Petition for Writ of Certiorari — Goodspeed Airport, LLC v. Ventres (No. 05-1088)

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

federal law that call for the removal of obstructions to air

navigation and forbid interference with the routing of

aircraft. This issue is critically important to the safety of the

46 million annual flights to and from the 5200 public use

airports subject to federal regulation. If allowed to stand,

the decisions below mean that such airports often will have

to await the approval of state and local officials before

removing trees and other objects that threaten the safety of

takeoffs and landings—a situation that poses an obvious,

direct threat to air safety.

This case arises out of a dispute over the removal of

trees obstructing the takeoff and landing path of the

Goodspeed Airport in East Haddam, Connecticut. Current

FAA regulations call for removal of “obstructions to air

navigation,” including natural or manmade objects that

exceed the height of an airport runway’s “approach

surface,” as well as removal of items that block a “runway

protection zone.” 14 C.F.R. §§ 77.21(a), 77.23(a)(5); FAA

Advisory Circular No. 150/5300-13, §§ 211a(6), 212. To

comply with these federal regulations, petitioners removed

from neighboring property trees that obstructed the

navigable airspace necessary for takeoffs and landings at the

airport. The state department of environmental protection

and the local wetlands commission sued petitioners,

claiming that their removal of those trees violated applicable

land use laws. The state courts agreed, rejecting petitioners’

arguments that the state land use laws were preempted.

The decisions below encroach on_ the federal

government's ability to ensure the safety of air traffic.

Moreover, the decisions below directly conflict with the

holdings of two federal courts of appeals that runways and

runway protection zones are part of the navigable airspace,

and they highlight a general division in the lower courts

about the relationship between federal regulation of the

navigable airspace and state and local regulation of land use

near airports. These decisions also contravene the United

States’ “strong interest in assuring that its exclusive

sovereignty over navigable airspace is preserved and that its

comprehensive scheme of airspace management is not

undermined by state[] law.” Br. for Amicus Curiae The

United States of America 6, in Vorhees v. Naper Aero Club,

Inc., 272 F.3d 398 (7th Cir. 2001) (No. %0-2545).

In sum, review is warranted to preserve the safety of air

travel, to provide clear guidance on the scope of preemption

under federal aviation law, and to ensure that Congress’s

mandate that “the Federal Government shall have exciusive

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

§ 40103) is not undermined by applications of state and local

land use regulations that affect aircraft flight patterns and

jeopardize the safety of takeoffs and landings.

A. Exclusive Federal Regulation of Air Safety

Ever since the Air Commerce Act of 1926, the federal

government has had “complete and exclusive national

sovereignty in the air space” of the United States. United

States v. Causby, 328 U.S. 256, 260 (1946) (quotations

omitted). Federal regulation of the airspace is “intensive

and exclusive. *** [An airport's or aircraft's] privileges,

rights, and protection, so far as transit is concerned, it owes

to the Federal Government alone and not to any state

government.” Northwest Airlines, Inc. v. Minnesota, 322 U.S.

292, 303 (1944) (Jackson, J., concurring).

Today, the federal interest in aviation is reflected most

prominently in two statutes: the Airline Deregulation Act of

1978 (“ADA”), which provides that “a State *** may not

enact or enforce a law, regulation, or other provision having

the force and effect of law related to a price, route, or service

of an air carrier,” 49 U.S.C. § 41713(b){1); and the Federal

Aviation Act of 1958 (the “Act”’), which created the Federal

Aviation Administration (“FAA”) and gave it exclusive

authority to regulate the navigable airspace of the United

States. As with prior law, the Act contains an express

preemption provision that recognizes the federal

government's “exclusive sovereignty of the airspace of the

United States.” 49 U.S.C. §40103(a). The Act further

clarifies that exclusive federal regulation of the “navigable

airspace” extends to regulation of the “airspace needed to

ensure safety in the takeoff and landing of aircraft.”

Id. § 40102¢a)(30).

The Act requires the FAA’s Administrator to develop

plans and policies for the efficient use of navigable airspace

and to ensure air safety. 49 U.S.C. § 40103(b)(1). Pursuant

to this mandate, FAA regulations set standards for aircraft

airworthiness and certification of personnel and airports;

designate the various classes of airspace; establish air traffic

routes; and govern all aspects of flight operations, including

minimum and maximum altitudes. See 14 C.F.R Parts 61-67,

71, 91, and 139.

Most relevant here are the FAA’s regulations governing

“objects affecting navigable airspace.” See 14 C.F.R. Part 77.

Those regulations establish standards for determining

whether objects constitute “obstructions to air navigation.”

14 C¥.R. §77.21(a). These standards apply not only to

marmade objects but also to “objects of natural growth[]

and terrain” at airports. /bid. To protect air safety, FAA

regulations call for the removal of obstructions to air

navigation, whether natural or manmade. FAA Advisory

Circular No. 150/5300-13, §§ 211a(6), 212.

This case concerns certain “obstructions to air

navigation” near Runway 14/32 at Goodspeed Airport in

East Haddam, Connecticut._ An object is an “obstruction to

air navigation” if it exceeds the height of either the “primary

surface” or the “approach surface” of a federally regulated

runway. 14 C.F.R. § 77.23(a)(5). The “primary surface” at

an airport having hard-surface runways is a surface

longitudinally centered on a runway and extending 200 feet

beyond each end of that runway. Id. § 77.25(c). The primary

surface for a runway such as Runway 14/32 is 250 feet wide.

Ibid. A diagram illustrating the primary surface (Appendix

I) is set forth at Pet. App. 114a.

The “approach surface” is a surface “longitudinally

centered on the extended runway centerline and extending

outward and upward from each end of the primary surface.

An approach surface is applied to each end of each runway

based upon the type of approach available or planned for

that runway end.” 14 C.F.R. §77.25(d). The approach

surface for a runway such as Runway 14/32 begins at the

same width as the primary surface and expands uniformly

to a width of 1250 feet. Id. §77.25(d)(1). The approach

surface extends 5000 feet horizontally at a slope of 20 to 1.

Id. § 77.25(d)(2). Diagrams illustrating the approach surface

(Appendix J) and the calculation of the 20-to-1 approach

slope (Appendix K) are set forth at Pet. App. 115a-116a.

The FAA also defines a “runway protection zone,” a

trapezoidal area centered on the extended runway

centerline. FAA Advisory Circular No. 150/5300-13,

§ 212a(1). The protection zone for Runway 14/32 begins 200

feet beyond the end of the area usable for takeoff and

landing, at the edge of the primary surface. Ibid. The zone

begins at the same width as the primary surface— 250 feet —

and widens to 450 feet over a distance of 1000 feet. See FAA

Advisory Circular No. 150/5300-13, Table 2-4.

Most important for present purposes, federal regulations

call for the removal of objects of natural growth, such as

trees, that obstruct air navigation by penetrating the

primary surface or the approach surface, and objects that are

incompatible with the function of the runway protection

zone. See FAA Advisory Circular No. 150/5300-13,

§§ 211a(6), 212. Moreover, the FAA specifically forbids

forestry activities in the runway protection zone, on account

of the danger to air safety posed by trees. /d. § 212a(2). As

explained below, applications of land use regulations that

interfere with an airport's removal of trees that obstruct air

navigation or the runway protection zone are preempted by

the Act, which grants the federal government exclusive

control over the navigable airspace, and by the ADA, which

prohibits the “enforce[ment]” of any state law or regulation

that “relates to” the “routes” of air carriers.

B. Goodspeed Airport and Maintenance of Runway 14/32

Petitioner Timothy Mellon owns Goodspeed Airport,

which is “open to the general public with or without a prior

request to use the airport,” and thus is subject to FAA

regulation as an “airport available for public use.” 14 C.F.R.

§ 77.2; Pet. App. 3a. The Airport has a single hard-surface

runway that extends from northwest to southeast for about

2100 feet. This runway, Runway 14/32, is classified as a

“utility runway” under FAA regulations. 14 C.F.R. § 77.2.

Goodspeed Airport has been in operation since the mid-

1960s. To keep the runway’s “approach surface” and the

“runway protection zone” free from obstructions, Mellon

and his predecessors from time to time have entered

adjacent properties to remove or cut back trees that obstruct

the flight path of aircraft that use the Airport. Pet. App. 17a.

Trees growing on properties located just south of the

Airport have posed the most serious problem.

The centerline of a tidal creek feeding the nearby

Connecticut River forms the southern boundary of the

Airport and the northern boundary of property owned by

the East Haddam Land Trust (the “Land Trust”). Just south

of the Land Trust property lies a small piece of property

owned by The Nature Conservancy (the “Conservancy”),

and just south of the Conservancy property is a pond

known as Chapman’s Pond. The distance from the end of

Runway 14/32 to the southern boundary of the Airport

property is 630 feet. The distance from that boundary to the

southern boundary of the Land Trust property is 335 feet.

And the distance from that boundary to the southern

boundary of the Conservancy property (where it abuts.

Chapman’s Pond) is 100 feet. Pet. App. 3a-4a. The total

distance from the end of Runway 14/32 to Chapman’s Pond

is therefore 1065 feet. Thus, the Airport’s runway protection

zone— which ends 1200 feet from the end of the runway —

extends across the Land Trust and Conservancy properties.!

The critical importance of keeping Goodspeed’s runway

protection zone clear of obstructions was demonstrated in

1991—prior to Mellon’s purchase of the Airport—when a

small plane lost power shortly after taking off from Runway

14/32, but could not land in the runway protection zone

because it was cuvered by trees. See Trial Tr. (Mar. 4, 2004)

at 155. The pilot was forced to land in Chapman’s Pond.

The impact bent one of the plane’s wings, which pinned the

door shut, and the pilot and his passengers drowned. Ibid.

Trees growing on the properties south of the Airport

continued to pose safety risks throughout the 1990s. In

1999, the year before this dispute arose, an inspector from

the Connecticut Department of Transportation directed

petitioners to remove a line of trees that were “obstructions

to air navigation” under FAA regulations. See Commission

App. A68-A85.2_ According to the inspector’s report, the

heights of these trees resulted in a 7-to-1 ratio for the

approach surface, while “[pJer FAA’s Part 77 [regulations],

the minimum approach slope for this runway should be

20:1.” Id. at A69. Petitioners complied with the inspector's

mandate and eliminated the encroaching trees. Goodspeed

Reply App. A19.

! For an aerial view of Goodspeed Airport and nearby properties,

see http://www.airstripamerica.com/cgi-bin/apt_info?42B and

http:/ /www.shoreline-aerial.com/examples/tours.htm.

> “Commission App.” refers to the appendix to the initial brief

filed by the Commission in East Haddam Inland Wetlands and

Watercourse Commission v. Goodspeed Airport, LLC in the court

below. “Goodspeed App.” refers to the appendix to the initial

brief filed by petitioners in that case, and “Goodspeed Reply

App.” refers to the appendix to their reply brief.

By late 2000, trees on the Land Trust and Conservancy

properties continued to threaten the safety of takeoffs and

landings at the Airport. In response to this hazard, Mellon

directed petitioner Timothy Evans, an _ independent

contractor who later became the Airport’s manager, to enter

those properties and remove the trees. Pet. App. 4a.

Forestry experts determined that of the 340 trees that

Evans removed, at least half were more than 35 feet tall, and

at least one tree was more than 70 feet tall. Pet. App. 4a. A

large number of the trees therefore exceeded the height of

the “approach surface” of Runway 14/32—which has “an

elevation of 21.5 feet at the point where the airport property

abuts the land trust’s property but only approximately

thirty-eight feet at the point where the land trust’s property

abuts the conservancy’s property.” /d. at 10a. Moreover, all

the removed trees were located in Runway 14/32’s “runway

protection zone,” which stretches across the Land Trust and

Conservancy properties at ground level.

C. The Commission’s Order and Regulations

The 2.5 acres that petitioners cleared lie within an area

regulated by respondents, the East Haddam Inland

Wetlands and Watercourses © Commission (the

“Commission”) and its enforcement officer, James. Ventres.

Pet. App. 4a. In January 2001, the Commission issued an

order directing petitioners to “[c]ease and [d]esist from all

regulated activity within seventy-five feet of

inland/wetlands and watercourses (regulated areas) on

your property * ** and adjoining properties.” Commission

App. A28.

The Commission charged that petitioners had violated

its local land use regulations by “conductirg a regulated

activity within 75 feet of a regulated area” —“specifically,

clear cutting of a flood plain forest *** without obtaining

proper permits or determination from the Wetlands

Commission.” Id. at A29.4 Because the Airport itself lies

within a “regulated area” under the Commission’s

regulations, the order prohibited petitioners from clearing

any vegetation, including trees, on the Airport property as

well as the Land Trust and Conservancy properties.

D. Proceedings in the Trial Court

In March 2003, the Commission filed suit against

petitioners, alleging that they had violated state law and

local regulations by removing trees from regulated wetlands

without first obtaining a permit. The Land Trust and the

Conservancy were also named as defendants because any

remediation activities that might be ordered by the court

would occur on their properties. They in turn filed cross-

claims against petitioners, alleging trespass and certain

state-law statutory violations. Pet. App. 69a.

The state Department of Environmental Protection

(‘DEP”) filed its own lawsuit against petitioners, alleging

that their removal of trees from the Land Trust and

Conservancy properties constituted an unreasonable

impairment of wetlands and a floodplain forest, in violation

of the Connecticut Environmental! Protection Act (“CEPA”).

Ibid. The DEP’s case was tried jointly with the

Commission's case. Pet. App. 67a-68a.

% The Commission’s land use regulations (Commission App. A222-

A246) provide that “[aJny person wishing to undertake a

regulated activity within a regulated area shall apply for a permit

to the Commission.” Regulations, Town of East Haddam

Inland/Wetlands and Watercourses Comm'n, § 6.1. The

regulations define a “regulated activity” as “any operation within

or use of a wetland or watercourse including removal or

deposition of material, or any obstruction, construction, alteration

or pollution, of such wetlands 6r watercourses.” /d. § 2.1(j). They

define a “regulated area” as any inland wetlands or watercourse.

Id. 8 2.1(k). In making its decision on a permit application, the

Commission may seek comment from various local government

agencies and community interest groups. Id. 8§& 6.11 & 7.1(b).

As a defense to the claims of both the Commission and

the DEP, petitioners argued that federal law preempts

application of state and local land use regulations to

obstruction-clearing activities required by federal law. The

trial court rejected this argument, concluding that “the

federal approach slope standards and the local and state

wetlands provisions regulate disparate activities and are

concerned with unrelated topics” that “touch only remotely

and tangentially.” Pet. App. 73a. Noting that “[t]he

wetlands regulations contain neither prescriptions nor

proscriptions regarding navigable airspace or the removal of

objects therefrom,” the court failed to recognize that some

applications of state and local land use rules may interfere

with the navigable airspace. [bid. The trial court thus found

that federal law did not preempt application of either the

CEPA or the Commission’s regulations to petitioners’ tree

removal. Pet. App. 74a.

Applying the CEPA, the court ruled that the DEP was

entitled to judgment on its claim for impairment of a

floodplain forest (though not the claim for impairment of

the wetlands) and ordered petitioners to pay $50,000 to

support an academic or government-funded research

project to be identified by the DEP. Id. at 84a, 95a.

Applying the Commission’s regulations, the court ordered

petitioners to pay a civil penalty of $17,500 for cutting trees

in a regulated wetlands area without a permit. /d. at 94a. In

addition, the court enjoined petitioners from engaging in

any regulated activity on the Land Trust and Conservancy

properties without first obtaining a permit. /bid.

With respect to the trespass claim asserted by the Land

Trust and the Conservancy, the court found that petitioners

had a prescriptive easement to enter the properties to cut

trees, but that petitioners exceeded the scope of the

easement by clear-cutting trees. Pet. App. 90a-9la. The

court thus entered judgment in favor of the Land Trust and

the Conservancy, ordering petitioners to pay one dollar in

damages and to observe what the court viewed as the limits

of their long-established easement. /d. at 97a.

E. Proceedings in the Connecticut Appellate Courts

Petitioners appealed the trial court’s decisions to the

State’s intermediate appellate court. The other parties cross-

appealed. Before decision, however, the Supreme Court of

Connecticut transferred both appeals to i's:lf pursuant to

Conn. Gen. Stat. § 51-199(c). Pet. App. 3a, 59a.

The Supreme Court of Connecticut affirmed the trial

court's ruling that petitioners had a prescriptive easement to

enter the Land Trust and Conservancy properties and

remove trees, but exceeded the scope of that easement by

clear-cutting the area. Accordingly, the court affirmed the

trial court’s injunction and award of nominal damages for

trespass. Pet. App. 13a.

