In re: Harr

507 A.2d 899, 96 Pa. Commw. 306, 1986 Pa. Commw. LEXIS 2095
CourtCommonwealth Court of Pennsylvania
DecidedApril 9, 1986
DocketAppeals, Nos. 611 C.D. 1985 and 612 C.D. 1985
StatusPublished
Cited by2 cases

This text of 507 A.2d 899 (In re: Harr) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re: Harr, 507 A.2d 899, 96 Pa. Commw. 306, 1986 Pa. Commw. LEXIS 2095 (Pa. Ct. App. 1986).

Opinion

Opinion by

Judge Craig,

Westmoreland County Airport Authority appeals from an order of the Court of Common Pleas of Westmoreland County dismissing the authority’s preliminary [308]*308objections to homeowners’ (Ronald J. and Paula A. Harr and Emma E. and Logan J. Harr, Jr.) petitions for the appointment of viewers alleging de facto eminent domain taking1 as a consequence of the effect of air traffic to and from the Latrobe Airport upon their properties.

The court made the following undisputed factual findings. Homeowners Logan and Emma Harr have resided in a two-story farm house on their 94 acres of property since 1946. Their son and daughter-in-law, Ronald and Paula Harr, live in a home approximately 100 feet away on a small lot which his parents conveyed to them in 1963. The homeowners cultivate their land and raise beef cattle. The airport property and the homeowners’ properties are adjacent to each other.

The homeowners’ properties are 5,504 feet from the end of Runway 5-23 and will be 4,000 feet distant when the airport’s runway expansion is completed. The centerline of Runway 5-23, when extended, passes over both properties, most directly over the residence of Logan and Emma Harr.

Annually there are 21,500 flight operations to and from the southwest, using Runway 5-23 and hence involving flights over the homeowners’ properties. The number of flights per day averages 59, with heavier traffic in the summer.

Landings onto Runway 5-23, controlled by the visual approach slope indicator, pass over the homeowners’ residences at an altitude of 279 to 291 feet.

One hundred thirty-two aircraft are based at the airport, half of which are single-engine aircraft. Occasional charter flights of the DC-9 and 737 class use the air[309]*309port, but not on a regular basis. Approximately two to six aircraft land or take off each day after the control tower closes at 10:30 p.m.

A de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property. Helms v. Chester Redevelopment Authority, 32 Pa. Commonwealth Ct. 377, 379 A.2d 660 (1977). Direct aircraft overflights which substantially interfere with peaceful use and enjoyment of private property entitle a landowner to damages, in that they effectuate a taking. Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed. 2d 585 (1962).

The issue is whether the airports aircraft overflights substantially interfered with the homeowners’ use and enjoyment of their property. The authority also raises the issue of the admissibility of an environmental assessment report which addressed the aircraft noise level at the homeowners’ properties.

The Admissibility of the Environmental Assessment

The trial court admitted into evidence an environmental assessment which the authority had submitted, as required, to the Federal Aviation Authority for approval of a proposed 150-foot runway expansion. The authority’s engineering firm prepared the report specifically to address the environmental impact of the airport, present and future, upon the surrounding community. That report indicated that the day-and-night sound level (Ldn) for the homeowners’ properties, without consideration of the proposed runway expansion, was 73 Ldn. That report further indicated that noise levels between 65 and 75 Ldn are normally unacceptable for residential areas.

The authority objected to the admission of its own report because the engineers had based their assessment on computer projections rather than actual field [310]*310studies. The court correctly ruled that the nature of the projections went to the weight of the evidence, not admissibility, and allowed the report into evidence. The court treated the noise level evidence as a single factor in its overall evaluation. Furthermore, the court also noted that the authority failed to produce any evidence comprised of actual noise studies to rebut the computer projections.

The authority also argues that the homeowners foiled to demonstrate that the environmental assessment method of using computer projections was generally accepted by the scientific community as being reliable and, therefore, that the report should have been inadmissible. Because the authority failed to articulate that reason when it objected to the admissibility of the evidence at the trial, that reason was waived and cannot be asserted here for the first time. Siter v. Maryland Peat & Humus Co., 242 Pa. Superior Ct. 184, 363 A.2d 1221 (1976).

Merits — De Facto Taking

The authority contends that the record lacks sufficient evidence of interference with the homeowners’ property rights to constitute a taking as a matter of law.2 In support of that contention, the authority refers to a number of state and federal cases — each with a similar feet element relating to distance or noise level or number of overflights — where courts have denied de facto taking. Those cases, however, each addressed a single issue, such as noise levels, which is only one factor to be [311]*311considered in a de facto taking determination. Allegheny County Appeal, 63 Pa. Commonwealth Ct. 99, 102, 437 A.2d 795, 797 (1981). Because de facto condemnation cases must be reviewed on a case-by-case basis, to evaluate the totality of the evidence in each case, isolating single factors in making comparisons with other cases is not conclusive or necessarily appropriate.

The authority asserts that our decision in Petition of Ramsey, 31 Pa. Commonwealth Ct. 182, 375 A.2d 886 (1977), is controlling because of the similarity of numerous factual issues. The homeowners in Ramsey filed a petition for the appointment of viewers in 1975, alleging a de facto taking because of the Latrobe Airports flight operations. Although the same airport is involved in this case, the facts are otherwise distinguishable.

The homeowners in Ramsey complained that particular types of jet aircraft caused interference. The court found that only three to five of those jet aircraft flew over the homeowners’ property each day. Here, the homéowners complained that all types of aircraft were causing interference. The court here found that an average of 59 aircraft per day flew over the homeowners’ properties.

The homeowners in Ramsey complained that airport flight operations interfered with their radio and television reception, but they failed to introduce evidence to support that contention. Here, the homeowners complained that aircraft overflights interfered with their enjoyment of television. The judge found that testimony credible.

Moreover, the homeowners’ property in Ramsey was approximately 150 feet from the centerline of the runway and glide path and therefore not subjected to direct overflights. Although we held in

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Related

Westmoreland Co. Airport A. Appeal
507 A.2d 899 (Commonwealth Court of Pennsylvania, 1986)

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Bluebook (online)
507 A.2d 899, 96 Pa. Commw. 306, 1986 Pa. Commw. LEXIS 2095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-harr-pacommwct-1986.