County of Westchester v. Town of Greenwich, Conn.

• Decision Date: 02 June 1992
• Docket Number: No. 90 Civ. 1302 (GLG).,90 Civ. 1302 (GLG).
• Citation: 793 F. Supp. 1195
• Parties: COUNTY 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.
• Court: U.S. District Court — Southern District of New York

793 F. Supp. 1195

COUNTY 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.

No. 90 Civ. 1302 (GLG).

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

June 2, 1992.

COPYRIGHT MATERIAL OMITTED

Marilyn J. Slaatten, Westchester County Atty., (Michael D. Diederich, Kimberlea R. Scholz, Asst. County Attys., of counsel), White Plains, N.Y., for plaintiff.

John E. Meerbergen, Town Atty., Law Dept., (Joyce H. Young, Asst. Town Atty., of counsel), Greenwich, Conn., Sive, Paget & Reisel (David Sive, of counsel), New York City, for defendant Town of Greenwich.

Stuart A. McKeever, Westport, Conn., for defendant Laurelton Nursing Home, Inc.

Cummings & Lockwood (Chase Rogers, of counsel), Stamford, Conn., for defendant Greenwich King Street Associates.

Kelley, Drye & Warren (Arnold S. Klein, of counsel), Berle, Kass & Case (Carl Koplan, of counsel), New York City, for defendant Convent of the Sacred Heart.

O'Rourke & O'Hanlon (Edward V. O'Hanlon, of counsel), New Canaan, Conn., for defendant Mildred Tomonto.

OPINION

GOETTEL, District Judge.

I think that I shall never see a lawsuit as lovely as a tree. One may well wonder whether this would have been the opening of Joyce Kilmer's poem had his experience with trees included an intimate association with this case. While trees may indeed make lovely poems, they lose some of their aesthetic appeal when made the subject of litigation.

We return to the continuing saga of the County of Westchester's efforts to clear the airspace over property owned by several landowners on the Connecticut side of the border separating New York from Connecticut. Reduced to its simplest terms, this case represents the proverbial struggle matching commerce against nature, airplanes against trees.

I. FACTUAL BACKGROUND

While the background of this case has been outlined in previous opinions, see 745 F.Supp. 951 (S.D.N.Y.1990) and 756 F.Supp. 154 (S.D.N.Y.1991), we shall detail the material facts so that our decision may be understood by those unfamiliar with the ongoing trials and tribulations of the Westchester County Airport.

Plaintiff, the County of Westchester, located in the State of New York, owns and operates the Westchester County Airport ("WCA") which abuts the border between New York and Connecticut. Defendants are all residents of Connecticut who own parcels of land on the Connecticut side of the border situated on or near the state line. The airport began operations more than forty years ago and is presently used by both private and commercial aircraft. It has developed into a busy regional airport servicing the air transportation needs of both New York and Connecticut residents.

The WCA currently utilizes two runways. Runway 16/34, the airport's primary runway, runs in a roughly northeast-southwestern direction for 6550 feet. Runway 11/29, the alternative runway embroiled in this dispute, is a 4450 foot long landing strip without an instrument landing approach, angled in a roughly east-west direction. Runway 11/29 is sandwiched between Interstate Highway 684 and Rye Lake on its western end and the Connecticut border on its eastern end. It is usually used only when the prevailing crosswinds make use of the main runway too dangerous for all but the largest classes of aircraft or during an emergency. Since the opening of the airport, runway 11/29 has been used frequently, ranging from as few as a dozen flights up to sometimes 80 flights per day.

The controversies in this case are, quite literally, rooted in the southeastern end of runway 11/29 fronting the New York-Connecticut border. Like all airstrips, runway 11/29 has an approach zone of airspace stretching out from its ends. On its southeastern end, runway 11/29, rather unfortunately, has an air approach located almost entirely in Connecticut. Accompanying the actual flight path used by airplanes while taking off and landing, the Federal Aviation Administration ("FAA") requires that buffers of airspace, known as "clear zones," exist above certain imaginary surfaces.

