881 A.2d 937 (Conn. 2005), 17280, Ventres v. Goodspeed Airport, LLC

Docket Nº:17280.
Citation:881 A.2d 937, 275 Conn. 105
Opinion Judge:SULLIVAN, C.J.
Party Name:James VENTRES et al. v. GOODSPEED AIRPORT, LLC, et al.
Attorney:John R. Bashaw, New Haven, for the appellants-appellees (named defendant et al.)., Michael J. Donnelly, Hartford, for the appellees-appellants (defendant the Nature Conservancy et al.)., Mark K. Branse, Glastonbury, with whom was John J. Radshaw III, Hartford, for the appellees-appellants (plaint...
Judge Panel:SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and ZARELLA, Js.
Case Date:August 30, 2005
Court:Supreme Court of Connecticut
 
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Page 937

881 A.2d 937 (Conn. 2005)

275 Conn. 105

James VENTRES et al.

v.

GOODSPEED AIRPORT, LLC, et al.

No. 17280.

Supreme Court of Connecticut

August 30, 2005

Argued April 14, 2005.

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John R. Bashaw, New Haven, for the appellants-appellees (named defendant et al.).

Michael J. Donnelly, Hartford, for the appellees-appellants (defendant the Nature Conservancy et al.).

[275 Conn. 109] Mark K. Branse, Glastonbury, with whom was John J. Radshaw III, Hartford, for the appellees-appellants (plaintiffs).

SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and ZARELLA, Js.

SULLIVAN, C.J.

This appeal arises out of a complaint filed by the plaintiffs, the inland wetlands and watercourses commission (commission) of the town of East Haddam (town) and its enforcement officer, James Ventres, against the defendants, Timothy Mellon, Goodspeed Airport, LLC (airport), Timothy Evans, the East Haddam Land Trust (land trust) and the Nature Conservancy (conservancy). The plaintiffs alleged that Mellon, Evans and the airport (collectively, airport defendants) violated the town's inland wetlands regulations by failing to obtain a permit Before cutting down trees and other vegetation on two properties owned, respectively, by the land trust and the conservancy (collectively, land trust defendants). 1 The land trust defendants filed a cross claim against the airport defendants claiming, inter alia, that they had: (1) trespassed on their land and converted their trees; (2) violated General Statutes § 22a-16 of the Connecticut Environmental Protection Act; 2 and (3) violated the Connecticut Unfair [275 Conn. 110] Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. On the motion of the airport defendants, the trial court struck the CUTPA cross claim. Thereafter, the matter was tried to the court, 3 which rendered judgment for the plaintiffs. With respect to the cross claims, the court concluded that the airport defendants had a prescriptive easement to enter the land in order to trim or cut trees that interfered with air traffic, but that the airport defendants' conduct had unreasonably expanded or intensified the easement. Accordingly, the trial court rendered judgment against

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the airport defendants on the trespass cross claim. The trial court rendered judgment for the airport defendants on the cross claim for conversion and for the land trust defendants on the cross claim pursuant to § 22a-16. The airport defendants appealed 4 from the trial court's judgment and the plaintiffs and the land trust defendants cross appealed. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The airport is located on Lumberyard Road in East Haddam. It is an "[a]irport available for public use" within the meaning of title 14 of the Code of Federal Regulations, § 77.2. 5 Mellon is the sole member of Goodspeed Airport, LLC. Evans is an independent contractor who has been the manager of the [275 Conn. 111] airport since November, 2003, and is responsible for managing its day-to-day activities.

The airport's southern boundary lies approximately along the centerline of a tidal creek that flows in a westerly direction into the Connecticut River. That boundary forms the northern boundary of property owned by the land trust, which extends for approximately 335 feet to the south, where it abuts property owned by the conservancy. The conservancy's property extends for another 100 feet to the south, at which point it abuts Chapman Pond. The airport has a 2100 foot runway that runs in a north-south direction. The southern end of the runway is approximately 630 feet north of the airport's southern boundary and 1100 feet north of Chapman Pond.

Between November 29 and December 5, 2000, Evans, at the direction of Mellon and without the permission of the land trust defendants, cut down all of the trees, bushes and woody vegetation on approximately 2.5 acres of land located between the southern boundary of the airport property and Chapman Pond. Approximately 340 trees were destroyed, including some that were 100 years old and seventy-two feet high. The airport defendants claim that the trees and vegetation posed a danger to aircraft landing at and taking off from the runway. The 2.5 acres were entirely within a regulated wetlands area as defined by General Statutes § 22a-38 (15) 6 and were part of a wildlife refuge and nature preserve that extends along the Connecticut River.

