floors, for 

the individual zones shall be those planes 

 

body has adopted a zoning ordinance applicable to 

other land uses in the locality. The ordinance may 

be designed and adopted by the locality as an 

overlay zone superimposed on any preexisting base 

zone. 

The provisions of the airport safety zoning 

ordinance shall be in compliance with the rules of 

the Virginia Aviation Board.

3
delineated as surfaces in Part 77.25 et seq. . . . 

of Title 14 of the Code of Federal Regulations. 

The Ordinance did, however, contain a grandfather clause 

preserving any nonconforming structure or vegetation within the 

approach zone so long as the structure or vegetation was in 

existence when the Ordinance was enacted. 

In April 2005, the Airport Authority filed a petition for 

condemnation of an avigation easement, seeking to condemn rights 

to airspace over property owned by Singleton. The Airport 

Authority sought in its petition for the easement 

[t]he continuing perpetual right to clear, and 

keep clear, with the right to remove any natural 

growth or man-made structure to the ground . . . 

infringing upon or extending into that airspace 

about or above a plane on a slope . . . extending 

outward from the runway end at a distance of 

10,000 feet along the extended centerline of the 

runway . . . and extending at a slope of one (1) 

foot rise for every thirty four (34) feet 

horizontal distance along the extended centerline. 

(Emphasis added). 

The Airport Authority wanted to superimpose the dimensions 

of the easement on the dimensions of the Ordinance and thereby 

obtain the right to remove any vegetation or structure that had 

been grandfathered under the Ordinance and penetrated the 34 to 

1 approach slope. According to the Airport Authority, the exact 

airspace dimensions included in the easement had already been 

restricted upon the enactment of the Ordinance. In its Petition 

for Condemnation, the Airport Authority sought to remove some 

4
trees on Singleton’s property that existed on the effective date 

of the Ordinance, because they penetrated the 34 to 1 approach 

surface.4

Singleton filed a motion in limine to “prohibit the 

[Airport Authority] from arguing that it does not need to take 

the easement because it already has the rights under the zoning 

ordinance.” The Airport Authority filed motions in limine 

seeking to exclude evidence of damages to Singleton’s property 

that Singleton claimed from its inability to build into the 34 

to 1 approach surface above the property as a result of the 

easement. The Airport Authority also sought to exclude evidence 

of damages to Singleton’s property caused by increased noise, 

vibrations, fumes, and traffic because of lower flights over the 

property due to the easement. 

The trial court ruled that the Airport Authority’s 

contention that the easement did not take any airspace rights 

from Singleton because the Ordinance had already created the 34 

to 1 approach zone was a “matter for [determination by] the 

finder of fact.” The trial court allowed the Airport Authority 

to present evidence as to the existence of the Ordinance, but no 

opinion testimony as to its effect upon Singleton’s ownership 

rights. Singleton was permitted to introduce evidence of 

 4

 The top of the tallest tree on the Singleton property 

penetrated the 34 to 1 approach slope by approximately 12 feet. 

5
damages caused by restrictions on vertical development imposed 

by the easement regardless of the preexisting Ordinance, as well 

as evidence of the effect of lower flights and resultant 

increased noise, vibrations, fumes, and traffic. 

The issue for the jury was compensation to Singleton for 

the easement obtained by the Airport Authority. The Airport 

Authority called Matthew D. Ripley as its expert real estate 

appraiser. Ripley recognized that there were preexisting 

limitations on building on Singleton’s property imposed by the 

Ordinance. Ripley demonstrated his understanding of the 

Ordinance when he testified that 

[t]he easement provides the ability to remove 

obstructions above the elevation of the existing 

zoning overlay zone. . . . The only obstructions 

that are outside of the zoning ordinance that 

would be [a]ffected by this easement are the pine 

trees . . . at the back of the property. 

Ripley placed no value on the existence of the easement or on 

the trees, because the trees were inconsistent with the 

property’s best use as commercial property. Instead, Ripley 

valued just the right to go onto the property and remove the 

trees. Based on this analysis, Ripley concluded: 

[T]he compensation should be nominal because you 

can’t – there’s not going to be any use that you 

couldn’t do after the easement is put in place 

. . . . So, the compensation is based – a nominal 

value on the underlying land and I put one percent 

of the underlying land value which is $1,600 based 

6
on the $160,000 of the land value at the 

beginning.5

Singleton called two witnesses to testify about damages: 

Andrew Hargroves, an expert in real estate evaluations; and 

David Castle, an expert real estate appraiser. Castle testified 

that the easement reduced the value of the Singleton property by 

$50,000, with $25,000 attributed to the rear portion of the 

property and $25,000 to the front portion of the property.6 

Castle opined that his damages figures represent the rights 

taken by the easement and that the damage is created by the 

easement’s proximity to the Singleton property. 

