County of Westchester, N.Y. v. Commissioner of Transp. of State of Conn.
| Decision Date | 10 November 1993 |
| Docket Number | 555,D,Nos. 554,557,558,556,s. 554 |
| Citation | 9 F.3d 242 |
| Parties | COUNTY OF WESTCHESTER, NEW YORK, Plaintiff-Appellee, v. COMMISSIONER OF TRANSPORTATION OF the STATE OF CONNECTICUT, Defendant, Town of Greenwich; Laurelton Nursing Home, Inc.; Greenwich King Street Associates II, L.P.; Mildred Tomonto; Convent of the Sacred Heart, Defendants-Appellants, Laurel Convalescent Home, Inc., Appellant. ockets 92-7698, 92-7700, 92-7704, 92-7706, 92-7018, 92-7726. |
| Court | U.S. Court of Appeals — Second Circuit |
Karl S. Coplan, New York City (Berle, Kass & Case, Eve C. Gartner, Kelley Drye & Warren, John M. Callagy, Cadwalader Wickersham & Taft, William Schwartz, of counsel), for defendant-appellant the Convent of the Sacred Heart.
Joyce H. Young, Greenwich, CT (John E. Meerbergen, Greenwich Town Atty., of counsel), for defendant-appellant Town of Greenwich.
Stuart A. McKeever, Westport, CT, for defendants-appellants Laurelton Nursing Home, Inc. and Laurel Convalescent Home, Inc.
O'Rourke & O'Hanlon, New Canaan, CT (Edward V. O'Hanlon, of counsel), for defendant-appellant Mildred Tomonto.
Cummings & Lockwood, Stamford, CT (Chase Rogers, Rosalind Kelley, of counsel), for defendant-appellant Greenwich King Street Associates II, L.P.
Marguerite R. Wiess, White Plains, NY, Asst. County Atty. for Westchester County (Marilyn J. Slaatten, Westchester County Atty., Carol L. Van Scoyoc, Deputy County Atty., of counsel), for plaintiff-appellee County of Westchester.
Richard Blumenthal, Hartford, CT, Atty. Gen., State of Conn., Cornelius F. Tuohy, Asst. Atty. Gen., for State of Conn., amicus curiae.
Leonard A. Ceruzzi, Janet V. Lanigan, J.E. Murdock, III, Baker, Worthington, Crossley, Stansberry & Woolf, Washington, DC, for National Business Aircraft Ass'n and the Westchester Aviation Ass'n, amici curiae.
John S. Yodice, Ronald D. Golden, Raymond C. Speciale, Yodice Associates, Washington, DC, for Aircraft Owners and Pilots Ass'n, amicus curiae.
William E. Hegarty, Greenwich, CT, John B. Conway, New York, NY, for themselves as amici curiae.
Before: FEINBERG and KEARSE, Circuit Judges. 1
Defendants, landowners in the State of Connecticut (landowners), appeal from an order entered in June 1992 in the United States District Court for the Southern District of New York, Gerard L. Goettel, J., granting partial summary judgment to plaintiff County of Westchester (the County) on its claim of a prescriptive avigation easement under Connecticut law. 793 F.Supp. 1195. The appeal comes to us pursuant to 28 U.S.C. Sec. 1292(b), the district court having made the requisite certification in August 1992 and this court having accepted the interlocutory appeal. We heard argument in November 1992, and in January 1993 we certified certain questions of state law to the Connecticut Supreme Court. 986 F.2d 624. Based on the response from that Court, we reverse the district court's order and remand for consideration of the remaining claims.
The facts of the case are discussed in great detail in the district court's published opinions, familiarity with which will be assumed. See 745 F.Supp. 951; 756 F.Supp. 154; 793 F.Supp. 1195. We will discuss the facts only briefly here.
The Westchester County Airport (the airport), owned and operated by the County, is located in New York State adjacent to the Connecticut border and has been in operation for more than 40 years. 745 F.Supp. at 953. The approach zone to runway 11/29, one of the airport's two runways, is located almost entirely in Connecticut. The tree-studded path underneath the approach zone is owned by defendant landowners. One of the landowners, the Town of Greenwich, is a public entity. The rest are private persons or entities.
In 1981, the Federal Aviation Administration (FAA) warned the County that several of the landowners' trees had penetrated the airspace constituting the mandatory "clear zone" for runway 11/29. The clear zone, as distinguished from the flight path, is not airspace through which the airplanes regularly fly, but rather is "a ground level area beyond the runway to be kept clear of vertical structures that could interfere with low-flying aircraft." United States v. City of New Haven, 367 F.Supp. 1338, 1339 n. 2 (D.Conn.1973), aff'd, 496 F.2d 452 (2d Cir.), cert. denied, 419 U.S. 958, 95 S.Ct. 218, 42 L.Ed.2d 174 (1974). Because of concern over the problems posed by the trees, the FAA in February 1989 ordered the runway's usable length shortened by approximately 1300 feet. The effect of this order was to stop the use of the runway for many types of airplanes. 745 F.Supp. at 953. The County offered to trim the trees back at its own expense, but the landowners refused. Id.