Thereafter, the plaintiffs brought this action alleging that the airport defendants had failed to obtain from [275 Conn. 112] the commission a permit to conduct a regulated activity 7 within a wetlands area as required by General Statutes § 22a-42a(c)(1) 8 and the

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town's inland wetlands regulations. 9 The airport defendants raised numerous special defenses to the plaintiffs' complaint, including a claim that the federal aviation law preempts local wetlands regulations. The land trust defendants brought cross claims against the airport defendants alleging, inter alia, that they had violated CUTPA, trespassed on their land and converted their trees, and that they had caused "unreasonable pollution, impairment or destruction" of a natural resource of the state in violation of § 22a-16 by clear-cutting the trees. Upon the motion of the airport defendants, the trial court struck the CUTPA cross claim. After a trial to the court, the court rejected the airport defendants' special defense of preemption and rendered judgment for the plaintiffs. With respect to the land trust defendants' remaining cross claims, the court found that the airport defendants had a prescriptive easement to enter the land owned by the land trust defendants for the purpose of trimming or cutting trees that interfered with air traffic, but that clear-cutting the trees had unreasonably exceeded and intensified the easement. Accordingly, the court rendered judgment [275 Conn. 113] for the land trust defendants on their trespass claim and on their claim pursuant to § 22a-16. The court found the airport defendants jointly and severally responsible for paying a civil penalty of $17,500 pursuant to General Statutes § 22a-44 (b) 10 and ordered that they contribute $50,000 to an academic or government funded research project to be identified by the department of environmental protection pursuant to General Statutes § 22a-16a (3). 11 In addition, the court enjoined the airport defendants from "engaging in any regulated activity on the land

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south of the tidal brook without obtaining a [wetlands] permit" and from entering the land trust defendants' property without their consent, except in a manner consistent with the prescriptive easement. Finally, the court ordered the airport defendants to pay damages in the amount of $1 to the land trust defendants on the trespass claim and to pay attorney's fees to be determined by the court.

[275 Conn. 114] On appeal, the airport defendants claim that the trial court improperly determined that: (1) federal aviation law does not preempt state and local wetlands regulations; (2) the failure to obtain a wetlands permit can give rise to an independent action under § 22a-16; (3) the removal of vegetation is a regulated activity under § 22a-38 (13); and (4) Mellon is personally liable for cutting the trees. The plaintiffs raise as an alternate ground for affirmance that the airport defendants have not established a factual record on which a claim of preemption can be predicated. They claim on cross appeal that the trial court improperly: (1) failed to order the airport defendants to restore the land to its original condition and imposed monetary penalties that were insufficient to restore it, thereby thwarting the remedial purpose of § 22a-16; and (2) calculated the per diem monetary penalties pursuant to § 22a-44 (b). The land trust defendants claim on cross appeal that the trial court improperly: (1) found a prescriptive easement in favor of the airport; (2) struck their cross claim pursuant to § 42-110a; and (3) determined that they were not entitled under General Statutes § 52-560 12 to damages measured by the cost of replacing the trees and precluded them from introducing evidence of the replacement value.

We conclude that the trial court properly determined that the airport defendants had a prescriptive easement to maintain an approach slope over the land trust defendants' [275 Conn. 115] property, but that they exceeded the scope of the easement by clear-cutting the land. 13 We further conclude that, because the airport defendants had no right under state property law to clear-cut the land, they had no such right under federal law and, accordingly, we need not reach their claim that federal law preempts state and local land use law. With respect to the plaintiffs' claims on cross appeal, we conclude that the trial court properly determined that the airport defendants should not be required to restore the land to its original condition and properly determined the amount of monetary penalties pursuant to § 22a-16. We further conclude that the trial court properly determined the per diem monetary penalties pursuant to § 22a-44 (b). With respect to the land trust defendants' claims on cross appeal, we conclude that the trial court properly granted the airport defendants' motion to strike the CUTPA claim. We further conclude that the trial court properly determined that the replacement cost of the trees was not a proper measure of damages pursuant to

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§ 52-560. Accordingly, we affirm the judgment of the trial court.

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