Petition for Writ of Certiorari — County of Westchester v. Commissioner of Transportation

931549 mar 3 01994

No.

ORE a ae

IN THE

Supreme Court of the United States

Ocroser TERM, 1993

COUNTY OF WESTCHESTER, NEW YORK,

Petitioner,

VS.

COMMISSIONER OF TRANSPORTATION OF THE

STATE OF CONNECTICUT; TOWN OF GREENWICH;

LAURELTON NURSING HOME, INC.; GREENWICH

KING STREET ASSOCIATES II, L.P.; MILDRED

TOMONTO; CONVENT OF THE SACRED HEART;

LAURELTON CONVALESCENT HOME, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MARILYN J. SLAATTEN

Westchester County Attorney

600 Michaelian Office Building

148 Martine Avenue

White Plains, New York 10601

(914) 285-2673

Caro. L. Van Scoyoc

Deputy County Attorney

Counsel of Record

MARGUERITE R. WieEss

Assistant County Attorney

QUESTION PRESENTED

1. May the court below deprive

Westchester County, New York of its

right, pursuant to 28 U.S.C. §1332, to

have its claims against Connecticut

residents (which affect the National

Airport System plan adopted by the

Federal Aviation Administration)

determined in a neutral and impartial

federal court, by giving effect to a

Connecticut state court opinion rendered

after certification of questions of law,

where the state opinion expressly refused

to answer the certified questions of law,

but purported, instead, to decide the

ultimate question of fact in a manner

diametrically opposed to the finding of

the United States District Court?

a i

ii

PARTIES

The names of all parties to the

proceeding in the court whose judgment

is sought to be reviewed appear in the

caption of the case.

TABLE OF CONTENTS OF BRIEF

Page

QUESTION PRESENTED ...........-----++-> i

eee cee cecevecsnsverseeeces ii

TABLE OF CONTENTS. ........---::sceceeee: iii

TABLE OF CONTENTS OF APPENDIX ....... Vv

TABLE OF AUTHORITIES ...............-.-. vii

ol ee 2

JURISDICTION .......--- cece cece cece teres 5

STATUTES AND RULES INVOLVED ......... 8

STATEMENT OF THE CASE ...........-.---- 1]

A. Background ............--.sseeeeeeees 1]

B. Statement of Facts .............-.---+--- 15

eee 18

REASONS FOR GRANTING THE WRIT....... 24

ee ee ee eee 45

TABLE OF CONTENTS OF APPENDIX

Appendix A -

Decision of the United States Court of Appeals

for the Second Circuit, Dated November 10,

1993 with Order and Mandate..............

Appendix B -

Opinion and Order of the United States District

Court for the Southern District of New York,

Dates Fame S, IGOR... 6c ccc ccece.

Appendix C -

Order and Certificate of the United States

Court of Appeals for the Second Circuit, Dated

pg rer ee ee f

Appendix D -

Opinion of the Connecticut Supreme Court,

Dated July 28, 1993 ......

Appendix E -

Order of the United States Court of Appeals for

the Second Circuit, Dated December 30, 1993 .

Page

A-]

A-28

A-158

A-172

A-194

TABLE OF AUTHORITIES

Cases Page

Alexander & Alexander Services, Inc. v. Lloyd’s

Syndicate 317, 902 F.2d 165 (2d Cir. 1990).... 30n.

Andrzejczyk v. Advo System, Inc., 146 Conn.

428, 151 A.2d 881 (1959) ................... 18, 32

Bank of America National Trust and Savings

Association v. Parnell, 352 U.S. 29, 77 S. Ct.

el ay I ie ces a's oes 43-44

Banque Worms v. Bankamerica Intern., 928 F.2d

ne ons oles 30n.

Clearfield Trust Co. v. United States, 318 U.S.

ey GU ie Gale CD osc escecwevcceces: 42

County of Westchester v. Town of Greenwich,

745 F. Supp. 951 (S.D.N.Y. 1990)............ 19n., 29

County of Westchester v. Town of Greenwich,

793 F. Supp. 1195 (S.D.N.Y. 1992)........... 2, 3, 18

County of Westchester, New York v.

Commissioner of Transportation of the State of

Connecticut, 986 F.2d 624 (2d Cir. 1993) ..... 3, 20

County of Westchester, New York v. Town of

Greenwich, 227 Conn. 495, 629 A.2d 1084

COUN vs sc wkoeeeddedenwectassddsesk seeks + 3,4

County of Westchester, New York v.

Commissioner of Transportation of the State of

Connecticut, 9 F. 3d 242 (2d Cir. 1993) ...... 4

DeWeerth v. Baldinger, 836 F.2d 103 (2d Cir.

aA cheb wiis deere racer er hows occcees &. 30n.

vili

Cases Page

Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct.

