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Landowners' lawsuit against New Richmond airport revived

In a decision filed Tuesday, an appeals court reversed a St. Croix County judge's order to dismiss a lawsuit filed by landowners against the New Richmond Regional Airport Commission and the city.

Wisconsin's District III Court of Appeals sent the case back to county court for further findings of fact and to determine if there was a partial taking of the landowners' property.

Robert Brenner, Steven and Christy Wickenhauser and Allan and Susan Seidling filed the lawsuit in 2007, claiming the city and airport commission took their property without paying for it.

The airport, owned and operated by the city, is on the outskirts of New Richmond, along the east side of County Road CC, which runs north/south. In 2007 the city extended the main runway, which runs northwest/southeast, by 1,500 feet. The extension was intended to accommodate business jets.

Brenner and the Seidlings live on the west side of CC, and the Wickenhausers' land is on the east side, touching the north end of the airport.

When it extended the runway, the city condemned and paid for 62 acres of the Wickenhausers' property. The city also condemned an avigation easement over four acres of the remaining 80 and paid the couple $24,700 for that easement. The Wickenhausers' house is in the area covered by the fly-over easement, which prohibits any buildings or trees over 26- to 38-feet tall, depending upon their location.

Brenner, the Wickenhausers and the Seidlings filed a lawsuit in December 2007. During a hearing, they testified that the runway expansion results in odors, dust, vibration, noise, runway strobe lights and low flights.

The appeals court used this example from testimony: "(A) nine-year-old resident of Brenner's home testified that she was mixing a cake for her grandmother when vibrations from a plane flying over caused the mixing bowl to vibrate off the table and break on the floor. She further testified that the noise is scary and often wakes her up at night."

Judge Cameron concluded that because the landowners hadn't been deprived of substantially all use of their property, there was no taking.

The appeals court noted that landowners don't have to show "they have been deprived of all or substantially all beneficial use of their property. Rather, the occupation is the taking.

"If the rule were otherwise, then public entities would rarely be required to compensate property owners for taking easements. For example, utility companies would not be required to compensate landowners for constructing high voltage electric transmission lines across their properties ...."

The city also argued that there was no compensable taking in this case because the FAA-approved flight path does not result in planes flying over the houses.

The appeals court found two flaws in that argument: "First, it fails to address whether the recommended flight path is above other portions of the landowners' properties. Second, it ignores testimony that airplanes deviated from the recommended path, flying directly over the homes, and the circuit court expressly found that 'airplanes and helicopters use the space above the home and property of each plaintiff.'"

Judy Wiff

Judy Wiff has been regional editor for RiverTown’s Wisconsin newspapers since 1996. She holds a bachelor’s degree in journalism and sociology from UW-River Falls. She has worked as a reporter for several weekly newspapers in Wisconsin.