The court further held that the finding of a trespass

disposed of petitioners’ preemption defense. “[B]ecause the

airport defendants had no right under state property law to

clear-cut the land,” the court reasoned, “they had no such

right under federal law and, accordingly, we need not reach

their claim that federal law preempts state and local land

use law.” Pet. App. 8a. The court reached this decision

while acknowledging that many of the trees at issue were

over 70 feet tall and protruded into the approach surface.

See id. at 4a (describing the height of the trees that were

cut); id. at 10a n. 15 (explaining that the “approach surface”

was 21.5 feet high at the property line between the Airport

and Land Trust properties and 38 feet high at the property

line between the Land Trust and Conservancy properties).

The court cited Griggs v. Allegheny County, 369 U.S. 84,

88-89 (1962), for its holdings that the “navigable airspace”

under federal law “includes airspace required for planes to

land and takeoff safely,” and that the “interference with use

and enjoyment of neighboring land *** amounts to [a]

constitutional taking and_ entitles landowners _ to

compensation.” Pet. App. 13a-14a. Nonetheless, the court

ultimately confused the question whether petitioners had a

preemptive federal obligation to keep the approach surface

clear with the question whether the owners of the

neighboring properties were entitled to compensation under

state law for any trespass involved in fulfilling that

obligation. The court thus failed to distinguish petitioners’

rights vis-a-vis the Commission from its rights vis-a-vis the

neighboring landowners, ruling that the trespass

determination resolved the entire case. /d. at 8a, 27a.4

The court used the same reasoning to reject petitioners’

preemption defense in the DEP’s case. Pet. App. 61a. The

court affirmed the trial court’s judgment for the DEP on its

floodplain-forest claim and reversed its ruling that the DEP

could not prevail on its wetlands claim. [d. at 59a, 63a.

Indeed, the court instructed the trial court on remand to

render judgment for the DEP on that claim, since

+ In the court below, petitioners conceded that to some extent they

exceeded the scope of their prescriptive easement under state law

to cut trees on the Land Trust and Conservancy properties. They

further conceded that to the extent that they did so, the Land Trust

and Conservancy were entitled to compensation. This was

evidently the basis for the court's suggestion that petitioners made

a “concession” that “in the absence of any state law property right

to enter the land trust defendants’ properties for the purpose of

trimming and cutting trees, federal law would confer no such

ripht.” Pet. App. 26a. The question whether the Land Trust and

Conservancy were entitled to compensation for trespass, however,

is analytically separate from the question whether federal law

permits the Commission to impose permitting, requirements on

petitioners’ federally authorized clearing activities. Cf Griggs, 369

U.S. at 88-89 (holding that overflights may not be enjoined under

state law even if they constitute a taking for which compensation

must be paid). That is the subject of this petition, and petitioners

did not concede that state law governs this issue, which was fully

briefed and argued below.

petitioners’ removal of trees without permission constituted

an unreasonable impairment of the wetlands.® /d. at 64a.

Petitioners moved the court below to reconsider its

rulings, and in particular its handling of the preemption

issue, but those motions were denied on October 25, 2005.

Pet. App. 98a, 100a. By orders entered November 29, 2005,

the court below stayed its decisions pending the outcome of

proceedings in this Court. [d. at 99a, 101a. On January 17,

2006, this Court extended the time for filing the petition for

certiorari to and including February 22, 2006.

REASONS FOR GRANTING THE WRIT

The decisions below pose a grave threat to the safety of

air travel to and from the nation’s 5200 public use airports.

If allowed to stand (and thereby to influence regulatory and

legal decisions in Connecticut and elsewhere), these

decisions mean that airport owners must leave in place trees

and other “obstructions to air navigation” —objects that

protrude into the flight paths of aircraft taking off or

landing—while state and local officials process permit

applications and hold hearings to determine whether

removing such obstructions serves local political interests.

Recent data on plane crashes involving trees that blocked

_ flight paths confirm that this is potentially a life-and-death

_ issue for 600,000 pilots and millions of passengers on more

than 46 million flights each year. See Federal Aviation

Admin., Administrator’s Fact Book 8, 25 (Aug. 2005).

* This remand does not undermine the finality of the judgment in

Rocque. On remand, the trial court will merely enter a judgment

for the DEP on its wetlands claim and determine whether the

CEPA authorizes any additional relief. Pet. App. 64a-65a. Thus,

“the federal issue, finally decided by the highest court in the State,

will survive and require decision regardless of the outcome of

future state court proceedings.” Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 480 (1975). Accordingly, the judgment in Rocque 1s

final and reviewable under 28 U.S.C. 8 1257(a).

Moreover, the decisions below directly conflict with the

decisions of two federal courts of appeals, which have held

that land use laws may iiot be applied to runway or “clear

zone” modifications needed to ensure the safety of takeoffs

and landings. Indeed, the lower courts are confused about

the preemptive effect of federal aviation law on generally

applicable laws that, while designed to address garden:

variety land use issues, in application affect trees or other

objects that obstruct the navigable airspace. In addition, the

decisions below are contrary to the position of the United

States, which has defended the view that preemption under

the Act is so complete as to support removal to federal court

of state trespass claims to which the Act provides a defense.

In sum, this Court’s review is urgently needed to protect

the millions of travelers who fly to and from the nation’s

public use airports, to resolve the lower-court conflict on the

scope of preemption of land use laws that affect safety in the

airspace, and to uphold Congress’s mandate that “the

Federal Government shall have exclusive sovereignty of the

airspace of the United States.” 49 U.S.C. § 40103.

I. The Decisions Below Involve A Recurring Issue Of

Great Importance To The Safety Of Millions Of

Passengers Traveling To And From The Nation’s 5200

Public Use Airports.

The question whether federal law preempts applications

of state and local land use regulations that affect air safety

on takeoff and landing is one of vital importance to the

more than 5200 public use airports regulated by the FAA.

Safety is the first priority of these airports and of the air

carriers that use them, which have a “duty *** to provide

service with the highest possible degree of safety in the

public interest.” 49 U.S.C. § 44701(d)(1)(A).

Safety was also Congress’s most important concern in

adopting the Federal Aviation Act, which charges the

Administrator of the FAA to regulate “in a way that best tends

to reduce or eliminate the possibility or recurrence of accidents in

air transportation.” I/d. § 44701(c) (emphasis added). As

then-Justice Rehnquist explained in City of Burbank v.

Lockheed Air Terminal, Inc: “The paramount substantive

concerns of Congress were to regulate federally all aspects

of air safety and, once aircraft were in ‘flight,’ airspace

management.” 411 U.S. 624, 644 (1973) (dissenting opinion)

(emphasis added; citations omitted).

The decisions below undermine the safety-based policies

of the FAA. As noted above, federal regulations call for the

removal of “obstructions to air navigation” —objects that

pierce the approach surface—as well as obstructions in the

runway protection zone at public airports. These

requirements are critical to minimizing the risk of harm to

pilots, passengers, and people on the ground. The presence

of trees and other obstructions in aircraft flight paths results

not only in shortening or closing runways, but in alterations

of flight paths, in difficulty maneuvering through steep

approaches or, worse, in plane crashes. If the patchwork of

state and local regulations that govern trees, wetlands, and

land use are the final word on removal of obstructions that

threaten safe takeoffs and landings, the federal interest in

safe air travel will be thwarted. As the Court put it in

Lockheed, “[t]he Federal Aviation Act requires a delicate

balance between safety and efficiency and the protection of

persons on the ground,” and “[t]he interdependence of

these factors requires a uniform and exclusive system of

federal regulation if the congressional objectives underlying

the Federal Aviation Act are to be fulfilled.” 411 U.S. at 638-

639.

This concern for the safety of takeoffs and landings is

not merely hypothetical. It is well known that “most

accidents occur{] during takeoff and landing, despite the

relatively short duration of these phases compared to the

entire profile of 2 normal flight.” See National

Transportation Safety doard, Annual Review of Aircraft

Accident Data: U.S. General Aviation, Calendar Year 2000, at 33

(2004). What is less well known is that objects that obstruct

air navigation—including trees—are one of the leading

causes of air crashes and fatalities. In 2000, for example, 152

general aviation accidents and 45 fatalities were attributed

to “in-flight collision[s] with objects.” /d. at 32. Moreover,

“each of the top ten chains of fatal accident occurrences

included an in-flight collision with terrain or object.” /d. at

35.

Moreover, how to deal with trees protruding into aircraft

flight paths or obstructing runway protection zones is a

major issue that public use airports routinely face.

Controversies over the removal of such trees have arisen in

both large urban areas and small towns, and in at least 15

States: Washington,’ California,?7 Ohio,? Michigan,

° G. Weeks, Judge to Port: Remove Dangerous Trees by Nov. 1,

Anacortes American (Anacortes, Wash.), Apr. 8, 2005 (state trial

court ruling requiring the Port of Anacortes, Washington to

remove “trees potentially endangering air traffic at the Anacortes

Airport’); J. Godden, Next Time, They'll Hire an Arborist, Seattle

Times, Feb. 2, 1994, at B1 (opposition to King County International

Airport's clear-cutting of more than 50 trees that “had grown into

the airport glide path in violation of FAA regulations”).

7 W. Bee, Rancho Murieta Airport Sues Over Cutting Trees Near

Runway, Sacramento Bee, July 9, 2004, at B2 (suit by airport to

remove trees that were “obstructions on the [runway’s] ‘approach

surfaces’”); B. Lindelof, Flight Risk Safety Concerns Are Threatening

Trees at the Rancho Murieta Airport, Sacramento Bee, Apr. 13, 2002,

at B1 (“[t]o comply with FAA rules, as many as 43 of the trees will

need to be removed” because the trees are obstructions).

* L. Warren, Airport Files for Nearby Land, Dayton Daily News, Jan.

10, 2003, at B1 (failure of two years of negotiations and airport's

subsequent lawsuit to remove trees “in and below the airport

flight path’); J. Kuehner, Metroparks to Make Way for Planes,

Cleveland Plain Dealer, June 4, 2004, at B3 (Cleveland “was given

the go-ahead to cut and trim 88 trees” so “the final leg of the new

$129 million Hopkins airport runway can be used safely ***

New York,!® Illinois,!! Wisconsin,!2 Rhode Island,!3 Maine,'4

Florida,!> Virginia,!© Massachusetts,'? Pennsylvania,'* South

despite appeals from neighboring residents to reject the move or

at least delay it”).

° D. Guthrie, Next Case: Trees vs. Runway, Grand Rapids Press, Jan.

5, 2003, at Al (suit by airport seeking to compel neighbors to cut

down a 75-foot strip of trees blocking flight path after neighbors

refused to sell property); B. Deiters, Judge Will Settle Feud Between

Couple, Airport, Grand Rapids Press, June 12, 2004, at A3 (dispute

“that pits tall trees against low-flying aircraft will be settled in

court after a Tyrone Township couple continues to fight an

airport’s demand to cut back trees for a runway”).

10 J, Rather, Islip Takes Off New York Times, Feb. 18, 2001, at 14LI

(discussing neighbors’ response to clearing of “noise-buffering

trees” on corner of airport property as “safety measure” pursuant

to FAA regulations); M. Rosenberg, Airport Safety vs. Quakers’

Serenity, New York Times, May 2, 1993, at 13WC (discussing

opposition to Westchester County Airport's removal of 10 acres of

trees where “dictated by the Federal Aviation Administration’s

directive to provide a safer runway approach’).

'! G. Worland, Prairie Wild Card in Airport Future, Rockford

removal, pursuant to FAA rules, of trees that created habitat for

birds and deer but blocked lines of sight from the control tower).

12 R. LaFrombois, Neighbors Not Happy About Downtown Airport's

Tree Cutting, Wausau Daily Herald, June 10, 2005, at 1A

(opposition to removal of trees that “had to be cut down to meet

Federal Aviation Administration airspace requirements’ ).

3 V. Watson, Newport State Airport Gets $100,000 U.S. Grant,

Providence Journal-Bulletin, June 25, 1999, at 1C (reporting on

environmental implications of tree removal; citing FAA

spokesman that removal “falls in step with requirements by the

FAA that airports maintain clear areas at the end of runways”).

14S. Mack, Pittsfield Airport Plan Hindered by Trees, Bangor Daily

News, Jan. 17, 2001 (municipal airport’s effort to obtain an

environmental permit to cut trees on municipal airport property).

Carolina,'? and North Carolina.2” The substantial conflict

generated by airport tree removal confirms the importance

of Congress’s decision to place decisions affecting air safety

beyond the reach of local political pressures and

prejudices —a decision that the rulings below undermine.

It would be tragic if it took further fatalities to establish

the importance of this issue. But the many reports of

crashes involving trees obstructing flight paths or runway

protection zones at public use airports— including the 1991

'S E. Backhaus, Airport Authority Rejects $25,000 Audubon Request,

Orlando Sentinel, Mar. 7, 1998, at D12 (dispute between airport

and conservation group arising, from removal of trees at end of

proposed runway pursuant lo FAA requests based on the “safety

hazard to aircraft” ).

'» J. Harper, Waiting for the Trees to Grow, The Virginian-Pilot

(Norfolk, Va.), May 23, 1996, at 12 (citing opposition to removal of

“{hjundreds of trees” that “exceeded height limits set by the

Federal Aviation Administration for trees standing within an

airport’s runway protection zone”).

7 §. Allen, Airport Development Alarms Environmentalists, Boston

Globe, Oct. 8, 1995, at 37 (noting environmentalists’ opposition to

“15 Massachusetts airports * * * knocking down trees on more than

2,000 acres to create clear air space for runway approaches”).

'8 N. Williams, Milford Residents Voice Concerns on Tree Cutting,

Plans for Airport, Morning, Call (Allentown, Pa.), Apr. 16, 2003, at

B2 (citing environmentalists’ opposition to “tree cutting and

development plan launched by the airport’).

19 J. McDermott, John’s Island Trees on Chopping Block, Post and

Courier (Charleston, S.C.), Aug. 22, 1998, at Al (discussing

opposition to tree removal despite fact that under “Federal

Aviation Administration safety regulations” and “guidelines, the

trees pose a danger to pilots trying to land in bad weather”).

°° UNC-CH Planning to Remove Trees, News & Observer (Raleigh,

N.C.), Oct. 15, 2005, at B6 (“UNC-Chapel Hill will cut down trees

that have grown too high in the Horace Williams Airport runway

approach to comply with Federal Aviation Administration rules”).

crash at Goodspeed —confirm that such a possibility cannot

be discounted. See also, e.g., T. Richardson, Pilot Is Injured as

Plane Crashes in Marlborough, Boston Globe, Aug. 8, 2004, at

B4 (reporting on crash at airport where “large spruces near

the 1,682-foot runway * * * often force pilots who are landing

to make a sudden descent,” and quoting a witness as saying:

“It will take a fatality or something for the FAA to force

people to take the trees down.”); J. Tedesco, Plane Crash

Claims Rancher, San Antonio Express-News, Jan. 19, 2002, at

_ 1B (reporting death of pilot of plane that “crashed in a patch

of trees on the edge of the airport property”).

In sum, the question presented is potentially one of life-

and-death significance for the 600,000 pilots and millions of

passengers who take off and land at public use airports each

year. This Court’s review is needed to ensure their safety.

II. The Decisions Below Conflict With The Decisions Of

Two Federal Courts Of Appeals And Are Contrary To

The Position Of The United States.

Certiorari is also warranted because the decisions below

conflict with decisions of two federal courts of appeals and

are contrary to the expressed views of the United States.

A. The Decisions Below Conflict With Decisions Of

The Second And Ninth Circuits.

1. The decisions below are in direct conflict with the

Second Circuit’s decision in United States v. City of New

Haven, 496 F.2d 452, 454 (2d Cir. 1974), which held that the

Federal Aviation Act preempted application of state law to a

public runway’s “clear zone”—another name for the

“runway protection zone” at issue here.2!' That case arose

2! See Richmond, Fredericksburg & Potomac R.R. Co. v. Metropolitan

Washington Airports Auth., 468 S.E.2d 90, 92 (Va. 1996) (stating that

“[a] clear zone” is “also called a ‘runway protection zone’); FAA

Advisory Circular No. 150/5300-13, 8 2 (defining the term “clear

zone” by reference to the term “runway protection zone”).

when the City of East Haven filed suit to prevent its

neighbor, the City of New Haven, from buying property in

East Haven for use as a “clear zone,” claiming that New

Haven failed to obtain the requisite state land use permit.

The Connecticut courts enjoined the runway plan, whether

it took “’the form of physical expansion or mere maintenance

of clear zones over property located in East Haven.” Id. at 453

(quoting the injunction) (emphasis added).

The United States subsequently brought suit in federal

court, claiming that the state law injunction was preempted.

