Opposition Brief — Goodspeed Airport, LLC v. Ventres (No. 05-1088)
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this case, in this case that we had here, we had
the property right to go onto that property and
clear the trees.
What I’m saying is we had that property
right but, yet, the appellees are saying, you still
needed to get permission from the Inland-
Wetland Commission to remove those trees, and
we're going to punish you under CEPA for remov-
ing those trees.
Our position is when you have the property
right to go do the work, then you cannot have lo-
cal interference or state interference with that ac-
tivity.
That’s our position, Your Honor.
JUSTICE BORDEN: So your argument for
federal preemption, I’m not sure I understand its
relation to the easement.
It seems to me if your pre-emption argument
is correct, it’s correct irrespective of whether you
had an easement to do that. Isn’t that so?
MR. BASHAW: Well, let me give you an-
other example, Your Honor.
JUSTICE BORDEN: But I don’t under-
stand how — I thought if you have federal pre-
emption because this is airspace, under federal
pre-emption local laws are preempted, so even if
this had happened in the 14th year instead of the
7
— well the 16th year’ so you didn’t have an ease-
ment by prescription — your federal pre-emption
argument would be the same, wouldn’t it?
MR. BASHAW: Well, igain, Your Honor, I
think still pre-emption — the whole point of pre-
emption is if I have the right to remove the trees.
The airport itself, the airport property itself
which is located in a flood plain, all right, the
Inland-Wetlands position is I have to go and get
their permission to remove the trees that are on
my own property.
I could get punished under CEPA, my client
could get punished under CEPA for removing
those trees on his own property. That’s what's
pre-empted. You can’t let local laws affect the
airport’s ability to maintain clear space around
its airport when it has the property right to do so.
I do not claim —
JUSTICE BORDEN: So, then, are you say-
ing that your pre-emption argument rests on the
validity of the Trial Court’s findings of the pre-
scriptive easement? <a
MR. BASHAW: Certainly, yeah, it doesn’t
give me the right. If there’s no prescriptive ease-
ment, Your Honor —
* Prescriptive easements arise under Connecticut law after 15
years of uninterrupted use as of right. (Pet. App. 86a.)
8
JUSTICE BORDEN: - are you saying to
me now, because this is something I never under-
stood, you’re saying that your pre-emption argu-
ment is premised on your easement.
MR. BASHAW: I cannot remove the trees.
Even if I have pre-emption, I cannot go onto
somebody else’s land and remove the trees. The |
FAA regulations don’t permit me to do it. The
DOT can come out and say those trees are a
problem, I don’t have the right to, but if J have
not otherwise secured the property rights to go
onto that land and do the work, I can’t do it.
If I do have the property right, which is the
facts in this case as determined by the Trial
Court, then a local agency or a state agency can-
not, then, step into the fray and say, No, you're
prohibited from doing that because, in this case,
the trees happen to be located in a wetland.
y JUSTICE BORDEN: Well, I understand
your argument. It just seems to me a rather
novel use of federal pre-emption,
I’ve never heard of saying, well, the federal
law is supreme and pre-empts the state law only
if the person claiming it has some state law right
to do what he’s doing.
I thought pre-emption is pre-emption and it
doesn’t_matter whether you — well, now I under-
stand your argument but I hadn’t understood you
to make that argument before, Mr. Bashaw.
Okay.
(Resp. App., 24-30) (emphasis added).
In its decision, the Connecticut Supreme Court first
affirmed the trial court’s decision concerning the existence
9
and limited scope of the prescriptive easement. (Pet. App.,
17a-27a.) Then, in clear reliance on the petitioners’ explicit
disavowal of their preemption claim, the Court held:
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 navi-
gable airspace without regard to either state
property law or state and local land use regula-
tions. At oral argument before this court, how-
ever, they clarified that they claim only that they
had a right to remove obstructions within the
navigable airspace over the land trust defen-
dants’ 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). ...
(Pet. App., lla). The Court then explained that it would
not address the petitioners’ preemption claim because
filf the [petitioners] 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 con-
duct such an activity themselves. Accordingly, we
conclude that, under the [petitioners’] own rea-
soning, they had no right under federal law to
clear-cut the trees in the absence of a right to do
so under state property law. In light of the trial
court’s unchallenged determination that the [pe-
titioners] had no such property right, we con-
clude that we need not address their claim that, if
10
they had such a right, federal law would preempt
the application of local land use law. We con-
clude, 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 [peti-
tioners’] conduct.
(Pet. App., 26a-27a) (emphasis added).
*
REASONS FOR DENYING THE PETITION
FOR A WRIT OF CERTIORARI
I. THE CONNECTICUT SUPREME COURT DID
NOT ADDRESS THE MERITS OF THE PETI-
TIONERS’ PREEMPTION CLAIM AS A DIRECT
CONSEQUENCE OF THE PETITIONERS’ AF-
-FIRMATIVE WAIVER OF THE FACTUAL AND
LEGAL BASIS FOR THAT CLAIM AT ORAL
ARGUMENT. :
Tucked away in a single footnote of the certiorari
petition is a dramatically understated, but ultimately
fatal, admission: “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.” (Pet., 12 n.4). In
fact, the petitioners’ clear and repeated concession at oral
argument in the Connecticut Supreme Court, set forth
verbatim in the Statement of the Case, constitutes an
affirmative waiver of the basis for their preemption claim. As
the Connecticut Supreme Court properly concluded, the
petitioners’ concession that federal law did not give them any
legal right to enter the land trust defendants’ property in
order to trim or cut trees made it unnecessary to consider
11
whether, if the petitioners had such a right, federal avia-
tion law would preempt local and state land use provi-
sions. (Pet. App., 26a-27a). The Connecticut Supreme
Court’s decision not to address the preemption question —
which was a direct consequence of the petitioners’ own
repeated concession — makes this an inappropriate case for
certiorari.