I ro aoa dig tas ooo e beew wel 28, 42

Griggs v. County of Allegheny, Pa., 369 U.S. 84,

82 S. Ct. 531 (1962) reh’g denied, 369 U.S. 857

DEN 4 es Sas ae hESC axed e be aoe oA 02 Hes 35n., 37

Home Ins. Co. v. American Home Products

Corp., 873 F.2d 520 (2d Cir. 1989) .......... 30n.

Kidney by Kidney v. Kolmar, 808 F.2d 955 (2d

Cia pissy ote Lee wee as wie > i466 © 6 10, 30n.

Klar Krest Realty, Inc. v. Rajon Realty Corp.,

190 Conn. 163, 459 A.2d 1021 (1983)......... 18, 32

Lehman Brothers v. Schein, 416 U.S. 386, 94

es I a ee ai ae 19n.

Miree v. De Kalb County, Ga., 433 U.S. 25, 97

ey Gd ode eee ules 42

Page Motor Co. v. Baker, 182 Conn. 484, 438

SN oie a aioe berhh cae rye aes 37n.

Peterson v. Oxford, 189 Conn. 740, 459 A.2d 100

6855S soe se aa eos ARON ee twee Kass 37n.

Town of Rye v. Skinner, 907 F.2d 23 (2d Cir.

1990) cert. denied, 498 U.S. 1024, 111 S.Ct.

fees sariie Peer eee Sioa rag SW eee 29n.

United States v. Causby, 328 U.S. 256, 66 S. Ct.

EE 6:6 5c dwae oka bee e Maw ee ek eh seo 37

United States v. County of Westchester, 571 F.

. Tie GRBs 8s DOE oc vcsrcscercveses 13

ix

Page

STATUTES

United States Constitution, Article III, §2....-.-. 27

OTE RU cag cccc csc ctccsecceneserersss 8, 27, 36

OB 1.S.C. GISOUD).... 6... cere etree 5, 18

OB U.S.C. $1MS4(1)... cece e errr 7

49 U.S.C. eS” Ge ea 12

49 App. U.S.C. §1301(29)....------ sss 26

MOU BIE oon vc cc ccc cceeeneseeereses 12

Pi Pe)! eee 12

49 App. U.S.C. § 1304 ....-------erer errr 12, 26

Public Law 85-726 ......----cccercerrr str 12

Public Law 91-255 .....-----scccreerersrrr 12, 14

Connecticut General Statutes

Section 15-34(8).....----ecceeeeer reer 33

WMO, . on ccc ccc ce en snceseesevecees 33

Section 51-1000 ....-.-----scccreserreessee 8,9

RULES AND REGULATIONS

Rules of the Supreme Court of the United States,

ep is ica sadsnacddarccoseneccees: 7

Rules of the United States Court of Appeals for

the Second Circuit, Rule §0.27.....-.-------- 9, 10

veo tS | re he 14, 16

14 C.F.R. $190.10) ....--- cece cccccrrccrese: 14

PERIODICALS

Hamilton, Alexander Federalist Papers, No. 80... 27

No.

IN THE

Supreme Court of the United States

Ocroser Term, 1993

COUNTY OF WESTCHESTER, NEW YORK,

Petitioner,

VS.

COMMISSIONER OF TRANSPORTATION OF THE

STATE OF CONNECTICUT; TOWN OF GREENWICH;

LAURELTON NURSING HOME, INC.; GREENWICH

KING STREET ASSOCIATES II, L.P.; MILDRED

TOMONTO; CONVENT OF THE SACRED HEART;

LAURELTON CONVALESCENT HOME, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner, the County of

Westchester, New York, respectfully

petitions for a writ of certiorari to

review the judgment of the United States

Court of Appeals for the Second Circuit,

reversing the Opinion and Order of the

United States District Court for the

Southern District of New York granting

petitioner a prescriptive avigation

easement over lands in Connecticut

belonging to the respondents.

OPINIONS BELOW

The opinion of the United States

District Court for the Southern District

of New York, granting petitioner a

prescriptive avigation easement over

respondents’ properties in Connecticut,

reported as County of Westchester v.

Town of Greenwich, Connecticut,

Cc issione fe) j the

State of Connecticut, Laurelton Nursing

Home, Inc., Greenwich King Street

Associates II, L.P., the Convent of the

Sacred Hea n ;

appears in Appendix B hereto at A28, and

is reported at 793 F.Supp. 1195

(S.D.N.Y. 1992).

The decision of the United States

Court of Appeals for the Second Circuit

certifying questions of law to the

Connecticut Supreme Court appears in

Appendix C hereto at A158, and is

reported as County of Westchester, New

York v. Commissioner of Transportation

of the State Connecti wn _o

Greenwich; Laurelton Nursing Home, Inc.;

Greenwich King Street Associates II,

L.P.; Mildred Tomonto; the Convent of

the §S ed Heart ent

om nc. at 986 F.2d 624 (2d ‘Cir.

1993).

