Appeal from the United States District Court for the Southern District of New York.
APPENDIX
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Docket Nos. 92-7698, 92-7700, 92-7704, 92-7706, 92-7726
Filed January 6, 1993
COUNTY OF WESTCHESTER, NEW YORK, Plaintiff-Appellee,
— against — 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; THE CONVENT OF THE SACRED HEART,
Defendants-Appellants, LAUREL CONVALESCENT HOME, INC.,
Appellant.
Certificate to The Connecticut Supreme Court
(pursuant to Conn.Gen.Stat. § 51-199a — Uniform Certification
of Questions of Law Act)
The Westchester County Airport (the airport), owned and
operated by the County of Westchester (the County), is located in
New York adjacent to the border between New York and Connecticut
and has been in operation for more than 40 years. The airport
presently uses two runways. One of these runways, runway 11/29
(the run
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way), abuts New York’s border with Connecticut. The approach zone
to the runway is located almost entirely in Connecticut. The
tree-studded land underneath the approach zone is owned by the
defendant landowners (landowners). One of the landowners, the
Town of Greenwich, is a public entity. The rest are private
persons or entities.
The Federal Aviation Administration (FAA) requires the airport,
like all airports, to keep the approach zone free of
obstructions. Over the years, however, several of the landowners’
trees have penetrated into the airspace constituting the approach
zone. The FAA voiced concern about the trees in 1981, warning
that unless they were removed the threshold (the end of the
runway) would have to be shortened so that aircraft would not
risk hitting the encroaching trees when landing or taking off.
Eventually, the FAA ordered the runway’s threshold displaced.
Completed in early 1989, the displacement shortened the runway’s
usable length by some 1300 feet.
The airport offered to trim the trees back at the County’s
expense, but the landowners refused. In February 1990, the
airport filed this action in the United States District Court for
the Southern District of New York. All parties agreed that “New
York cannot exercise its powers of eminent domain over property
located in another state.” 745 F. Supp. 951, 953. Consequently,
the airport advanced several theories based on Connecticut state
law, principally that the airport had acquired a prescriptive
easement entitling it to use and maintain the airspace it needed
to keep the runway fully operational.
The parties filed motions for summary judgment, and the
district court, Gerard L. Goettel, J., issued an opinion on June
2, 1992. 793 F. Supp. 1195. As an initial matter, the district
court’s analysis divided the airport’s claimed easement into two
distinct easements; namely, “an avigation or flight easement
giving [the airport] a right to fly through the airspace above
the [landowners’] properties” and “a clearance easement providing
[the airport] the right to cut down those trees obstructing the
approach to runway 11/29 and its clear zones.” Id. at 1204.
As the district court recognized, the status of these easements
is uncertain under Connecticut law. Nonetheless, the district
court was “persuaded that recognition of a prescriptive avigation
easement is the proper course” and “that clearance easements . .
. [also] can be acquired by prescription.” Id. at 1205, 1207.
Having established the availability of avigation and clearance
easements, the district court next found that the airport had in
fact satisfied all the requirements necessary to acquire those
easements. According to the district court, one of the rights
incident to the airport’s avigation easement was a right to
unobstructed “clear zones.” Id. at 1213. A clear zone consists
of a buffer of airspace surrounding the approach path to the
runway and acts to safeguard the clear passage of arriving and
departing aircraft. The district court reasoned that the
dimensions of this zone were coextensive with those established
by FAA regulations. Id. at 1217.
The airport’s victory was not complete, however. The district
court also found that the landowners had acquired prescriptive
counter-easements by the growth of their trees into the clear
zone, though the court rejected the landowners’ claim of
counter-easement into the glide path airspace itself. Taking this
counter-easement into account, the court offset the extent of the
airport’s easement by the landowners’ counter-easement. Id. at
1219.[1] Finally, the district court rejected the landowners’
laches defense.
After the landowners filed notices of appeal, they petitioned
the district court to amend its June 2, 1992 opinion to include a
certification pursuant to 28 U.S.C. § 1292(b). The district court
granted the
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motion, stating that its June 2 opinion “involve[d] a controlling
question of law as to which there is a substantial ground for
difference of opinion.” The district court formulated the
question as follows: “[W]hether 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.” The landowners petitioned for permission to
appeal pursuant to § 1292(b). We granted the petition and
accepted the appeal on the basis of § 1292(b).
We are aware that the district court spent considerable time
and energy carefully analyzing the novel and complex issues this
case presents, and that the parties wish this controversy to come
to a close, each side believing it has the stronger case on the
merits. Nevertheless, the Attorney General of Connecticut,
appearing before us as amicus curiae on behalf of the State of
Connecticut, correctly observes that this case involves unsettled
and significant questions of Connecticut property law. The
Attorney General therefore asks that we certify the relevant
questions to the Connecticut Supreme Court. We think this is
prudent counsel.
The questions of law that should be decided by the Connecticut
Supreme Court are as follows:
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?
These difficult questions implicate the authority of the State
of Connecticut to declare whether a particular set of property
rights will be recognized within the state. These are questions
of first impression under Connecticut law. Indeed, there appears
to be little law anywhere directly addressing the particular
rights at issue here. The district court cited only three cases
involving prescriptive avigation easements, and these indicate
that no single position has commanded universal assent. Compare
Petersen v. Port of Seattle, [94 Wn.2d 479], 618 P.2d 67,
70-71 (Wash. 1980) (in banc) (implicitly acknowledging
prescriptive avigation easement); Drennen v. County of Ventura,
[38 Cal.App.3d 84], 112 Cal.Rptr. 907, 909 n. 2 (Ct.App. 1974)
(seeing “no reason why an avigation easement may not be acquired
by prescription” but “not decid[ing] the point”) with Sticklen
v. Kittle, [168 W. Va. 147], 287 S.E.2d 148, 155 (W.Va. 1981)
(refusing to recognize prescriptive avigation easement).
There appear to be no controlling precedents in Connecticut on
the issues presented here. These issues affect the property
interests of Connecticut residents. The Connecticut Supreme Court
is in a better position than are the federal courts to adjudicate
these issues of Connecticut law. Certification respects
Connecticut’s strong interest in deciding the above questions
“rather than having the only precedent on point be that of a
federal court, which may be mistaken.” Home Ins. Co. v. American
Home Prods. Corp., 873 F.2d 520, 522 (2d Cir. 1989). Resolution
by the Connecticut Supreme Court of the certified issues would
aid in the administration of justice.
The foregoing is hereby certified to the Supreme Court of
Connecticut pursuant to Conn.Gen.Stat. § 51-199a as ordered by
the United States Court of Appeals for the Second Circuit.
/s/ ELAINE B. GOLDSMITH
ELAINE B. GOLDSMITH,
Clerk
United States Court of Appeals
for the Second Circuit
by: Carolyn Claire Campbell
Chief Deputy Clerk
Dated: New York, New York
January ____, 1993