Section 1257(a) of the Judicial Code, which defines
and limits the jurisdiction of this Court over state court
proceedings, provides that:
Final judgments or decrees rendered by the
highest court of a State in which a decision could
be had, may be reviewed by the Supreme Court
by writ of certiorari where the validity of a treaty
or statute of the United States is drawn in ques-
tion or where the validity of a statute of any
State is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or
laws of the United States, or where any title,
right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or
statutes of, or any commission held or authority
exercised under, the United States.
28 U.S.C. §1257(a). In keeping with the limited scope of
such review, this Court “[wJith very rare exceptions ...
[has] adhered to the rule ... that we will not consider a
petitioner’s federal claim unless it was either addressed
by, or properly presented to, the state court that rendered
the decision we have been asked to review.” Adams uv.
Robertson, 520 U.S. 83, 86 (1997) (internal citation omit-
ted). If both of those elements are lacking, then this
Court’s “appellate jurisdiction fails.” Cardinale v. Louisi-
ana, 394 U.S. 437, 438 (1969) (quoting Crowell v. Randell,
35 U.S. (10 Pet.) 368, 391 (1836)).
12
Furthermore, “[w]hen the highest state court is silent
on a federal question before us, we assume that the issue
was not properly presented ... and the aggrieved party
bears the burden of defeating this assumption ... by
demonstrating that the state court had a fair opportunity
to address the federal question that is sought to be pre-
sented here....” Adams, 520 U.S. at 86-87 (emphasis
added; internal citations omitted). The assumption that
silence by a highest state court establishes a failure to
properly present a federal claim forms a core part of this
Court’s jurisdictional jurisprudence. See Bankers Life &
Casualty Co. v. Crenshaw, 486 U.S. 71, 77-78 (1988);
Board of Directors of Rotary Int'l v. Rotary Club of Duarte,
481 U.S. 537, 550 (1987); Exxon Corp. v. Eagerton, 462
U.S. 176, 181 n.3 (1983); Webb v. Webb, 451 U.S. 493, 501
(1981); Fuller v. Oregon, 417 U.S. 40, 50 n.11 (1974) (all
refusing to review federal issues where highest state court
was silent and issue was not properly presented); see also
Clark v. Jeter, 486 U.S. 456, 459-60 (1988) (“[i]t is our
practice, when reviewing decisions by state courts, not to
decide federal claims that were not ‘pressed or passed
upon’ below”).
A petitioner therefore must demonstrate two things in
order to overcome the presumption that silence by a
highest state court establishes a failure to present a
federal claim properly. First, a petitioner must prove
compliance with all applicable state procedural rules. See
Bankers Life, 486 U.S. at 77-78; Webb, 451 U.S. at 501.
Second, a petitioner must “demonstrate that it presented
the particular claim at issue here with ‘fair precision and in
due time’... .” Adams, 520 U.S. at 87 (quoting New York ex
rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928)). The
former concerns technical compliance with state procedural
13
requirements, while the latter appears to involve an
inquiry into the substantive manner in which a peti-
tioner’s federal claim was raised (or waived). Adams, 520
U.S. at 87-88. Under both tests,
at the minimum ... there should be no doubt
from the record that a claim under a federal
statute or the Federal Constitution was pre-
sented in the state courts and that those courts
were apprised of the nature or substance of the
federal claim at the time and in the manner re-
quired by state law. Otherwise, we cannot be suf-
ficiently sure, when the state court whose
judgment is being reviewed has not addressed
the federal question that is later presented here,
that the issue was actually presented and si-
lently resolved by the state court against the pe-
titioner or the appellant in this Court.
Webb, 451 U.S. at 501 (emphasis in original).
Although this Court has never directly addressed the
affirmative waiver of the basis for a federal claim at oral
argument before a state’s highest court, this Court held
that a similar waiver at oral argument before it barred
consideration of an appellant’s claim in DeBacker uv.
Brainard, 396 U.S. 28 (1969). In DeBacker, the appellant
asked this Court “to decide whether the preponderance-of-
the-evidence standard for burden of proof in juvenile court
proceedings ... satisfies the Due Process Clause of the
Fourteenth Amendment.” Jd. at 31. However, at oral
argument before this Court, appellant’s counsel admitted
that “[t]he evidence [was] more than sufficient to sustain a
conviction|[,]” and that “/nJjo matter what the standard was
. our evidence just isn’t insufficient.” Jd. (ellipses in
original; emphasis added). On the basis of this “com-
mendably forthright explanation by appellant’s counsel,”
14
this Court held that the appellant’s federal claim was not
appropriate for review. Id.
Other circumstances in which this Court has held that
a federal claim was not properly presented are likewise
instructive. In Adams, for example, the petitioners asked
this Court to review whether the certification and settle-
ment of a state class action lawsuit violated due process.