The decision of the Connecticut

Supreme Court, County of Westchester,

New Vv. WwW wi s, 18

officially reported at 227 Conn. 495

(1993) and appears in Appendix D hereto

at Al72.

The Decision and Order of the United

States Court of Appeals for the Second

Circuit reversing the Order of the

United States District Court for the

Southern District of New York appears in

Appendix A hereto at Al and is reported

at 9 F.3d 242 (2d Cir. 1993).

The Order of the United States Court

of Appeals for the Second Circuit

denying Westchester County’s petition

for rehearing with a suggestion for

rehearing in banc, which is not

reported, appears in Appendix E hereto

at A194.

JURISDICTION

The decision and order of the United

States District Court for the Southern

District of New York was entered on June

3, 1992. Notices of Appeal from said

Order were filed by the Town of

Greenwich, Mildred Tomonto, Laurelton

Nursing Home, Laurel Convalescent Home,

Inc., Greenwich King Street Associates

II, L.P. and the Convent of the Sacred

Heart on June 29 and July 1 and July 2,

1992. On August 24, 1992, the United

States District Court for the Southern

District of New York amended its Order

of June 2, 1992 to include a

certification pursuant to 28 U.S.C.

§1292(b) that an interlocutory appeal

should be entertained. By an Order

filed on January 6, 1993, the United

States Court of Appeals for the Second

Circuit ordered the Clerk of the Court

eee

to transmit to the Connecticut Supreme

Court a certification of three questions

of law to be decided by that court. The

Connecticut Supreme Court released its

decision on July 28, 1993. On November

10, 1993, the United States Court of

Appeals for the Second Circuit, based

upon the Connecticut Supreme Court’s

decision, reversed the District Court’s

grant of partial summary juc*sent in

favor of the County of Westchester and

directed that court to enter judgment

for the defendants and remanded for

further proceedings on a separate cause

of action. On November 24, 1993, the

County of Westchester petitioned the

United States Court of Appeals for the

Second Circuit for rehearing with a

suggestion for a rehearing in banc. By

an Order filed on December 30, 1993, the

United States Court of Appeals for the

Second Circuit denied the petition for

rehearing.

In accordance with Rule 13.1 of this

Court, this petition is filed within 90

days of the denial of the petition for

rehearing. The jurisdiction of this

Court is invoked under 28 U.S.C.

§1254(1).

STATUTES AND RULES INVOLVED

28 U.S.C. §1332

(a) The district courts shall have

original jurisdiction of all civil

actions where the matter in controversy

exceeds the sum of value of $10,000,

exclusive of interest and costs, and is

between

(1) Citizens of different

States;...

Connecticut General Statutes, Section

51-199a.

Uniform Certification of Questions

of Law Act. (a) This section may be

cited as the Uniform Certification of

Questions of Law Act.

(b) The supreme court may answer

questions of law certified to it by the

Supreme Court of the United States, a

court of appeals of the United States or

a United States district court when

requested by the certifying court if

there are involved in any proceedings

before it questions of law of this state

which may be determinative of the cause

then pending in the certifying court and

as to which it appears to the certifying

court there is no controlling precedent

in the decisions of the Supreme Court of

this state. (P.A. 85-111).

Rule §0.27 of the United States

Court of Appeals

for the Second Circuit

Certification of Questions of State Law

Where authorized by state law, the

Court may certify to the highest Court

of a State an unsettled and significant

question of state law that will control

the outcome of a case pending before

this Court. Such certification may be

made by this Court sua sponte or on

motion of a party filed with the clerk

of this Court. Certification will be in

- 10 -

accordance with the procedures provided

by the state’s legislature or highest

state court rules, e.g., Conn. Public

Act No. 85-111; New York Court of

Appeals Rule 500.7. Certification may

stay the proceedings in this court

pending the state court’s decision

whether to accept the certification and

its decision of the certified questions.

(Eff. Nov. 10, 1986.) See als

Kidney by Kidney v. Kolmar, Laboratories,

Inc., 808 F.2d 955 (2d Cir. 1987).

2)

- ll -

STATEMENT OF THE CASE

A. Background

The Federal Aviation Administration

(FAA) substantially reduced the usable

length of Runway 11/29 at the

Westchester County Airport (Airport) *

because trees on respondents’ properties

had grown to such height that they posed

a potential hazard to planes attempting

to land. Inasmuch as the airport is in

New York, and the trees are in

Connecticut, making condemnation

proceedings unavailable, the County of

Westchester (County) commenced an action

in the United States District Court for

the Southern District of New York to

establish an avigation easement,

(including a clearance easement), over

the airspace needed by aircraft to land

safely on Runway 11/29.

"The airport has only two runways.

