745 F.Supp. 951 (S.D.N.Y. 1990), 90 Civ. 1302, County of Westchester v. Town of Greenwich, Conn.

Docket Nº90 Civ. 1302 (GLG).
Citation745 F.Supp. 951
Party NameCOUNTY OF WESTCHESTER, Plaintiff, v. TOWN OF GREENWICH, CONNECTICUT, Commissioner of Transportation of the State of Connecticut, Laurelton Nursing Home, Inc., Greenwich King Street Associates II, L.P., the Convent of the Sacred Heart, and Mildred Tomonto, Defendants.
Case DateSeptember 10, 1990
CourtUnited States District Courts, 2nd Circuit, Southern District of New York

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745 F.Supp. 951 (S.D.N.Y. 1990)



TOWN OF GREENWICH, CONNECTICUT, Commissioner of Transportation of the State of Connecticut, Laurelton Nursing Home, Inc., Greenwich King Street Associates II, L.P., the Convent of the Sacred Heart, and Mildred Tomonto, Defendants.

No. 90 Civ. 1302 (GLG).

United States District Court, S.D. New York.

Sept. 10, 1990

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Marilyn J. Slaaten, Westchester County Atty., White Plains, N.Y. (Paul D. Sirignano, Sr. Asst. County Atty., of counsel), for plaintiff.

John E. Meerbergen, Town Atty., Greenwich, Conn. (John E. Meerbergen, of counsel), for defendant Town of Greenwich, Conn.

Clarine Nardi Riddle, Connecticut Atty. Gen., Hartford, Conn. (Kenneth N. Tedford, Asst. Atty. Gen., of counsel), for defendant Com'r of Transp. of the State of Conn.

Stuart A. McKeever, Westport, Conn. (Stuart A. McKeever, of counsel), for defendant Laurelton Nursing Home, Inc.

Cummings & Lockwood, Stamford, Conn. (Chase T. Rodgers, of counsel), for Greenwich King Street Associates II, L.P.

Badger, Fisher & Cohen, Greenwich, Conn. (Miles F. McDonald, Jr., of counsel), Berle, Kass & Case New York City (Charles S. Warren, Karl S. Coplan, of counsel), for defendant The Convent of the Sacred Heart.

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Sive, Paget & Riesel, New York City (David Sive, of counsel), for Mildred Tomonto.


GOETTEL, District Judge.

Cases involving the acronym "NIMBY," which stands for "Not In My Backyard," have been feverishly litigated throughout the country. In this case, we are presented with a variation on the theme, and have developed what we believe is a new acronym, NIMAS, which stands for "Not In My Airspace."


Plaintiff, the County of Westchester, which is located in New York State, owns and operates the Westchester County Airport ("WCA"). WCA has been in existence for approximately forty years and is utilized by both commercial and private aircraft. WCA should not be confused in terms of size with either of New York's two major airports, Kennedy and La Guardia, although expansion plans are presently under consideration. 1 Until February 1989, WCA had two runways in operation, one of which was used on a limited basis. This alternate runway, known as Runway 11/29, was used only in emergency situations or when prevailing wind conditions made its use appropriate. 2 In February 1989, however, the Federal Aviation Administration ("FAA") ordered a reduction in the usable length of Runway 11/29 due to the incursion of certain trees into the mandatory "clear zone." 3 This clear zone is established by the FAA and requires a specified amount of unencumbered airspace for airplanes to land and take off. See 14 C.F.R. § 77.25 (1990). If intrusions into this zone are present, aircraft will be forced to land or take off at an angle that is unsafe. In limiting the available length of Runway 11/29, the FAA attempted to avoid such a situation. Unfortunately for plaintiff, this limitation also has severely curtailed the use of Runway 11/29 because it is now of an insufficient length to permit landings and takeoffs by many types of airplanes.

The defendants, excluding the Commissioner of Transportation of the State of Connecticut, are the property owners upon whose land the intruding trees are located. This, by itself, is probably no different than situations existing throughout the country where property owners have trees protruding into the airspace utilized by a neighboring airport. Generally, a state's powers of eminent domain can be exercised to insure that the requisite "clear zone" is available. In the case at bar, however, the property owners are all Connecticut residents and the trees are all located in Connecticut, notwithstanding the fact that WCA is located entirely within New York. This results from the rather jagged borders of New York and Connecticut in this area. In essence, the Town of Greenwich, Connecticut juts into New York, causing aircraft utilizing WCA's Runway 11/29 to fly over Connecticut immediately upon taking off or before landing. The fact that the trees are located in Connecticut is the precise cause of this litigation since all parties agree that New York cannot exercise its powers of eminent domain over property located in another state.