Hargroves valued Singleton’s damages at $100,000. 

Hargroves testified that the damages were based upon the height 

limitations on the rear portion of the property and upon the 

limitation of market interest in the property because of the 

noise factor associated with the property’s location directly 

under the flight path of the Airport. However, Hargroves 

acknowledged that he did not understand the Ordinance. 

The jury returned a verdict in favor of Singleton for 

$130,000, comprised of $80,000 for the taking of Singleton’s 

property plus $50,000 for damages to the residue. The Airport 

 5

 Ripley valued Singleton’s 1.6 acres of land, exclusive of 

the auto parts building, at $100,000 per acre. 

6

 The front half of the Singleton property is zoned 

commercial. The rear portion is zoned residential, though it is 

used for commercial purposes. 

7
Authority filed exceptions to the jury’s verdict, asking the 

trial court to set it aside. The trial court overruled the 

Airport Authority’s exceptions and entered judgment on the 

verdict. This appeal followed. 

DISCUSSION

The central dispute in this case is whether the easement 

constituted a taking of airspace rights from Singleton which 

Singleton retained after the enactment of the Ordinance. In 

order to resolve this issue, we must determine the approach 

zone, approach surface, and corresponding approach slope 

authorized for the Airport’s runway 24 by the Ordinance upon its 

enactment in 1998. 

The Airport Authority argues that pursuant to the 

Ordinance, runway 24’s approach surface extends for a horizontal 

distance of 10,000 feet at a slope of 34 to 1. Singleton 

counters that pursuant to the Ordinance, the approach surface 

extends for a horizontal distance of 5,000 feet at a slope of 20 

to 1, which sits above the 34 to 1 approach slope and therefore 

at a greater distance above the property. The ratios 34 to 1 

and 20 to 1 designate slopes representing “imaginary surfaces” 

designed by the Federal Aviation Administration. 

The Airport Authority supports its argument by referring to 

the language of 14 C.F.R. § 77.25(d)(2) (2007) in conjunction 

with evidence of the type of aircraft that use runway 24. The 

8
Airport Authority asserts that the Ordinance is silent on the 

approach zone and approach surface, which form the approach 

slope. Further, the Airport Authority argues that the Ordinance 

incorporates specific federal regulations. The Airport 

Authority contends that those regulations must be considered in 

determining the approach slope set by the Ordinance. 

Colonel Ronald V. Deloney, manager of the Airport, 

testified at trial that runway 24 is a “nonprecision instrument 

runway[], other than utility.” Colonel Deloney also testified 

that the Airport has a physical weight bearing capacity of 

30,000 pounds for single wheel aircraft and, for this reason, 

large aircraft had been operating at the Airport since about 

1989. Large aircraft have also been stationed in the Airport’s 

hangars and flown in and out of the Airport. Colonel Deloney 

defined large aircraft as weighing more than 12,500 pounds. He 

explained that the Airport is currently designated as type B-II 

small, but with a 34 to 1 approach slope free of obstructions, 

it would be designated as type B-II large. The B-II large 

designation indicates that aircraft weighing over 12,500 pounds 

could safely use runway 24. Colonel Deloney acknowledged that 

the Airport was operating with a 20 to 1 approach slope due to 

then existing obstructions. 

In response, Singleton called Susan Van Fleet, owner of a 

flight school at the Airport, who testified that the current 

9
approach slope for runway 24 was 20 to 1. Singleton also relied 

upon two documents: the Virginia Highlands Airport Layout Plan 

Update (Layout Plan), which was based on conditions as they 

existed in August 2002; and an Obstruction Study prepared for 

Virginia Highlands Airport Commission by Delta Airport 

Consultants, Incorporated (Obstruction Study), which was dated 

March 2000. Specifically, Singleton highlighted in its argument 

the Layout Plan’s language that “Virginia Highlands Airport 

currently has a non-precision instrument approach for Runway 24, 

and the approach slope is 20:1, for small aircraft (less than 

12,500 pounds)” and the Obstruction 

Study’s statement that “[t]he localizer approach to Runway 24 is 

currently in use with operations limited to aircraft less than 

12,500 lbs, which only requires a 20:1 approach slope.” Based 

on these excerpts and Van Fleet’s testimony, Singleton argues 

the easement constituted a taking of not only the trees, but of 

over 100 feet of airspace representing the difference between 

the existing 20 to 1 approach slope and the lower 34 to 1 

approach slope obtained by the Airport Authority through the 

easement. Singleton asserts that because the 34 to 1 approach 

slope would allow aircraft to fly lower over its property, 

Singleton claims damages from increased noise, vibrations, 

fumes, and traffic due to the condemnation. 