Congress has taken an active

interest in, and exercised a vital role

in the development of the country’s air

transportation system since the

enactment of the Air Commerce Act of

1926 (49 U.S.C. §§171-184). The Federal

Aviation Act of 1958 (P.L. 85-726)

declared that "the promotion of safety

in air commerce and the promotion,

encouragement and development of civil

aviation" were in the public interest

(49 U.S.C. §§1302, 1303) and that every

citizen of the United States was

entitled to freedom of transit through

the navigable airspace of the United

States (49 U.S.C. §1304).

Pursuant to the Airport and Airway

Development Act of 1970 (P.L. 91-258),

the FAA prepared a national airport

system plan. The Westchester County

Airport is included in the national

- 13 -

system and is an integral part of the

New York City Metropolitan Area Airport

System, accounting for approximately 15%

of total operations in the metropolitan

area (LaGuardia, JFK, Newark, Teterboro

and Westchester). For a description of

the National Airport System and

Westchester County’s part therein, see

United States v. County of Westchester,

571 F.Supp. 786, 788-790 (S.D.N.Y. 1983)

in which the United States District

Court for the Southern District of New

York found that a midnight to 7:00 a.m.

curfew at the Westchester County Airport

"has an adverse impact on the flow of

interstate air commerce" and "also

adversely affects the operation of the

air transportation system in the New

York metropolitan area." Jd. 797. A

fortiori, substantial shortening of one

runway to 3100 feet, to say nothing of

- 14 =

its ultimate closure should the trees

continue to grow unimpeded, will

severely disrupt the operation of the

air transportation system in the New

York metropolitan area.

In furtherance of the development of

a national transportation policy and the

enhancement of air safety, Congress

amended the Federal Aviation Act of 1958

(P.L. 91-258) to give the FAA power to

certify airports and to make it unlawful

to operate airports without a certifi-

cate. Among the many rules and regula-

tions adopted pursuant to this authority,

were those eet forth in 14 C.F.R. (Code

of Federal Regulations) §77.25 and

§139.101 requiring that the approach

surfaces at the end of runways be kept

free of all obstructions and that buffer

zones of empty airspace (clear zones) be

maintained around landing glide slopes

-- those areas through which aircraft

descend to reach the runway.

B. Facts

The Westchester County Airport was

constructed by the United States of

America” in 1942 for use in the war

effort, and turned over to the County in

1945 at the end of World War II. The

airport and Runway 11/29 (the

obstruction of whose approach surfaces

give rise to the present litigation)

have been in continual and constant use

for over fifty years. Runway 11/29 is

sandwiched in between Rye Lake and

Interstate Highway 684 on its western

end and the Connecticut border on its

kk

eastern end.

* by the Civil Aeronautics

Administration with the assistance of

the Army Corps of Engineers.

**The eastern end of Runway 11/29 is

bare)y 300 feet from the state line

between New York and Connecticut.

- 16-

Over the years, trees on respondents’

properties grew to the point where they

penetrated the airspace at the end of

Runway 11/29 to such an extent that they

posed a potential hazard to aircraft

landing on that runway, causing the FAA,

pursuant to its safety regulations (14

CFR §77.25) to displace the landing

threshold of the runway by 1300 feet,

reducing its usable length by

approximately one third and rendering it

unusable to all but very light aircraft.

When the United States government

constructed the airport in 1942, it

neglected to condemn any property in

Connecticut or to negotiate any

avigation or clearance easements over

property lying beneath the flight paths

used by aircraft landing on Runway 11/29

from the east. Once the airport was

turned over to the County by the United

- 17 -

States, the opportunity for condemnation

expired because a New York municipal

corporation lacks authority to condemn

property in Connecticut. Attempts by

the County to negotiate easements for

tree trimming with the Connecticut

property owners has proved unavailing.”

Faced with the failure of the United

States to acquire sufficient property at

the time of construction to ensure

future operations, and its own inability

to institute condemnation proceedings,

the County commenced an action, based

upon diversity jurisdiction, in the

United States District Court for the

Southern District of New York to secure

a prescriptive avigation easement over

respondents’ Connecticut properties,

*Respondents have even refused ;

permission to install safety devices,

e.g. the Visual Approach Slope Indicator

(VASI) on their property.

- 18 -

based upon its fifty~year use of such

airspace that was "open, visible,

continuous and uninterrupted for fifteen

years and made under a claim of right"

as required by the Connecticut law of

prescriptive easements. Andrzejczyk v.

Advo Systems, Inc., 146 Conn. 428, 431,

151 A.2d 881 (1959); a est Realt

Inc. v. Rajon Realty Corp., 190 Conn.

163, 168 459 A.2d 1021, 1024-5 (1983).

C. Prior Proceedings

In Count Westchester v. Town of

Greenwich, 793 F.Supp. 1195 (S.D.N.Y.

