Gilliland v. United States , 1981 U.S. Ct. Cl. LEXIS 342 ( 1981 )

Eminent domain; taking; inverse condemnation; noise from aircraft overflights; zoning activities by federal personnel; regulations as a taking; tort claim. — Plaintiffs, the owners of a 33 acre tract close to an Air Force base near Palmdale, California, sue for an inverse condemnation, allegedly accomplished in 1973 by the noise level of overflights, by Air Force interference with local zoning regulation and by directly issued Air Force regulations. The base, known as Plant 42, houses several factories at which civilian contractors assemble and test-fly aircraft for the Air Force. On September 25, 1980 Trial Judge David Schwartz filed a recommended opinion concluding that no taking had occurred and plaintiffs are not entitled to recover, the trial judge found no evidence of regular and frequent flights at low levels, causing direct, immediate and substantial interference with the use of plaintiffs’ land. There was no evidence of an interference with plaintiffs’ use by noise from overflights. Secondly, the trial judge concluded that although the Air Force strenuously objected to the plaintiffs’ applications in 1973 to the authorities in the County of Los Angeles and the City of Palmdale for a rezoning from agricultural to commercial, no improprieties have been shown. The Air Force was entirely within its rights as an affected landowner in seeking denial of the applications. Finally, the trial judge found that a series of draft and final directives and studies issued by the Air Force between 1972 and 1976 containing successive versions of its policy on the compatibility of base flying operations with the use of land surrounding bases in general and this base in particular, did not constitute an interference or regulation of plaintiffs’ land, or a control of zoning, such as to constitute a taking. On June 12,1981 the court, by order, adopted the recommended decision of the trial judge as the basis for its judgment in this case and dismissed the petition. Plaintiffs’ motion for rehearing and suggestion for rehearing en banc were denied October 2, 1981; plaintiffs’ petition for a writ of certiorari was denied March 31,1982.