Avigation lawsuits are perhaps the most lethal weapons residents have in their guerrilla war against the county's proposed El Toro International Airport. If brought in sufficient numbers, these suits could cost the county billions of dollars.
An avigation easement is simply the right to fly over a piece of property. Anyone who wants to live near an airport must first give the easement to the county; otherwise, the column of space above the house would be a legal barrier to overflights. But there are homes in South County—like those in Laguna Woods—where residents retain control over the easements. If the county wants to use the airspace over those homes, it'll have to pay for it.
Or not. It's not surprising that the county is now trying to claim that it ought to own those easements at no cost. Some might call this theft.
At its Aug. 19 Airport Land Use Commission (ALUC) meeting, county commissioners discussed a new policy that would give the county new and broad overflight and noise rights—far beyond current easements.
“The dedication, acceptance and recordation of an avigation easement in favor of an airport proprietor may be considered as a method for controlling and reducing noise problems surrounding airports,” says the commission's proposed airport land-use policy, which includes copies of the new easements. In other words, the commission is saying the county's desire to build and run a noisy airport supersedes residents' right to silence.
More controversial is the commission's desire to get cities, rather than the county itself, to acquire the easements from all new development applicants.
The cities aren't likely to go for that. “The city of Lake Forest shares the concerns of a number of Orange County cities relative to the proposal to require avigation easements,” wrote Lake Forest city attorney Greg Diaz in an Aug. 19 letter to the ALUC. “As it is apparent that the commission expects the cities to exact these easements from development applicants within our cities, it also appears that the commission expects the cities to run the legal and financial risks associated with this exaction.” Diaz then added that court judgments requiring compensation for exacted easements “are increasing in number.”
The stakes for the county are already high. In the Northwood community being built in Irvine, prospective residents are deeding easements to the county that begin at 1,500 feet above sea level, meaning departing aircraft will probably violate that airspace as they climb through it. And in Laguna Woods, 25,000 retirees regained control of their easements when the Marines pulled out of El Toro on July 2. Laguna Woods lies directly under the arrival path for El Toro. The new ALUC easement policy wouldn't affect these particular areas, but it would make sure there were no more like them.
In any case, the ALUC has yet to come to a conclusion on its proposed easement and will take up the matter again at its Sept. 16 meeting.