1992) set forth in Appendix B at A28,

the District Court (GOETTEL, J.), after

a scrupulous examination of the facts

and law, granted the County a

prescriptive avigation easement over

respondents’ lands. Pursuant to 28

U.S.C. §1292(b), the United States Court

of Appeals accepted respondents’

Dice eeaereeeceieaineacerneaialeaiaallainnaiiaiet tat ataiaiaiiial

- 19 -

interlocutory appeals.

Thereafter, the Connecticut Attorney

General in an Amicus Curiae brief

requested, for the first time,” that

the Court of Appeals certify questions

of law pertaining to prescriptive

avigation easements to the Connecticut

Supreme Court.

The Court of Appeals, despite the

parties’ reluctance, certified the

following three questions of law to the

Connecticut Supreme Court:

1. Can an avigation easement be

acquired by prescription in the

*The Connecticut Attorney General, as

the attorney for the State Commissioner

of Transportation, had been involved in

the litigation since its inception in

1990. See unt Wes e Vv. Town

of Greenwich, 745 F.Supp. 951 (S.D.N.Y.

1990). Cf. Chief Justice Rehnquist’s

comments. with respect to tardy requests

for Certification in Lehman Brothers v.

Schein, 416 U.S. 386, 392-395, 94 S.Ct.

1741, 1745-47 (1974).

- 20 -

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 airspace is necessary to

use the easement?™

The Connecticut Supreme Court in its

opinion County of Westcheste

v. Town of Greenwich, 227 Conn. 495, 629

A.2d 1084 (1993) set forth in Appendix D

at A172, explicitly refrained from

answering any of the questions of law

*The Court of Appeals’ Order and

Certification are set forth in Appendix

C at Ali58.

- 21-

certified to it, and, instead, made the

ultimate finding of fact that "under the

circumstances of this case", the County

had not acquired a prescriptive

avigation easement.

The County moved the Court of

Appeals to reject the Connecticut

Supreme Court’s opinion as unresponsive

on the law and in excess of its

jurisdiction on the facts, and for

consideration of the appeal on the basis

of the papers submitted and oral

argument held on Novenber 18, 1992.

The panel, in a two judge” Per

Curiam decision dated November 10, 1993,

(set forth in Appendix A at Al) denied

the County’s motion and reversed the

District Court’s Order, and remanded the

*The Honorable Robert F.Peckham,

Senior United States District Judge for

the Northern District of California,

sitting as a member of the panel by

designation, died on February 16, 1993.

- 22 -

case for further proceedings based upon

the Connecticut Supreme Court’s opinion

on the facts.

The County thereafter petitioned the

Court of Appeals for a rehearing with a

suggestion for a rehearing in banc on

the grounds that the certification of

questions of law to the state court was

erroneous and not in conformity with the

Court of Appeals’ own practice; that the

state court opinion was inconsistent,

unresponsive on the law and in excess of

its jurisdiction on the facts; and that

the Court of Appeals by allowing the

state court to make the ultimate finding

of fact, deprived the County of

Westchester of its right to avail itself

of the diversity jurisdiction of the

federal court for a fair and impartial

determination of its claims against

Connecticut residents.

- 23 -

This petition was denied on December

30, 1993. A Copy of the Court of Appeals

Order is set forth in Appendix E at A194.

REASONS FOR GRANTING THE WRIT

Trees growing in Connecticut in

proximity to the end of Runway 11/29 at

the Westchester County Airport have

obstructed the airspace needed to ‘insure

safety in landing on Runway 11/29 to

such an extent that the Federal Aviation

Administration has displaced the landing

threshold, thereby drastically shortening

the usable length of the runway. If

these trees are not trimmed, but are

allowed to grow without interruption,

operations at the Westchester County

Airport will be severely curtailed

which, in turn, will affect the national

air transportation system for the New

York Metropolitan Region.

The United States government, which

built the airport in 1942, did not

condemn land in Connecticut to enable

it, as the owner and operator of the

- 25 -

airport, to trim the trees as

necessary. Westchester County which

took over the airport from the United

States at the end of World War II, is,

as a matter of law, unable to condemn

property in Connecticut. In order to

keep Runway 11/29 open and the airport

operating as an integral part of the

national airport system plan, Westchester

County commenced an action in federal

court to impose a prescriptive avigation

easement over the airspace in Connecticut

needed to allow aircraft to land safely.

The choice of federal court was

deliberate. Not only did Westchester

County seek an impartial tribunal for

the resolution of its own claims, but it

also sought a forum sensitive to the

Congress’ interest in the national air

transport system.

The case raises questions of whether

- 26 ~-

out-of-state litigants espousing locally

unpopular views can expect to receive a

fair and impartial hearing in the

federal courts, or whether they will be

forced to have their claims determined

in a less than receptive state court

environment -- whether an unresponsive

state court opinion will be allowed to

subvert national aviation policy and

imperil the right of all citizens to

freedom of transit through the navigable

airspace of the United States (49 U.S.C.

§1304), including “airspace needed to

insure safety in take-off and landing of

aircraft" (49 U.S.C. §1301 (29)).

