The Takings Clause of the Fifth Amendment of the United States Constitution declares that "private property [shall not] be taken for public use, without just compensation." While the Fifth Amendment only applies to actions by the federal government, the Fourteenth Amendment extends the Takings Clause to actions by state and local government. Article 1, section 16 of the Rhode Island Constitution affirms this principle by providing that "[p]rivate property shall not be taken for public uses, without just compensation."
In April of 2015, the Rhode Island Airport Corporation (“RIAC”) and the State of Rhode Island Department of Transportation (“RIDOT”) filed Notices of Condemnation and Avigation Easements in the Town of Westerly Land Records on a group of property owners abutting the Westerly State Airport. The avigation easements allowed for the “perpetual right for flight, including the unobstructed use and passage of all types of aircraft, whether now in existence or hereafter manufactured and developed, in and through the airspace at any height or altitude above the surface of the property with inherent noise, dust, vibrations, fumes, deposits of dust or other particulate matter, fuel particles incidental to the normal operation of aircraft and any other impacts associated with the operation of aircraft over or in the vicinity of the parcels described . . . .”
A simple easement to cut down a few trees this was not.
The property owners, after being spurned and deserted by the Westerly Town Council, went it alone and filed a complaint against RIAC and RIDOT in the Superior Court challenging the avigation easements. They argued their property was being taken in violation of the Takings Clause and the Rhode Island Constitution. They further claimed that without a preliminary injunction, RIAC and RIDOT would forever alter the landscape and character of their property rendering them irreparably harmed.
In February of 2017, the Superior Court determined that (1) the property owners had demonstrated a reasonable likelihood of success on the merits, (2) the property owners stood to suffer irreparable harm, (3) the balance of the equities, including the possible hardships to each party and to the public interest, tipped in the property owner’s favor and (4) granting an injunction would adequately preserve the status quo. The Superior Court then ordered that the authority obtained under the avigation easements could not be exercised by RIAC until further order.
Our neighbors who stood up to the overbearing and oppressive RIAC should be viewed as heroes. It is shocking that the Town Council has bolstered RIAC’s endeavor to unconstitutionally take our neighbors’ land with its decision to request that RIAC not displace the runways. The town’s overall indifference to its residents’ plight is especially galling given the proximity of the infamous Kelo v. City of New London eminent domain debacle.
For those who are generally apathetic, please reflect on the poem of Martin Niemöller, a prominent Protestant pastor who spent the last seven years of Nazi rule in concentration camps:
First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me — and there was no one left to speak for me.
Robert L. LombardoWesterly