Virginia Lawyers Weekly

The Supreme Court of Virginia will not hear the Chesapeake Airport Authority’s appeal of a lower court ruling that noise from its airport lowered the values of property in a subdivision near the airport.

The rejection of the appeal clears the way for George and Margaret Osipovs and 11 other residents of the West Landing Estates subdivision to return to Chesapeake Circuit Court to recover damages.

Circuit Randall D. Smith ruled in November 2007 that the Osipovs, the lead plaintiffs, had shown that noise from the airport lowered the value of their property, even though it more than doubled in value in the five years they owned it.

In making the ruling, Smith noted that the Virginia Constitution differs from its federal counterpart by allowing property owners to recover for damage to property even if a government agency does not take ownership of at least a portion of the property.

The airport began operating in 1977, well before construction of most of the homes involved in the lawsuits.

The residents testified, however, that expansion of the runway to more than a mile in length in 1999 and the installation of a instrument landing system in 2003 changed the volume and nature of the air traffic tremendously.

Jets and other large planes now use the airport at night and pilots practicing to stay current on their instrument certification frequently use the airport for landings known as “touch and goes,” the residents testified.

Despite the increase in traffic, the airport still is a relatively small operation. At the time of Smith’s decision, The Virginian-Pilot reported that it generated only $30,000 a month in revenues and the city contributes $300,000 a year toward its operating costs.

The authority now publishes on its Web site a noise abatement procedure it asks pilots to use to avoid passing over the West Landing Estates subdivision.

Joseph T. Waldo of Norfolk, the attorney for the property owners, said the Supreme Court’s implicit recognition of a right to recover damages without a taking is an important property rights victory.

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