The Second Circuit Court of Appeals’

decision in this case deprives

Westchester County, New York and its

citizens, of an essential right,

recognized by the drafters of the

Constitution and provided by Congress --

- 27 -

the right to have their claims decided

by a fair and impartial tribunal.

As Alexander Hamilton so eloquently

expressed in the Federalist Papers, No.

80:

"No man ought certainly to be a

judge in his own cause, or in any

cause in respect to which he has the

least interest or bias. This

principle has no inconsiderable

weight in designating the federal

courts as the proper tribunals for

the determination of controversies

between different States and their

citizens."

Pursuant to this fundamental and

quintessential principle of fair play,

the Constitution of the United States,

Article III, §2 provides that the

judicial process of the United States

extends to controversies between

citizens of different states, and

Congress has deciared that:

The district courts shall have

original jurisdiction of all civil

actions...between (1) Citizens of

different States...". 28 U.S.C.

§1332.

- 28 -

As this Court recognized in Erie R.

Co. v. Tompkins, 304 U.S. 64, 67, 58

S.Ct. 817, 820 (1938), diversity

jurisdiction was conferred on the

federal courts not only to combat actual

discrimination but "to prevent

apprehended discrimination in state

courts against those not citizens of the

state." Notwithstanding periodic

suggestions that it be eliminated, it

has remained a cornerstone of federal

jurisdiction because of the perception

that even in these modern, sophisticated

times, citizens of one state may not be

able to obtain an impartial or unbiased

hearing in the courts of another state.

This is especially true in cases like

the one at bar where the litigant, cr

the subject of the litigation, is one

that arouses strong local passions.

- ee hee

Werk ae tes cA Le

awe

j

Airports, despite efforts at noise

abatement, are generally not beloved by

those who live in proximity to them. As

the District Court below found, County

of Westchester v. Town of Greenwich, 745

F.Supp. 951, 953 (S.D.N.Y. 1990):

"The property owner defendants

claim they are not, and never have been,

interested in having any airplanes

flying overhead, and are taking

advantage of the fact that the ball is

in their court now that the trees have

reached an intrusive level."*

It is for just such reasons that

Westchester County exercised its right

to invoke the jurisdiction of the

federal court system.

The Court below has denied

Westchester County its right to a fair

and impartial forum for the resolution

*See also Town of Rye v. Skinner, 907

F.2d 23 (2d Cir. 1990) cert. denied, 498

U.S. 1024, 111 S.Ct. 673 (1991) in which

the Town of Greenwich among others,

sought to prevent the modernization of

the Westchester County Airport.

- 30 -

of its claims, not by certifying

questions of law to the Supreme Court of

Connecticut (although certification in

this case, which presented an issue never

likely to arise again, was contrary to

the Court’s usual practice’) but by

giving effect to the opinion of the

Connecticut Supreme Court which refused

to answer any of the questions of law

certified to it while at the same time

purporting to decide the ultimate

question of fact. The Connecticut Court

*The questions certified should be

confined to issues likely to recur with

some frequency, which will have a

significant impact on state law or

involve the application of important

public policy.

Kolmar, 808 F.2d 955 (2d Cir. 1987);

, 836 F.2d 103 (2d

Cir. 1987); Home Ins. Co. v. American

Home Products Corp., 873 F.2d 520 (2d

Cir. 1989); Alexander & Alexander

vi ‘ Zs

902 F.2d 165 (2d Cir. 1990); Banque

Worms v. Bankamerica Intern., 928 F.2d

538 (2d Cir. 1991).

d

H

:

- 31-

refused to either rule that it was

impossible to acquire an avigation

easement by prescription in Connecticut,

or divulge what steps were necessary to

acquire such an easement prescriptively.

Instead, it stated that since Westchester

County was not entitled to a prescriptive

avigation easement, it was unnecessary

to answer the certified questions of law.

By allowing the Connecticut court to

decide the ultimate question of fact,

the Court of Appeals for the Second

Circuit abolished diversity jurisdiction

in this case and left Westchester County

to the mercy of the Connecticut Court in

its dispute with Connecticut residents.

The basic question of law certified

by the Court below to the Connecticut

Supreme Court was "Can an avigation

easement be acquired by prescription in

the State of Connecticut?". The

- 32 -

Connecticut law of prescriptive easements

is firmly established. A successful

claimant must show that its use was

“open, visible, continuous and

uninterrupted for fifteen years and made

under a claim of right." Andrzejczyk v.

