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.
II. PROCEDURAL HISTORY
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 Standard
To prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In making this determination, we must resolve all ambiguities and draw all inferences in favor of the non-moving party. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Summary judgment is only warranted when no reasonable trier of fact could find for the non-moving party. Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).
While there are minor disputes between the parties on factual issues, none are material to the resolution of the instant motions.
2. Connecticut Statute on Air Encroachments
Before discussing the County's common law claim that defendants' trees constitute a public nuisance, we must consider defendants' argument that Connecticut General Statute § 15-73 settles the whole nuisance issue. Defendants argue that this statute provides that airport approach surface obstructions may only be considered public nuisances when an obstruction clearance easement has previously been acquired. Under this interpretation, defendants win, because the County has no such easement.
We do not read the statute as defendants would like us to. The statute provides:
Where necessary in order to provide unobstructed air space for the landing and taking-off of aircraft, in case of airports, heliports and restricted landing areas acquired or operated by the state, the commissioner, and, in the case of municipal airports, the municipality, is granted authority to acquire ... easements through or other interests in air space over land or water ... as are necessary to insure safe approaches to the landing areas of such airports, heliports and restricted landing areas and the safe and efficient operation thereof. ... No person shall ... cause to be planted or permit to grow higher any tree or trees or other vegetation, which encroach upon any airport protection privileges acquired pursuant to the provisions of this section. Any such encroachment is declared to be a public nuisance and may be abated in the manner prescribed by law for the abatement of public nuisances ....
C.G.S.A. § 15-73.
As the County points out, this statute is inapplicable to the instant case, because by its own terms it only applies to "airports ... acquired or operated by the state [i.e. Connecticut]." Furthermore, this statute is simply silent about situations, such as the instant one, where the municipality has failed to acquire property interests sufficient to insure safe approaches to runways. We do not discern any intent in the statute to occupy the entire field of nuisance as regards airports and their neighbors.
3. Public Nuisance elements.
The parties agree on the elements of a claim of public nuisance under Connecticut law.
In order to prevail on a claim of nuisance, a plaintiff must prove that: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs' injuries and damages." Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978).
Connecticut v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987). Whether any of these elements is present is ordinarily a question of fact for the trier. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 36, 404 A.2d 889 (1978). An additional element for claims of public nuisance is that the alleged nuisance violates public rights, and produces a common injury. Couture v. Board of Educ., 6 Conn. App. 309, 314-15, 505 A.2d 432, 435 (App. Ct. 1986).
Defendants argue that in addition to these elements, the WCA must also show that defendants' conduct was intentional. Defendants cite our 1990 opinion, in which we stated that both sides agreed that plaintiff must prove that "'the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance.'" 745 F. Supp. 951, 958 (quoting Tippetts-Abbett, 204 Conn. at 183). However, nowhere in the rest of that opinion, or in our other opinions, did we discuss this element of plaintiff's case.
Whatever the situation was in 1990, plaintiff's current position is that it is not required to prove that delfa8U' conduct was intentional. Plaintiff points out that Tippetts-Abbett made clear that the requirement to prove intentional conduct rather than negligence arose because the plaintiff in that case was alleging an absolute public nuisance. Id. at 183. The County, however, does not allege that defendants' trees constitute an absolute public nuisance, so there is no reason to require the County to prove that defendants acted intentionally.
Defendants also argue that they cannot be considered negligent; we will consider this contention later.
4. Natural Tendency to Create Danger
Defendants argue that plaintiff cannot establish that their trees have "a natural tendency to create danger and inflict injury upon person or property." Id. Plaintiff counters that this determination must be made in context, and that when trees intrude in airspace that needs to be kept clear for safe air travel, then they are indeed inherently dangerous.
The essence of this element is that it was reasonably foreseeable that the kind of injury complained of could result from the condition alleged to be a nuisance. In Laspino v. City of New Haven, 135 Conn. 603, 67 A.2d 557 (1949), the court overturned the trial court's conclusion that a waterway in a partially developed park was a public nuisance. The court declared:
There was no evidence that the very nature of the condition was such that it was likely to cause injury. The city could not have anticipated that this body of water would be used for boating during the first week of April. ... That teen-age boys would drown in it using an inadequate homemade boat which they had found in the undeveloped area was a contingency which cannot be said to have been a "danger" likely to arise from the very nature of the current in the break under the conditions existing, even if the current had been increased by the changes made. See Brock-Hall Dairy Co. v. New Haven, 122 Conn. 321, 326, 189 A. 182.