PRFA SUPPORTS PROPERTY OWNER AT U.S. SUPREME COURT WHERE AIRPORT NAVIGATIONAL USE MADE LAND UNUSABLE
By Carol W. LaGrasse, November 2004
In August 1991 William D. Breneman, a patent attorney in Alexandria, Va., visited the property in Worcester County, Massachusetts, that his family has owned since 1933. He was shocked to discover that five acres of the property, which was adjacent to the small Tanner Hiller Airport, had been destroyed. Large quantities of gravel had been excavated and used to build an improved runway at the airport and garbage had been illegally dumped in the excavation. A shielding hill and boundary fence on the property that had limited the airport to small aircraft and gliders had been removed. The airport had extended its runway and illegally altered the existing flight path.
In September 1992, John and William Breneman, the brothers who own the family property, filed suit in Worcester Superior Court. Years of litigation followed where the Brenemans sought compensation from the Tanner Hiller Airport and Amorello Construction Company, the company who had taken the gravel.
The Brenemans were confident that once the private litigation had been settled, the Federal Aviation Administration would allow them to repair their property. However, in May 2000 they saw an aviation document where they first noticed that the federal government intended to impose a navigable servitude on their property. They immediately filed notice that they sought to return their land to its original condition by replacing the hill at the end of their property and erecting a boundary fence, and prevent the taking of their property by the United States as “navigable airspace.”
However, without a hearing, the Federal Aviation Administration issued an order that the replacement of a 10-foot boundary fence would constitute a 13-foot hazard (including 3 feet below ground) to air navigation because the Brenemans’ land was the “runway primary surface” of the illegally extended runway. The Brenemans appealed this “determination of hazard.”
Seeking to have their land returned to them to remove the illegal buried waste and restore it to its original condition, the Brenemans worked their way through the court system, where they faced a defeat in August 2004 at the U.S. Court of Appeals for the First Circuit. In October they petitioned the U. S. Supreme Court for a hearing.
“The taking of private land by the United States’ imposition of a navigational servitude is complete and unless rectified by the Court is inconsistent with the protections afforded landowners under the Fifth Amendment,” declared Mr. Breneman in his appeal.
On November 12, represented by attorney Henry St. John FitzGerald of Arlington, Va., the Property Rights Foundation of America filed an amicus curiae, or “friend of the court,” brief petitioning the Supreme Court to hear the Brenemans’ appeal on the basis that the federal declaration of navigational hazard and the loss of the right to exclude public use of the land is a “taking.”
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