Advo Systems, Inc., 146 Conn. 428, 151

A.2d 881 (1959); Klar Krest Realty, Inc.

v. Raj a , 190 Conn. 163, 459

A.2d 1021 (1983). The District Court

found as a fact that Westchester County’s

use of Runway 11/29 was open and visible

(App. infra, at A82), adverse (App.

infra, at A84-86), made under a claim of

right (App. infra, at A86-7) and

continuous and uninterrupted for a

period of fifteen years (App. infra, at

A109-10), and therefore, satisfied all

of the Connecticut requirements for a

prescription easement. However, because

- 33-

*

there was no Connecticut case law

with respect to prescriptive avigation

easements, the Court below certified

questions of law to the Connecticut

Supreme Court to discover whether

Connecticut required more (and if so,

what requirements) than usage which was

open, visible, adverse, continuous and

uninterrupted for fifteen years and made

under a claim of right to acquire a

prescriptive avigation easement.

At the very outset of its opinion,

the Connecticut Supreme Court misstated

the certified question of law presented

to it by declaring: "The dispositive

: question is whether the plaintiff ...

has acquired on ... avigation easement

3

. *Connecticut statutes explicitly recog-

nize avigation easements. Connecticut

General Statutes, Section 15-73 and

Section 15-34(8), and Section 15-41-31(d)

of the Regulations of Connecticut State

Agencies.

~- 34 -

by prescription ..." (App. infra, at

A175).

The Connecticut Supreme Court

concluded that the County "did not

acquire a prescriptive avigation easement

in the circumstances presented"

(emphasis supplied) and declined to

decide "whether an avigation easement

may ever be acquired by prescription."

Clearly, this decision does nothing to

clarify the Connecticut law of

prescriptive avigation easements, and

strongly implies that prescriptive

avigation easements may be acquired in

other unspecified circumstances.

The Connecticut court usurped the

*The Connecticut court repeatedly

dwelt on the facts, rather then the law,

e.g. "in the circumstance of this case"

App. infra, at A177, "in the

circumstances presented" App. infra, at

A187, “in these circumstances" App.

infra, at A189, “not in these

circumstances" App. infra, at A193.

- 35 -

authority of the federal district court

to make findings of fact, and made

several which in effect "reversed" the

findings of the district court.* The

Court of Appeals by its certification

sought to discover whether Connecticut

law recognizes prescriptive avigation

easements, and what legal requirements

are necessary to obtain them. With this

information, the federal court is

supposed to make its own findings of

fact and apply them to Connecticut law.

The Court of Appeals for the Second

Circuit by reversing the District

"E.g., the Connecticut court found that

the overflights had not interfered with

the landowners’ use and enjoyment of

their properties (App. infra, at A191),

whereas the District Court found that

the overflights came within 31 feet and

17 feet respectively of Tomonto’s and

Greenwich King Street’s properties (App.

infra, at A84-85), well within the limits

set by this Court for such interference

in .

369 U.S. 84, 82 S.Ct. 531 (1962) reh’g

denied,369 U.S.857 (1962). Furthermore,

- 36 -

Court’s decision based upon the

Connecticut court’s finding of fact, has

deprived petitioner of its right pursuant

to 28 U.S.C. §1332 to have the ultimate

findings of fact made by a neutral

tribunal.

While refusing to explain or

describe the steps necessary to acquire

a prescriptive avigation easement, the

Connecticut court implied rather strongly

that its finding of fact, negating the

County’s acquisition of a prescriptive

avigation easement, was based upon the

inability of the Connecticut landowners

to enjoin aircraft from landing at the

*

Westchester County Airport.

the County’s use of the clear zones as

safety buffers was incompatible with

respondents’ desires to grow trees to

their mature height (App. infra, at A86).

*Heretofore, the Connecticut Supreme

Court has taken a somewhat less rigid

view of property rights, holding that

————————~S~S—

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See Aegiiet

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Since flights through the navigable

airspace of the United States may not be

enjoined, United States v. Causby, 328

U.S. 256, 66 S.Ct. 1062(1944); Griggs v.

County of Allegheny, Pa., 269 U.S. 84,

82 S.Ct. 531 (1962) reh’g denied, 369

U.S. 857 (1962), it is difficult to

imagine under what other circumstances

the Connecticut court might ever

recognize a prescriptive avigation

easement.

Petitioner is not asking this Court,

or the Court below to "correct" the

Connecticut Supreme Court’s

they must be exercised with reference to

the rights of others.

"Current social policy dictates that a

person no longer have unfettered control

of his land. In an urbanized state such

as Connecticut it would be unjust for

[an easement owner] to ignore the

harmful consequences of his actions."

Page Motor Co. v. Baker, 182 Conn. 484,

438 A.2a 739 (1980) cited with approval

in , 189 Conn. 740,

Vv

746, 459 A.2d 100, 103 (1983).

- 38 -

interpretation of Connecticut law. The

Connecticut Court never clarified,

interpreted or declared the Connecticut

law of prescriptive avigation easements.

Petitioner maintains that since the

Connecticut Supreme Court refused to

answer the questions of law certified to

it, and refused to clarify the

Connecticut law of prescriptive avigation

easements, the Court below erred in

applying the Connecticut opinion” and

also erred in reversing the District

Court based upon the Connecticut court’s

*The Court below chided petitioner for

failing to cite any authority (App.

infra, at A20) to support rejecting the

Connecticut opinion. However, this

appears to be a case of first impression.

