County of Westchester v. Town of Greenwich, Conn.

• Decision Date: 26 January 1996
• Docket Number: Nos. 90,198 and 236,s. 90
• Citation: 76 F.3d 42
• Parties: COUNTY OF WESTCHESTER, Plaintiff-Appellant-Cross-Appellee, v. TOWN OF GREENWICH, CONNECTICUT; Mildred Tomonto; Commissioner of Transportation of the State of Connecticut; Laurelton Nursing Home, Inc.; and Greenwich King Street Associates II, L.P., Defendants-Appellees, The Convent of the Sacred Heart, Defendant-Appellee-Cross-Appellant. Docket 95-7010, 95-7096, 95-7440.
• Court: U.S. Court of Appeals — Second Circuit

Page 42

76 F.3d 42

COUNTY OF WESTCHESTER, Plaintiff-Appellant-Cross-Appellee, v. TOWN OF GREENWICH, CONNECTICUT; Mildred Tomonto Commissioner of Transportation of the State of Connecticut Laurelton Nursing Home, Inc.; and Greenwich King Street Associates II, L.P., Defendants-Appellees The Convent of the Sacred Heart, Defendant-Appellee-Cross-Appellant.

Nos. 90, 198 and 236.

Docket 95-7010, 95-7096, 95-7440.

United States Court of Appeals Second Circuit.

Argued Nov. 9, 1995.

Decided Jan. 26, 1996.

Marguerite R. Wiess, Assistant County Attorney, County of Westchester, White Plains, New York (Marilyn J. Slaatten, Westchester County Attorney; Carol L. Van Scoyoc, Deputy County Attorney; of counsel), for Plaintiff-Appellant-Cross-Appellee.

Charles S. Warren, Robinson Silverman Pearce Aronsohn & Berman, New York City (Judith M. Gallent and Mark D. Risk, of counsel; John M. Callagy, Kelley Drye & Warren, New York City, of counsel), for Defendant-Appellee-Cross-Appellant.

Richard Blumenthal, Attorney General, State of Connecticut, Hartford, Connecticut (Cornelius F. Tuohy, Assistant Attorney General, of counsel), for amicus curiae The State of Connecticut.

Before: KEARSE and WINTER, Circuit Judges, and MILTON POLLACK, ^* Senior District Judge.

WINTER, Circuit Judge:

The County of Westchester appeals from Judge Goettel's grant of summary judgment dismissing its public nuisance claim against various landowners in Connecticut, including the Convent of the Sacred Heart. The County claims that trees growing on appellees' property constitute a public nuisance because they intrude into airspace so as to limit the usable length of Westchester County Airport Runway 11/29. We affirm Judge Goettel's grant of summary judgment. As a result, we need not reach Sacred Heart's protective cross-appeal claiming inverse condemnation.

BACKGROUND

Although the trees bordering the County airport have prevailed in this matter, others have been put to the saw to enable the legal profession to follow the course of this litigation. See County of Westchester v. Town of Greenwich, 745 F.Supp. 951 (S.D.N.Y.1990) ("Westchester I "); County of Westchester v. Town of Greenwich, 756 F.Supp. 154 (S.D.N.Y.1991) ("Westchester II "); County of Westchester v. Town of Greenwich, 793 F.Supp. 1195 (S.D.N.Y.1992) ("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. 496 (S.D.N.Y.1994) ("Westchester IV "); and County of Westchester v. Town of Greenwich, 227 Conn. 495, 629 A.2d 1084 (1993).

Westchester County, New York owns and operates an airport on property adjacent in the west to a small lake and in the east to the Connecticut border. The airport was built in 1942-43 by the United States Army Corps of Engineers for military use. Towards the end of World War II, the federal government turned the airport over to the County, and it has been used for civil aviation since that time. Westchester County Airport is now a busy regional facility for private and commercial aircraft.

There are two runways at the airport. Runway 16/34 is the principal runway and is used by the larger commercial and private planes. It is 6,550 feet long and is oriented on an approximately north-south axis. Runway 11/29, the shorter of the two, is used generally by smaller airplanes and is the subject of the instant lawsuit. It is oriented on an approximately east-west axis and measures 4,450 feet at full length. Its western end is by the lake. Its eastern end is only some 300 feet from the Connecticut state boundary. As a result, the flight path for Runway 11/29 frequently requires aircraft to fly at low altitudes over land in Greenwich, Connecticut that abuts the airport property and is in large part significantly higher than the runway.