Adams, 520 U.S. at 85. However, not only did the petition-
ers barely mention the issue in their main brief to the
Alabama Supreme Court, they did not discuss it at all in
their reply brief, in spite of the fact that the respondents
addressed the issue in their brief. Jd. at 88-89. Given those
circumstances, this Court held that “it would have been
perfectly reasonable for a state court to conclude that the
broader federal claim was not before it.” Jd. at 89; see also
Rotary Int'l, 481 U.S. at 550 n.9 (a “casual reference to a
federal case, in the midst of an unrelated argument, is
insufficient to inform a state court that it has been pre-
sented with a claim subject to our appellate jurisdiction”);
Beck v. Washington, 369 U.S. 541, 553 (1962) (merely
setting forth one sentence discussing federal claim in
lengthy brief insufficient).
As in DeBacker, the petitioners here seek certification
for a legal issue the essential premise of which was waived
in oral argument — and an issue which the Connecticut
Supreme Court expressly refused to decide because of that
waiver. Indeed, this is not a case in which an inference
must be drawn as to the reason for the silence of a highest
state court on the claimed federal question. To the con-
trary, the reason for that silence is patently clear: the
petitioners’ own statements at oral argument. As such, the
Connecticut Supreme Court simply did not have “a fair
15
opportunity to address the federal question that is sought
to be presented here... .” Adams, 520 U.S. at 87.
The Question Presented by the petitioners concerns
the extent to which state and local land use rules concern-
ing United States airspace are preempted. The essential
premise for this question, as framed by the petitioners at
oral argument, is the extent to which «*ate property law
also is preempted. Since the state property right the
petitioners were found to have had did not permit them to
clear cut the 2.5 acres of the neighbor’s property, the
Question Presented is properly before this Court only if
the petitioners argued to the Connecticut Supreme Court
that the neighbor’s property right not to be clear cut also
is preempted. Put another way, whether state and local
land use regulations are preempted is of no legal signifi-
cance now because the petitioners repeatedly told the
Connecticut Supreme Court that they had no right to do
what they did even if the regulations were preempted and,
on that basis, the Court declined to consider the petition-
ers’ federal claim.
It is for this reason that the respondents, in their
Concise Statement of the Case, have dwelt on the oral
argument before the Connecticut Supreme Court. It may
seem odd that Attorney Bashaw on the one hand conceded
that his clients had to have a state law right to clear-cut
the neighbors’ trees in order to make a preemption claim,
and on the other hand did not challenge the trial court's
finding that his clients had no such right to clear-cut the _
trees. But the former is just what he did do and the latter
is just what he did not do and the result was that the
Connecticut Supreme Court did not consider or decide the
preemption question.
16
The -waiver by Attorney Bashaw could not be more
explicit. It was not one hasty or ambiguous response to one
judicial question. The colloquy with Justice Borden went
on for several minutes and seven pages of printed tran-
script. Justice Borden’s questions were clear as a bell and
he pressed Attorney Bashaw to make sure that he (Justice
Borden) was not misunderstanding what he was hearing.
Attorney Bashaw’s responses were also clear as a bell. To
take the most obvious examples:
MR. BASHAW: No, no, I’m not making any
claim, Your Honor, that this [preemption] gives
you the right to go onto somebody else’s property,
to go and cut down and remove their trees.
I'm not making a claim that the [federal]
regulations give you some sort of an easement, a
right to go onto somebody else’s property, but in
this case, in this case that we had here, we had
the property right to go onto that property and
clear the trees.
JUSTICE BORDEN: So, then, are you say-
ing that your pre-emption argument rests on the
validity of the Trial Court’s finding of the pre-
scriptive easement?
MR. BASHAW: Certainly, yeah, it doesn’t
give me the right. If there’s no prescriptive ease-
ment, Your Honor —
17
JUSTICE BORDEN: - are you saying to
me now, because this is something I never under-
stood, you're saying that your pre-emption argu-
ment is premised on your easement.
MR. BASHAW: I cannot remove the trees.
Even if I have pre-emption, I cannot go on some-
body else’s land and remove the trees. The FAA
regulations don’t permit me to do it. The DOT
can come out and say those trees are a problem, I
don’t have the right to, but if I have not other-
wise secured the property rights to go onto that
land and do the work, I can’t do it.
(Resp. App., 24-30).
This last remark was clear enough that, when Attor-
ney Bashaw had finished his answer, Justice Borden
responded, “Well, I understand your argument.” This
understanding naturally convinced the Connecticut
Supreme Court not to consider the petitioners’ federal
preemption claim. Indeed, the Court even cited West-
chester v. Greenwich, the one case Attorney Bashaw
referred to during the colloquy. Just as if the petitioners
had affirmatively disclaimed the basis for their preemp-
tion argument in their briefs to the Connecticut Supreme
Court, this explicit waiver at oral argument demonstrates
that the petitioners did not present “the particular claim
at issue here with ‘fair precision and in due time’... .”
Adams, 520 U.S. at 87. As a consequence of this conces-
sion, the factual and legal basis for the petitioners’ federal
claim falls and the petition falls with it.’
* The petitioners make no attempt to ameliorate the fatal nature of
this concession, and thereby satisfy their burden to establish jurisdic-
tion under §1257(a), except to assert that all they conceded at oral
(Continued on following page)
18
Il. THE RECORD IN THIS CASE DOES NOT
PROVIDE A SOUND BASIS TO REVIEW THE
PETITIONERS’ PREEMPTION AND PUBLIC
POLICY ARGUMENTS BECAUSE MANY OF
THE FACTUAL AND REGULATORY ASSER-
TIONS IN THEIR PETITION ARE MISLEAD-
ING OR UNTRUE.
Not only did the petitioners affirmatively waive the
basis for their preemption claim, but a number of the key
factual and regulatory assertions in their petition are
misleading or simply untrue. These significant gaps in the
record also make this case inappropriate for certiorari.