The district court agreed,?? and the Second Circuit affirmed,

explaining that “the airspace above the East Haven land

acquired by New Haven” was within the “clear zone” and

thus was “part of the navigable airspace.” /d. at 454. As the

Second Circuit held, “the order of the New Haven Superior

Court was directed to and conflicted squarely with the

regulation of navigable airspace which Congress has

reserved for exclusive federal control.” /bid. “East Haven

cannot enforce its rights under Connecticut law by obtaining

a state court injunction which infringes on federal regulation

of navigable airspace.” /bid.

The Second Circuit’s analysis stands in stark contrast to

the decisions below, which held that the scope of federal

preemption turned not on whether the trees that petitioners

removed from the Airport’s “runway protection zone” and

“approach surface” penetrated the “navigable airspace,” but

on whether petitioners had a right, under state trespass law,

to remove them without paying compensation. Pet. App.

8a. See City of New Haven, 496 F.2d at 454 (noting that “the

legality under state law of New Haven’s acquisition of the

clear zone area is entirely separate from the question of the

power of the state court to enjoin airport operations, whose

regulation Congress has entirely preempted”). Runway

2 United States v. City of New Haven, 367 F. Supp. 1338, 1341 (D.

Conn. 1973).

protection zones and the like are either inside or outside the

exclusively federal “navigable airspace.” This Court's

review is needed to answer that question and definitively to

resolve this conflict of authority.

2. The decisions below also conflict with the Ninth

Circuit’s decision in Burbank-Glendale-Pasadena Airport

Authority v. City of Los Angeles, 979 F.2d 1338, 1340-1341 (9th

Cir. 1992), which held that federal law preempted an

ordinance that required the city land use commission’s prior

approval for the development of property used for takeoffs

and landings. The airport had sought to extend a taxiway

next to a runway to protect the safety of aircraft that were

required to cross the runway and to take off in only one

direction. The city defended the permit requirement as a

mere exercise of its “police powers” that was necessary to

prevent “incompatible development.” /[d. at 1339-1340.

The Ninth Circuit struck down the ordinance as a

“direct interference with the movements and operations of

aircraft[].” Id. at 1341. It rejected the city’s argument that its

regulation was merely an exercise of land use power, stating

that “[t]he proper placement of taxiways and runways is

critical to the safety of takeoffs and landings and essential to

the efficient management of the surrounding airspace.” /bid.

(emphasis added). Nor was the court persuaded by the

argument that permitting merely delayed modifying the

runway: “The problem with this Ordinance is that it

conditions the construction and reconstruction of taxiways

and runways on the prior approval of the City,” the court

reasoned. Ibid. A city “may not exercise its police power to

prohibit, delay, or otherwise condition the construction of

runways and taxiways at a non-city-owned airport.” /bid.

The Ninth Circuit’s reasoning is flatly inconsistent with

the decisions below. If the Ninth Circuit was correct in

holding that applying land use rules to runways and

taxiways at public airports amounts to regulation of the

“navigable airspace,” then applying such rules to “runway

protection zones” and “approach surfaces,” as in this case,

likewise amounts to regulation of the “navigable airspace.”

The court below, however, held that the scope of

preemption under the federal aviation law was limited by

petitioners’ rights under the state law of trespass: because

petitioners “had no right under state property law to clear-

cut the land, they had no such right under federal law.” Pet.

App. 8a. As the decisions of the Ninth and Second Circuits

demonstrate, this turns preemption analysis on its head.

Review is warranted to resolve this conflict.

3. The conflict between the rulings below and the

decisions of the Second and Ninth Circuits is representative

of broad confusion about the extent to which federal

aviation laws preempt applications of state and local laws

that affect air safety. Two federal appeals courts have found

“implied federal preemption of the entire field of aviation

safety.” Abdullah v. American Airlines, 181 F.3d 363, 365 (3d

Cir. 1999); accord Greene v. B.F. Goodrich Avionics Sys., Inc.,

409 F.3d 784, 794-795 (6th Cir. 2005). Two other federal

appeals courts have held that federal law preempts some

aspects of air safety regulation. See French v. Pan Am

Express, Inc., 869 F.2d 1, 3-7 (1st Cir. 1989); Kohir v. Allegheny

Airlines, Inc., 504 F.2d 400, 404 (7th Cir. 1974). And two

more federal appeals courts have held that federal aviation

law does not preempt any aspect of air safety. See Cleveland

v. Piper Aircraft Co., 985 F.2d 1438, 1444 (10th Cir. 1993); In re

Air Crash Disaster at John F. Kennedy Int'l Airport, 635 F.2d 67,

74-75 (2d Cir. 1980).23 As the Third Circuit recently

3 Several courts have also held that federal aviation law does not

preempt application of local land use laws to airport operations.

See, ¢.g., Hoagland v. Town of Clear Lake, 415 F.3d 693, 696-699 (7th

Cir. 2005); Gustafson v. City of Lake Angelus, 76 F.3d 778, 783 (6th

Cir. 1996); Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th

Cir. 1990); In re Commercial Airfield, 752 A.2d 13, 15 (Vt. 2000). But

even these cases frequently distinguish cases such as Burbank and

East Haven on the ground that “they address the FAA’s control

observed in canvassing these cases, this area is characterized

by “divergent authority.” Abdullah, 181 F.3d at 372.

It is time for this Court to clear up the confusion, resolve

the conflicts discussed above, and ensure that state and local

land use regulations are not allowed to interfere with the

clearance of “runway protection zones,” “approach

surfaces,” or other federally-regulated areas at public

airports.

B. The Decisions Below Contravene The United

States’ Position On Preemption.

The decisions below also contradict the United States’

position in a brief recently filed in the Seventh Circuit,

which outlined a broad view of preemption under the

Federal Aviation Act. Brief for Amicus Curiae The United

States of America, Vorhees v. Naper Aero Club, Inc., 272 F.3d

398 (7th Cir. 2001) (No. 00-2545). Vorhees arose in state

court, when an airport's neighbor brought suit to prevent

use of the runway for takeoffs and landings that interfered

with the enjoyment of his property. The complaint alleged

only state law claims, but the defendants removed the action

to federal court on the theory that federal regulation of

aviation law “completely preempted” the plaintiff's claim.

The district court allowed removal, stating that interfering

with takeoffs and landings at the airport would “require the

defendants to change their routes and flight patterns,” and

that “regulation of the patterns and flights of aircraft is

solely within the sovereignty of the federal government.” 96

F. Supp. 2d 820, 822-824 (N.D. III. 2000).

The issue on appeal was whether preemption under the

Federal Aviation Act was so complete as to support removal

of state trespass claims to which the Act provides a defense.

over navigable airspace and aviation safety.” See, e.g., Commercial

Airfield, 752 A.2d at 16 (distinguishing, Burbank on the pround that

it involved “safety and airspace issues,” because “the runway

expansion would improve safety” ).

The United States filed a brief in support of affirmance.

Citing the Federal Aviation Act, the brief began by

explaining that “[t]he United States has a strong interest in

assuring that its exclusive sovereignty over navigable

airspace is preserved and that its comprehensive scheme of

airspace management is not undermined by state[] law.”

U.S. Br. 6. It went on to state that “[t]he usual presumption

against finding preemption of state law does not apply

where, as here, the ‘State regulates in an area where there

has been a history of significant federal presence.” [d. at 10

n. 5 (quoting United States v. Locke, 530 U.S. 89, 108 (2000)).

On the merits, the United States argued that “the district

court correctly ruled that the FAA preempts plaintiff's law

suit.” U.S. Br. 8. It acknowledged that the relief sought by

the plaintiff was “formally directed at the use of an airport

runway,” but explained that “’the purpose and indeed the

effect’ of the injunction would be ‘to exclude physically

aircraft from the airspace superadjacent to his lands.” /d. at

11 (emphasis added). Noting that “all nine members of the

Court [in Lockheed] agreed that Congress intended to

preempt states from regulating aircraft in flight,” the brief

contended that “States may not manage the airspace,”

because such regulation “would seriously interfere with

public air travel and undermine the exclusive regulatory

scheme.” /d. at 10, 12.

The decisions below are directly contrary to this

reasoning. Like the state law at issue in Vorlices, the CEPA

and the Commission’s regulations at issue here are not

“formally directed at” takeoffs, landings, or the clear zone

extending from a public airport’s runway. But like the state

law at issue in Vorhees, the “effect” of these land use

regulations is to prevent the removal of trees that interfere

with the ability of aircraft to navigate through “the airspace

superadjacent to [airport] lands.” As the United States

recognizes, State law need not target the airspace to interfere

with air safety —and in particular the safety of takeoffs and

landings. If state law is applied so as to interfere with the

airspace, it is preempted to that extent.

A divided panel in Vorhees held that preemption under

the Act is not complete —that is, it did not support removal

of the plaintiff's case—but acknowledged that his state law

claim was almost certainly preempted. “Most issues of

_ airflight and navigable airspace, probably including take-

offs and landings, are within the sovereign regulatory

powers of the federal government,” the court explained, and

“it would be difficult at best to convince a state court that

the claim about trespass to airspace * * * would not interfere

with the federal regulatory apparatus.” 272 F.3d at 405. The

dissent went even further, expressly adopting the position

of the United States, quoting its brief at length, and

concluding: “Were flight not completely preempted but left

to all the state courts across this country, air transportation

could only be chaotic and dangerous. Runway use cannot be

viewed separately. Runways cannot be used for takeoffs and

landings without affecting flight patterns.” Id. at 406 (H. Wood,

J., dissenting) (emphasis added).

The decisions below are thus in tension with the

majority and dissenting views in Vorhces, and with the

position advanced there by the United States— which itself

confirms the importance of broad federal preemption to the

safety of the nation’s airways. Vorlees also illustrates the

confusion among lower court judges on the scope of

preemption under the Federal Aviation Act, which provides

additional reason for this Court's review.

Ill. The Decisions Below-Are Inconsistent With The

Federal Aviation Act, The Airline Deregulation Act,

And This Court’s Preemption Doctrine.

Review is also warranted to correct the lower court's

serious misunderstanding of the scope of preemption under

the Federal Aviation and Airline Deregulation Acts.

Congress may preempt state law expressly or by

establishing a regime of pervasive federal regulation that

occupies a particular field. See English v. General Elec. Co.,

496 U.S. 72, 78 (1990). In addition, federal law preempts

state law where there is a conflict between the two, either

because it is impossible to comply with both federal and

state law, ibid., or because the requirements of state law

“stand[] as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress,” Hines v.

Davidowitz, 312 U.S. 52, 67 (1941).

These “categories of preemption,” however, are not

“rigidly distinct,” Crosby v. National Foreign Trade Council,

530 U.S. 363, 373 n. 6 (2000), and the ultimate question is one

of congressional intent, Morales v. Trans World Airlines, Inc.,

504 U.S. 374, 383 (1992). Here, it is clear that Congress

intended to preempt applications of land use regulations

that interfere with the safety of the navigable airspace—

whether the case is viewed through the lens of express or

implied preemption. :

A. Express Preemption

To begin with, the Federal Aviation Act expressly grants

the FAA “exclusive sovereignty” over the navigable airspace,

“including the airspace necessary for safe takeoffs and landings.”

49 U.S.C. §§ 40103, 40102(a)(30) (emphasis added). The land

use regulations at issue here directly apply to—and interfere

with—the removal of trees in “the airspace necessary for

safe takeoffs and landings.” Thus, they are preempted.

To be sure, just as many FAA rules involve no issue of

land use (e.g., airspace classifications), many applications of

land use laws to public airports (c.g., parking rules) present

no issue involving airspace safety —and thus no preemption

issue. But this case falls between these two categories: it

involves state and local regulations that protect objects

(trees) that threaten aviation safety when they transgress the

“approach surface” or “runway protection zone” of a public

use airport.

Where applications of land use regulations do interfere

with aviation safety, moreover, state and local officials may

not hide behind labels such as “land use” to shield those

regulations from preemption. And here, the navigable

airspace clearly includes “the airspace needed to ensure

safety in the takeoff and landing of aircraft.” Indeed, even

the dissent in Lockheed noted the difference between “control

‘over the ground space’ of airports,” which is not typically

preempted, and “regulating aircraft in flight,” which

“Congress clearly intended to pre-empt the States from

regulating.” 411 U.S. at 644 (Rehnquist, J., dissenting).

Where trees block federally regulated runway and approach

areas, they affect “aircraft in flight.” The court below thus

erred in concluding that local rules preventing removal of

such trees are not preempted under the Federal Aviation

Act.

Similarly, the Airline Deregulation Act expressly bars

States and localities from “enforc[ing]” any “regulation” that

is “related to a *** route of an air carrier.” 49 U.S.C.

§ 41713(b)(1). As this Court explained in Morales, the phrase

“relating to” has “a broad pre-emptive purpose” and an

“expansive sweep.” 504 U.S. at 383, 384. For a state law to

“relate to” the route of an air carrier, the law and the route

need only “have a “connection,” or “stand in some relation”

to, or “have bearing” on, one another. I[d. at 383 (quoting

Black’s Law Dictionary 1158 (5th ed. 1979)).

The land use laws at issue here plainly have a “bearing”

on, “connection with,” or “relation” to the “route of an air

carrier.” The direct effect of the regulations is to require

carriers that use Goodspeed Airport to adjust their routes,

either by using another airport entirely or by adopting a

much steeper approach path to Runway 14/32. In holding

*'“When an approach slope is steeper than the twenty to one ratio

required by Federal Aviation Administration regulations * * * the

permissible landing point is shifted from the end of the runway to

28 “

that preemption here is limited by the scope of petitioners’

state law property rights, the court below failed to accord

proper respect to the broad scope of ADA preemption.

B. Implied Preemption

Congress’s intent to displace applications of state and

local land use laws to the navigable airspace is shown not

only by these express preemption provisions, but also by

implication from the pervasive scheme of federal regulation

of the airspace and air safety.

Federal law regulates a broad range of air safety issues.

The Federal Aviation Act specifically charges the FAA to

regulate “in a way that best tends to reduce or eliminate the

possibility or recurrence of accidents” (49 U.S.C. § 44701(c)),

and it charges air carriers “to provide service with the

highest possible degree of safety” (id. § 44701(d)(1)(A)).

Pursuant to its statutory mandate, the FAA regulates pilot

and flight instructor qualifications; aircraft mechanics and

repairmen; airspace classification; flight rules, including

minimum safe altitudes; and, importantly, “objects affecting

navigable airspace.” See 14 C.F.R. Part 77; id. Parts 61, 65,

71, 91.

In short, federal regulation of airspace and air safety is

comprehensive. As Justice Jackson once observed:

Planes do not wander about in the sky like vagrant

clouds. They move only by federal permission,

subject to federal inspection, in the hand of federally

certified personnel and under an intricate system of

federal commands. The moment a ship taxis onto a

a point [farther down the runway] where the twenty to one

approach slope is achieved.” Pet. App. 17a n. 22. The evidence

demonstrates, however, that such a “displaced threshold,” which

effectively shortens the usable portion of a runway, jeopardizes air

safety on landing, especially at airports having relatively short

runways. See Trial Tr. (Mar. 4, 2004) at 146-147, 149-150.

runway it is caught up in an elaborate and detailed

system of controls. It takes off only by instruction

from the control tower, it travels on prescribed

beams, it may be diverted from its intended landing,

and it obeys signals and orders. Its privileges, rights

and protection, so far as transit is concerned, it owes

to the Federal Government alone and not to any state

governments.

Northwest Airlines, 322 U.S. at 303.

Application of the CEPA and the Commission’s

regulations is preempted because it conflicts with this

comprehensive scheme of federal regulations that ensure air

safety on takeoff and landing. To begin with, it is simply

not possible for Goodspeed Airport to comply fully with

both the FAA’s obstruction-clearance rules and the land use

regulations at issue here. Federal regulations require

keeping the “approach surface” and “runway protection

zone” clear of obstructions, including trees. See 14 C.F.R.

§§ 77.21(a), 77.23(a)(5); FAA Advisory Circular No.

150/5300-13, §§ 211a(6), 212. By contrast, the Commission’s

cease-and-desist order forbids petitioners from engaging in

any “regulated activity” such as tree removal within 75 feet

of any “regulated area” —which includes both the Airport's

property and the neighboring properties — without a permit.

Petitioners’ compliance with federal law is thus dependent

on a local permitting decision that necessarily delays, and

may outright deny, their ability to make Runway 14/32 safe

for landing. That is a textbcok example of conflict

preemption. See Burbank, 979 F.2d at 1341.

At a minimum, application of CEPA and_ the

Commission’s regulations frustrates the “full purposes and

objectives of Congress” in adopting the Federal Aviation

Act. See Hines, 312 U.S. at 67. The Act establishes a

comprehensive scheme for regulating the airspace—

including the airspace necessary to ensure safe takeoffs and

landings—and “[t]he Congressional purpose is clearf{:] to

empower the [FAA] to make rules as to safe altitudes of

flight at any elevation” —and thus to prevent collisions.

