![public utilities code section 21652 public utilities code section 21652](https://law.resource.org/pub/us/code/ccr/img/7163.png)
#Public utilities code section 21652 trial
The trial court sustained demurrers to both causes of action, dismissing the inverse condemnation action because defendant is prohibited by statute from exercising the power of eminent domain, and dismissing the nuisance action as barred by the statute of limitations covering permanent nuisances.
![public utilities code section 21652 public utilities code section 21652](https://data.formsbank.com/pdf_docs_html/221/2216/221634/page_1_thumb_big.png)
1 In 1982, plaintiffs filed suit for inverse condemnation and nuisance caused by noise, smoke, and vibrations from flights over their homes. The airport became a public entity in 1978 when it was purchased by the three cities pursuant to Government Code section 6500 et seq.
![public utilities code section 21652 public utilities code section 21652](http://www.slcdocs.com/utilities/images/new/locators.jpg)
Plaintiffs are homeowners who live adjacent to defendant Burbank-Glendale-Pasadena Airport. For the reasons set forth below, we answer both questions in the affirmative. We are asked to resolve two questions: whether a public entity lacking the power of eminent domain may nonetheless be liable in inverse condemnation and, whether a plaintiff may elect to treat commercial airport noise and vibrations as a continuing, rather than a permanent, nuisance. Kadison, Pfaelzer, Woodard, Quinn & RossiĤ0th Floor, First Interstate Tower, 707 Wilshire Blvd., Los Angeles CA 90017Ĭounsel for Amici Curiae (Defendant-Respondent)ģ45 California St., San Francisco CA 94104īIRD, C.J., and KAUS, BROUSSARD and GRODIN, JJ., concur. Reasoning that a cause of action in permanent nuisance arose so as to avoid continuous and vexatious litigation, a danger that is present here, one judge concludes that plaintiffs may not choose which kind of nuisance to bring an action in if defendant is privileged to continue the nuisance.Ĭounsel for Amici Curiae (Plaintiffs-Appellants) One judge concurs in the holding on inverse condemnation, but dissents from the majority's position on nuisance. Therefore, state law damage remedies remain available against an airport proprietor since it is required by statute to make all reasonable efforts to curb noise pollution at an airport. Finally, on the question of federal preemption, the court holds that federal law preempts only the exercise of municipalities' police power and not the exercise of their proprietary power. Allowing adequate recovery, and deterrence, are cited as the policy reasons that justify a cause of action in nuisance, and these would not be served by increasing the scope of permanent nuisance since this assumes all damages have been done and are remedied through a lump sum payment. The focus should be on the existence of the ability to abate the nuisance, not on the possibility of getting a court order which orders abatement. The distinction is one where there is a continuing use that offends, not the presence of what offends. A nuisance that may be discontinued at any time and that is an ongoing, repeated nuisance, is ruled to be a continuing nuisance. The court instead finds that a permanent nuisance usually involves one act that does a permanent injury and archetypically involves a solid, permanent structure. Defendant's argument that a permanent nuisance is one that can't be enjoined is held to be unnecessarily narrow. The classification of type of nuisance is based on the type of harm suffered, and, to a lesser extent, the nature of the disturbance. The court also rules that noise, smoke, and vibration may be considered a continuing, as opposed to a permanent nuisance. Rather, the court rules that inverse condemnation is a constitutional remedy that may be used whenever damage may be shown to have resulted from the exercise of governmental power. In a suit brought by homeowners living adjacent to the Burbank-Glendale-Pasadena Airport, the court first rejects defendant's argument that if a public entity has no power to condemn, and thus no power to take by eminent domain, it may not be guilty of inverse condemnation, since this is only a remedy that may be used when proper condemnation proceedings are not held. The court rules that a cause of action in inverse condemnation is appropriate against a public entity even though that entity has no power to take by eminent domain, and that plaintiffs may treat airplane noise, smoke, and vibration as a continuing nuisance. Burbank-Glendale-Pasadena Airport AuthorityL.A. Burbank-Glendale-Pasadena Airport Authorityģ | Environmental Law Reporter | copyright © 1986 | All rights reservedīaker v.