As a factual matter, the petitioners attempt to cloak
their conduct in FAA authority by suggesting that their
clear-cutting activities were simply part of a continuing
effort to comply with supposed federal regulation. To
support this, the petitioners point to the results of a 1999
inspection by the Connecticut Department of Transporta-
tion, which required them to remove a line of trees on
airport property that were “obstructions to air navigation”.
(Pet., 7). While that inspection did occur, and the trees
were removed, it has absolutely nothing to do with the
petitioners’ claim that they were somehow required by
federal law to clear-cut 2.5 acres of trees on property that
they did not own.” |
argument was that the Land Trust and Conservancy were entitled to
damages for trespass. Even a cursory reading of the oral argument
transcript belies this assertion. Attorney Bashaw stated, on at least
three separate occasions, that federal law preempted state wetlands
law only if the petitioners had the property right to remove the trees,
and that federal law did not give them any such right. (Resp. App., 24-
30). ape eoar’
* The letter to Mellon from the inspector, Warren Stannard, which
was an exhibit at trial and in the Appendix to the respondents’ brief in
(Continued on following page)
19
First, the inspector advised the petitioners that, upon
inspection, several “items were noted that need attention
to keep the airport in compliance with State regulations.”
(Resp. App., 90) (emphasis added). While the inspector
also referenced FAA regulations, his concern with State
standards undermines the petitioners’ all-encompassing
depiction of federal regulation in this area.
More significantly, the inspection dealt exclusively
with conditions on the petitioners’ property. The inspector
made no observations or assessment of any property
beyond the borders of the airport and certainly made no
recommendations concerning “obstructions to air naviga-
tion” which may have existed on the property of adjacent
landowners. (Resp. App., 90-93). Since this inspection took
place only one year before the petitioners took it upon
themselves to wipe out 2.5 acres of woodland that they did
not own, it is obvious that any “obstruction” that existed at
the time of the petitioners’ clear-cutting must have existed
at the time of the inspection. Nevertheless, the inspector,
charged with protecting the navigable air space, took no
note of any such obstructions and did not require the
petitioners to take any steps with respect to potential
obstructions on the land of others.°
the Connecticut Supreme Court, is reproduced in the Appendix to this
opposition at pages 90-93.
* Indeed, at trial the inspector clearly confirmed this point:
MR. BRANSE: And in your capacity as the [FAA] in-
spector preparing these [5010 airport inspection] reports,
did you authorize activity on land not owned by the airport
owner?
MR. STANNARD: No, sir.
(Trial Tr., 3/9/04, 93).
20
It is also important to note that, with respect to the
trees on the petitioners’ property that the inspector was
concerned about, he addressed only those obstructions
that interfered with the theoretical “runway approach
surface” described in Part 77 of the federal regulations.
The “runway protection zone,” which forms so crucial a
part of the petitioners’ argument, is never mentioned.
Thus, despite the petitioners’ claims to the contrary, the
official charged with enforcing the federal regulations on
which the petitioners rely did not believe that clear-
cutting 2.5 acres on the Land Trust and Conservancy
properties was “called for” under federal regulation.
The petitioners also claim, as if it were established
fact, that “[bly late 2000, trees on the Land Trust and
Conservancy properties continued to threaten the safety of
takeoffs and landings at the Airport.” (Pet., 8). First, as
described above, the DOT inspector never said that trees
on those properties ever threatened the safety of takeoffs
and landings, so it is wrong to suggest that they continued
to do so. Moreover, the petitioners cite only to the decision
of the Connecticut Supreme Court to support their claim of
threatened safety. (Pet., 8, citing Pet. App., 4a). However,
the Connecticut Supreme Court’s decision is crystal clear
that the alleged threat to safety was merely the petition-
ers’ claim in the trial court and not an established fact. If
this case truly warranted certiorari, the petitioners would
not need to resort to such deceptive tactics regarding the
record.
The same distortions exist with respect to the princi-
pal regulatory argument made by the petitioners. The
central pillar of that argument, repeated at numerous
points in their petition, is the claim that federal regula-
tions “call for” the removal of obstructions in a “runway
21
protection zone”. (Pet., 2, 5, 15, 16-18, 23, 29). The peti-
tioners base this claim on FAA Advisory Circular No.
150/5300-13, §§211 and 212, but they are simply wrong to
suggest the existence of some federal requirement that
runway protection zones be cleared. The FAA Advisory the
petitioners cite, when read in context, makes it quite clear
that there is no such requirement.
First, FAA Advisory Circular No. 150/5300-13,
§201a(2)(b), states that runway protection zones “should
be on airport property.” The area in question in this case is
not on airport property. Sections 212a(1)(a) and (b) specifi-
cally differentiate between a runway “object free area” and
adjacent areas that are subject only to unspecified “con-
trolled activity.” Section 212a(2)a), on which the petition-
ers specifically rely to suggest that the FAA “specifically
forbids forestry activities” in a runway protection zone,
(Pet., 5), states that both golf courses and automobile
parking are acceptable. Since golf courses usually have
trees on them, and since an emergency landing could not
be made atop parked cars, the petitioners’ argument that
the runway protection zone is required by FAA “regula-
tion” to be free of trees in order to facilitate emergency
landings is substantially undermined by this portion of the
Advisory (which the petitioners fail even to acknowledge).
Most egregiously, the petitioners ignore section 212b,
which states in full that:
Where it is determined to be impracticable for the
_ airport owner to acquire and plan the land uses
within the entire RPZ, the RPZ land use standards
have recommendation status for that portion of the
RPZ not controlled by the airport owner.
