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November 30, 1994



The opinion of the court was delivered by: GERARD L. GOETTEL


 This opinion concerns the final outstanding issue in the County of Westchester's long legal effort to cut back its Connecticut neighbors' trees, which have hampered the use of the Westchester County Airport. At this point, we imagine plaintiff sympathizes with the sentiments expressed in Alan Dugan's poem "A Sawyer's Rage Against Trees Noble As Horses." *fn1" Currently before us are motions by all parties for summary judgment on plaintiff's claim of public nuisance.


 The factual background of the instant dispute was fully described in our 1992 opinion concerning this case. See County of Westchester v. Town of Greenwich, 793 F. Supp. 1195 (S.D.N.Y. 1992); see also 756 F. Supp. 154 (S.D.N.Y. 1991); 745 F. Supp. 951 (S.D.N.Y. 1990). We will, however, set forth the facts relevant to this opinion.

 Plaintiff, the County of Westchester, owns and operates the Westchester County Airport ("WCA"), which is located in New York, directly adjacent to Connecticut. The WCA was built in 1942-43 by the United States Army Corp of Engineers for use by the military, and was turned over to the County at the end of World War II. Runway 11/29, *fn2" an approximately east/west landing strip, is one of two runways at the WCA. The eastern end of Runway 11/29 is only some three hundred feet from the Connecticut state line. Consequently, airplanes landing on Runway 11/29 from the east, or taking off in that direction, must pass directly over Connecticut property at low altitudes.

 Runway 11/29, at full length, is 4,450 feet long. The other runway at the WCA, number 16/34, is 6,550 feet long, and is oriented in an approximately north-south direction. Naturally, the longer Runway 16/34 is the WCA's principal runway. Runway 11/29 is most commonly used by smaller aircraft, although in the past it was used by aircraft as large as the Gulfstream II, a twin-engined corporate jet. Runway 11/29 is sometimes referred to as the "cross-wind runway." As the name implies, Runway 11/29 gives the WCA's air traffic controllers additional options for landings and take offs, since it is oriented at a fifty degree angle to the main landing strip.

 Regulations promulgated by the Federal Aviation Administration ("FAA") establish standards defining obstructions to air navigation. See 14 C.F.R. Part 77, Subpart C. Any object that penetrates certain imaginary zones, called clear zones, is declared an obstruction to air navigation. 14 C.F.R. § 77.23(a). The clear zones that are important in this dispute are defined by the approach and transitional surfaces, which rise from the end of runways into the adjacent airspace. See 14 C.F.R. § 77.25(d), (e).

 The immediate cause of the instant dispute was the FAA's October 1988 order that Runway 11/29 be shortened by approximately 1,350 feet because trees located on defendants' property were obstructing the runway's clear zones. This order did not, naturally, come out of the clear blue sky. In fact, the FAA complained about defendants' trees obstructing Runway 11/29's clear zones in 1983, and possibly as early as 1969, although this is in dispute. In 1984, the FAA required the County to issue a Notice to Airmen warning pilots of tree obstructions on Runway 11/29 and advising them to use an angle of descent of nine degrees, instead of the normal three degrees.

 Plaintiff acknowledges that there were problems with defendants' trees well before the FAA took action. Plaintiff's affiant, James Hughes, a pilot and military flight instructor who has flown at the WCA since 1949, states that from 1969 to 1976, he observed a considerable lessening of the distance between the treetops and the landing gear of the aircraft he flew. Other pilots' affidavits supplied by plaintiff state that in the mid to late 1970s, trees along the approach to Runway 11/29 began to force pilots to use a higher, steeper approach than normal.

 Defendants, pointing to official United States Government Obstruction Charts for 1949, 1963, and 1970, argue that their trees have obstructed Runway 11/29's clear zones since at least 1949, thus implying that the WCA has had notice of a tree problem since it took control of the airport. Plaintiff counters that the obstruction surveys prior to 1982 showed only sporadic and insignificant intrusions by defendants' trees into Runway 11/29's clear zones.

 Plaintiff maintains that the FAA's shortening of Runway 11/29 has decreased its usefulness, causing increased traffic on the WCA's principal runway, reduced ability to support practice and training, decreased ability to accommodate emergency situations, decreased cross-wind landing alternatives, and, in adverse conditions, the need to divert air traffic to other regional airports. Plaintiff also argues that the shortening of Runway 11/29 has increased the hazards of using the runway, and has been a contributing factor in several crashes of small aircraft (which defendants deny). Finally, plaintiff notes that defendants' trees are continuing to grow, so that further shortening of Runway 11/29 is inevitable.

 Defendants deny that the shortening of Runway 11/29 has increased the hazards for aircraft using the WCA, since, with the shortening of the runway, it now meets FAA requirements for clearance of the approach zone. They also note that the WCA's scheduled commercial flights have not been cut back, although they acknowledge that this may happen if the runway is shortened again.

 If defendants' property were within the boundaries of New York State, the WCA would presumably be able to cut back defendants' trees through the state's power of eminent domain. However, since the defendants' property is in Connecticut, this option is not available to the WCA. See County of Westchester v. Town of Greenwich, 745 F. Supp. 951, 953 (S.D.N.Y. 1990). Moreover, defendants have rebuffed the WCA's offers to trim their trees at its own expense, which the WCA made in 1989 and 1990.


 Plaintiff commenced this action in February, 1990. In an opinion dated September 10, 1990, we granted a motion by then-defendant the Connecticut Commissioner of Transportation to dismiss the claims against him, and also dismissed plaintiff's claims based on public nuisance pursuant to Connecticut statutory law, and plaintiff's claims under the Commerce Clause and the Federal Aviation Act. See 745 F. Supp. 951. We denied defendants' motion to dismiss as to plaintiff's common law claims of public nuisance and easement by prescription. Id.

 In an opinion dated February 12, 1991, we granted plaintiff's motion to dismiss defendants' counterclaims, which were based on theories of inverse condemnation and equitable servitude, among others. See 756 F. Supp. 154.

 On June 2, 1992, we granted partial summary judgment for plaintiff, finding that it had acquired prescriptive easements to the airspace above defendants' properties (specifically, an avigation, or air navigation, easement, and a clearance easement). See 793 F. Supp. 1195. We granted plaintiff "a limited injunction to cut back, at its own expense, the trees occupying runway 11/29's clear zones to the heights they attained as of February 1975." Id. at 1222.

 At defendants' request, we then certified an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) on the question of whether Connecticut recognizes such prescriptive avigation and clearance easements. See County of Westchester v. Town of Greenwich, No. 90 Civ. 1302 (S.D.N.Y. August 24, 1992). The Second Circuit, in turn, certified three questions to the Connecticut Supreme Court on whether avigation and clearance easements could be acquired by prescription in Connecticut, and on the scope of a clearance easement or clear zone. 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, finding instead that plaintiff could not have acquired an easement by prescription because its use of the airspace above defendants' property was not sufficiently adverse, under either federal or state law. See County of Westchester v. Town of Greenwich, 227 Conn. 495, 629 A.2d 1084 (1993). Pursuant to the Connecticut Supreme Court's decision, the Second Circuit reversed our 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).

 After this long and winding road, the only legal issue left before us is plaintiff's claim under common law public nuisance. All parties are moving for summary judgment.


 1. Summary Judgment ...

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