Allegheny Airlines, Inc. v. Village of Cedarhurst, 238 F.2d 812,

815 (2d Cir. 1956). Pursuant to its statutory mandate, the

FAA determines what objects constitute “obstructions to air

navigation” and requires clearance of the spaces necessary

for takeoffs and landings. By vesting in the DEP or the

Commission the final authority to decide what conditions

are necessary to ensure safe takeoffs and landings at

Goodspeed Airport, the land use regulations at issue here

“interfere[] with the methods by which the federal statute

was designed to reach [its] goal.” International Paper Co. v.

Ouellette, 479 U.S. 481, 494 (1987).

*eeeek

In summary, this Court should review the decisions

below to establish definitively the supremacy of federal

regulation of the navigable airspace, including the airspace

necessary for safe takeoffs and landings.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

LINDA T. COBERLY GENE C. SCHAERR

Winston & Strawn LLP Counsel of Record

35 West Wacker Drive ERIC L. HIRSCHHORN

Cincago, Illinois 60601 STEFFEN N. JOHNSON

(312) 558-5600 JEFFREY M. ANDERSON

Winston & Strawn LLP

1700 K Street, N.W.

Washington, D.C. 20006

(202) 282-5000

FEBRUARY 2006

APPENDIX

APPENDIX A

SUPREME COURT OF CONNECTICUT

James VENTRES et al.

Vv.

GOODSPEED AIRPORT, LLC, et al.

No. 17280.

Argued Apr. 14, 2005.

Decided Aug. 30, 2005.

John R. Bashaw, New Haven, for the appellants-

appellees (named defendant et al.).

Michael J. Donnelly, Hartford, for the appellees-

appellants (defendant the Nature Conservancy et al.).

Mark K. Branse, Glastonbury, with whom was John J.

Radshaw Ill, Hartford, for the appellees-appellants

(plaintiffs).

SULLIVAN, CJ., and BORDEN, NORCOTT, PALMER

’ and ZARELLA, Js.

SULLIVAN, C.J.

This appeal arises out of a complaint filed by the

plaintiffs, the inland wetlands and _ watercourses

commission (commission) of the town of East Haddam

(town) and its enforcement officer, James Ventres, against

the defendants, Timothy Mellon, Goodspeed Airport, LLC

(airport), Timothy Evans, the East Haddam Land Trust

(land trust) and the Nature Conservancy (conservancy).

The plaintiffs alleged that Mellon, Evans and the airport

(collectively, airport defendants) violated the town’s inland

wetlands regulations by failing to obtain a permit before

cutting down trees and other vegetation on two properties

owned, respectively, by the land trust and the conservancy

(collectively, land trust defendants).' The land trust

defendants filed a cross claim against the airport defendants

claiming, inter alia, that they had: (1) trespassed on their

land and converted their trees; (2) violated General Statutes

§ 22a-16 of the Connecticut Environmental Protection Act;?

and (3) violated the Connecticut Unfair Trade Practices Act

(CUTPA), General Statutes § 42-110a et seq. On the motion

of the airport defendants, the trial court struck the CUTPA

cross claim. Thereafter, the matter was tried to the court,

' The plaintiffs alleged in the second count of the complaint that

the airport defendants wilfully had violated the town’s inland

wetlands regulations. The trial court subsequently dismissed the

second count of the complaint and the plaintiffs have not

challenged that ruling on appeal.

2 General Statutes § 22a-16 provides: “The Attorney General, any

political subdivision of the state, any instrumentality or agency of

the state or of a political subdivision thereof, any person,

partnership, corporation, association, organization or other legal

entity may maintain an action in the superior court for the judicial

district wherein the defendant is located, resides or conducts

business, except that where the state is the defendant, such action

shall be brought in the judicial district of Hartford, for declaratory

and equitable relief against the state, any political subdivision

thereof, any instrumentality or agency of the state or of a political

subdivision thereof, any person, partnership, corporation,

association, organization or other legal entity, acting alone, or in

combination with others, for the protection of the public trust in

the air, water and other natural resources of the state from

unreasonable pollution, impairment or destruction provided no

such action shall be maintained against the state for pollution of

real property acquired by the state under subsection (e) of section

22a-133m, where the spill or discharge which caused the pollution

occurred prior to the acquisition of the property by the state.”

3 The case was tried jointly with an action brought by Arthur J.

Rocque, the commissioner of environmental protection, against

Mellon, the airport, the land trust and the conservancy. The trial

court’s ruling in that case is the subject of the airport defendants’

which rendered judgment for the plaintiffs. With respect to

the cross claims, the court concluded that the airport

defendants had a prescriptive easement to enter the land in

order to trim cr cut trees that interfered with air traffic, but

that the airport defendants’ conduct had unreasonably

expanded or intensified the easement. Accordingly, the trial

court rendered judgment against the airport defendants on

the trespass cross claim. The trial court rendered judgment

for the airport defendants on the cross claim for conversion

and for the land trust defendants on the cross claim

pursuant to § 22a-16. The airport defendants appealed‘

from the trial court’s judgment and the plaintiffs and the

land trust defendants cross appealed. We affirm the

judgment of the trial court.

The record reveals the following relevant facts and

procedural history. The airport is located on Lumberyard

Road in East Haddam. It is an “[a]irport available for public

use” within the meaning of title 14 of the Code of Federal

Regulations, § 77.25 Mellon is the sole member of

Goodspeed Airport, LLC. Evans is an independent

contractor who has been the manager of the airport since

November, 2003, and is responsible for managing its day-to-

day activities.

The airport’s southern boundary lies approximately

along the centerline of a tidal creek that flows in a westerly

direction into the Connecticut River. That boundary forms

appeal in the companion case of Rocque v. Mellon, at 275 Conn. 161,

881 A.2d 972 (2005).

4 The airport defendants appealed to the Appellate Court and we

transferred the appeal to this court pursuant to General Statutes

§ 51-199(c) and Practice Book § 65-1.

5 Title 14 of the Code of Federal Regulations, § 77.2, defines an

“[ajirport available for public use” as “an airport that is open to

the general public with or without a prior request to use the

airport.”

the northern boundary of property owned by the land trust,

which extends for approximately 335 feet to the south,

where it abuts property owned by the conservancy. The

conservancy’s property extends for another 100 feet to the

south, at which point it abuts Chapman Pond. The airport

has a 2100 foot runway that runs in a north-south direction.

The southern end of the runway is approximately 630 feet

north of the airport’s southern boundary and 1100 feet north

of Chapman Pond.

Between November 29 and December 5, 2000, Evans, at

the direction of Mellon and without the permission of the

land trust defendants, cut down all of the trees, bushes and

woody vegetation on approximately 2.5 acres of land

located between the southern boundary of the airport

property and Chapman Pond. Approximately 340 trees

were destroyed, including some that were 100 years old and

seventy-two feet high. The airport defendants claim that the

trees and vegetation posed a danger to aircraft landing at

and taking off from the runway. The 2.5 acres were entirely

within a regulated wetlands area as defined by General

Statutes § 22a-38 (15)¢ and were part of a wildlife refuge and

nature preserve that extends along the Connecticut River.

Thereafter, the plaintiffs brought this action alleging that

the airport defendants had failed to obtain from the

commission a permit to conduct a regulated activity” within

including submerged land, not regulated pursuant to sections 22a-

28 to 22a-35, inclusive, which consists of any of the soil types

designated as poorly drained, very poorly drained, alluvial, and

floodplain by the National Cooperative Soils Survey, as may be

amended from time to time, of the Natural Resources

Conservation Service of the United States Department of

? General Statutes § 22a-38 (13) defines “ ‘[rjegulated activity’ ” as

“any operation within or use of a wetland or watercourse

involving removal or deposition of material, or any obstruction,

a wetlands area as required by General Statutes § 22a-

42a(c)(1)® and the town’s inland wetlands regulations.’ The

airport defendants raised numerous special defenses to the

plaintiffs’ complaint, including a claim that the federal

aviation law preempts local wetlands regulations. The land

trust defendants brought cross claims against the airport

defendants alleging, inter alia, that they had violated

CUTPA, trespassed on their land and converted their trees,

and that they had caused “unreasonable pollution,

impairment or destruction” of a natural resource of the state

in violation of § 22a-16 by clear-cutting the trees. Upon the

motion of the airport defendants, the trial court struck the

CUTPA cross claim. After a trial to the court, the court

rejected the airport defendants’ special defense of

preemption and rendered judgment for the plaintiffs. With

respect to the land trust defendants’ remaining cross claims,

the court found that the airport defendants had a

prescriptive easement to enter the land owned by the land

trust defendants for the purpose of trimming or cutting trees

that interfered with air traffic, but that clear-cutting the trees

construction, alteration or pollution, of such wetlands or

”

watercourses ....

8 General Statutes § 22a-42a (c)(1) provides in relevant part: “On

and after the effective date of the municipal regulations

promulgated pursuant to subsection (b) of this section, no

regulated activity shall be conducted upon any inland wetland or

watercourse without a permit. Any person proposing to conduct

or cause to be conducted a regulated activity upon an inland

wetland or watercourse shall file an application with the inland

wetlands agency of the town or towns wherein the wetland or

watercourse in question is located .... “

° The town’s inland wetlands regulations were prepared in

accordance with the Inland Wetlands and Watercourses Act,

General Statutes § 22a-28 et seq., and are substantially similar to

the statutes that they are intended to implement. For convenience,

we refer to the text of the statutes.

had unreasonably exceeded and intensified the easement.

Accordingly, the court rendered judgment for the land trust

defendants on their trespass claim and on their claim

pursuant to §22a-16. The court found the airport

defendants jointly and severally responsible for paying a

civil penalty of $17,500 pursuant to General Statutes § 22a-44

(b)!© and ordered that they contribute $50,000 to an

academic or government funded research project to be

identified by the department of environmental protection

pursuant to General Statutes § 22a-16a(3).!! In addition, the

10 General Statutes § 22a-44(b) provides in relevant part: “Any

person who commits, takes part in, or assists in any violation of

any provision of sections 22a-36 to 22a-45, inclusive, including

regulations adopted by the commissioner and ordinances and

regulations promulgated by municipalities or districts pursuant to

the grant of authority herein contained, shall be assessed a civil

penalty of not more than one thousand dollars for each

offense ....”

-11 General Statutes § 22a-16a provides in relevant part: “In any

action brought by the Attorney General under section 22a-16 or

under any provision of this title which provides for a civil or

criminal penalty for a violation of such provision, the court, in lieu

of any other penalties, damages or costs awarded, or in addition to

a reduced penalty, damages or costs awarded, may order the

defendant (1) to provide for the restoration of any natural resource

or the investigation, remediation or mitigation of any

environmental pollution on or at any real property which resource

or property are unrelated to such action, (2) to provide for any

other project approved by the Commissioner of Environmental

Protection for the enhancement of environmental protection or

conservation of natural resources, (3) to make a_ financial

contribution to an academic or government-funded research

project related to environmental protection or conservation of

natural resources, or (4) to make a financial contribution to the

Special Contaminated Property Remediation and Insurance Fund

established under section 22a-133t provided the total aggregate

amount of all contributions to said fund under this section shall

not exceed one million dollars per fiscal year . . . .”

court enjoined the airport defendants from “engaging in any

regulated activity on the land south of the tidal brook

without obtaining a [wetlands] permit” and from entering

the land trust defendants’ property without their consent,

except in a manner consistent with the prescriptive

easement. Finally, the court ordered the airport defendants

to pay damages in the amount of $1 to the land trust

defendants on the trespass claim and to pay attorney’s fees

to be determined by the court.

On appeal, the airport defendants claim that the trial

court improperly determined that: (1) federal aviation law

does not preempt state and local wetlands regulations; (2)

the failure to obtain a wetlands permit can give rise to an

independent action under § 22a-16; (3) the removal of

vegetation is a regulated activity under § 22a-38 (13); and (4)

Mellon is personally liable for cutting the trees. The

plaintiffs raise as an alternate ground for affirmance that the

airport defendants have not established a factual record on

which a claim of preemption can be predicated. They claim

on cross appeal that the trial court improperly: (1) failed to

order the airport defendants to restore the land to its

original condition and imposed monetary penalties that

were insufficient to restore it, thereby thwarting the

remedial purpose of § 22a-16; and (2) calculated the per

diem monetary penalties pursuant to § 22a-44 (b). The land

trust defendants claim on cross appeal that the trial court

improperly: (1) found a prescriptive easement in favor of the

airport; (2) struck their cross claim pursuant to § 42-110a;

and (3) determined that they were not entitled under

General Statutes § 52-560!2 to damages measured by the cost

12 General Statutes § 52-560 provides: “Any person who cuts,

destroys or carries away any trees, timber or shrubbery, standing

or lying on the land of another or on public land, without license

of the owner, and any person who aids therein, shall pay to the

party injured five times the reasonable value of any tree intended

for sale or use as a Christmas tree and three times the reasonable

of replacing the trees and precluded them from introducing

evidence of the replacement value.

We conclude that the trial court properly determined

that the airport defendants had a prescriptive easement to

maintain an approach slope over the land trust defendants’

property, but that they exceeded the scope of the easement

by clear-cutting the land..3 We further conclude that,

because the airport defendants had no right under state

property law to clear-cut the land, they had no such right

under federal law and, accordingly, we need not reach their

claim that federal law preempts state and loca! land use law.

With respect to the plaintiffs’ claims on cross appeal, we

conclude that the trial court properly determined that the

airport defendants should not be required to restore the

land to its original condition and properly determined the

amount of monetary penalties pursuant to § 22a-16. We

further conclude that the trial court properly determined the

per diem monetary penalties pursuant to § 22a-44 (b). With

respect to the land trust defendants’ claims on cross appeal,

we conclude that the trial court properly granted the airport

defendants’ motion to strike the CUTPA claim. We further

conclude that the trial court properly determined that the

replacement cost of the trees was not a proper measure of

damages pursuant to § 52-560. Accordingly, we affirm the

judgment of the trial court.

value of any other tree, timber or shrubbery; but, when the court is

satisfied that the defendant was guilty through mistake and

believed that the tree, timber or shrubbery was growing on his

land, or on the land of the person for whom he cut the tree, timber

or shrubbery, it shall render judgment for no more than its

reasonable value.”

13 In this opinion, we use the phrase “clear-cut” to mean cutting

close to the ground all trees and vegetation on a given property.

We first address the airport defendants’ claim that the

trial court improperly determined that federal aviation law

does not preempt local wetlands regulations. We conclude

that we need not reach this claim because we conclude that

the airport defendants had no right under state property

law to clear-cut the land belonging to the land trust

defendants and because the airport defendants have

conceded that, in the absence of a property right, federal law

would not confer such a right.

The airport defendants claim that they removed the

vegetation from the land trust defendants’ properties

pursuant to federal regulations and guidelines governing

the maintenance of unobstructed “runway protection

zones” '4 and approach surfaces'> for airports like the one in

4 The Federal Aviation Administration has issued an advisory

circular setting forth federal standards and recommendations for

airport design. See Federal Aviation Administration, Advisory

Circular No. 150/5300-113 (Sept. 29, 1989). The advisory circular

states that “[t]he standards and recommendations contained in

this advisory circular are recommended by the Federal Aviation

Administration for use in the design of civil airports.” The

circular recommends that airports maintain a “[rjunway

protection zone”; id., § 211(a)(7); from which “incompatible objects

and activities” should be cleared. Id., § 212(a)(1). The purpose of

the runway protection zone “is to enhance the protection of

people and property on the ground.” /d., § 212. For runways like

the one in the present case, the circular recommends that the

runway protection zone extend 1000 feet beyond the end of the

runway and increase in width from 250 feet at the end nearest the

runway to 450 feet at the far end. Id., p. 19, table 2-4.

5 The Federal Aviation Administration has issued regulations

establishing “standards for determining obstructions to air

navigation” that “apply to the use of navigable airspace by

aircraft....” 14 C.F.R. §&77.21(a). Such obstructions include

“existing and proposed manmade objects, objects of natural

growth, and terrain.” Id. Title 14 of the Code of Federal

10a

the present case. They further argue that the regulations

and guidelines are designed to protect navigable airspace,

\l69ver which the United States has exclusive authority, and

Regulations, § 77.23, provides that “(a) [ajn existing object . . . is,

and a future object would be, an obstruction to air navigation if it

is of greater height than any of the following heights or

surfaces ...(5) The surface of a takeoff and landing area of an

airport or any imaginary surface established under § 77.25....”