(Emphasis added).
22
In other words, with respect to runway protection
zones on land not owned by the airport, the FAA requires
nothing. The FAA merely suggests and recommends; the
petitioners’ implication that it requires anything is mis-
leading and wrong. Ultimately, the petitioners cannot
contend that federal preemption should be based upon a
non-binding federal recommendation (whether they charac-
terize it properly or not). That simply is not the law, and the
petitioners admitted as much before the Connecticut
Supreme Court: '
JUSTICE ZARELLA: Could the FAA,
through the DOT, order you to cut that [a 200-
foot tall tree in the approach slope area] down?
MR. BASHAW: No, the FAA cannot order
you to do that under the Part 77 regulations.
What the FAA can do, however, is what they will
do is they'll come up, they'll identify a problem.
In fact, what Your Honor is actually getting
to is a point ... that these Part 77 regulations
are advisory, they’re not enforceable.
(Resp. App., 20).
Finally, the petitioners’ claim of a conflict with deci-
sions of the Ninth and Second Circuits is unadulterated
fiction. First, it is telling that the petitioners claim a
conflict, not between decisions of the Ninth and Second
Circuits and the decision of the Connecticut Supreme
Court, but between decisions of the Ninth and Second
Circuits and “the decisions below”. (Pet., 19). This phrase
is merely a euphemism for the decision of the trial court,
which, due to the petitioners’ concession, is the only court
that actually addressed the preemption question. It is, of
course, necessary for the petitioners to engage in this sort
23
of linguistic legerdemain, given that the Connecticut
Supreme Court expressly declined to decide the issue on
which the petitioners allege a conflict. However, the
petitioners’ disingenuous description does not constitute
the type of conflict envisaged by Rule 10(b) —i.e., in which
“a state court of last resort has decided an important
federal question in a way that conflicts with the decision of
another state court of last resort or of a United States
court of appeals... .” Sup. Cr. R. 10(b). A conflict with the
decision of a trial court does not come close to meeting that
standard.
Second, the issues in this case are entirely distinct
from the issues in the cases cited by the petitioners. Both
of those cases, United States v. City of New Haven, 496
F.2d 452 (2nd Cir.), cert. denied sub nom. Town of East
Haven v. United States, 419 U.S. 958 (1974), and Burbank-
Glendale-Pasadena Airport Authority v. City of Los Ange-
les, 979 F.2d 1338 (9th Cir. 1992), concerned property
owned by the airport and the right of a municipality to
exercise control over the airport’s use of its own property.
Neither case dealt with the issue here — i.e., what the owner
of an airport may legally do on the property of others.’
Because they involved an entirely different question, the
” Petitioners are wrong to suggest that the decision in City of New
Haven had anything to do with “buying property.” (Pet., 20). The court
in that case addressed only the question of East Haven’s authority to
control property already owned by New Haven, the owner of the
airport. In affirming the trial court’s decision, the Second Circuit noted
that the lower court “did not rule on the legality of New Haven’s
acquisition of the land in East Haven... .” City of New Haven, 496 F.2d
at 454.
24
decisions in those cases necessarily cannot present any
conflict with this case.°
Moreover, both City of New Haven and Burbank-
Glendale are thin on analysis and sparsely reasoned,
limiting their application beyond their own facts. Neither
provides the kind of thoughtful analysis that should make
this Court concerned over a possible conflict among the
circuits. City of New Haven, though now more than 30
years old, has been mentioned by the Second Circuit only
once since it was written, and never relied on by that court
as controlling authority. It has been cited only sporadica:ly
by other courts.
Burbank-Glendale has received even less welcome.
Courts have repeatedly declined to follow the decision,
calling its review “cursory” and “unhelpful,” In re Com-
mercial Airfield, 752 A.2d 13, 16 (Vt. 2000), and its analy-
sis “incomplete,” People ex rel. Birkett v. City of Chicago,
769 N.E.2d 84, 94 (Ill. App. 2d Dist.), aff’d in part, rev'd in
part, 779 N.E.2d 875 (Ill. 2002). The Court of Appeals of
Texas found that Burbank-Glendale had nothing to do
with local land control when the appellants in that case
tried to argue otherwise: “No one disputes that federal
laws preempt local regulation within the boundaries of an
airport. We cannot find that the Ninth Circuit holds more.”
* Petitioners also claim that the “decisions below” are in conflict
with the position of the United States as expressed in an amicus curiae
brief filed in the matter of Vorhees v. Naper Aero Club, Inc., 272 F.3d
398 (7th Cir. 2001). (Pet., 23-25). Like City of New Haven and Burbank-
Glendale, Vorhees involved only the effort of a neighboring property
owner to assert state law claims to control the airport’s use of its own
property. The case had nothing to do with an airport owner’s attempt to
take and control property he does not own through the application of
federal preemption.
25
Dallas/Fort Worth International Airport Board v. City of
Irving, 854 S.W.2d 161, 168 (Tex. App.), vacated in part,
868 S.W.2d 750 (Tex. 1993) (footnote omitted; emphasis
added).
Finally, the United States District Court for the
Northern District of Indiana offered this analysis of the
shortcomings in the Ninth Circuit’s decision:
However, this Court declines to follow [Burbank-
Glendale}, partly because it is not controlling au-
thority, but mostly because it is unpersuasive.