10
In order to ascertain the effect of the 1998 Ordinance on 

Singleton’s property, we must interpret the Ordinance in 

conjunction with the federal regulations referenced therein to 

determine whether the Ordinance created a safety overlay zone 

with an approach slope of 34 to 1 or an approach slope of 20 to 

1. It is well-established that an issue of statutory 

interpretation such as this is a pure question of law subject to 

this Court’s de novo review. Budd v. Punyanitya, 273 Va. 583, 

591, 643 S.E.2d 180, 184 (2007); Virginia Polytechnic Inst. & 

State Univ. v. Interactive Return Serv., Inc., 271 Va. 304, 309, 

626 S.E.2d 436, 438 (2006); Ainslie v. Inman, 265 Va. 347, 352, 

577 S.E.2d 246, 248 (2003). 

The Ordinance is silent regarding the creation of an 

approach slope for runway 24 and instead refers to “Part 77.25 

et seq., Subchapter E (Airspace) of Title 14 of the Code of 

Federal Regulations and/or its successor federal regulations, as 

they may be amended or substituted from time to time” to 

establish mandatory approach surfaces at the Airport. The 

relevant federal regulation is 14 C.F.R. § 77.25(d)(2), which 

reads in pertinent part: “The approach surface extends for a 

horizontal distance of: (i) 5,000 feet at a slope of 20 to 1 for 

all utility and visual runways; [and] (ii) 10,000 feet at a 

slope of 34 to 1 for all nonprecision instrument runways other 

than utility; . . .” 

11
It is uncontested that runway 24 is a nonprecision 

instrument runway. Therefore, the key inquiry is whether it is 

a utility runway. If it is a utility runway, the federal 

regulations require only a 20 to 1 approach slope, but, if it is 

not, they require a 34 to 1 approach slope. Pursuant to 14 

C.F.R. § 77.2 (2007), “[u]tility runway means a runway that is 

constructed for and intended to be used by propeller driven 

aircraft of 12,500 pounds maximum gross weight and less.” The 

evidence reveals that aircraft weighing over 12,500 pounds have 

used runway 24 since approximately 1989 because the runway’s 

weight bearing capacity is 30,000 pounds. At oral argument on 

appeal, Singleton attempted to avoid this evidence by arguing 

that pilots retain discretion regarding the landing of their 

aircraft. “[I]f a pilot feels confident, capable in himself and 

his equipment he can land a larger plane there.” The federal 

regulations provide no such discretion. According to the plain 

language of 14 C.F.R. § 77.25(d)(2), if airplanes weighing over 

12,500 pounds are utilizing a nonprecision runway, then a 34 to 

1 approach slope is required to ensure sufficient clearance for 

safety purposes. 

The Layout Plan and Obstruction Study relied upon by 

Singleton in support of its argument actually provide greater 

support to the Airport Authority’s position than to Singleton’s 

position. The documents state that after the promulgation of 

12
the Ordinance the Airport was entitled to use a 34 to 1 approach 

slope for runway 24, but was prevented from doing so due to 

obstructions such as the trees on Singleton’s property. Runway 

24’s publication of a 34 to 1 approach slope was subject to the 

removal of obstructions through the acquisition of avigation 

easements, whereas an unobstructed 20 to 1 approach slope could 

already be published to indicate its safe use.7

According to the Layout Plan, which was based on conditions 

as they existed in August 2002, 

[t]he runway pavement strength is listed as a 

12,500 pound single wheel gear configuration 

. . . . The actual pavement strength of Runway 6-

24 is 30,000 pounds single gear. However, the 

actual strength cannot be published until 

obstructions are removed from the Runway 24 end to 

allow a 34:1 approach slope.8

Additionally, the Layout Plan states: 

Virginia Highlands Airport currently has a nonprecision instrument approach for Runway 24, and 

the approach slope is 20:1, for small aircraft 

(less than 12,500 pounds). The Airport is 

presently conducting an obstruction program to 

acquire avigation easements and to remove 

penetrations (primarily trees) to the Runway 24 

34:1 approach surface. Once the obstructions are 

removed, the approach slope for Runway 24 can be 

 7 The Federal Aviation Administration (FAA) publishes the 

weight bearing capacity of runways. The Airport cannot 

currently be published in the official FAA document as having a 

pavement strength of anything more than 12,500 pounds because it 

only has an unobstructed 20 to 1 approach surface.

8

 The airport has one physical runway, designated as runway 

6 for aircraft proceeding southwest to northeast and as runway 

24 for aircraft proceeding northeast to southwest. Airport 

Authority’s Opening Br. 8. This appeal concerns only runway 24. 

13
published to a slope of 34:1, allowing large 

aircraft (greater than 12,500 pounds) to utilize 

the runway. 

