The Wisconsin Supreme Court in Brenner v. New Richmond Regional Airport Commission 2012 WI 98 (July 17, 2012) reversed a circuit court decision dismissing inverse condemnation claims made by property owners abutting a municipal airport due to the effect of flights of private aircraft over their properties resulting from the extension of runways at the airport.

The Court took into consideration the fact that Wisconsin Statutes Section 114.03 and 114.04 gave property owners certain rights with respect to airspace over their properties.  It determined referring to federal case law that the proper standard to be applied in determining whether a taking occurs in airplane overflight cases is whether the government action results in aircraft flying low enough and with such frequency as to have a direct and immediate effect on the property owner’s use and enjoyment of the property.  The circuit court had held that the appropriate standard to apply was whether the property owners had been deprived of all or substantially all of the use of their properties.

The Supreme Court found that the circuit court had applied the wrong standard, and remanded the case for submission of evidence and a determination whether the flights were so low and frequent as to constitute a taking.