The Ninth Circuit cited only two cases in support
of its finding, and it misstated the holdings of
those cases. As explained supra, City of Burbank
and Gianturco’ do not hold that the FAA pre-
empts any regulation “that directly interferes
with aircraft operations”; rather, they stand for
the much narrower proposition that the FAA pre-
empts regulation of aircraft noise.... In short,
(Burbank-Glendale| is cursorily and poorly rea-
soned, and thus this Court joins others that have
declined to follow it. City of Cleveland, Ohio v.
City of Brook Park, Ohio, 893 F.Supp. 742, 751
(N.D. Ohio 1995) (“[Burbank-Glendale’s] view of
the scope of the Aviation Act is simply broader
than that implied by any reasonable reading of
the statute”).
Hoagland v. Town of Clear Lake, 344 F.Supp.2d 1150,
1157-58 (N.D. Ind. 2004), aff’d, 415 F.3d 693 (7th Cir.
2005) (additional citations omitted).
* City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624
(1973); San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306 (9th
Cir. 1981), cert. denied, 455 U.S. 1000 (1982).
26
In Magnum Import Co. v. Coty, 262 U.S. 159 (1923),
Chief Justice Taft noted that “[t]he jurisdiction of the
Supreme Court to review cases by way of certiorari was
not conferred upon this Court merely to give the defeated
party ... another hearing.” Jd. at 163. In spite of the
petitioners’ dire predictions, this case actually presents
nothing more than disgruntled litigants. seeking yet
another bite at the apple — in spite of their own affirmative
waiver of the basis for the federal claim on which they now
seek review, and in spite of the unsuitability of the record
for review of the issues that they raise.
¢
CONCLUSION
For the those reasons, the petition for a writ of certio-
rari should be denied.
Respectfully submitted,
DANIEL J. KRISCH
Counsel of Record
WESLEY W. HORTON
MICHAEL S. TAYLOR
HORTON, SHIELDS & KNOX, P.C.
90 Gillett Street
Hartford, CT 06105
(860) 522-8338
MARK K. BRANSE
ERIc D. KNAPP
BRANSE, WILLIS & KNApp, LLC
148 Eastern Boulevard
Glastonbury, CT 06033
(860) 659-3735
App. 1
SC17280 TTD : SUPREME COURT
JAMES VENTRES ETAL. : STATE OF
ae CONNECTICUT
GOODSPEED AIRPORT, __. IN HARTFORD
LLC, ET AL. - APRIL 14, 2005
BEFORE:
CHIEF JUSTICE WILLIAM SULLIVAN
JUSTICE DAVID M. BORDEN
JUSTICE FLEMMING L. NORCOTT, JR.
JUSTICE RICHARD N. PALMER
JUSTICE PETER T. ZARELLA
APPEARANCES:
FOR THE APPELLANTS:
JOHN BASHAW, ESQ.
FOR THE APPELLEES:
MARK K. BRANSE, ESQ.
JANET P. BROOKS, ASSISTANT ATTORNEY GENERAL
DAVID H. WRINN, ASSISTANT ATTORNEY GENERAL
MIKE DONNELLY, ESQ.
Joy E. Franklin
Court Monitor
* 3K
{2} JUSTICE SULLIVAN: Good morning.
Counsel, how do you want to work this? This is two
cases but it’s really one case. Do you want to take them
separately or you want to take them as one case, or how do
you want to do it?
App. 2
MR. BASHAW: Your Honor, with the Court’s
permission, what the parties would with to do is allocate
an hour’s worth of time to the appellant to deal with both
cases at the same time since both cases arise out of the
same facts, the same memorandum of law.
Specifically, the appellant is actually going to reserve,
if the Court provides, 25 minutes of time for rebuttal, so
after 35 minutes of argument by the appellants which
would cover both cases, both appeals, the other parties will
each argue 20 minutes each, however they've allocated
among themselves, and then there will be time for rebuttal
if that pleases the Court.
JUSTICE SULLIVAN: So you're saying we're
going to handle them as one case.
MR. BASHAW: Yes, Your Honor.
JUSTICE SULLIVAN: You're going to take an
hour and you're going to request 25 minutes for rebuttal.
Okay.
MR. BASHAW: That’s correct, Your Honor.
JUSTICE SULLIVAN: What about the appel-
lees?
MS. BROOKS: Assistant Attorney General
Janet Brooks from the Attorney General’s Office.
Our request to have two assistant attorneys general
(3] argue was approved, so the first appellee to argue will
be Attorney Branse on behalf of the Wetlands Commission.
Then the Attorney General’s Office will use its 20 minutes.
Fifteen minutes I will argue and five minutes for
Attorney Wrinn who will argue one issue, which is the
App. 3
issue of personal liability of Mr. Mellon, to be followed by
the 20 minutes for Attorney Donnelly.
JUSTICE SULLIVAN: Okay. But you’re going to
have to keep track of the five minutes, the twenty minutes
and all that. Okay?
So you want to reserve 25 minutes, is what you're
saying, from 60.
MR. BASHAW: Yes, Your Honor.
JUSTICE SULLIVAN: All right. Okay.
MR. BASHAW: May it please the Court, my
name is John Bashaw. I’m here representing the appel-
lants in these two appeals: Goodspeed Airport LLC,
Timothy Mellon, and Timothy Evans.
The appeals that are before the Court today arise out
of the same set of facts, the facts being the cutting of trees
by Goodspeed Airport at the southern end of the runway
operated by the Goodspeed Airport in East Haddam,
Connecticut.
The cutting of those trees occurred from November 29,
2000, to December 6, 2000.
