On June 21, 2019, the Supreme Court, in a decision by Chief Justice John Roberts, chose to overrule a lower Appellate Court and almost a century of precedent which purportedly required property owners whose property is “taken” by state or local government agencies, either through regulation or physical incursion, to go through local and state legal processes before turning to the federal courts for relief under the Fifth Amendment to the United States Constitution.

Under the new ruling in Knick v. Township of Scott, Pennsylvania, 588 U.S. ___ (2019), the court majority (consisting of Roberts, Alito, Gorsuch, Thomas and Kavanaugh) ruled that property owners may bring Fifth Amendment claims for compensation as soon as their property has been taken, “regardless of any post-taking remedies that may be available to the property owner,” citing Jacobs v. United States, 290 U.S. 13, 17 (1933), under state or local law.

The Fifth Amendment to the United States Constitution states categorically “nor shall private property be taken for public use, without just compensation.” The devil, of course, is in the definitions. The Supreme Court has broadened its interpretation of the term “taking” over the years, from “physical occupation of property,” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); to regulation that comes close to physical occupation by conditioning the grant of a government approval upon a relinquishment of some or all of property interest, e.g., an easement, over real property, Nollan v. California Coastal Commission, 483 U.S. 825 (1987); to a regulation that deprives property of all of its economically viable use, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

The dissent, however, chose to agree with the lower court and to rely on precedent purportedly establishing that: “‘[A] Fifth Amendment claim is premature until it is clear that the Government has both taken property and denied just compensation’ (emphasis in original)). If the government has not done both, no constitutional violation has happened.” See, e.g., Horne v. Department of Agriculture, 569 U.S. 513, 525-26 (2013).

Based on the assertion that no taking has occurred if the possibility of compensation still exists, the dissent proceeds to the second question: “At what point has the government denied a property owner just compensation, so as to complete a Fifth Amendment violation?” Knick, supra, 588 U.S. at p. 3. The dissent found the answer in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), in which the court found that the property owner had improperly sued a local planning commission in federal court under 42 U.S.C. § 1983 for an alleged taking, before availing itself of available state law remedies.

The Knick majority firmly rejected the dissent’s position.


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On February 26, 2019, the Idaho Supreme Court issued a unanimous decision in favor of Buchalter’s client, Bonner County, owner and operator of Sandpoint Airport in Idaho.

In an action originally seeking tens of millions of dollars against the County, the state’s high court held that the County had fully performed the promises that SilverWing

Because the Federal Aviation Administration’s (“FAA’) airspace redesign projects throughout the United States have apparently negatively impacted hundreds of thousands, even millions, of people, and because we have received a number of requests for a discussion of the bases for the currently pending challenge to the FAA’s SoCal Metroplex airspace redesign project, a copy of

On Friday, March 16, 2018, Petitioners in Benedict Hills Estates Association, et al. v. FAA, et al., D.C. Circuit Court of Appeals Case No. 16-1366 (consolidated with 16-1377, 16-1378, 17-1010 and 17-1029) filed an Opening Brief in their challenge to the Federal Aviation Administration (“FAA”) in its realignment of flight paths over heavily populated

On November 1, 2017, the United States Court of Appeals for the Ninth Circuit handed down a sweeping victory for Buchalter’s client Bonner County, owner and operator of Sandpoint Airport in Sandpoint, Idaho.
 
The airport was sued in 2012 by real estate developer SilverWing at Sandpoint, LLC for actions the county took in order to achieve compliance with federal aviation regulations and specific safety directives from the Federal Aviation Administration.  SilverWing sought tens of millions of dollars in damages under 42 U.S.C. § 1983 for alleged inverse condemnation and violation of equal protection in addition to a state law claim for breach of the covenant of good faith and fair dealing arising from a “through-the-fence” access agreement.
 
After prevailing on summary judgment in the U.S. District Court for the District of Idaho, Buchalter’s Aviation Practice Group, led by attorneys Barbara Lichman and Paul Fraidenburgh, won a complete victory in the Ninth Circuit on every issue across the board, including the affirmance of an attorney fee and cost award totaling almost $800,000 (which is likely to increase after appellate fees and costs are added).
 