The recommendation provided in the Layout Plan was to “maintain 

the non-precision greater than 3/4th mile visibility approach 

surface,” defined as having a 34 to 1 approach slope. 

The Obstruction Study, dated March 2000, states that “[f]or 

the purposes of the [Federal Aviation Regulation] Part 77 

obstruction analysis, Virginia Highlands Airport is considered a 

public use airport with one larger than utility runway. The 

airport . . . utilizes a non-precision instrument approach to 

Runway 24.” The Obstruction Study contains a recommendation 

that “clearing of obstructions to Runway 24 Approach and 

Transitional Surfaces should be addressed as a priority project 

by the Virginia Highlands Airport Commission, if Runway 24 is to 

be used for a 34:1 approach” and, “[i]n the interim, the current 

20:1 approach should be maintained.” 

This evidence, combined with testimony by the Airport’s 

manager that runway 24 was currently operating with a 20 to 1 

approach slope due to the existence of obstructions, leads us to 

the conclusion that, when the easement was requested, runway 24 

was a “nonprecision instrument runway[] other than utility” 

required by 14 C.F.R. § 77.25(d)(2) to have a 34 to 1 approach 

slope, but could not be designated as such in publications until 

the obstructions were removed. Therefore, the easement imposed 

14
the same restrictions on Singleton’s vertical development as did 

the Ordinance. 

“Compensatory damages are those allowed as a recompense for 

loss or injury actually sustained.” Dillingham v. Hall, 235 Va. 

1, 3, 365 S.E.2d 738, 739 (1988) (emphasis added). In 

condemnation cases, “‘[t]he measure of compensation for the 

property taken is the fair market value of the property at the 

time of the taking. In determining fair market value, 

consideration is given to the property’s adaptability and 

suitability for any legitimate purpose in light of conditions 

and circumstances that exist at the time of the take or that 

reasonably may be expected in the near future.’” Revocor Corp. 

v. Commonwealth Transp. Comm’r, 259 Va. 389, 394, 526 S.E.2d 4, 

7 (2000) (quoting Lynch v. Commonwealth Transp. Comm’r, 247 Va. 

388, 391, 442 S.E.2d 388, 389-90 (1994)). When there is only a 

partial taking, “the measure of damages to the residue of the 

property not taken is the difference in the fair market value of 

the residue immediately before and immediately after the 

taking.” Commonwealth Transp. Comm’r v. Glass, 270 Va. 138, 

154, 613 S.E.2d 411, 420 (2005) (quoting City of Virginia Beach 

v. Oakes, 263 Va. 510, 516, 561 S.E.2d 726, 728-29 (2002)). By 

ignoring the existence of the Ordinance, Singleton’s evidence of 

damages created a false inference of a decrease in fair market 

value as a result of the taking. Singleton had no fewer rights 

15
to the airspace above the 34 to 1 approach surface when the 

Airport Authority obtained the easement than it did after the 

Ordinance was enacted in 1998. 

Moreover, “a landowner whose property is affected by a 

partial taking may not recover damages to the residue if such 

damages are remote or speculative.” Oakes, 263 Va. at 516, 561 

S.E.2d at 729; Revocor Corp., 259 Va. at 394, 526 S.E.2d at 7-8; 

Lynch, 247 Va. at 391, 442 S.E.2d at 389-90. Singleton 

presented only the possibility of future lower flights over its 

property and resultant increased noise, vibrations, fumes, and 

traffic to the jury, without any evidence from which the jury 

could quantify damages. The inclusion of such remote and 

speculative possibilities in the evidence the jury was allowed 

to consider in fixing the damage award was plain error. 

The trial court erred by denying the Airport Authority’s 

motions in limine and by allowing Singleton to present its case 

as though the Ordinance had no effect upon its property. 

Singleton’s experts ignored the Ordinance in their appraisals, 

and Singleton, in closing, told the jury: “We hear about some 

ordinance that I’ve yet to figure out.” With the exception of 

damages for the removal of the trees on Singleton’s property 

penetrating the 34 to 1 approach surface, the trial court erred 

by permitting Singleton to present evidence of damages from a 

taking of rights in airspace Singleton did not possess after the 

16
17

promulgation of the Ordinance. The trial court further erred by 

permitting Singleton to present evidence of speculative damages 

from future lower flights over the property and increased noise, 

vibrations, fumes, and traffic. As a result of these errors, 

the trial court allowed Singleton to present an inappropriate 

measure of damages. 

For the reasons stated, we will reverse the judgment of the 

trial court and remand for a hearing on the limited issue of 

damages to Singleton’s property from the Airport Authority’s 

right to remove the trees obstructing the 34 to 1 approach zone. 

Reversed and remanded.