The Inland-Wetlands Commission brought an action
against the “airport parties” is how I will collectively [4]
refer to them here for matters of convenience, claiming
that. the cutting of those trees, since the trees were located
in an inland-wetland, violated the Inland-Wetlands Act.
The Inland-Wetlands Commission also brought a
cause of action against the East Haddam Land Trust and
the Nature Conservancy because the trees were located on
land that’s owned by those entities.
App. 4
They, then, filed cross-appeals against the Goodspeed
Airport, essentially for claims in trespass, violation of
CUTPA, violation of the Connecticut Environmental
Protection Act.
A separate complaint was brought by the Connecticut
DEP. in three counts against the airport parties for the
same cutting of the trees. Two of those counts were CEPA
counts. The third count was withdrawn by the DEP prior
to trial.
The facts in this case, Your Honors, concern the,
again, the cutting of the trees in an area that is south of a
runway that’s operated by Goodspeed Airport in East
Haddam, Connecticut.
The airport was established in 1964 and 1965 and, at
that time, the area in which the trees were cut in 2000,
which I will refer to herein for convenience as the “cut
area”, was also cut in the 1964-1965 time period. Aerial
photographs provided at trial show that to be true.
The area of the cutting was actually larger than what
occurred in the Year 2000, although the evidence did show
that some trees still remained in the cut area in the 1964-
[5] ‘65 time period.
Evidence at trial also showed that on a periodic basis,
after 1964 and ‘65, the various owners and operators of the
airport proceeded to do additional cutting and removal of
trees, as they caused harm or danger to aircraft that
would be landing at Goodspeed Airport.
The physical layout of the airport, which might be of
assistance to the Court in considering these issues, is you
have Goodspeed Airport.
App. 5
Directly to the south of the airport is a tidal brook.
that forms a boundary between the Goodspeed Airport
property and property that’s owned by the East Haddam
Land Trust.
It’s approximately 630 feet from the end of the paved
portion of the runway to where that tidal brook is located.
The —
JUSTICE NORCOTT: I can’t remember; I read
this a couple days ago. Is there a map in any of these
appendix that show that?
MR. BASHAW: In some of the trial exhibits
there might have been.
JUSTICE NORCOTT: But none in the appellate
briefs?
MR. BASHAW: I don’t know, Your Honor, if
there, I don’t know if one was submitted —
JUSTICE NORCOTT: Thank you.
MR. BASHAW: - but there was another 335 feet
of length, which is land owned by the East Haddam Land
Trust, and a very small strip of land owned by the Nature
[6] Conservancy, and then you have Chapman Pond.
The full extent from the end of the paved portion of
the runway to where Chapman Pond is located is a thou-
sand feet. The cutting occurred within that area.
So, experts at the trial also testified and witnesses
testified that on a regular basis the trees were cut, re-
moved, and trimmed to make way for planes.
App. 6
The testimony did not say that it was cut to the extent
that it was cut in 1964 and ‘65, when, essentially, the
whole area was cut.
That evidence consisted of review of aerial photo-
graphs, a review of the Connecticut Department of Trans-
portation file where they actually had Polaroid
photographs that they took when they did inspections of
the airport that showed what the trees looked like at the
end of the runway.
It also included the testimony of the owners and
operators of the airport at the time, that' said on a regular
basis, again, they removed the trees.
The Goodspeed Airport bought the airport in July of
1999. Mr. Mellon is the single member of the LLC.
Mr. Evans is a private contractor who performed the
cutting at the request of Goodspeed Airport. Those are the
three defendants in this matter.
After the trees were removed in November and De-
cember of 2000, the Inland-Wetlands Commission issued a
cease and desist order to the airport parties.
[7] That cease and desist order said, basically had the
effect of being so broad as to prevent the airport from even
cutting its own grass on its property without the permis-
sion of the Inland-Wetlands Commission.
- It said that you cannot remove any vegetation on the
wetlands. The airport and the cut area are both located in
flood plains of the Connecticut River which are defined by
the Inland-Wetlands Act as wetlands. So, its so broad it
prohibits the airport from cutting its own grass, if you take
it to that extent.
App. 7
Well, obviously, the airport parties appealed that
decision, as required by law or as permitted by law. A
hearing began in January of 2001. It ended in February of
2001 after four members of the Inland-Wetlands Commis-
sion recused themselves from the matter, leaving no
quorum, and then they closed the hearing.
At no time did the airport parties, were they able to
provide any evidence to the Inland-Wetlands Commission
and, so, as the Trial Court ruled in this matter, that cease
and desist order still is in effect.
I'd like to discuss with the Court what I believe is the
strongest argument here today for the airport parties and
for any party, and that’s the issue of federal pre-emption.
The issue of federal pre-emption is also dispositive of
almost all the claims that are before the Court today with
perhaps the exception of the argument over the [8] pre-
scriptive easement.
It’s the position of the airport parties that neither the
Trial Court nor the appellees of this Case have applied the
correct federal pre-emption standard.
Of course, federal pre-emption arises out of Article 6,
Section 2 of the U.S. Constitution that says that the laws
of the United States should be the supreme law of the
land.
The two federal laws at issue in this case are Title 49,
Section 40-103a of the Federal Aviation Act, which says
very succinctly: The United States government has exclu-
sive sovereignty of airspace of the United States; exclusive
sovereignty.
App. 8
The other federal law at issue in this case is Section
41-71(3)(b)(1) which is under the Airline Deregulation Act.
