Present: All the Justices
VIRGINIA HIGHLANDS AIRPORT AUTHORITY
OPINION BY
v. Record No. 080286 JUSTICE LEROY F. MILLETTE, JR.
January 16, 2009
SINGLETON AUTO PARTS, INC.
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Larry B. Kirksey, Judge
This appeal involves the interaction of a local zoning
ordinance establishing an airport safety overlay zone and an
avigation easement 1 sought by the Virginia Highlands Airport
Authority 2 (Airport Authority) to remove obstructions on the
property of Singleton Auto Parts, Incorporated (Singleton),
which were preserved pursuant to a grandfather clause in the
ordinance. We are presented with the novel issue whether the
easement constitutes a taking of airspace requiring compensation
when the property was already subject to preexisting
restrictions on development imposed by the ordinance.
We hold that the easement constituted a taking only to the
extent that it created a right in the Airport Authority to
remove the grandfathered obstructions situated on the property
which penetrated the existing approach zone for incoming and
1
An avigation easement is defined as “[a]n easement
permitting unimpeded aircraft flights over the servient estate.”
Black’s Law Dictionary 549 (8th ed. 2004).
2
The Virginia Highlands Airport Commission’s name was
changed to the Virginia Highlands Airport Authority by action of
the Board of Supervisors of Washington County, Virginia.
outgoing aircraft. We therefore will reverse the trial court’s
judgment entering the jury’s verdict and remand for a new trial
on damages resulting from the limited taking.
BACKGROUND
In 1998, the Town of Abingdon enacted the Virginia
Highlands Airport Safety Overlay Zone (the Ordinance), which was
“designed to identify and regulate obstructions within that
airspace” with the intent of “prevent[ing] any obstruction that
has the potential for endangering the lives and property of the
users of the Virginia Highlands Airport [(the Airport)] and the
residents of the Town of Abingdon” or “reduc[ing] the size of
areas available for landing, takeoff and maneuvering of
aircraft, thus tending to destroy or impair the utility of the
airport and the public investment therein.” The Ordinance was
enacted in compliance with former Code § 15.1-491.02,
predecessor of Code § 15.2-2294 (“Airport safety zoning”). 3
3
Code § 15.2-2294 reads in its entirety:
Every locality (i) in whose jurisdiction a
licensed airport or United States government or
military air facility is located or (ii) over
whose jurisdiction the approach slopes and other
safety zones of a licensed airport, including
United States government or military air facility
extend shall, by ordinance, provide for the
regulation of the height of structures and natural
growth for the purpose of protecting the safety of
air navigation and the public investment in air
navigation facilities. The ordinance may be
adopted regardless of whether the local governing
2
“Approach zone” is defined by the Ordinance as “[a] zone that
extends away from the end of the primary surface with the floor
set by the approach surface for a distance set by the
regulations” and “approach surface” is defined as “[a] surface,
whose design standards are set by the regulations,
longitudinally centered on a runway centerline, extending
outward and upward from the end of the primary surface, and at
the same slope as the approach zone height limitation slope.”
(Emphasis added). Pursuant to the Ordinance, both the approach
surface and approach zone, which together provide an area of
clearance for incoming and outgoing aircraft, are set by
“regulations,” defined therein as “Part 77.25 et seq.,
Subchapter E (Airspace) of Title 14 of the Code of Federal
Regulations and/or its successor federal regulations, as they
may be amended or substituted from time to time.”
The Ordinance also provides that
in any zone created by th[e] ordinance . . . no
vegetation shall be allowed to grow to a height so
as to penetrate any referenced surface . . . of
any zone provided for in this article at any
point. The height restrictions, or floors, for
the individual zones shall be those planes
body has adopted a zoning ordinance applicable to
other land uses in the locality. The ordinance may
be designed and adopted by the locality as an
overlay zone superimposed on any preexisting base
zone.
The provisions of the airport safety zoning
ordinance shall be in compliance with the rules of
the Virginia Aviation Board.
3
delineated as surfaces in Part 77.25 et seq. . . .
of Title 14 of the Code of Federal Regulations.
The Ordinance did, however, contain a grandfather clause
preserving any nonconforming structure or vegetation within the
approach zone so long as the structure or vegetation was in
existence when the Ordinance was enacted.
