Residents Defeated in Appeal of Airport Noise Case : Litigation: A state appellate court all but ends a seven-year battle by Burbank homeowners when it finds that they have no right to sue for lowered property values or emotional distress.

A state Court of Appeal ruled in a decision released Wednesday that owners of homes near Burbank Airport have no right to sue for emotional distress or property damage caused by aircraft noise--all but ending more than seven years of litigation on the issue.

The unanimous decision by a three-judge panel in Los Angeles leaves the 600 plaintiffs from Burbank, North Hollywood and Sunland only one avenue for their case: petitioning the state Supreme Court for a hearing, lawyers said.

But the plaintiffs’ attorney, John J. Schimmenti, estimated the likelihood that the state high court would agree to hear the case as “about one out of 100. I am not optimistic, although I do plan to petition the court.”

“The effect of this ruling is that we have lost everything,” said Tom Paterson, a North Hollywood homeowner group leader and one of the plaintiffs.

“This is a very strong victory,” said Erich Luschei, attorney for the Burbank-Glendale-Pasadena Airport Authority. “We got all we could have wanted.”

The plaintiffs contended that planes using the airport inflict noise on their houses, lowering their property values.

They argued that this amounted to “inverse condemnation”--the practical equivalent of a government agency taking away property by condemning it.

But attorneys for the airport convinced a trial judge in 1988 that noise from the airport peaked in 1973 and has since been reduced by the introduction of quieter aircraft.

Superior Court Judge Robert I. Weil ruled that under state law homeowners could not file suit after 1978--five years from the point at which the noise reached its highest level.

Even though the plaintiffs proved that their property values had suffered as a result of the airport noise, the homeowners had forfeited their right to sue by not filing within the prescribed time, he said.

Most of the cases were filed in 1983.

As a result of the delay, Weil ruled, the airport authority acquired a “prescriptive avigation easement”--a permanent right to continue flying over the affected properties.

The appellate court on Wednesday upheld Weil’s ruling that denied property damages, and also found for the airport on a lesser issue of emotional damages.

Weil had ruled that the handful of plaintiffs who live close to the airport in an area where noise levels exceed state standards could sue for personal injury.

At the time, Schimmenti called it a “minor win for the plaintiffs.”

The appeal court took that victory away, saying that because the authority had acquired an avigation easement, the airport “cannot thereafter be required to compensate the plaintiffs for its use of the

easement.”

“What they are saying is there is no sense in the authority having an easement if they can be penalized for using the easement,” Luschei said.

Most of the lawsuits were filed in 1983, five years after the authority bought the airport from Lockheed Corp.

Early in the case, plaintiffs had hoped that the five-year time limit would start with the 1978 sale.

But Weil also ruled--and the plaintiffs did not appeal the point--that with the purchase of the airport the authority had acquired all the easements belonging to Lockheed.

Airport spokesman Victor J. Gill said Wednesday that although the authority at one time worried that pending litigation would raise the cost of money it must borrow to build a new terminal, that proved not to be a problem.

“We have sold bonds on several occasions while these cases were pending,” he said, “and investors haven’t seemed unduly worried.”

“Nonetheless, we welcome the lifting of the cloud of litigation,” he said.

Schimmenti, who took the case on contingency, with plaintiffs paying no fees, declined to say Wednesday how much the case had cost him.

Paterson said the appeal court decision probably would persuade noise protesters that they “have to look places other than the courts for relief.”

“We’re thinking now maybe we have to get our congressional delegation to impose some kind of growth limit on the airport.”