In February 1990, the County filed this action in the district court seeking, among other things, to force the landowners to have the trees trimmed. The parties agreed that "New York cannot exercise its powers of eminent domain over property located in another state." Id. The parties further agreed that Connecticut law controls under the New York choice of law rule favoring the law of the situs of the real property at issue. Id. at 957 n. 7. In its complaint, the County advanced several theories based on federal law and Connecticut state law. In September 1990, the district court granted in part the landowners' motion to dismiss for failure to state a cause of action under F.R.Civ.P. 12(b)(6), and granted the motion of an additional defendant, the Commissioner of the Connecticut Department of Transportation, to dismiss the complaint against him in its entirety. Id. at 954-57. As a result of these dispositions, the County's only remaining claims were state common law claims including a claim of a prescriptive avigation easement. Id. at 962.
The district court addressed the prescriptive avigation easement claim in the opinion that culminated in the June 1992 order now before us. 793 F.Supp. 1195. The district court noted that the County in effect seeks two separate easements: an "avigation or flight easement giving it a right to fly through the airspace above defendant's properties [and] a clearance easement providing it the right to cut down those trees obstructing the approach to runway 11/29 and its clear zones." Id. at 1204; see also United States v. Brondum, 272 F.2d 642, 644-45 (5th Cir.1959) (). In its opinion, the district court noted the uncertain status of both types of easements under Connecticut law. Nonetheless, the court concluded that "recognition of a prescriptive avigation easement is the proper course." 793 F.Supp. at 1205.
The district court applied the general requirements for acquiring prescriptive easements under Connecticut law and granted the County's motion for summary judgment on the prescriptive avigation easement claim. Id. at 1213. Noting that "[u]nder Connecticut law, the 'owner of an easement has all rights incident or necessary to its proper enjoyment,' " id. (quoting Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987)), the district court further concluded that "[b]y virtue of its acquisition of an avigation easement, the County also obtained ... a right to unobstructed clear zones." Id. With respect to the dimensions of the easements, the district court assumed that "while not generally bound to enforce the FAA clear zones or to defer to the FAA's institutional expertise in the area of air safety, Connecticut would agree that the clear zones necessary for safe air operations are those identified in the FAA regulations." Id. 793 F.Supp. at 1217.
The district court then granted the landowners a partial offset based on counter-easements they had acquired by virtue of the encroachment of their trees into the clear zone since approximately 1975, id. at 1219, and the court appointed a special master to evaluate which trees should be trimmed and removed. Id. at 1222.
In its Sec. 1292(b) certification to us, the district court formulated the controlling question of law as: "whether the state of Connecticut recognizes avigation easements acquired by prescription and, if so, whether it would include a clearance easement and what its dimensions would be." Noting the absence of controlling precedent in Connecticut on the issues presented and the potential effect a decision might have on the property rights of Connecticut residents, we agreed with the suggestion of amicus Attorney General of the State of Connecticut that the questions of state law referred to above should in turn be certified to the Connecticut Supreme Court. Certification to that court respects Connecticut's strong interest in deciding those questions "rather than having the only precedent on point be that of the federal court, which may be mistaken." Home Ins. Co. v. American Home Prods. Corp., 873 F.2d 520, 522 (2d Cir.1989).
By order dated January 6, 1993, we certified the following questions of law to the Connecticut Supreme Court:
1. Can an avigation easement be acquired by prescription in the State of Connecticut?
2. If under Connecticut law a clearance easement is distinct from an avigation easement, can a clearance easement be acquired by prescription in the State of Connecticut?
3. Whether conceived as incident to an avigation easement or as constituting a separate clearance easement, would a clear zone include whatever air space is necessary to use the easement? See 986 F.2d at 627.
The Connecticut Supreme Court accepted certification, and heard oral argument in April 1993. In a decision released July 28, 1993, the Connecticut Supreme Court responded to the certification. 227 Conn. 495, 629 A.2d 1084 (1993).
To continue reading
Request your trial
-
Ventres v. Goodspeed Airport, LLC, No. 17280.
...avigation easements and prescriptive clearance easements is unsettled under Connecticut law. See Westchester v. Commissioner of Transportation, 9 F.3d 242, 245 (2d Cir. 1993), cert. denied, 511 U.S. 1107, 114 S.Ct. 2102, 128 L.Ed.2d 664 (1994). In Westchester v. Greenwich, 227 Conn. 495, 49......
-
In re Libor-Based Fin. Instruments Antitrust Litig., 11 MD 2262 (NRB)
...the holdings of [a state's highest court] and must reject inconsistent rulings from its lower courts."); County of Westchester v. Comm'r of Transp., 9 F.3d 242, 245 (2d Cir. 1993) ("[T]he highest court of a state has the final word on the meaning of state law." (internal quotation marks omi......
-
Ventres v. GOODSPEED AIRPORT LLC, (SC 17280).
...avigation easements and prescriptive clearance easements is unsettled under Connecticut law. See Westchester v. Commissioner of Transportation, 9 F.3d 242, 245 (2d Cir. 1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2102, 128 L. Ed. 2d 664 (1994). In Westchester v. Greenwich, 227 Conn. 495,......
-
County of Westchester v. Town of Greenwich, Conn.
...("Westchester III "), certifying questions to Connecticut Supreme Court, 986 F.2d 624 (2d Cir.1993), and rev'd and remanded, 9 F.3d 242 (2d Cir.1993) (per curiam), and cert. denied, --- U.S. ----, 114 S.Ct. 2102, 128 L.Ed.2d 664 (1994); County of Westchester v. Town of Greenwich, 870 F.Supp......
-
Percolation's Value.
...apply New York law as determined by the New York Court of Appeals." (citation omitted) (quoting County of Westchester v. Comm'r of Transp., 9 F.3d 242, 245 (2d Cir. 1993) (per (272.) To be sure, there are numerous details to be worked out. For example, would the Court certify questions only......