In April 2005, the Airport Authority filed a petition for
condemnation of an avigation easement, seeking to condemn rights
to airspace over property owned by Singleton. The Airport
Authority sought in its petition for the easement
[t]he continuing perpetual right to clear, and
keep clear, with the right to remove any natural
growth or man-made structure to the ground . . .
infringing upon or extending into that airspace
about or above a plane on a slope . . . extending
outward from the runway end at a distance of
10,000 feet along the extended centerline of the
runway . . . and extending at a slope of one (1)
foot rise for every thirty four (34) feet
horizontal distance along the extended centerline.
(Emphasis added).
The Airport Authority wanted to superimpose the dimensions
of the easement on the dimensions of the Ordinance and thereby
obtain the right to remove any vegetation or structure that had
been grandfathered under the Ordinance and penetrated the 34 to
1 approach slope. According to the Airport Authority, the exact
airspace dimensions included in the easement had already been
restricted upon the enactment of the Ordinance. In its Petition
for Condemnation, the Airport Authority sought to remove some
4
trees on Singleton’s property that existed on the effective date
of the Ordinance, because they penetrated the 34 to 1 approach
surface. 4
Singleton filed a motion in limine to “prohibit the
[Airport Authority] from arguing that it does not need to take
the easement because it already has the rights under the zoning
ordinance.” The Airport Authority filed motions in limine
seeking to exclude evidence of damages to Singleton’s property
that Singleton claimed from its inability to build into the 34
to 1 approach surface above the property as a result of the
easement. The Airport Authority also sought to exclude evidence
of damages to Singleton’s property caused by increased noise,
vibrations, fumes, and traffic because of lower flights over the
property due to the easement.
The trial court ruled that the Airport Authority’s
contention that the easement did not take any airspace rights
from Singleton because the Ordinance had already created the 34
to 1 approach zone was a “matter for [determination by] the
finder of fact.” The trial court allowed the Airport Authority
to present evidence as to the existence of the Ordinance, but no
opinion testimony as to its effect upon Singleton’s ownership
rights. Singleton was permitted to introduce evidence of
4
The top of the tallest tree on the Singleton property
penetrated the 34 to 1 approach slope by approximately 12 feet.
5
damages caused by restrictions on vertical development imposed
by the easement regardless of the preexisting Ordinance, as well
as evidence of the effect of lower flights and resultant
increased noise, vibrations, fumes, and traffic.
The issue for the jury was compensation to Singleton for
the easement obtained by the Airport Authority. The Airport
Authority called Matthew D. Ripley as its expert real estate
appraiser. Ripley recognized that there were preexisting
limitations on building on Singleton’s property imposed by the
Ordinance. Ripley demonstrated his understanding of the
Ordinance when he testified that
[t]he easement provides the ability to remove
obstructions above the elevation of the existing
zoning overlay zone. . . . The only obstructions
that are outside of the zoning ordinance that
would be [a]ffected by this easement are the pine
trees . . . at the back of the property.
Ripley placed no value on the existence of the easement or on
the trees, because the trees were inconsistent with the
property’s best use as commercial property. Instead, Ripley
valued just the right to go onto the property and remove the
trees. Based on this analysis, Ripley concluded:
[T]he compensation should be nominal because you
can’t – there’s not going to be any use that you
couldn’t do after the easement is put in place
. . . . So, the compensation is based – a nominal
value on the underlying land and I put one percent
of the underlying land value which is $1,600 based
6
on the $160,000 of the land value at the
beginning. 5
Singleton called two witnesses to testify about damages:
Andrew Hargroves, an expert in real estate evaluations; and
David Castle, an expert real estate appraiser. Castle testified
that the easement reduced the value of the Singleton property by
$50,000, with $25,000 attributed to the rear portion of the
property and $25,000 to the front portion of the property. 6
Castle opined that his damages figures represent the rights
taken by the easement and that the damage is created by the
easement’s proximity to the Singleton property.
Hargroves valued Singleton’s damages at $100,000.
Hargroves testified that the damages were based upon the height
limitations on the rear portion of the property and upon the
limitation of market interest in the property because of the
noise factor associated with the property’s location directly
under the flight path of the Airport. However, Hargroves
acknowledged that he did not understand the Ordinance.
The jury returned a verdict in favor of Singleton for
$130,000, comprised of $80,000 for the taking of Singleton’s
property plus $50,000 for damages to the residue. The Airport
5
Ripley valued Singleton’s 1.6 acres of land, exclusive of
the auto parts building, at $100,000 per acre.