In February 1990, plaintiff instituted this action for injunctive and declaratory relief. This action was only started, however, after plaintiff's offer to trim the trees to a satisfactory level at its own expense was rejected. The property owner defendants claim they are not, and have never been, interested in having any airplanes flying overhead, and are taking advantage of the fact that the ball is in their court now that the trees have reached an intrusive level. They have adopted this stance even though it is clear that the proximity of WCA to

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Connecticut means that WCA is used by both Connecticut and New York residents. 4

Plaintiff raises a number of claims in its Complaint. First, it claims that the trees interfere with interstate commerce, ostensibly in violation of the commerce clause of the Constitution. Moreover, plaintiff asserts that the Federal Aviation Act mandates that there is public right of free access to the navigable airspace of the United States. Plaintiff also suggests that defendants' trees create both statutory and common law nuisances. Finally, it is alleged that the use of the airspace for approximately forty years has given plaintiff a prescriptive easement in this flight zone. With respect to the Commissioner of Transportation of the State of Connecticut (the "Commissioner"), plaintiff claims that the Commissioner has the obligation of insuring that there are no obstructions to airports, and that this duty is not limited to airports located in Connecticut.

Defendants now move to dismiss pursuant to Federal Rule of Civil Procedure 12. The Commissioner has moved separately and contends that to the extent plaintiff is seeking his compliance with state law, this court lacks jurisdiction since the eleventh amendment bars such a suit. Moreover, he claims that there is no federal law establishing a cause of action in favor of plaintiff since the commerce clause is only at issue when states, not private actors, interfere with commerce and since the Federal Aviation Act, while announcing a general policy, does not create a private cause of action. The remaining defendants have moved jointly pursuant to rule 12(b)(6) and agree with the Commissioner's arguments with respect to a potential federal cause of action. As to the state law claims, they contend that neither a claim for nuisance, statutory or common law, nor an easement by prescription can be established based on the facts presented.


We will address the two motions separately.

A. Commissioner's Motion

In the Complaint, plaintiff seeks an order compelling the Commissioner "to require the removal of the encroachments and obstructions to aerial navigation and the safe, efficient use of Runway 11/29 at the Westchester County Airport." Complaint ¶ (a). Plaintiff then contends that the Commissioner can enforce such an order pursuant to Connecticut law giving him authorization to remove any "obstacle so located as to constitute a hazard to aerial navigation or to the efficient or safe use of any airport." Conn.Gen.Stat.Ann. § 15-74(a) (West 1988). As noted, however, even assuming the Commissioner's authority is not limited to in-state airports, the Commissioner has moved to dismiss on eleventh amendment grounds.

The eleventh amendment states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." U.S. Const. amend. XI. First, it is clear that while plaintiff is a County, not an individual, it is still a "citizen" for eleventh amendment purposes. County of Monroe v. Florida, 678 F.2d 1124, 1131 (2d Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983). In addition, the amendment has been interpreted by the Supreme

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Court to prohibit suits by citizens of one state not only against another state itself, but also against officials of another state for injunctive relief based on violations of state law. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984); Dube v. State Univ. of New York, 900 F.2d 587, 595 (2d Cir.1990).

In response to this argument, plaintiff offers the following rather confusing response. Plaintiff recognizes the eleventh amendment's prohibition, but asserts that it is seeking injunctive relief based on violations of the commerce clause of the Constitution and the Federal Aviation Act. Such a suit would not be barred by the eleventh amendment, to the extent plaintiff is seeking injunctive relief based on the state official's violations of federal law. See Papasan v. Allain, 478 U.S. 265, 276-77, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Pennhurst, 465 U.S. at 102, 104 S.Ct. at 909; Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974). Rather oddly, however, plaintiff then asserts in a footnote that the Commissioner can order the removal of the trees allegedly violating the commerce clause and the Federal Aviation Act pursuant to section 15-74 of the Connecticut General Statutes referred to above.

To the extent plaintiff is seeking any relief from the Commissioner based on Connecticut state law, it is clear that the eleventh amendment prohibits such a suit. Thus, we must turn to the two federal claims ostensibly raised by plaintiff. The commerce clause states that Congress has the power "[t]o regulate Commerce...

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