The FAA has determined that safe operation of airplanes requires that areas above these surfaces be kept clear of obstructions. See Flowers Mill Associates v. United States, 23 Cl.Ct. 182 (1991). FAA regulations specifically define two types of clear zones that are significant for this case: a trapezoidal-shaped "approach surface" beginning from a point 200 feet beyond the end of the runway and extending outward for a distance of 5,200 feet at a slope of one foot vertical rise for each 20 feet in horizontal distance (20:1), see 14 C.F.R. ? 77.25(d), and a supplemental "transitional surface" rising from each side of the approach zone at a slope of one foot of vertical rise for every 7 feet of horizontal rise (7:1). See 14 C.F.R. ? 77.25(e).¹

The land underneath this airspace is owned by the various defendants, the Town of Greenwich, the Laurelton Nursing Home, Inc., the Convent of the Sacred Heart, Greenwich King Street Associates II, L.P., and Mildred Tomonto. Defendants' lands are filled with trees that over the years have, not surprisingly, been growing. Over time, an increasing number of trees located on the defendants' properties have grown into runway 11/29's clear zones eventually forcing aircraft using this runway to dramatically alter their landing patterns.

Documentation of this growth has been uneven. Testimony from pilots and a 1948 color photograph of the area show the existence of vacant fields with identifiable lines of trees along property boundaries and King Street, as well as clusters of trees on the Convent's property. The National Oceanographic and Atmospheric Administration ("NOAA"), a federal agency, has periodically surveyed runway 11/29's obstructions between 1949 and 1990 and produced official charts of the clear zones.

The 1950 NOAA chart shows two, possibly three, trees penetrating runway 11/29's 20:1 clear zone. In 1964, the NOAA chart shows 5 trees encroaching on the approach surface and 3 trees in the transitional surface. In 1970, NOAA individually identified 5 trees above the approach surface and 3 trees breaking the transitional surface.² The 1970 chart also documented wooded areas within the clear zones along the entire length of King Street, falling within the 20:1 clear zone as well as three larger wooded areas inside the 7:1 transitional zone. By 1982, NOAA separately identified 4 trees inside the 20:1 approach zone and 5 trees within the 7:1 transitional zone. Again, the 1982 chart noted wooded areas along nearly the entire length of King Street and also penetrating the left edge of the 20:1 approach zone. Also, significantly larger clusters of trees existed in the transitional clear zone bordering the left side of the 20:1 approach zone.

In 1984, the WCA contracted with a surveyor to determine the precise heights of obstructions to runway 11/29's clear zones using photogrammetric analysis. The results of the 1984 Donnelly survey show some 125 trees penetrating runway 11/29's clear zones. In 1990, Donnelly was again commissioned to survey the clear zones and documented some 128 trees inside the clear zones of which 55 were penetrating the 20:1 clear zone. There were also an additional 6 trees whose tops were broken but which had penetrated the clear zones in 1984.

In sum, the number of trees encroaching on runway 11/29's clear zones has increased significantly over the past forty-two years.³ The changes in the land use have varied to some degree by defendant. Greenwich King Street Associates, a limited partnership, owns some 152 acres of property which has witnessed the most dramatic growth. What was primarily fields lined with a row of trees in 1948, before it purchased the property, has been transformed into a maturing forest.

Photographic evidence seems to indicate that a portion of King Street Associate's land had been used as a tree nursery for an uncertain period of time beginning in the 1960s, before King Street Associates acquired it. The nursery was subsequently abandoned and apparently many of the trees were left to grow wild. King Street Associate's property lies directly adjacent to the airport and underneath runway 11/29's center line. In 1989, the County proposed to remove or top infringing trees at its own expense while covering the cost of any landscaping necessary, but nothing ever came of the offer.

Defendant Laurelton Nursing Home's property contains fewer trees intruding on runway 11/29's clear zones, primarily concentrated near the intersection of the primary and transitional zones near the northern border of the property. Plaintiff notes that defendant Laurelton Nursing Home was required to get approval, which it did, from the FAA as a condition precedent to its construction of the nursing home.

Defendant Mildred Tomonto's property also contains fewer intrusive trees by comparison than exist on Greenwich King Street Associates' land. Tomonto's trees are located immediately adjacent to the airport, on the north side of the land near the Tomonto house, and along its boundary with the Laurelton Nursing Home. While fewer in number, the Tomonto trees are disproportionately problematic because they are growing near runway 11/29's center line. In 1989, the WCA requested permission of Tomonto to enter her property to cut down certain trees inside the clear zones. The WCA maintains that it received no response from Ms. Tomonto, interpreting this as a rejection of its offer.

The Town of Greenwich, in its management of King Street as a public thoroughfare, has assumed responsibility for maintenance of the trees lining King Street. King Street traverses the entire width of the 20:1 clear zone crossing runway 11/29's center line some 1200 feet from the end of the runway. Its trees have grown...