Section 77.25(d) of title 14 of the Code of Federal Regulations

defines the “[a]pproach surface” for the type of airport at issue in

the present case as a surface that starts 200 feet from the end of the’

runway; 14 C.F.R. § 77.25(c) (primary surface ends 200 feet beyond

end of runway); and expands uniformly from a width of 250 feet;

14 C.F.R. §77.25(c)(1); to a width of 1250 feet at a horizontal

distance of 5000 feet from the beginning of the approach surface.

14 C.F.R. § 77.25(d)(1{i); 14 C.F.R. § 77.25(d)(2)(i). The approach

surface also rises at a slope of twenty to one for a horizontal

distance of 5000 feet. 14 C.F.R. § 77.25(d)(2)(i). In the present case,

an approach surface with a twenty to one slope would have an

elevation of approximately 21.5 feet at the point where the airport

property abuts the land trust’s property and approximately thirty-

eight eet at the point where the land trust’s property abuts the

conservancy’s property.

16 Section 40102(a)(30) of title 49 of the United States Code defines

“navigable airspace” as “airspace above the minimum altitudes of

flight prescribed by regulations under this subpart and subpart III

of this part, including airspace needed to ensure safety in the

takeoff and landing of aircraft... .”

Title 14 of the Code of Federal Regulations, § 91.119, provides

in relevant part: “Except when necessary for takeoff or landing,

no person may operate an aircraft below the following altitudes:

“(a) Anywhere. An altitude allowing, if a power unit fails, an

emergency landing without undue hazard to persons or property

on the surface.

“(b) Over congested areas. Over any congested area of a city,

town, or settlement, or over any open air assembly of persons, an

altitude of 1,000 feet above the highest obstacle within a horizontal

radius of 2,000 feet of the aircraft.

lla

that, therefore, they preempt state laws that would give

state or local authorities the power to prevent the removal of

obstructions to air traffic in such areas.!? The airport

defendants appear to argue in their brief that, because the

federal government has exclusive jurisdiction over

navigable airspace, they could remove obstructions within

the navigable airspace without regard to either state

property law or state and local land use regulations. At oral

argument before this court, however, they clarified that they

claim only that they had a right to remove obstructions

within the navigable airspace over the land trust

defendants’ properties because they had acquired a

prescriptive right to enter the properties for that purpose

under state property law. They conceded that, in the

absence of that prescriptive property right, federal law

would not confer any such right. See Westchester v.

Greenwich, 745 F. Supp. 951, 955 (S.D.N.Y. 1990) (federal law

does not create private cause of action in favor of owner of

airport to institute action against neighboring landowner

whose trees are encroaching on navigable airspace); see also

Westchester v. Greenwich, 756 F. Supp. 154, 156 (S.D.NY.

“(c) Over other than congested areas. An altitude of 500 feet

above the surface, except over open water or sparsely populated

areas. In those cases, the aircraft may not be operated closer than

”

17 The airport defendants point to two federal statutes that they

claim preempt state and local environmental legislation as applied

to their conduct in this case. Section 40103(a)(1) of title 49 of the

United States Code provides: “The United States Government has

exclusive sovereignty of airspace of the United States.” Section

41713(b)(1) of title 49 of the United States Code provides in

relevant part: “[A] State .. . [or] political subdivision of a State...

may not enact or enforce a law, regulation, or other provision

having the force and effect of law related to a price, route, or

service of an air carrier that may provide air transportation under

this subpart.”

12a

1991) (owner of airport did not have power of eminent

domain or express clearance easement and therefore could

interfere with neighboring landowner’s ability to grow trees

only if it could establish easement by prescription or public

nuisance).'8 They claim that they have acquired a

prescriptive clearance easement in the land trust defendants’

properties under state property law and that federal law

preempts any state and local laws that otherwise might limit

their easement rights.!9 The land trust defendants counter

that the trial court improperly determined that the airport

defendants had a prescriptive easement because: (1) the

airport defendants failed to meet their burden of

establishing the scope of the easement; and (2) the existence

of a boundary line agreement between the predecessors in

title to the airport and the land trust prevents the airport

from obtaining a prescriptive easement pursuant to General

Statutes § 47-38.2° They further argue that, even if the

'8 The Westchester case had a long subsequent history and, as we

discuss later in this opinion, eventually came before this court.

See Westchester v. Greenwich, 227 Conn. 495, 629 A.2d 1084 (1993).

The District Court’s conclusions that there is no private cause of

action under federal law in favor of an airport owner against

neighboring landowners whose trees are encroaching on

navigable airspace and that an airport may interfere with a

neighboring landowner’s ability to grow trees only if it has

acquired a property right to do so, however, have never been

disturbed.

19 Neither the trial court nor the parties characterized the easement

at issue in the present case as a clearance easement. The trial court

concluded, however, that the airport defendants had “acquired a

prescriptive easement to go onto the 2.5 acre area, on occasion,

and trim or cut trees which interfered with the safety of air traffic

taking off or landing on the runway.” As we discuss later in this

opinion, this is essentially the definition of a clearance easement.

20 General Statutes § 47-38 provides: “The owner of land over

which a right-of-way or other easement is claimed or used may

give notice in writing, to the person claiming or using the

13a

airport defendants had a prescriptive easement, state and

local land use law applies to the use of the easement.

We conclude that the trial court properly determined

that the airport defendants have acquired a prescriptive

easement to enter the land trust defendants’ property for the

purpose of maintaining an approach slope to the runway.

We also conclude that the trial court properly determined

that the airport defendants had no right under the

prescriptive easement to clear-cut the land trust defendants’

property.

We first address the issue of whether the airport

defendants have a prescriptive clearance easement in the

land trust defendants’ properties and, if so, the scope and

purpose of the easement. We conclude that the trial court

properly determined that the airport defendants have a

prescriptive easement to maintain an approach slope over

the land trust defendants’ property.

The distinction between an avigation easement and a

clearance easement was discussed in United States v.

Brondum, 272 F.2d 642 (5th Cir. 1959). An avigation

easement “permits free flights over the land in question. It

provides not just for flights in the air as a public highway-in

that sense no easement would be necessary; it provides for

flights that may be so low and so frequent as to amount to a

taking of the property.” (Internal quotation marks omitted.)

Id., at 645; see also Griggs v. Allegheny County, 369 U.S. 84,

88-89, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962) (definition of

navigable airspace in 49 U.S.C. § 40102[a][30], formerly 49

U.S.C. § 1301 [24], includes airspace required for airplanes to

privilege, of his intention to dispute the right-of-way or other

easement and to prevent the other party from acquiring the right;

and the notice, being served and recorded as provided in sections

47-39 and 47-40, shall be deemed an interruption of the use and

shall prevent the acquiring of a right thereto by the continuance of

the use for any length of time thereafter.”

14a

land and takeoff safely, but interference with use and

enjoyment of neighboring land due to low flights amounts

to constitutional taking and entitles landowners to

compensation). By contrast, a clearance easement provides

the “right to cut trees and natural growth to a prescribed

height and to remove man-made obstructions above a

prescribed height.” United States v. Brondum, supra, at 644.

“The interest acquired has but one function .. . and that is to

serve as the ceiling over the land in question beyond which

obstructions or structures may not be allowed to extend

upward into the adjacent air space.” (Internal quotation

marks omitted.) /d., at 644-45 n. 5; see also Melillo v. New

Haven, 249 Conn, 138, 143 n.11, 732 A.2d 133 (1999).

The status of both prescriptive avigation easements and

prescriptive clearance easements is unsettled under

Connecticut law. See Westchester v. Commissioner of

Transportation, 9 F.3d 242, 245 (2d Cir. 1993), cert. denied,

511 U.S. 1107, 114 S. Ct. 2102, 128 L. Ed. 2d 664 (1994). In

Westchester v. Greenwich, 227 Conn. 495, 498-500, 629 A.2d

1084 (1993), the plaintiff, a New York municipal corporation

that owned and operated the Westchester County Airport,

had initiated an action in the United States District Court for

the Southern District of New York against the defendants,

the town of Greenwich and several residents of the town,

claiming a prescriptive avigation easement in the airspace

over the defendants’ properties and seeking an injunction

against the defendants authorizing the plaintiff to trim or

cut down trees on the properties that had penetrated the

airport's flight zone. The United States Court of Appeals for

the Second Circuit certified the following questions to this

court: “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?

15a

“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?” (Internal quotation marks omitted.) I[d., at 497

n.2, 629 A.2d 1084. Because we concluded that, under the

facts and circumstances of the case, the plaintiff could not

establish a prescriptive avigation easement, we declined to

answer the certified questions. Id. at 502, 504, 629 A.2d

1084.

In making that determination, we recognized that, in

order to establish a prescriptive avigation or clearance

easement, the party claiming the easement must meet the

requirements of state law that “the use be adverse. It must

be such as to give a right of action in favor of the party

against whom it has been exercised .... In order to prove

such adverse use, the party claiming to have acquired an

easement by prescription must demonstrate that the use of

the property has been open, visible, continuous and

uninterrupted for fifteen years and made under a claim of

right.” (Citation omitted; internal quotation marks omitted.)

Id., at 501, 629 A.2d 1084. “A use by express or implied

permission or license cannot ripen into an easement by

prescription.” (Internal quotation marks omitted.) /d. We

concluded that the plaintiff could not establish that its use of

the airspace gave a right of action in favor of the defendants,

thereby giving rise to a prescriptive easement, because: (1)

“{t]he defendants...had no right of action against the

plaintiff to stop the overflights because federal law prohibits

landowners from obtaining injunctive relief against aircraft

using the navigable airspace of the United States”; 1d., at 502,

629 A.2d 1084; and (2) although the defendants had a right

“to seek compensation from the plaintiff for aircraft flights

so low and so frequent as to be a direct and immediate

interference with the enjoyment and use of the land”;

(internal quotation marks omitted) id., at 503, 629 A.2d 1084;

l6a

here was no evidence of such interference in the case. /d., at

504, 629 A.2d 1084.

In the present case, unlike in Westchester v. Greenwich,

supra, 227 Conn. 495, 629 A.2d 1084, it is clear that the

conduct that the airport defendants claim gave rise to a

prescriptive clearance easement constituted a “direct and

immediate interference with the fland trust defendants’]

enjoyment and use of the land” entitling them to seek

compensation; (internal quotation marks omitted) id., at 503,

629 A.2d 1084; and, therefore, the use was adverse. Cf. id,

at 504, 629 A.2d 1084 (plaintiff could not establish that it had

prescriptive easement because it failed to establish that

overflights had harmed defendants’ trees); see also Drennen

v. Ventura, 38 Cal. App. 3d 84, 86-87 n.2, 112 Cal. Rptr. 907

(1974) (that which may be acquired by exercise of power of

eminent domain should be subject to acquisition by

prescription). Accordingly, we conclude that the airport

defendants’ use of the land trust defendants’ properties

could give rise to a prescriptive clearance easement if the

other requirements for a prescriptive easement are met.

There is no dispute in this case that the airport

defendants’ use of the land trust defendants’ property was

“open, visible, continuous and uninterrupted for fifteen

years and made under a claim of right.” (Internal quotation

marks omitted.) Westchester v. Greenwich, supra, 227 Conn.

at 501, 629 A.2d 1084. The land trust defendants claim,

however, that the trial court improperly found that the

airport defendants had a prescriptive easement because: (1)

the airport defendants failed to meet their burden of

establishing the scope of the easement; and (2) the existence

of a boundary line agreement prevented the airport

defendants from acquiring a prescriptive easement. We

address each of those claims in turn.

17a

The following additional facts are relevant to the

resolution of the land trust defendants’ claim that the

airport defendants failed to meet their burden of

establishing the scope of the easement. Arthur D’Onofrio, a

previous owner of the airport, testified at trial that, between

1979 and 1999, trees located within the 2.5 acres at issue in

the present case were periodically trimmed or removed.

The cuttings took place approximately every four or five

years. The trees usually were trimmed or removed in

response to complaints from pilots that the trees were

protruding into the airspace and becoming a safety hazard.

D’Onofrio testified that the procedure for trimming the trees

was not “very scientific. Basically, [he] sent people in there

with chainsaws and they cut down whatever... trees they

thought were in the way of the approach.” Shrubs were also

removed in order to provide access to the trees. The cutting

area was approximately 100 to 150 feet wide and was

centered on the center line of the runway. Landing area

inspection reports showed that, in 1981, the runway

operated with a fourteen to one approach slope;?! in 1983, it

operated with a thirteen to one approach slope; in 1984 and

1985, it operated with a nineteen to one approach slope with

a displaced threshold of 340 feet;?? in 1986, it operated with a

twenty to one slope with a displaced threshold of 340 feet; in

1987 and 1988, it operated with a twenty to one slope with a

2! In other words, for every fourteen feet that the approach slope

advanced horizontally, it rose one vertical foot.

22 When an approach slope is steeper than the twenty to one ratio

required by Federal Aviation Administration regulations; see

footnote 15 of this opinion; the permissible landing point is

shifted from the end of the runway to a point where the twenty to

one approach slope is achieved. This point is known as a

“displaced threshold.” In such cases, the approach slope is

calculated with reference to the displaced threshold.

18a

displaced threshold of 150 feet; in 1993, it operated with a

fourteen to one approach slope; and in 1997, it operated

with a thirteen to one approach slope.

On the basis of this evidence, the trial court determined

that the airport defendants had acquired a prescriptive

easement to enter the land trust defendants’ property to

trim and cut trees growing in the 2.5 acres at issue for the

purpose of removing obstacles in the runway takeoff and

landing corridors. After the trial court issued its

memorandum of decision, the land trust defendants filed a

motion for articulation requesting that the trial court

provide the precise boundaries of the easement. The trial

court denied the motion, stating that “[t]he memorandum of

decision specified the extent of the prescriptive easement as

particularly as possible under the circumstances of this

case.”

The land trust defendants claim that the trial court

impyoperly found that the airport defendants had

established a prescriptive easement because the easement

“must be defined in terms of height, in addition to the more

traditional length and width of a pathway” and because the

evidence showed that “there has been no uninterrupted

fifteen year period in which the airport maintained anything

resembling a consistent glide path.” We disagree.

“[A] prescriptive right extends only to the portion of the

servient estate actually used... and is circumscribed by the

manner of its use....A prescriptive right cannot be

acquired unless the use defines its bounds with reasonable

certainty.” (Citations omitted.) Kaiko v. Dolinger, 184 Conn.

509, 510-11, 440 A.2d 198 (1981); see also Schulz v. Syvertsen,

219 Conn. 81, 92, 591 A.2d 804 (1991). The boundaries of a

prescriptive easement need not be described by metes and

bounds if the character of the land makes such precise

description impossible. McCullough v. Waterfront Park Assn.,

19a

Inc., 32 Conn. App. 746, 759, 630 A.2d 1372, cert. denied, 227

Conn. 933, 632 A.2d 707 (1993).23

The burden is on the party claiming a prescriptive

easernent to prove all of the elements by a preponderance of

the evidence. Schulz v. Syvertsen, supra, 219 Conn. at 91, 591

A.2d 864. “Whether the requirements for such a right have

been met in a particular case presents a question of fact for

the trier of facts... . In such cases, the trier’s determination

of fact will be disturbed only in the clearest of

circumstances, where its conclusion could not reasonably be

reached.” (Citations omitted; internal quotation marks

omitted.) Robert S. Weiss & Co. v. Mullins, 196 Conn. 614,

618-19, 495 A.2d 1006 (1985).

The only issue in the present case is whether the vertical

dimensions of the prescriptive easement claimed by the

3 See also O'Brien v. Hamilton, 15 Mass. App. 960, 962, 446 N.E.2d

730 (extent of easement gained by prescription for successive

owners of dominant land must be measured by general pattern

formed by adverse use), appeal denied, 389 Mass. 1102, 448 N.E.2d

767 (1983); Alvin v. Johnson, 245 Minn. 322, 323 n.2, 71 N.W.2d 667

(1955) (court’s description of prescriptive easement as “” ‘width for

reasonable use’ “ was not “so devoid of description as to be totally

unenforceable”); Silverstein v. Byers, 114 N.M. 745, 749, 845 P.2d

839 (1992) (one-quarter mile deviation in route of roadway did not

defeat claim to prescriptive easement, especially when divergence

was not voluntary act of person claiming right but was due to

circumstances beyond his control), cert. denied, 115 N.M. 60, 846

P.2d 1069 (1993); Concerned Citizens v. Holden Beach Enterprises, Inc.,

329 N.C. 37, 47, 404 S.E.2d 677 (1991) (deviations in line of travel

do not necessarily preclude finding of substantial identity of

prescriptive easement if character of land prevents confinement of

path to definite and specific line); Community Feed Store, Inc. v.

