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Baker v. Burbank-Glendale-Pasadena Airport Auth.

ELR Citation: 16 ELR 20373
Nos. L.A. 31869, 705 P.2d 866/23 ERC 1415/218 Cal. Rptr. 293, (Cal., 09/23/1985)

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. 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. 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. The court also rules that noise, smoke, and vibration may be considered a continuing, as opposed to a permanent nuisance. The classification of type of nuisance is based on the type of harm suffered, and, to a lesser extent, the nature of the disturbance. Defendant's argument that a permanent nuisance is one that can't be enjoined is held to be unnecessarily narrow. The court instead finds that a permanent nuisance usually involves one act that does a permanent injury and archetypically involves a solid, permanent structure. A nuisance that may be discontinued at any time and that is an ongoing, repeated nuisance, is ruled to be a continuing nuisance. The distinction is one where there is a continuing use that offends, not the presence of what offends. 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. 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. 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. 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.

One judge concurs in the holding on inverse condemnation, but dissents from the majority's position on nuisance. 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.

Counsel for Plaintiffs-Appellants
John J. Schimmenti
Schimmenti, Mullins & Berberian
999 Sepulveda Blvd., El Segundo CA 90245
(213) 772-0220

Counsel for Amici Curiae (Plaintiffs-Appellants)
Michael M. Berger
Fadem, Berger & Norton
Suite 600, 501 Santa Monica Blvd., P.O. Box 2148, Santa Monica CA 90406
(213) 451-9951

Counsel for Defendant-Respondent
%richard K. Simon, Lee L. Blackman
Kadison, Pfaelzer, Woodard, Quinn & Rossi
40th Floor, First Interstate Tower, 707 Wilshire Blvd., Los Angeles CA 90017
(213) 688-9000

Counsel for Amici Curiae (Defendant-Respondent)
Harold J. McElhinney
Morrison & Foerster
345 California St., San Francisco CA 94104
(415) 777-6000

BIRD, C.J., and KAUS, BROUSSARD and GRODIN, JJ., concur.