6
The front half of the Singleton property is zoned
commercial. The rear portion is zoned residential, though it is
used for commercial purposes.
7
Authority filed exceptions to the jury’s verdict, asking the
trial court to set it aside. The trial court overruled the
Airport Authority’s exceptions and entered judgment on the
verdict. This appeal followed.
DISCUSSION
The central dispute in this case is whether the easement
constituted a taking of airspace rights from Singleton which
Singleton retained after the enactment of the Ordinance. In
order to resolve this issue, we must determine the approach
zone, approach surface, and corresponding approach slope
authorized for the Airport’s runway 24 by the Ordinance upon its
enactment in 1998.
The Airport Authority argues that pursuant to the
Ordinance, runway 24’s approach surface extends for a horizontal
distance of 10,000 feet at a slope of 34 to 1. Singleton
counters that pursuant to the Ordinance, the approach surface
extends for a horizontal distance of 5,000 feet at a slope of 20
to 1, which sits above the 34 to 1 approach slope and therefore
at a greater distance above the property. The ratios 34 to 1
and 20 to 1 designate slopes representing “imaginary surfaces”
designed by the Federal Aviation Administration.
The Airport Authority supports its argument by referring to
the language of 14 C.F.R. § 77.25(d)(2) (2007) in conjunction
with evidence of the type of aircraft that use runway 24. The
8
Airport Authority asserts that the Ordinance is silent on the
approach zone and approach surface, which form the approach
slope. Further, the Airport Authority argues that the Ordinance
incorporates specific federal regulations. The Airport
Authority contends that those regulations must be considered in
determining the approach slope set by the Ordinance.
Colonel Ronald V. Deloney, manager of the Airport,
testified at trial that runway 24 is a “nonprecision instrument
runway[], other than utility.” Colonel Deloney also testified
that the Airport has a physical weight bearing capacity of
30,000 pounds for single wheel aircraft and, for this reason,
large aircraft had been operating at the Airport since about
1989. Large aircraft have also been stationed in the Airport’s
hangars and flown in and out of the Airport. Colonel Deloney
defined large aircraft as weighing more than 12,500 pounds. He
explained that the Airport is currently designated as type B-II
small, but with a 34 to 1 approach slope free of obstructions,
it would be designated as type B-II large. The B-II large
designation indicates that aircraft weighing over 12,500 pounds
could safely use runway 24. Colonel Deloney acknowledged that
the Airport was operating with a 20 to 1 approach slope due to
then existing obstructions.
In response, Singleton called Susan Van Fleet, owner of a
flight school at the Airport, who testified that the current
9
approach slope for runway 24 was 20 to 1. Singleton also relied
upon two documents: the Virginia Highlands Airport Layout Plan
Update (Layout Plan), which was based on conditions as they
existed in August 2002; and an Obstruction Study prepared for
Virginia Highlands Airport Commission by Delta Airport
Consultants, Incorporated (Obstruction Study), which was dated
March 2000. Specifically, Singleton highlighted in its argument
the Layout Plan’s language that “Virginia Highlands Airport
currently has a non-precision instrument approach for Runway 24,
and the approach slope is 20:1, for small aircraft (less than
12,500 pounds)” and the Obstruction
Study’s statement that “[t]he localizer approach to Runway 24 is
currently in use with operations limited to aircraft less than
12,500 lbs, which only requires a 20:1 approach slope.” Based
on these excerpts and Van Fleet’s testimony, Singleton argues
the easement constituted a taking of not only the trees, but of
over 100 feet of airspace representing the difference between
the existing 20 to 1 approach slope and the lower 34 to 1
approach slope obtained by the Airport Authority through the
easement. Singleton asserts that because the 34 to 1 approach
slope would allow aircraft to fly lower over its property,
Singleton claims damages from increased noise, vibrations,
fumes, and traffic due to the condemnation.
