What is Taking / Inverse Condemnation?

Taking is an action by a government that deprives a person of private real or imagined personal property without the payment of just compensation. As related to aviation, a government could affect this taking by regulating the use of property to such a degree that it no longer has any economically viable use.

A term similar to taking is “inverse condemnation” which is a legal procedure to obtain compensation when a property interest has been taken or diminished in value by a government activity.

According to the Fifth Amendment to the Constitution, the taking of private real or personal property (taking/inverse condemnation) for public use by the government requires due process of law and just compensation to the owner for the value of the property taken.

For example:  A certain Corporation plans to construct a 60-foot office building near a public airport, notifies the FAA, and subsequently receives a Determination of No Hazard at the 60-foot height. Before the corporation can begin construction, the airport authority decides to lengthen the airport’s runway and notifies the corporation that its office building will now be restricted to 40 feet, seriously diminishing the economic viability of the project.  The corporation may sue for inverse condemnation (a taking) and if successful may force the airport authority to provide them with just compensation.

Williams Aviation Consultants have considerable expertise and experience in determining maximum allowable heights of structures in the vicinity of airports based on the provisions of FAR Part 77 and the U.S. Standard for Terminal Instrument Procedures, has assisted attorneys and provided expert testimony in regard to determinations of value and just compensation based on takings and inverse condemnation.

A determination of maximum allowable height serves as the foundation for determining the value of a structure and therefore just compensation to the owner for the value of the property taken.