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New Richmond airport lawsuit back in court

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NEW RICHMOND - A group of homeowners near the New Richmond Regional Airport will get another day in court, thanks to a recent Supreme Court of Wisconsin ruling.

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On July 17, the Supreme Court of Wisconsin upheld a previous decision by the Wisconsin Court of Appeals, which rejected St. Croix County Circuit Court Judge Howard Cameron's 2009 decision in a property dispute matter.

The lawsuit in question was originally filed in 2007 by Robert Brenner, Steven Wickenhauser, Cristy Wickenhauser, Allan Seidling and Susan Seidling against the City of New Richmond and the New Richmond Regional Airport Commission.

In the suit, the homeowners claimed that an expansion of the airport runway, which was completed in 2007, resulted in the loss of the full and peaceful use of their properties.

The Wickenhausers had already been compensated for an aviation easement over a portion of their property, but the couple claims that airplanes flying low overhead restricted the current and future use of more of their property than was included in the initial compensation.

Brenner and the Seidlings, who have received no compensation, argued that the extended runway resulted in airplanes traveling low over their homes, causing noise, vibration and safety concerns.

The homeowners also claimed that, as a result of the runway extension, there were added dust, smell and dirt problems on their properties. They also complained about flashing runway lights that kept them awake at night.

Due to the list of problems, the plaintiffs claimed that the value of their homes and property were diminished. They asked the court to force the city and airport to fairly compensate them for the lost value and the lessened use of their properties.

But Cameron rejected the homeowners' claims, stating the law required that a complete "taking" of the property had to occur before the individuals were eligible for compensation. He cited previous legal cases which ruled against homeowners who had suffered only a partial "taking" of their land.

The homeowners appealed the decision and the Court of Appeals, in a written decision in 2011, agreed that Cameron's legal rationale was incorrect.

The state Supreme Court agreed, sending the case back to Circuit Court for new consideration.

In authoring the Supreme Court document, Justice David Prosser noted that property owners could be compensated for a "partial taking" by a governmental entity. He noted that the Fifth Amendment of the Constitution prohibits private land from being taken for public use if no compensation is provided.

"The creation and expansion of airports is usually deemed a public good," Prosser wrote. "But that good frequently comes at a significant cost to neighboring landowners. This cost cannot be ignored."

The sticking point, however, is deciding when a "taking" has actually taken place, Prosser wrote. The question is especially complicated when dealing with the airspace above a home or property.

According to previous cases dealing with the issue, "inverse condemnation" of a property only occurs if the "overflights are low enough and frequent enough to have a direct and immediate effect on the use and enjoyment of property."

With the evidence provided to this point, Prosser said there is no way to determine if the overflights occur often enough or of low enough altitude to warrant compensation.

The standard for how low aircraft need to fly over a property before homeowners are eligible for compensation is a bit unclear, Prosser noted. In some cases it could be 1,000 feet (urban areas), but in other cases it could be 500 feet (rural areas) or less, he wrote.

In response to claims that odors and occasional dust hampered the homeowners' use of their properties, Prosser said such facts may be annoying but might not be considered proof that a "taking" has occurred.

In sending the case back to St. Croix County Circuit Court, Prosser ordered that the judge review the case using the legal assumptions the Supreme Court has provided.

He ordered the Circuit Court to "make further factual findings" and "hold additional hearings" to determine if a "taking" has occurred in this case.

In responding to the Supreme Court decision, Brenner said the landowners were pleased that judges sided with them.

Brenner said the legal fight has gone on much longer than he first imagined it would, but he's hopeful that the property owners will now receive fair compensation from the airport and city.

"We really would like to get this over so we can get on with our lives," he said. "The City of New Richmond needs to do the right thing."

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