Northeastern Culvert Corp., 151 Vt. 152, 157, 559 A.2d 1068 (1989)

(“the use under which a prescriptive easement arises determines

the general outlines rather than the minute details of the interest”

[emphasis in original; internal quotation marks omitted]), quoting,

5 Restatement, Property § 477, comment b, (1944).

20a

airport defendants were sufficiently defined. During the

years that the approach slope was measured without a

displaced threshold, it ranged from thirteen to one to

fourteen to one. During the years that the approach slope

was measured with reference to a displaced threshold of 340

feet, it ranged from nineteen to one to twenty to one. Our

calculations show that these slopes are relatively consistent

with the thirteen to one and fourteen to one approach slopes

measured with reference to the end of the runway.”4

In light of the type of use at issue, we conclude that the

variations in the angle of the approach slope maintained by

the airport defendants did not prevent them from acquiring

a prescriptive easement. First, trees grow. It is clear,

therefore, that it would be virtually impossible to maintain

an absolutely uniform slope over the course of time.

Second, a very localized and relatively small change in the

topography of the vegetation could cause a major change in

4 If a 340 foot displaced threshold is used and a uniform slope of

vegetation and the absence of obstacles south of the conservancy’s

property are assumed, a 14 to 1 approach slope becomes

approximately an 18 to 1 approach slope (the distance from the

end of the runway to Chapman Pond, 1100 feet, divided by 14 is

78.57 feet, the presumptive height of the approach slope at

Chapman Pond; the distance from the displaced threshold to

Chapman Pond, 1440 feet, divided by 78.57 is approximately 18);

using the same form of calculation, a 13 to 1 approach slope

becomes approximately a 17 to 1 approach slope; and a 20 to 1

approach slope with a 150 foot displaced threshold becomes

approximately a 23 to 1 approach slope. Thus, over the course of

18 years, the approach slope ranged from approximately 17 to 1

with a 340 foot displaced threshold to 23 to 1 with a 340 foot

displaced threshold. We recognize that this calculation is

somewhat rough. It is reasonable to conclude, however, that,

because the runway had an approach slope ranging from 14 to 1 to

13 to 1 both before and after the 10 years in which the approach

slope was calculated in reference to a displaced threshold, the

approach slope during those 10 years was not radically different.

2la

the approach slope. For example, a sudden growth spurt in

a single tree near the border between the land trust and

_ airport properties could cause the approach slope to become

much steeper in a short period of time. Third, although the

angle of the approach slope changed from year to year, it

appears to have stayed within a relatively narrow range

centering around twenty to one with a 340 foot displaced

threshold. See footnote 24 of this opinion. Finally, although

D’Onofrio testified that he would both trim and cut down

trees that protruded into the airspace, the purpose of the

easement was to maintain a maximum tree height over the

land, not to eliminate the trees altogether, and that was the

actual result of the airport defendants’ use of the property.

See United States v. Brondum, supra, 272 F.2d at 644-45 n.5.

Accordingly, we conclude that the cutting of a tree when the

trimming of the tree would have been sufficient to maintain

the ceiling was a deviation from the easement and neither

destroyed it nor created a prescriptive right to cut trees to

the ground when trimming them would suffice. See

footnote 23 of this opinion; cf. Kuras v. Kope, 205 Conn. 332,

341, 533 A.2d 1202 (1987) ( “[t]he use of an easement must be

reasonable and as little burdensome to the servient estate as

the nature of the easement and the purpose will permit”

[internal quotation marks omitted]). In summary, we

conclude that the trial court’s determination that the

dimensions of the easement were defined with sufficient

certainty to be enforceable was not clearly erroneous, given

the nature of the claimed prescriptive easement.

We next address the land trust defendants’ claims that

the trial court improperly determined that the airport

defendants had acquired a prescriptive easement in their

properties because the existence of a boundary line

agreement between the predecessors in title to the airport

22a

and the land trust prevented the airport from obtaining a

prescriptive easement pursuant to § 47-38. We disagree.

The following additional facts are relevant to our

resolution of this claim. On December 3, 1970, Edward

Vynalek and Dorothy Vynalek (collectively, the Vynaleks),

predecessor landowners to the land trust, and William H.

Bradway and Ruth E. Bradway (collectively, the Bradways),

predecessor landowners to the airport, entered into a

boundary line agreement. The purpose of the agreement

was to resolve a dispute over the location of the boundary

between their properties by making the boundary the center

of the tidal creek. The agreement provided that “the said

BRADWAYS do hereby remise, release, and forever QUIT-

CLAIM unto the said VYNALEKS, their heirs and assigns

forever, all the right, title, interest, claim and demand

whatsoever as the said BRADWAYS have or ought to have

in or to the lands situated generally south of said division

line between the lands of the parties herein TO HAVE AND

TO HOLD the said premises unto the said VYNALEKS,

their heirs and assigns forever, so that the said BRADWAYS,

their heirs nor any other person shall hereafter have any

claim, right or title in or to the said premises, or any part

thereof and they are by these presents forever barred and

excluded therefrom.” The trial court concluded that the

agreement did not prevent the airport defendants from

25 The land trust defendants also point to a letter dated June 7,

1978, from the airport operator at the time to the Connecticut

burvau of aeronautics. The operator stated that he was in the

process of obtaining permission to remove or trim trees on the

land to the south of the airport property in order to reduce the

approach slope. The land trust defendants argue that this letter

defeats any claim that the airport defendants trimmed and

removed trees from their property under a claim of right, but they

point to no evidence that the airport or its predecessors actually

obtained permission to enter the land. Accordingly, we reject this

Claim.

23a

acquiring a prescriptive easement in the land trust's

property because, although “entering the [land trust

defendants’] land may contravene the rights to exclusive

possession co.iveyed by the boundary agreement, every

prescriptive easement is similarly acquired.”

The land trust defendants argue that the trial court

improperly failed to recognize that the agreement

constituted notice, under § 47-38, of the land trust's

intention to prevent the airport defendants from acquiring a

prescriptive easement. In support of this argument, they

rely primarily on this court’s decision in Crandall v. Gould,

244 Conn. 583, 711 A.2d 682 (1998). In that case, “[t]he

plaintiffs ... [owned] property located at 283 River Road in

the town of Stonington. The defendants... [owned]

property, including a [private way], that [abutted] the

property owned by the plaintiffs.

“A fence was constructed along the [private way] in

1960. In 1960...the defendants’ [predecessor] in, title,

obtained a permanent injunction . .. against... a plaintiff in

[the] action, enjoining him, his servants and agents from

interfering with [the predecessor’s] use and enjoyment of

said right-of-way ....” (Internal quotation marks omitted.)

Id., at 585-86, 711 A.2d 682.

“In 1964, the plaintiffs removed a section of the fence.

The plaintiffs used the front portion of the [private way] to

the opening of the fence as a means of gaining vehicular

access to their property from River Road.” (Internal

quotation marks omitted.) I/d, at 586, 711 A.2d 682.

Thereafter, the plaintiffs commenced an action seeking to

enjoin the defendants from interfering with their use of the

private way. Id. The trial court concluded that, because the

plaintiffs had been permanently enjoined from using the

private way, they did not have a claim of right to use it and,

therefore, could not establish an easement by prescription.

ld., at 585-86, 711 A.2d 682.

24a

On appeal, this court agreed with the trial court that the

plaintiffs had violated the permanent injunction issued by

the trial court in 1960 by using the private way. /d., at 589,

711 A.2d 682. We further concluded that, although the

plaintiffs’ use of the private way was not permissive and

was made without any recognition of the defendants’ rights

to prevent it and, therefore, ordinarily would have

established that the plaintiffs had acted under a claim of

right, the existence of the permanent injunction precluded

the plaintiffs from acquiring a prescriptive easement. /[d., at

591-93, 711 A.2d 682. In support of this conclusion, we

stated that, under § 47-38, when formal notice of intent to

prevent another party from acquiring an easement has been

provided, no such easement may be acquired. /d., at 593-94,

711 A.2d 682. We further stated that “a party that obtains a

permanent injunction [against a particular use] necessarily

will have served notice on the opposing party that will very

nearly conform to the requirements of § 47-38 and, in fact,

may be superior to that contemplated by § 47-38....” Id., at

594, 711 A.2d 682.

We conclude that the present case is distinguishable

from Crandall. In Crandall, the injunction issued by the trial

court in 1960 had been sought and was issued for the

express purpose of prohibiting the plaintiffs from using the

private way as an easement. In the present case, the

purpose of the boundary line agreement was to resolve a

property line dispute. The language of the agreement

providing that neither the “BRADWAYS, their heirs nor any

other person shall hereafter have any claim, right or title in

or to the [Vynaleks’] premises, or any part thereof and they

are by these presents forever barred and excluded

therefrom” was intended? merely to recognize that the

Bradways had agreed to disavow any property interest in

any formerly disputed land on the Vynaleks’ side of the

newly agreed upon property line and that their successors

would have no such interest by virtue of anything that had

25a

occurred up to the date of the agreement. Nothing in the

agreement suggests that the Vynaleks were aware of any

past use or anticipated any future use, for any purpose, of

the portion of their land that had not been in dispute or that

they intended to forestall the acquisition of a prescriptive

easement in the land. We conclude, therefore, that the trial

court properly determined that the boundary line

agreement did not constitute notice of intent to prevent the

airport defendants from acquiring an easement under § 47-

38 and, therefore, did not prevent the airport defendants

from acquiring a prescriptive easement in the land trust

defendants’ properties.

We next tum our attention to the trial court’s

determination that the airport defendants exceeded the

scope of the prescriptive easement by clear-cutting the land

trust defendants’ properties. We note that the airport

defendants do not challenge that determination on appeal.”

20 As we have indicated, the vertical dimensions of the easement

varied within a relatively narrow range centered around a twenty

to one slope with a 340 foot displaced threshold. As we have also

indicated, when the airport defendants clear-cut the land, some of

the trees within the easement were up to seventy-two feet high. It

is clear, therefore, that it was not reasonably necessary to clear-cut

the trees to maintain an approach slope within the specified

ranges. See Gioielli v. Mallard Cove Condominium Assn., Inc., 37

Conn. App. 822, 831-32, 658 A.2d 134 (1995) ( “[W]hen an

easement is established by prescription, the common and ordinary

use which establishes the right also limits and qualifies it. ... The

use of an easement must be reasonable and as little burdensome to

the servient estate as the nature of the easement and the purpose

will permit.”); see also Zhang v. Omnipoint Communications

Enterprises, Inc., 272 Conn. 627, 637, 866 A.2d 588 (2005) (“[s]ubject

to the proviso that the servitude beneficiary is not entitled to cause

unreasonable damages to the servient estate, or interfere

unreasonably with its enjoyment...the beneficiary of an

easement [may] make any use of the servient estate that ts

26a

Rather, their position appears to be that once they have

established any property right in the land trust defendants’

lands, no matter how limited, federal law preempts all of the

landowners’ residual property rights and all state and local

land use laws limiting those rights. As we have indicated,

however, the airport defendants conceded at oral argument

before this court that, in the absence of any state law

property right to enter the land trust defendants’ properties

for the purpose of trimming and cutting trees, federal law

would confer no such right. We cannot perceive why, if

federal law would confer no right to enter the land trust

defendants’ properties in the absence of a property right to

do so, federal law would trump all residual private property

rights of the landowner and state as well as state and local

land use laws where the airport defendants established only

a limited property right. If te airport defendants had no

cause of action against the land trust defendants to require

them to clear-cut the land under federal law; see Westchester

v. Greenwich, supra, 745 F. Supp. at 955; they had no right

under federal law to conduct such an activity themselves.

Accordingly, we conclude that, under the airport

defendant’ »wn reasoning, they had no right under federal

law to clear-cut the trees in the absence of a right to do so

reasonably necessary for the convenient enjoyment of the

servitude for its intended purpose”). Moreover, if the clear-

culting had occurred during the prescriptive period, it

presumably would have provoked the same reaction from the

land trust defendants as it did in the present circumstances. See

McCullough v. Waterfront Park Assn., Inc., supra, 32 Conn. App. at

756, 630 A.2d 1372 (“[a]n unreasonable increase in burden is such

a one as it is reasonable to assume would have provoked the

owner of the land being used to interrupt the use had the increase

occurred during the prescriptive period”). Accordingly, even if

the airport defendants had challenged the trial court's

determination that the clear-cutting exceeded the scope of the

prescriptive easement, we would conclude that that determination

was not clearly erroneous.

27a

under state property law.””? In light of the trial court's

unchallenged determination that the airport defendants had

no such property right, we conclude that we need not

address their claim that, if they had such a right, federal law

would preempt the application of local land use law.?? We

conclude, therefore, that in the absence of any right under

state property law to clear-cut the trees, state and local laws

regulating activity within wetlands and watercourses

applied to the airport defendants’ conduct.

2? It seems somewhat counterintuitive that federal aviation law

might preempt state and local law governing the use of real

property even though it does not preempt state property law.

There is some precedent for that proposition, however. See

National Aviation v. Hayward, 418 F. Supp. 417, 424-25 (N.D. Cal.

1976) (exercise of municipal police power to regulate aircraft noise

is preempted by federal law but right of municipal proprietor of

airport to determine permissible noise level is not preempted). It

is implicit in National Aviation that, although neighboring

landowners could seek compensation if airport noise interfered

with the use and enjoyment of their property, if a municipal

airport proprietor obtained noise easements from the landowners,

state and local governments could not regulate noise levels. See

id., at 421. As we have indicated, however, we need not consider

in the present case the extent to which the principles cited in

National Aviation apply to privately owned airports and

prescriptive clearance easements because the airport defendants

have not established that they have a property right to clear-cut

the land trust defendants’ trees.

8 We note that the plaintiffs do not claim that the type of activities

allowed by the prescriptive easement would violate state or local

land use regulations. Accordingly, we need not consider whether

federal law would preempt local regulations with respect to those

activities. Nor need we consider the plaintiffs’ alternate ground

for affirmance that, in the absence of any factual foundation that

the airport defendants had initiated proceedings with the Federal

Aviation Administration to identify and eliminate obstructions on

the land trust defendants’ property, there was no factual predicate

for the airport defendants’ claim of preemption.

28a

We next address the airport defendants’ claim that, even

if we conclude that federal law did not preempt the

application of state and local wetlands regulations to their

conduct, the trial court improperly rendered judgment for

the land trust defendants on their cross claim that cutting

the trees constituted unreasonable pollution under § 22a-16

because the claim was predicated on the airport defendants’

failure to obtain a permit pursuant to the Inland Wetlands

and Watercourses Act (act), General Statutes § 22a-28 et seq.,

and, therefore, could not form the basis for a claim under

§ 22a-16. We disagree.

The following additional procedural history is relevant

tc our resolution of this claim. In the sixth count of their

cross claim against the airport defendants, the land trust

defendants claimed that the clear-cutting of their land had

“removed a natural buffer that existed between Chapman

Pond and any [alirport disturbances, threaten[ed] the

integrity of Chapman Pond and the lower Connecticut River

Watershed, and involve[d] conduct which has, or is

reasonably likely to have, the effect of unreasonably

polluting, impairing or destroying the public trust in

Chapman Pond by increasing noise pollution and other

destruction and impairment of wetlands, watercourses and

other environmentally sensitive habitats in breach of the

public trust. For example, the stream that these trees helped

to shade and retain has a documented population of wild

brook trout and the removal of the shade trees will

adversely affect the stream water quality, temperature, and

habitat. The trees also served to buffer Chapman Pond’s

breeding waterfowl and wintering bald eagle habitat from

the airport.” (Internal quotation marks omitted.)

The trial court found that the “clear-cutting was

unreasonable under all of the circumstances. In the past,

only trimming and selective cutting of trees was employed

to remove such obstacles io air navigation, which the

29a

growing trees created. There existed no sound reason to

abandon that conservative practice. To sever every tree and

woody-stemmed bush, regardless of height and species,

destroyed important floodplain forest excessively and

unnecessarily.” Accordingly, the court rendered judgment

for the land trust defendants on the sixth count of their cross

claim.

The airport defendants argue that the sixth count of the

land trust defendants’ cross claim was duplicative of the

first count of the commissioner of environmental

protection’s complaint in the companion case of Rocque v.

Mellon, 275 Conn. at 161, 167-69, 881 A.2d 972 (2005), in

which the commissioner alleged that the airport defendants

had violated § 22a-16 by failing to obtain a permit as

required by § 22a-42a (c)(1). See footnote 3 of this opinion.