With respect to the preempted state law claim, the Ninth Circuit held: 


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Tweed-New Haven Airport, seeking to extend its 5,600 foot runway to 7,200 feet, has run into an unexpected roadblock.  A Federal Magistrate in the United States District Court for the District of Connecticut has determined that Connecticut’s Gen. Stat. 15-120j(c) (providing, in part, that “[r]unway 2/20 of the airport shall not exceed the existing paved runway length of five thousand six hundred linear feet”), is not preempted by federal law.  Tweed-New Haven Airport Authority v. George Jepsen, in His Official Capacity as Attorney General for the State of Connecticut, Case No. 3:15cv01731(RAR).  The Magistrate concludes that the state statute “does not interfere with plaintiff’s ability to comply with federal aviation safety standards,” because: (1) the “Plaintiff has failed to present evidence that the runway length in this instance is a component part of the field of airline safety,” and, thus, does not violate the Federal Aviation Act, 49 U.S.C. § 40101, et seq., Memorandum of Decision, p. 39; (2) the statute is not expressly preempted by the provision of the Airline Deregulation Act (“ADA”) (49 U.S.C. § 41713(b)(1)) that “prohibits states from enforcing any law ‘relating to rates, routes, or services’ of any air carrier,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992), because the Connecticut statute does not “relate[] to rates, routes or services [of airlines],” Memorandum of Decision, p. 43; and (3) the Airport and Airway Improvement Act, 49 U.S.C. § 47101, et seq. (“AAIA”), “does not impose any requirements or authorize the promulgation of federal regulations, unless funding is being sought,” Memorandum of Decision, p. 47.  

The Court’s decision contravenes the plain face of the FAA Act for the following reasons:  


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The Town of East Hampton, Long Island has brought a challenge at the United States Supreme Court, seeking to reverse the November 4, 2016 decision of the United States Court of Appeals for the Second Circuit which invalidated East Hampton’s local ordinance prohibiting flights from East Hampton Town Airport between 11:00 p.m. and 7:00 a.m. and “noisy” aircraft flights between 8:00 p.m. and 9:00 a.m.  The Second Circuit decision was predicated on East Hampton’s purported failure to comply with 49 U.S.C. 47524(c), which limits the grounds upon which local operational restrictions may be imposed to those in which “the restriction has been agreed to by the airport proprietor and all airport operators or has been submitted to and approved by the Secretary of Transportation . . .”  In addition, Section 47524(d) contains six express exemptions from the limitations, none of which apparently applies to East Hampton. 

While East Hampton’s intent is noble, its cause is weak.  
 


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On January 17, 2017, the United States House of Representatives passed H.R. 5, the “Regulatory Accountability Act of 2017.”  Buried deep within its pages is Title II, the “Separation of Powers Restoration Act.”  That title, although only two sections long, dramatically changes the legal landscape for challenges to the actions of federal regulatory agencies.  Currently, in adjudicating challenges to administrative rulemaking and implementing actions, the federal courts invoke the precedent established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).  In that case, the Supreme Court held: “We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer…”  In adopting Chevron, the Supreme Court effectively gives administrative agencies almost complete deference, not only in the interpretation of the regulations they implemented, but also, and more controversially, in the way the agencies carry out the mandates of those regulations.  Thus, challengers seeking to use the judicial system to point out and rectify what are perceived as misapplication of the regulations, butt up against the reluctance of the courts to question or interfere with the agency’s construction of the regulation or the evidence and its application in carrying out the agency’s order.  In Title II, the Congress has stood the current deferential standard on its head. 


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‘Barbara Lichman’ ‘Barbara E. Lichman’ ‘Paul Fraidenburgh’ ‘Paul J. Fraidenburgh’ ‘Culver City’ ‘Newport Beach’ ‘Laguna Beach’ ‘County of Orange’ ‘Orange County’ ‘John Wayne Airport’ JWA ‘Federal Aviation Administration’ FAA ‘Environmental Assessment’ EA ‘Finding of No Significant Impact’ FONSI ‘Southern California Metroplex OAPM’ OAPM ‘SoCal Metroplex’ ‘area navigation’ RNAV ‘day-night average sound level; LDN ‘Cumulative Noise Equivalency Level’ CNEL ‘Noise Integrated Routing System’ NIRS ‘Aviation Environmental Design Tool’ AEDT
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Culver City has issued a Press Release announcing its intention to file a lawsuit against the Federal Aviation Administration related to aircraft overflights.  Culver City has retained Barbara E. Lichman, Ph.D. of the firm of Buchalter Nemer to represent it its challenge to the SoCal Metroplex Environmental Assessment ("EA") and Finding of No Significant Impact