10
In order to ascertain the effect of the 1998 Ordinance on
Singleton’s property, we must interpret the Ordinance in
conjunction with the federal regulations referenced therein to
determine whether the Ordinance created a safety overlay zone
with an approach slope of 34 to 1 or an approach slope of 20 to
1. It is well-established that an issue of statutory
interpretation such as this is a pure question of law subject to
this Court’s de novo review. Budd v. Punyanitya, 273 Va. 583,
591, 643 S.E.2d 180, 184 (2007); Virginia Polytechnic Inst. &
State Univ. v. Interactive Return Serv., Inc., 271 Va. 304, 309,
626 S.E.2d 436, 438 (2006); Ainslie v. Inman, 265 Va. 347, 352,
577 S.E.2d 246, 248 (2003).
The Ordinance is silent regarding the creation of an
approach slope for runway 24 and instead refers to “Part 77.25
et seq., Subchapter E (Airspace) of Title 14 of the Code of
Federal Regulations and/or its successor federal regulations, as
they may be amended or substituted from time to time” to
establish mandatory approach surfaces at the Airport. The
relevant federal regulation is 14 C.F.R. § 77.25(d)(2), which
reads in pertinent part: “The approach surface extends for a
horizontal distance of: (i) 5,000 feet at a slope of 20 to 1 for
all utility and visual runways; [and] (ii) 10,000 feet at a
slope of 34 to 1 for all nonprecision instrument runways other
than utility; . . .”
11
It is uncontested that runway 24 is a nonprecision
instrument runway. Therefore, the key inquiry is whether it is
a utility runway. If it is a utility runway, the federal
regulations require only a 20 to 1 approach slope, but, if it is
not, they require a 34 to 1 approach slope. Pursuant to 14
C.F.R. § 77.2 (2007), “[u]tility runway means a runway that is
constructed for and intended to be used by propeller driven
aircraft of 12,500 pounds maximum gross weight and less.” The
evidence reveals that aircraft weighing over 12,500 pounds have
used runway 24 since approximately 1989 because the runway’s
weight bearing capacity is 30,000 pounds. At oral argument on
appeal, Singleton attempted to avoid this evidence by arguing
that pilots retain discretion regarding the landing of their
aircraft. “[I]f a pilot feels confident, capable in himself and
his equipment he can land a larger plane there.” The federal
regulations provide no such discretion. According to the plain
language of 14 C.F.R. § 77.25(d)(2), if airplanes weighing over
12,500 pounds are utilizing a nonprecision runway, then a 34 to
1 approach slope is required to ensure sufficient clearance for
safety purposes.
The Layout Plan and Obstruction Study relied upon by
Singleton in support of its argument actually provide greater
support to the Airport Authority’s position than to Singleton’s
position. The documents state that after the promulgation of
12
the Ordinance the Airport was entitled to use a 34 to 1 approach
slope for runway 24, but was prevented from doing so due to
obstructions such as the trees on Singleton’s property. Runway
24’s publication of a 34 to 1 approach slope was subject to the
removal of obstructions through the acquisition of avigation
easements, whereas an unobstructed 20 to 1 approach slope could
already be published to indicate its safe use. 7
According to the Layout Plan, which was based on conditions
as they existed in August 2002,
[t]he runway pavement strength is listed as a
12,500 pound single wheel gear configuration
. . . . The actual pavement strength of Runway 6-
24 is 30,000 pounds single gear. However, the
actual strength cannot be published until
obstructions are removed from the Runway 24 end to
allow a 34:1 approach slope. 8
Additionally, the Layout Plan states:
Virginia Highlands Airport currently has a non-
precision instrument approach for Runway 24, and
the approach slope is 20:1, for small aircraft
(less than 12,500 pounds). The Airport is
presently conducting an obstruction program to
acquire avigation easements and to remove
penetrations (primarily trees) to the Runway 24
34:1 approach surface. Once the obstructions are
removed, the approach slope for Runway 24 can be
7
The Federal Aviation Administration (FAA) publishes the
weight bearing capacity of runways. The Airport cannot
currently be published in the official FAA document as having a
pavement strength of anything more than 12,500 pounds because it
only has an unobstructed 20 to 1 approach surface.
8
The airport has one physical runway, designated as runway
6 for aircraft proceeding southwest to northeast and as runway
24 for aircraft proceeding northeast to southwest. Airport
Authority’s Opening Br. 8. This appeal concerns only runway 24.
13
published to a slope of 34:1, allowing large
aircraft (greater than 12,500 pounds) to utilize
the runway.
The recommendation provided in the Layout Plan was to “maintain
the non-precision greater than 3/4th mile visibility approach
surface,” defined as having a 34 to 1 approach slope.