The trial court concluded in that case that the commissioner

could not prevail on its claim because, under this court's

decision in Connecticut Coalition Against Millstone v. Rocque,

267 Conn. 116, 138-48, 836 A.2d 414 (2003), “the failure to

obtain a license or permit to engage in conduct which

impinges on the environment cannot form the basis for

a...claim under § 22a-16.” The airport defendants argue

that, in the present case, the trial court should have

dismissed the land trust defendants’ claim under § 22a-16

for the same reason. We note that, in the companion case,

we reversed the trial court’s dismissal of the first count of

the commissioner’s complaint and remanded the case with

direction to render judgment in favor of the commissioner

on that count. Rocque v. Mellon, supra, at 169-70, 881 A.2d

972. For similar reasons, we conclude in the present case

that the trial court properly rendered judgment for the land

trust defendants on the sixth count of their complaint.

Because the airport defendants’ claim implicates the

standing of the land trust defendants to raise a claim under

§ 22a-16, it necessarily implicates the trial court’s subject

matter jurisdiction over the claim. See Connecticut Coalition

30a

Against Millstone v. Rocque, supra, 267 Conn. at 127-28, 836

A.2d 414. “A determination regarding a trial court’s subject

matter jurisdiction is a question of law. When... the trial

court draws conclusions of law, our review is plenary and

we must decide whether its conclusions are legally and

logically correct and find support in the facts that appear in

the record.” (Internal quotation marks omitted.) /d.

In Connecticut Coalition Against Millstone v. Rocque, supra,

267 Conn. 116-18, 134, 836 A.2d 414, the plaintiffs,

environmental activists, claimed that the Millstone Nuclear

Power Generating Station should be enjoined from

operating because it was functioning under an improperly

issued permit. We determined that “[a]llegations of

improper decisions by the commissioner for failure to

comply with the statutory requirements regarding permit

renewal proceedings and emergency authorizations cannot

be construed as anything other than a licensing claim under

[General Statutes} § 22a-430.” /d., at 134, 836 A.2d 414.

Relying on a long series of cases in which we had held that

§ 22a-16 does not confer standing to litigate decisions

regarding permits that are within the exclusive jurisdiction

of a state agency, we concluded that the trial court properly

had dismissed the plaintiffs’ claims. /d., at 129-38, 836 A.2d

414. In doing so, we distinguished other cases in which we

had determined that the plowetiffs had standing under § 22a-

16 because, although the tack of an appropriate permit had

been alleged, the plaintiffs had raised independent “claims

of unreasonable pollution [that] were directed primarily to

the polluting activity itself, and not... to the validity of an

existing permit or authorization....” /d., at 139-40, 836

A.2d 414, citing Keeney v. Old Saybrook, 237 Conn. 135, 140-

41, 676 A.2d 795 (1996) (alleging unreasonable pollution of

state waters from town’s failure to comply with pollution

abatement orders); Commissioner of Environmental Protection

v. Connecticut Building Wrecking Co., 227 Conn. 175, 190, 629

A.2d 1116 (1993) (alleging unreasonable pollution from

3la

failure to obtain permit for operation of solid waste facility

that generated leachate, which degraded groundwater);

Keeney v. L & S Construction, 226 Conn. 205, 209, 626 A.2d

1299 (1993) (alleging unreasonable pollution from

depositing construction debris in close proximity to area

water supply without permit).

In the present case, unlike in Connecticut Coalition

Against Millstone v. Rocque, supra, 267 Conn. at 139, 836 A.2d

414, the land trust defendants make no claim that the clear-

cutting of their properties constituted unreasonable

pollution because the airport defendants had failed to obtain

a wetlands permit. Indeed, their cross claim makes no

reference to the need for a permit at all.2? Instead, their

claim was “directed primarily to the polluting activity

itself....” Accordingly, we conclude that the trial court

properly rejected the airport defendants’ claim that the land

trust defendants lacked standing to raise this cross claim.

2? We conclude elsewhere in this opinion that the clear-cutting

constituted a regulated activity for which a permit was required.

See part III of this opinion. In Waterbury v. Washington, 260 Conn.

506, 557, 800 A.2d 1102 (2002), we held that “when there is an

environmental legislative and regulatory scheme in place that

specifically governs the conduct that the plaintiff claims

constitutes an unreasonable impairment under [§ 22a-16], whether

the conduct is unreasonable under [§ 22a-16] will depend on

whether it complies with that scheme.” We need not consider,

however, whether the plaintiffs would have issued a wetlands

permit for clear-cutting the land if an application for a permit had

been submitted because we have concluded in part | of this

opinion that the airport defendants had no rights in the property

that would have entitled them to submit such an application. In

the absence of any such right, the airport defendants’ conduct

necessarily would not have been permitted. Accordingly, we

conclude that the trial court properly determined that “[t]o sever

every tree and woody-stemmed bush, regardless of height and

species, destroyed important floodplain forest excessively and

unnecessarily,” and was, therefore, unreasonable.

32a

lil

We next address the airport defendants’ claim that the

trial court improperly rendered judgment for the plaintiffs

on their claim that the airport defendants violated the act by

failing to obtain a permit to clear-cut the land trust

defendants’ properties. They argue that the removal of

vegetation from the properties was not a regulated activity

under the act because it did not disturb any wetlands soils.

We disagree.

The trial court found that “[t]he floodplain forest which

was clear-cut comprised diverse species of hardwood trees

and woody shrubs. ... [A]round 340 trees and tree sprouts

were severed on land trust property and a few more on

conservancy land. These trees acted as a flood brake,

slowing the velocity of the occasional floodwaters of the

Connecticut River which regularly spill into the floodplains

and eventually into Chapman’s Pond. The slower the flow

of floodwater, the less erosion, scouring, and damage to the

submerged land and water bodies is done. The taller and

denser the floodplain forest, the greater the buffering

capacity to slow floodwaters. Undoubtedly, the felling of all

trees and woody vegetation over 2.5 acres in the midst of a

floodplain corridor between the Connecticut River and

Chapman’s Pond altered that wetlands and the abutting

floodplains and wetlands.” Accordingly, the trial court

concluded that the airport defendants had violated § 22a-

42a (c)(1) of the act and were liable for damages of $17,500

under § 22a-44 (b).

We first address the standard of review. “Whether the

trial court properly concluded that the commission had

jurisdiction over the activities proposed by the plaintiff

involves a legal question involving statutory interpretation,

over which our review is plenary.” AvalonBay Communities,

Inc. v. Inland Wetlands Commission, 266 Conn. 150, 158, 832

A.2d 1 (2003).

33a

We begin with the language of the statute. General

Statutes § 22a-38 (13) defines “ ‘[rlegulated activity’ “ as

“any operation within or use of a wetland or watercourse

involving rer..oval or deposition of material, or any

obstruction, construction, alteration or pollution, of such

wetlands or watercourses....” Thus, the definition

expressly includes operations “involving removal or

deposition of material” in wetlands areas. In the present

case, the airport defendants removed the living vegetation

canopy growing over the wetlands and deposited the

woody remains on the ground.” If the removal of all

vegetation growing in a wetlands area was not intended to

be a regulated activity, we would be hard pressed to

imagine what type of material the legislature had in mind in

enacting § 22a-38 (13). Accordingly, we conclude that the

clear-cutting was a regulated activity.

The airport defendants argue, however, that our opinion

in AvalonBay Communities, Inc. v. Inland Wetlands

Commission, supra, 266 Conn. 150, 832 A.2d 1, supports their

claim that the clear-cutting of the land trust defendants’

land was not a regulated activity. In that case, the plaintiff

appealed to the trial court after the defendant inland

wetlands commission had denied its application for an

inland wetlands permit. /d.,, at 152, 832 A.2d 1. The trial

court dismissed the appeal and the plaintiff appealed to this

court, claiming that the denial was improper because its

*” Brian Golembiewski, an environmental analyst with the inland

water resources division of the bureau of water management and

the department of environmental protection, appeared at trial as

the plaintiffs’ expert witness. He testified that, “[u}nfortunately,

all of this woody material has been left in place, so even... where

you would have sunlight and you'd have... herbaceous or soft-

stemmed short plants that would now have sunlight that they

didn’t have prior... [that] could grow and establish, that would

even be somewhat limited by this blanket of woody materials left

out there.”

34a

proposed construction activities would not take place within

any wetlands, watercourses or wetlands buffer area. Id.

The defendant argued that the act was intended not only to

protect the wetlands from physical damage or intrusion, but

to protect wildlife and biodiversity both within and outside

the borders of the wetlands. /d., at 156-57, 832 A.2d 1. We

noted that § 22a-38(15) defined wetlands as “land, including

submerged land ... which consists of any of the soil types

designated as poorly drained, very poorly drained, alluvial,

and floodplain....” (Emphasis in original; internal

quotation marks omitted.) /d., at 162, 832 A2d 1. We

determined that, although an “inland wetlands commission

may regulate activities taking place outside the wetlands

boundaries and upland review [buffer] areas if such

activities are likely to have an impact or effect on the

wetlands themselves”; id, at 161, 832 A.2d 1; “the act

protects fonly] the physical characteristics of wetlands and

watercourses and not the wildlife, including wetland

obligate species, or biodiversity.” id., at 163, 832 A.2d 1.

Accordingly, we concluded that the plaintiff's proposed

construction activities did not require the issuance of a

regulated activity permit.*! [d., at 171, 832 A.2d 1.

We conclude that the airport defendants read AvalonBay

Communities, Inc., too broadly when they argue that

31 The legislature responded to our ruling in AvalonBay

Communities, Inc., by enacting No. 04-209 of the 2004 Public Acts,

now codified at General Statutes § 22a-41 (c), which provides:

“For purposes of this section, (1) ‘wetlands or wsiercourses’

includes aquatic, plant or animal life and habitats in wetlands or

watercourses, and (2) ‘habitats’ means areas or environments in

which an organism or biological population normally lives or

occurs.” The plaintiffs argue that this amendment is retroactive

because it was intended to clarify that clear-cutting of vegetation

within a wetlands is a regulated activity. We need not reach this

claim because we conclude that the airport defendants conduct

was a regulated activity under the version of the statute in place at

the time that the activity took place.

35a

activities that affect the vegetation growing within a

wetlands but that do not disturb the soil cannot be

regulated. Nothing in that case suggests that the act’s

definition of the term wetlands was intended to exclude

vegetation growing within the wetlands, and we perceive

no reason to conclude in the present case that the legislature

had any such intention. In ordinary usage, the word “land”

includes things growing on the land. See Black’s Law

Dictionary (4th Ed. Rev. 1968) (“ ‘[IJand’ includes not only

the soil or earth, but also things of a permanent nature

affixed thereto or found therein, [including] water, trees,

grass, herbage, other natural or perennial products, growing

crops or trees [and] mineral under the surface”). In any

event, the trial court expressly concluded that the airport

defendants’ activities would result in damage to the soils

themselves as a result of increased “erosion [and]

scouring ... [of] the submerged land and water bodies... .”

That factual finding was supported by the court's finding

that the land was in a floodplain and that a taller and denser

vegetation cover would prevent such damage by slowing

floodwaters.*2, Accordingly, we reject this claim and affirm

the trial court’s determination that the clear-cutting was a

regulated activity.

We next address the airport defendants’ claim that the

trial court improperly determined that Mellon was

personally liable for clear-cutting the trees on the land trust

defendants’ property. We disagree.

The following additional procedural history is relevant

to our resolution of this claim. At trial, Evans testified that

Mellon instructed him to cut “everything” within the 2.5

acres. Mellon testified that he directed Evans to cut all of

the trees within the approach slope. Mellon did not

*? That finding was, in turn, supported by the trial testimony of

Brian Golembiewski, the plaintiffs’ expert witness.

36a

specifically recall instructing Evans to cut shrubs, but stated

that he took “responsibility for whatever [Evans] cut,” and

that everything that Evans did was under Mellon's

authority.

During trial, the airport defendants filed a motion to

dismiss the claims against Mellon personally on the ground

that the plaintiffs and the land trust defendants had not

established a prima facie case that he had acted in his

individual capacity and not merely as a corporate officer of

the airport. The trial court denied the motion. In its

memorandum of decision, the court found that, “[b]etween

November 29 and December 5, 2000, at the direction of

Mellon, the owner of the airport, Evans, an independent

contractor, clear-cut approximately 2.5 acres of floodplain

forest located on land owned by the land trust and land

owned by the conservancy.” The court rendered judgment

against the airport defendants on the plaintiffs’ claims

pursuant to § 22a-44 (a) and found the airport defendants

jointly and severally liable for a civil penalty of $17,500

pursuant to § 22a-44 (b). The court also rendered judgment

in favor of the land trust defendants on their claim pursuant

to § 22a-16 and, pursuant to § 22a-16a, ordered the airport

defendants to make a financial contribution of $50,000 to

“an academic or government-funded research project

related to environmental protection or conservation of

natural resources, which recipient will be identified by the

{department of environmental protection].”

It is well established that “an officer of a corporation

does not incur personal liability for its torts merely because

of his official position. Where, however, an agent or officer

commits or participates in the commission of a tort, whether

or not he acts on behalf of his principal or corporation, he is

liable to third persons injured thereby.” Scribner v. O’Brien,

Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975); see also Kilduff

v. Adams, Inc., 219 Conn. 314, 331-32, 593 A.2d 478 (1991)

(“[iJt is black letter law that an officer of a corporation who

37a

commits a tort is personally liable to the victim regardless of

whether the corporation itself is liable”). “Thus, a director

or officer who commits the tort or who directs the tortious

act done, or participates or operates therein, is liable to third

persons injured thereby, even though liability may also

attach to the corporation for the tort.” 18B Am. Jur. 2d 607,

Corporations § 1629 (2004).

Because the issue of whether a corporate officer has

committed or participated in the wrongful conduct of a

corporation is a question of fact, it is subject to the clearly

erroneous standard of review. See Sargent v. Smith, 272

Conn. 722, 728, 865 A.2d 1129 (2005). “[A reviewing court]

cannot retry the facts or pass upon the credibility of the

witnesses. ...A finding of fact is clearly erroneous when

there is no evidence in the record to support it ...or when

although there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” (Internal

quotation marks omitted.) /d., at 728-29, 865 A.2d 1129.

We conclude in the present case that the trial court's

determination that Mellon personally directed Evans to

clear-cut the trees is amply supported by the record.

Accordingly, we conclude that the trial court properly

determined that Mellon was personally liable for cutting the

trees under §§ 22a-44 (b) and 22a-l6a. See Scribner v.

O’Brien, Inc., supra, 169 Conn. at 404, 363 A.2d 160. It is

immaterial whether Mellon was acting in his individual

capacity or on behalf of the corporation. See id.

Mellon makes two arguments in support of his claim to

the contrary. First, he argues that his conduct did not fall

within the responsible corporate officer doctrine adopted by

this court in BEC Corp. v. Dept. of Environmental Protection,

256 Conn. 602, 618, 775 A.2d 928 (2001). Second, he argues

that the application of Scribner v. O’Brien, Inc., supra, 169

Conn. 389, 363 A.2d 160, to limited liability companies has

38a

been superseded by General Statutes § 34-1345 We reject

both arguments.

In BEC Corp. v. Dept. of Environmental Protection, supra,

256 Conn. 602, 775 A.2d 928, this court considered whether

officers of the plaintiff corporation could be held personally

liable under the Connecticut Water Pollution Control Act,

General Statutes § 22a-416 et seq., for pollution caused by

the corporation. We concluded that because General

Statutes § 22a-432 defined “person” under the act to include

“any officer” of a corporation; (internal quotation marks

omitted) id., at 617, 775 A.2d 928; and because the broad

remedial purpose of the act is to “achieve clean water

[despite] possible individual hardship”; (internal quotation

marks omitted) id., at 622, 775 A.2d 928; a corporate officer

could be held personally liable for the abatement of a

violation of the act when: “(1) the officer is in a position of

responsibility that allows that officer to influence corporate

policies and activities; (2) there is a nexus between the

Officer's actions or inactions in that position and the

violation of § 22a-432 such that the corporate officer

influenced the corporate actions that constituted the

violation; and(3) the corporate officer's actions or inactions

resulted in the violation.” /d., at 618, 775 A.2d 928. We

emphasized, however, that we were “by no means

establishing the responsibility of corporate officers in

general with respect to corporate activity; we restrict the

application of the responsible corporate officer doctrine

solely to violations of the act.” /d.

8 General Statutes § 34-134 provides: “A member or manager of a

limited liability company is not a proper party to a proceeding by

or against a limited liability company solely by reason of being a

member or manager of the limited liability company, except

where the object of the proceeding is to enforce a member's or

manager's right against or liability to the limited liability company

or as otherwise provided in an operating agreement.”