The entire purpose behind certifying

questions of law is to clarify the law

of the other jurisdiction. There is no

statutory or case law which requires a

court to accept an unresponsive opinion.

;

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- 39 -

findings of fact.”

Furthermore, the Court below in

commenting (App. infra, at A21) that

Connecticut appeared to have added an

adverse use requirement to its prerequis-

ites for acquiring prescriptive avigation

easements, failed to take into considera-

tion that the District Court specifically

included this element in its analysis,

and specifically found that the County’s

use was adverse (App. infra, at A84-86).

These errors deprived petitioner of its

right to have its claims against

Connecticut residents decided by an

impartial federal tribunal, rather than

to have such claims compromised by a

*In an attempt to justify its reliance

on the Connecticut opinion, the Court

below rationalized that while the

Connecticut opinion refused to answer

any of the questions of law certified to

it, it had answered a "subset" of the

- 40 -

myopic and parochial state court

decision.

The Connecticut Supreme Court’s fact

specific decision, coupled with its

refusal to answer any of the certified

questions of law, does not constitute a

controlling statement of state law which

must be applied by the Court of Appeals

for the Second Circuit. Rather, it is a

result oriented decision designed to

defeat the County’s claim while

conveniently leaving the general question

of law unanswered for a more sympathetic

claimant.

The fact that the Connecticut Court

certified questions of law i.e. “whether

an avigation easement can be acquired

-.- in these circumstances" (App. infra,

at A20). The question the Connecticut

court posed to itself, in lieu of those

certified to it, was a question of fact,

not law. It is axiomatic that a question

of fact cannot be a "subset" of a

question of law.

ee

ee ie ee Rae i) een ee ake, re ee ee ewes ns

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- 41-

made no genuine effort to answer the

questions of law certified to it while

denying the County its easement as a

matter of fact, is a striking example of

why the need for diversity jurisdiction

remains as strong today as it appeared

to the drafters of the Constitution over

two hundred years ago.

The mischief caused by allowing

narrow state interests to decide

Westchester County’s claim against

Connecticut residents goes far beyond

economic harm to the County. It

seriously affects national interests and

impedes the right of the public to

freedom of transit through the navigable

airspace of the United States, 49 App.

U.S.C. §1304, which includes airspace

needed to land safely. 49 App. U.S.C.

§1301(29). The FAA has expressed its

concern in this area.

- 42 -

The Westchester County Airport is an

integral part of the New York City

Metropolitan Air Transportation System.

Actions which reduce its effectiveness

also diminish the effectiveness of the

system as a whole. While state law

normally prevails in the private aspects

of diversity jurisdiction cases between

private parties, ie Vv ins,

op cit, supra p. 28, nevertheless, where

there are broad issues going beyond the

narrow interests of the parties, and

where federal rights are implicated, the

federal courts have applied federal

common law. Clearfield Trust Co. v.

United States, 318 U.S. 363, 63 S. Ct.

573 (1943). The present case, unlike

Miree v. DeKalb County, Ga., 433 U.S.

25, 97 S. Ct. 2490 (1977) strikes at the

heart of the national transportation

system by allowing a state court (which

- 43 -

has no jurisdiction to make findings of

ultimate fact on a certified question of

law referral) to determine the fate”

of the national air transportation

system in this area.

Petitioner is not suggesting at this

point, that this Court impose a federal

law of prescriptive avigation easements,

but it does urge that this Court, at the

very least, not disrupt the air

transport system by tolerating the

application of some purported state |

requirement, which the state court

itself refused to enunciate, even though

explicitly invited to do so.

This Court has granted certiorari

before when important issues of

federal-state relations were raised.

*Unless the obstructing trees are

trimmed, their continued growth will

ultimately lead to the closure of Runway

11/29, or to such drastic shortening as

will render it useless.

Bank of America National Trust and

Savings Association v. Parnell, 352 U.S.

29, 77 S. Ct. 119 (1956), and petitioner

urges that it do so again, to vindicate

petitioner’s right to have its claims

adjudicated by an impartial tribunal and

to protect the national air

transportation system from unwarranted

state interference.

- 45 =-

CONCLUSION

For these reasons, a writ of

certiorari should be issued to review

the Decision and Order of the United

States Court of Appeals for the Second

Circuit.

Respectfully submitted,

MARILYN J. SLAATTEN

Westchester County Attorney

Counsel for Petitioner

600 Michaelian Office Building

148 Martine Avenue

White Plains, New York 10601

(914) 285-2673

Ce D On

CAROL L. VAN SCOYOC

Deputy County Attorney

Counsel of Record

MARGUERITE R. WIESS

Assistant County Attorney

March 30, 1994