The Obstruction Study, dated March 2000, states that “[f]or
the purposes of the [Federal Aviation Regulation] Part 77
obstruction analysis, Virginia Highlands Airport is considered a
public use airport with one larger than utility runway. The
airport . . . utilizes a non-precision instrument approach to
Runway 24.” The Obstruction Study contains a recommendation
that “clearing of obstructions to Runway 24 Approach and
Transitional Surfaces should be addressed as a priority project
by the Virginia Highlands Airport Commission, if Runway 24 is to
be used for a 34:1 approach” and, “[i]n the interim, the current
20:1 approach should be maintained.”
This evidence, combined with testimony by the Airport’s
manager that runway 24 was currently operating with a 20 to 1
approach slope due to the existence of obstructions, leads us to
the conclusion that, when the easement was requested, runway 24
was a “nonprecision instrument runway[] other than utility”
required by 14 C.F.R. § 77.25(d)(2) to have a 34 to 1 approach
slope, but could not be designated as such in publications until
the obstructions were removed. Therefore, the easement imposed
14
the same restrictions on Singleton’s vertical development as did
the Ordinance.
“Compensatory damages are those allowed as a recompense for
loss or injury actually sustained.” Dillingham v. Hall, 235 Va.
1, 3, 365 S.E.2d 738, 739 (1988) (emphasis added). In
condemnation cases, “‘[t]he measure of compensation for the
property taken is the fair market value of the property at the
time of the taking. In determining fair market value,
consideration is given to the property’s adaptability and
suitability for any legitimate purpose in light of conditions
and circumstances that exist at the time of the take or that
reasonably may be expected in the near future.’” Revocor Corp.
v. Commonwealth Transp. Comm’r, 259 Va. 389, 394, 526 S.E.2d 4,
7 (2000) (quoting Lynch v. Commonwealth Transp. Comm’r, 247 Va.
388, 391, 442 S.E.2d 388, 389-90 (1994)). When there is only a
partial taking, “the measure of damages to the residue of the
property not taken is the difference in the fair market value of
the residue immediately before and immediately after the
taking.” Commonwealth Transp. Comm’r v. Glass, 270 Va. 138,
154, 613 S.E.2d 411, 420 (2005) (quoting City of Virginia Beach
v. Oakes, 263 Va. 510, 516, 561 S.E.2d 726, 728-29 (2002)). By
ignoring the existence of the Ordinance, Singleton’s evidence of
damages created a false inference of a decrease in fair market
value as a result of the taking. Singleton had no fewer rights
15
to the airspace above the 34 to 1 approach surface when the
Airport Authority obtained the easement than it did after the
Ordinance was enacted in 1998.
Moreover, “a landowner whose property is affected by a
partial taking may not recover damages to the residue if such
damages are remote or speculative.” Oakes, 263 Va. at 516, 561
S.E.2d at 729; Revocor Corp., 259 Va. at 394, 526 S.E.2d at 7-8;
Lynch, 247 Va. at 391, 442 S.E.2d at 389-90. Singleton
presented only the possibility of future lower flights over its
property and resultant increased noise, vibrations, fumes, and
traffic to the jury, without any evidence from which the jury
could quantify damages. The inclusion of such remote and
speculative possibilities in the evidence the jury was allowed
to consider in fixing the damage award was plain error.
The trial court erred by denying the Airport Authority’s
motions in limine and by allowing Singleton to present its case
as though the Ordinance had no effect upon its property.
Singleton’s experts ignored the Ordinance in their appraisals,
and Singleton, in closing, told the jury: “We hear about some
ordinance that I’ve yet to figure out.” With the exception of
damages for the removal of the trees on Singleton’s property
penetrating the 34 to 1 approach surface, the trial court erred
by permitting Singleton to present evidence of damages from a
taking of rights in airspace Singleton did not possess after the
16
promulgation of the Ordinance. The trial court further erred by
permitting Singleton to present evidence of speculative damages
from future lower flights over the property and increased noise,
vibrations, fumes, and traffic. As a result of these errors,
the trial court allowed Singleton to present an inappropriate
measure of damages.
For the reasons stated, we will reverse the judgment of the
trial court and remand for a hearing on the limited issue of
damages to Singleton’s property from the Airport Authority’s
right to remove the trees obstructing the 34 to 1 approach zone.
Reversed and remanded.
17