39a

In the present case, the airport defendants argue that,

because § 22a-38(2)* does not define “person” to include

corporate officers, and because we limited the application of

the responsible corporate officer doctrine to § 22a-432 in

BEC Corp., Mellon cannot be held personally liable. We are

not persuaded. Section 22a-432 is a strict liability statute;

see Cadlerock Properties Joint Venture, L.P. v. Commissioner of

Environmental Protection, 253 Conn. 661, 670, 757 A.2d 1

(2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148

L.Ed.2d 963 (2001); and the responsible corporate officer

doctrine that we adopted in BEC Corp. was based on a case

imposing liability on corporate officers for strict liability

public welfare offenses. See BEC Corp. v. Dept. of

Environmental Protection, supra, 256 Conn. at 618, 775 A.2d

928, citing Matter of Dougherty, 482 N.W.2d 485, 490 (Minn.

App. 1992). Moreover, the responsible corporate officer

doctrine that we adopted in BEC Corp. did not require a

finding that the officer had committed, directly participated

in or directed the conduct that resulted in a violation before

he could be held personally liable, but required only that the

officer have a position of responsibility and influence from

which he could have prevented the corporation from

engaging in the conduct. We conclude, therefore, that the

responsible corporate officer doctrine that we adopted in

BEC Corp., and any limitations on that doctrine, apply solely

to a corporate officer’s personal liability for strict liability

public welfare offenses committed by the corporation. We

did not intend to overrule or abrogate the black letter

principle that a corporate officer may be held personally

liable for tortious conduct in which the officer directly

participated, regardless of whether the statutory basis for

4% General Statutes § 22a-38 (2) defines “ ‘[p]erson’ “ as “any

person, firm, partne=siip, association, corporation, limited liability

company, company. organization or legal entity of any kind,

including municipai corporations, governmental agencies or

subdivisions thereof... .”

40a

the claim expressly allows liability to be imposed on

corporate officers.

We next address the airport defendants’ claim with

respect to § 34-134. That statute provides in relevant part:

“A member or manager of a limited liability company is not

a proper party to a proceeding by or against a limited

liability company solely by reason of being a member or

manager of the limited liability company....” General

Statutes § 34-134. The airport defendants argue that this

statute, which was enacted in 1993; see Public Acts 1993, No.

93-267, § 20; supersedes the principle that officers of

corporations may be held personally liable for their conduct

on behalf of a company in certain circumstances as that

principle applies to limited liability companies. See Scribner

v. O'Brien, Inc., supra, 169 Conn. at 404, 363 A.2d 160. We

disagree. “Although the legislature may eliminate a

common law right by statute, the presumption that the

legislature does not have such a purpose can be overcome

only if the legislative intent is clearly and plainly

expressed.” (Internal quotation marks omitted.) Matthiessen

v. Vanech, 266 Conn. 822, 838-39, 836 A.2d 394 (2003).

Section 34-134 evinces no legislative intent to eliminate the

right to impose liability on a member or manager of a

limited liability company who has engaged in or

participated in the commission of tortious conduct. Rather,

the statute merely codifies the well established principle that

“an officer of a corporation does not incur personal liability

for its torts merely because of his official position.” (Emphasis

added.) Scribner v. O’Brien, Inc., supra, at 404, 363 A.2d 160.

Accordingly, we reject the airport defendants’ arguments

that the principle that corporate officers are personally

responsible for their own tortious conduct does not apply in

this case.

% The airport defendants make no claim that a violation of § 22a-

16 or § 22a-42a does not constitute tortious conduct.

4la

We next address the claim of the plaintiffs on cross

appeal that the trial court improperly failed to exercise its

jurisdiction to order the airport defendants to restore the

land trust defendants’ properties to their condition prior to

the violation of § 22a-44 (a) or to impose a civil penalty

sufficient to fund the restoration of the properties. We

disagree.

The following additional facts and procedural history

are relevant to our resolution of this claim. Christopher

Allan, a senior associate with Land Tech Consultants and an

expert witness for the plaintiffs, testified that restoration of

the properties would require planting new trees and shrubs

and fencing each tree and shrub individually to protect

them from deer. He estimated that the cost of the

restoration would be $158,092. Sigrun Gadwa, the principal

ecologist for REMA Ecological Services and an expert

witness for the airport defendants, testified that Allan’s plan

could be implemented for a cost of at least 20 percent less.

The airport defendants began their clear-cutting

operation on November 29, 2000. Thirty-five days later, on

January 2, 2001, Ventres issued a cease and desist order

prohibiting the airport defendants from engaging in any

further regulated activity at the site.

General Statutes § 22a-44 (b) provides in relevant part

that “[aJny person who commits... any violation of any

provision of sections 22a-36 to 22a-45, inclusive, including

regulations... promulgated by municipalities or districts

pursuant to the grant of authority herein contained, shall be

assessed a civil penalty of not more than one thousand

dollars for each offense. Each violation of said sections shall

be a separate and distinct offense, and, in the case of a

continuing violation, each day’s continuance thereof shall be

deemed to be a separate and distinct offense... .” Pursuant

to this statute, the trial court imposed a civil penalty of $500

42a

per day for each of the thirty-five days between November

29, 2000, and January 2, 2001, for a total of $17,500. The

court declined to order the airport defendants to perform

any restorative work because “no party proposes a

replication of the conditions which existed before the clear-

cutting occurred,” because “the land upon which such

action would occur is owned by others” and because the

court addressed the issue of restoration in connection with

the land trust defendants’ claims pursuant to § 22a-16. As

we have indicated, the trial court ordered the airport

defendants to make a financial contribution of $50,000

pursuant to § 22a-l6a, which provides that “under any

provision of [title 22a] which provides for a civil or criminal

penalty for a violation of such provision, the court, in lieu of

any other penalties, damages or costs awarded, or in

addition to a reduced penalty, damages or costs awarded,

may order the defendant...(3) to make a financial

contribution to an academic or government-funded research

project related to environmental protection or conservation

of natural resources....” The court stated that “[i]t is

expected that the [department of environmental protection]

will identify a recipient connected to the Chapman’s Pond

preserve, if possible.”

The plaintiffs argue on appeal that trial court’s decision

to assess $17,500 in civil penalties and not to order the

airport defendants to restore the properties was an abuse of

discretion because “[t]here was simply no testimony from

which the court could conclude that $17,500 was sufficient

to restore” the land to the condition it was in before the

clear-cutting, and because § 22a-44 (b) contemplates that

condition that it was in before the clear-cutting because, as the

trial court found, “invasive species, such as ailanthus trees, had

already established themselves at this site for many years, and it is

highly desirable ecologically to eradicate such invaders and

replace them with native species.”

43a

penalties “shall be used...(1) to restore the affected

wetlands or watercourses to their condition prior to the

violation, wherever possible... .” They further argue that,

pursuant to General Statutes § 22a-20,37 the $50,000

contribution ordered by the trial court pursuant to § 22a-16a

(3) was supplemental to the civil penalty ordered pursuant

to § 22a-44 (b), not in lieu of it, and, therefore, should not be

considered in determining whether the penalty was

sufficient. The airport defendants counter that the trial

court reasonably found that the plaintiffs’ proposed

restoration plan was excessive because it did not

contemplate restoring the land to its original condition, but

to an improved condition. They further argue that the trial

court intended the $50,000 contribution to be part of the

penalty for violating § 22a-44.

“A party seeking injunctive relief has the burden of

alleging and proving irreparable harm and lack of an

adequate remedy at law ..... A prayer for injunctive relief is

addressed to the sound discretion of the court and the

court’s ruling can be reviewed only for the purpose of

determining whether the decision was based on an

erroneous statement of law or an abuse of discretion.”

(Internal quotation marks omitted.) Pequonnock Yacht Club,

Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002).

This court has not previously had occasion to consider

the scope of the trial court’s discretion in ordering a civil

penalty pursuant to § 22a-44 (b). Generally, in the absence

of any specific guidance from the legislature,* a civil

37 General Statutes § 22a-20 provides in relevant part: “Sections

22a-14 to 22a-20, inclusive, shall be supplementary to existing

administrative and regulatory procedures provided by law and in

any action maintained under said sections, the court may remand

the parties to such procedures... .”

% The plaintiffs argue that the trial court’s discretion to impose

civil penalties is limited by subdivision (1) of § 22a-44 (b), which

44a

penalty provision vests wide discretion in the court to

determine a fair and proper penalty. See Carothers v.

Capozziello, 215 Conn. 82, 103, 574 A.2d 1268 (1990).59

As the airport defendants point out, the trial court

determined that the restoration plan proposed by the

plaintiffs’ expert would not have restored the land to its

prior condition, but would have improved the condition of

the land. The plaintiffs have not disputed that finding. We

conclude that the court was not required to create and

provides that civil penalties imposed pursuant to that statute

“shall be used solely ...to restore the affected wetlands or

watercourses to their condition prior to the violation, wherever

possible ....” We disagree. That language merely provides that

any penalties that are assessed should be used to restore the

wetlands. It does not require the court to impose a penalty that is

sufficient to restore the wetlands.

39 We previously have held that, in assessing penalties under other

civil penalty provisions of title 22a that provide no specific

guidance to the court, the factors to be considered by the court

“include, but are not limited to: (1) the size of the business

involved; (2) the effect of the penalty or injunctive relief on its

ability to continue operation; (3) the gravity of the violation; (4)

the good faith efforts made by the business to comply with

applicable statutory requirements; (5) any economic benefit

gained by the violations; (6) deterrence of future violations; and

(7) the fair and equitable treatment of the regulated community.”

Carothers v. Capozziello, supra, 215 Conn. at 103-104, 574 A.2d 1268

(listing factors to be considered in imposing civil perialty pursuant

to General Statutes § 224-226 pertaining to penalty for violation of

solid waste management statutes); see also Rocque v. Farricielli, 269

Conn. 187, 210, 848 A.2¢ 1206 (2004) (factors listed in Carothers are

to be considered in imposing civil penalties pursuant to General

Statutes §§ 22a-226a [governing penalties for violation of selected

solid waste management statutes] and 22a-438 [a] [governing

penalties for violation of water pollution control statutes]}). None

of the parties argue that these factors should apply in the present

case, however, and the trial court did not identify the factors that

entered into its calculations.

45a

impose on the airport defendants a plan of its own to restore

the land to its condition prior to the violation. Nor was it

required to issue a general order to the airport defendants

that they restere the land to its prior condition, which

almost certainly would have led to additional litigation.

Accordingly, we conclude that the trial court did not abuse

its discretion in declining to order the airport defendants to

restore the land.

We also reject the plaintiffs’ argument that the $50,000

contribution imposed pursuant to § 22a-16a (3) was

supplemental to the $17,500 penalty imposed pursuant to

§ 2a-44 (b), not in lieu of it, and, therefore, should not be

considered in determining whether the trial court abused its

discretion. Section 22a-16a specifically provides that any

financial contribution ordered pursuant to that statute is “in

lieu of any other penalties, damages or costs awarded, or in

addition to a reduced penalty, damages or costs awarded”

under any other provision of title 22a that provides for a

civil penalty. (Emphasis added.) Accordingly, we

reasonably may conclude that, if the court had not ordered

the financial contribution pursuant to § 22a-16a, the civil

penalty pursuant to § 22a-44 (b) would have been greater.

In addition, the court expressed its expectation that the

entire $67,500 would be used to improve the condition of

the land trust defendants’ properties. The plaintiffs make

no claim that the imposition of a civil penalty of $67,500

would have been an abuse of discretion. As we have

indicated, the trial court reasonably could have concluded

that the plaintiffs’ expert’s estimated cost of restoration was

excessive because the plan would not have restored the land

to its previous condition, but would have improved the

condition. Accordingly, we conclude that the trial court did

not abuse its discretion in imposing a civil penalty of $17,500

pursuant to § 22a-44 (b).

46a

We next address the plaintiffs’ claim on cross appeal that

the trial court improperly suspended the calculation of per

diem civil penalties upon the commission’s issuance of the

cease and desist order. We disagree.

The following additional facts are relevant to our

resolution of this issue. As we have indicated, on January 2,

2001. Ventres issued an order to the airport defendants

ordering them to cease and desist from all regulated activity

on the airport property and on the land trust defendants’

properties. The order identified the prohibited regulated

activity as “clear-cutting of a flood plain forest ... and

disturbance of the flood plain soils around the tidal inlet at

the end of the property....” The order stated that

“(sjatisfactory corrective measures are not to be done

without a permit from the [c]lommission” and required the

airport defendants to appear at a hearing on January 11,

2001, to show cause why the order should not remain in

effect. Because several commission members had recused

themselves from the matter, however-apparently because

the airport defendants had alleged a conflict of interest-no

quorum was available on the date of the hearing. At a June

11, 2001 commission meeting on a related matter, counsel

for the airport defendants withdrew the conflict of interest

claim as to two of the three commission members who had

recused themselves.4¢ The cease and desist hearing was

never rescheduled, however, and the plaintiffs never issued

any order to the airport defendants to correct the condition

of the land trust defendants’ land. See General Statutes § 2a-

*) The airport defendants represent in their brief that the June 11,

2001 meeting concerned an application submitted by the airport to

extend its runway. They argue that they did not intend to

withdraw their motion to disqualify the commission members in

proceedings on the pending cease and desist order. We need not

decide whether the commission members were recused after June

11, 2001, however, because the issue is irrelevant to our analysis.

47a

44 (a) (inland wetlands agency is authorized to issue order

to correct condition created by violation of the act).

As we have indicated, the trial court imposed a $500 per

diem fine on the airport defendants for the thirty-five days

between the day that they began cutting the trees on the

land trust defendants’ properties, November 29, 2000, and

the day that the cease and desist order was issued, January

2, 2001. The court reasoned that, because the order was

never lifted, it prevented “the airport defendants from

implementing any corrective or remedial plan because such

action would necessarily involve the removal and

deposition of material at the site and would alter wetlands,

albeit for environmentally beneficial purpose.” The

plaintiffs argue that the trial court improperly limited the

per diem penalties to the thirty-five day period because the

cease and desist order did not prevent the airport

defendants from submitting a restoration plan to the

commission. They further argue that, because they

requested restoration of the land in their complaint, which

listed a return date of May 8, 2001, and because the airport

defendants made no effort to submit a restoration plan up to

the date of the court's decision, May 21, 2004, the trial court

should have imposed civil penalties for that entire period.

We conclude that the plaintiffs’ argument is flawed in

several respects. First, § 22a-44 (b) authorizes the imposition

of civil penalties for violations of the act. In the present case,

the violation consisted of clear-cutting the properties. The

plaintiffs have provided no authority for the proposition

that the statute authorizes the imposition of civil penalties

for the failure to remediate such violations in the absence of

any administrative or court order to do so. Moreover,

whether the airport defendants were required to restore the

properties and, if so, the nature and scope of any such work,

were the very issues in dispute in the litigation initiated by

the plaintiffs. The plaintiffs have provided no authority for

the proposition that, during the pendency of the action, the

48a

airport had a duty under the act to submit a restoration

plan. We conclude, therefore, that it was not an abuse of

discretion for the trial court to limit the per diem penalties

to the period during which the violation occurred and to

decline to impose per diem penalties for the period during

which the action was pending.

Vil

We next address the land trust defendants’ claim on

cross appeal that the trial court improperly struck their cross

claim under CUTPA. We disagree.

The following procedural history is relevant to our

resolution of this issue. The land trust defendants alleged in

the fifth count of their cross claim that: (1) the airport

defendants had violated CUTPA by threatening expensive

and protracted litigation “in an attempt to stifle the [land

trust] and its individual volunteer members’ participation in

government process”; (2) Mellon had a history of using bad

faith litigation to further his business interests and had

initiated litigation against the members of the land trust

board in an effort to “squelch opposition”; and (3) the trees

were clear-cut to facilitate the expansion of the airport's

runway, which otherwise would not have been permitted,

and directly injured the land trust defendants’ business

interests of protecting and preserving property for public

enjoyment. The airport defendants filed a motion to strike

the CUTPA claim on the grounds that they were merely

defending themselves against the action filed by the

plaintiffs and that their defense against the action was not

their “trade or business.” They also argued that the airport

defendants had not alleged any facts that would support a

claim under CUTPA. The trial court granted the motion to

strike on the ground that the land trust defendants were not

competitors or customers of the airport defendants.

The land trust defendants now claim that the trial court

improperly determined that CUTPA imposes a requirement

49a

that the plaintiff be either the defendant's competitor or its

customer. They argue that CUTPA protects

businesspersons in general, not just consumers and

competitors, and that the airport defendants’ conduct

interfered with their business of protecting natural

resources. The airport defendants counter, essentially as an

alternate ground for affirmance, that the land trust

defendants’ claims that the airport defendants were using

litigation to intimidate and stifle the participation of the

land trust and its volunteers in government process and that

Mellon had a history of initiating baseless litigation to

further his business interests are entirely without factual

basis and, in any event, cannot support a CUTPA claim as a

matter of law. The airport defendants do not address the

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.