Over time, trees on the adjacent Connecticut property have grown to heights that affect flight paths. Affidavits from pilots indicate that the distance between the treetops and the landing gear of airplanes had so diminished by the 1970s that the pilots began to use a higher, steeper approach than normal for Runway 11/29. The Federal Aviation Administration ("FAA") expressed concerns to the County about the trees no later than 1983, and perhaps even as early as 1969. In 1984, the FAA explicitly required the County to issue a Notice to Airmen warning pilots about the trees and advising them to use an angle of descent of nine degrees instead of the usual three degrees. In late 1988 or early 1989, the FAA ordered the County to shorten the usable length of Runway 11/29 by approximately 1,350 feet because of the trees.

The County filed the instant action in February 1990, asserting a variety of claims for declaratory and injunctive relief. The district court granted a motion by the Connecticut Commissioner of Transportation to be dismissed as a defendant as to all claims. See Westchester I, 745 F.Supp. at 955. It also dismissed the County's claims based on the Commerce Clause, see id., the Federal Aviation Act, see id. at 957, and statutory public nuisance under Connecticut law, see id. at 958. However, it denied appellees' motion to dismiss the County's common law claims of public nuisance, see id. at 959, and easement by prescription, see id. at 962. The district court also dismissed appellees' counterclaims based upon inverse condemnation and equitable servitude. See Westchester II, 756 F.Supp. at 156-57.

In 1992, the district court granted partial summary judgment for the County, holding that it had acquired prescriptive avigation and clearance easements to the airspace above appellees' property, see Westchester III, 793 F.Supp. at 1207, 1211. It ordered that the County be permitted to cut back certain trees affecting use of Runway 11/29. See id. at 1222. On appeal, we certified questions to the Connecticut Supreme Court as to whether avigation and clearance easements could be acquired by prescription under Connecticut law and on the scope of a clearance easement. See County of Westchester v. Commissioner of Transp., 986 F.2d 624 (2d Cir.1993).

The Connecticut Supreme Court did not reach the certified questions, holding instead that the County could not have acquired an easement by prescription because its use of the airspace above appellees' property was not sufficiently adverse under either federal or state law. See County of Westchester v. Town of Greenwich, 227 Conn. 495, 504, 629 A.2d 1084, 1089 (1993). Pursuant to the Connecticut Supreme Court ruling, we reversed the district court's grant of partial summary judgment to the County on its prescriptive easement claim and remanded for further proceedings. See County of Westchester v. Commissioner of Transp., 9 F.3d 242, 246-47 (2d Cir.1993) (per curiam), cert. denied, --- U.S. ----, 114 S.Ct. 2102, 128 L.Ed.2d 664 (1994).

Upon remand, Westchester's only remaining claim was that based on a common law public nuisance theory. The district court granted summary judgment for appellees, see Westchester IV, 870 F.Supp. at 505, and the County now appeals. The Convent of the Sacred Heart has filed a cross-appeal from the district court's earlier dismissal of its inverse condemnation claim. Because an inverse condemnation claim cannot succeed unless the County prevails on the public nuisance claim, the cross-appeal is protective in nature.

DISCUSSION

We review a district court's grant of summary judgment de novo, viewing all the evidence in the light most favorable to the party opposing the motion. United States v. Articles of Banned Hazardous Substances, 34 F.3d 91, 96 (2d Cir.1994) (citation omitted). Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

We emphasize that the County's claim is grounded in public rather than private nuisance. The County must, therefore, establish that some offensive or obstructive condition interferes with a right common to the general public. See State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688, 692 (1987); see also W. Page Keeton et al., Prosser and Keeton on Torts §§ 87, 90 at 619-26, 643-52 (5th ed. 1994) (distinguishing private and public nuisance). In addition, the County must show that: (i) the condition complained of has a natural tendency to create danger and inflict injury upon persons or property, (ii) the danger is a continuing one, (iii) the use of the land is unreasonable or unlawful, and (iv) the existence of the nuisance is the proximate cause of the plaintiff's injuries and damages. Tippetts, 204 Conn. at 183, 527 A.2d at 692; Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889, 891 (1978). A failure to establish either a right common to the public in the airspace or any one of the four specified elements is thus fatal to the County's claim. Judge Goettel held that the County failed to establish element (iii) because appellees have not used their property in an unreasonable manner. ¹ See Westchester IV, 870 F.Supp. at 504-05. We agree.

The determination of whether a landowner's use of property is reasonable involves a balancing of the competing interests of the plaintiff and the defendant landowner. Haczela v. City of Bridgeport, 299 F.Supp. 709, 711-12 (D.Conn.1969) (quoting O'Neill v. Carolina Freight Carriers Corp., 156 Conn. 613, 617, 244 A.2d 372, 374 (1968)). Common sense dictates that the quite ordinary activity of growing trees ² on one's land is, without more, presumptively reasonable. As the United States Supreme Court has pointed out, "the use of land presupposes the use of some of the airspace above it.... Otherwise no home could...