That statute provides that a state may not enact or
enforce any law or regulation or other provision having the
force and effect of law related to a price, a route, which is
the issue that’s relevant in this case, or service of any air
carrier that may provide air transportation under this act.
So, therefore, the issue in this case, succinctly, is: Do
these two federal laws, under the Federal Aviation Act and
the Airline Deregulation Act, preempt and prohibit the
State of Connecticut and the Inland-Wetlands Commission
from enforcing the Inland-Wetlands Act against the
airport [9] parties and punish them under CEPA for the
removal of the trees?
JUSTICE SULLIVAN: Did anybody from the
FAA tell you that you had to cut these trees down at this
time?
MR. BASHAW: These particular trees?
There was a letter that was received from the DOT,
which acts as the agent of the FAA in many matters, when
they did an inspection in September, I believe it was, of
1999 where they indicated that there were trees located on
the airport property that needed to be removed, and they
identified a line of trees to the south that also needed to be
removed.
It did not specifically identify the whole area in which
the tree cutting occurred. It referred to a line of trees.
JUSTICE SULLIVAN: Were these trees in this
particular area?
App. 9
MR. BASHAW: A portion of the cut area was
within the line of trees, yes.
JUSTICE SULLIVAN: Did you seek a permit
from the local Inland-Wetlands Commission?
MR. BASHAW: No, Your Honor, we did not, and
we did not —
JUSTICE SULLIVAN: So you can’t say what
they would have done, then, if you did.
MR. BASHAW: Pardon me, Your Honor?
JUSTICE SULLIVAN: You can’t say what they
would have [10] done if you had submitted a request for a
permit.
MR. BASHAW: ‘That’s correct.
The Inland-Wetlands Commission may have approved
the full cutting on the land, but, based upon the argu-
ments that have been raised, that’s highly doubtful, but,
no, they did not seek a permit because, again, the position
is it didn’t have to because this is subject to federal — it’s
preempted, that the airport has a right, under the Federal
Aviation Act and the regulations adopted pursuant thereto
in advisory circulars, to maintain clear airspace.
JUSTICE SULLIVAN: When the DOT told you
to cut these trees down, did they tell you they were acting
for the FAA?
MR. BASHAW: No, I don’t believe they specifi-
cally said they-were acting for the FAA. I think it was
assumed that that’s how the FAA delegates its authority to
the DOT.
App. 10
JUSTICE SULLIVAN: Well, you said “on some
occasions”.
MR. BASHAW: I’m not familiar with all areas of
FAA regulation in which the FAA may withhold some of its
specific regulatory, authority and may not delegate to the
states. That’s what I meant; I just don’t know.
Under the test for federal pre-emption, basically, there
are three standards for federal pre-emption, or three
separate tests.
One is federal pre-emption exists where the laws
themselves explicitly provide for pre-emption.
Secondly, pre-emption exists where you can find from
[11] congressional intent, where intent can be inferred
where Congress legislates comprehensively, thus occupy-
ing the entire field of regulation.
And, last, pre-emption can exist where there is ex-
plicit and clear conflict between implementation of the
state law and implementation of the federal law.
Its the position of the airport parties that all three
forms of federal pre-emption exist in this case.
With respect to explicit pre-emption, I’ve already
mentioned to the Court the two federal laws at issue in
this case.
The FAA law, which says that the United States has
exclusive sovereignty of the airspace, obviously begins
with the premise of what is federal airspace, but that is
the only area in which the federal government has exclu-
Sive sovereignty.
App. 11
There are a number of federal cases that are cited in
our brief that explain what is navigable airspace. It clearly
is that airspace which exists above what are called the
“approach slopes” or minimum altitudes that are estab-
lished by the FAA for airplanes that approach an airport
runway.
Those standards are set forth at Part 77 of 14(c) (f) (r).
Basically — again, this is put forth in detail in the
briefs — but the approach slope for this particular runway
at Goodspeed Airport has a height that begins at the front
end [12] of the East Haddam Land Trust where the front
portion of the trees were located at 21'/ feet above the
ground, and it slopes up gradually to a height of 38 feet at
the end, so you can imagine a slope in which the planes
are approaching the airport and they are coming down at
an angle.
Anything above that glide slope clearly is within the
navigable airspace, and the evidence in this case showed,
and is presented in the briefs and in the record, that many
of the trees that were cut were up to 72 feet tall, clearly
above 35 feet tall. They clearly protruded into the glide
slope.
Not all of the trees did and there were shrubs that
were also removed, but that still is within the navigable
airspace because what the courts also say, and it’s also in
the statute, that the navigable airspace also includes the
airspace needed to insure safety in the take-off and land-
ing of aircraft.
The FAA has adopted an advisory circular which
recommends for all airports that they maintain what’s
App. 12
called a “clear runway protection zone”. It’s referred to as
an RPZ.
The RPZ extends for a thousand feet beyond the end
of the runway, which would cover the full extent of where
this cutting occurred.
JUSTICE NORCOTT: Can I ask you just a
pretty simplistic question?
MR. BASHAW: Sure.
[13] JUSTICE NORCOTT: How long has the
airport been there?
MR. BASHAW: Since 1964 or 1965, Your Honor.
JUSTICE NORCOTT: And the trees have
always been there.
MR. BASHAW: No, not quite, Your Honor,
actually.
Before 1964 and ‘65, because of floods in the 1930's,
this area was pasture land, so it really only grew up into
forest land since the floods, if you will.
JUSTICE NORCOTT: And that date was what?
MR. BASHAW: I think the floods were in the
‘30s and then it was used as pasture land up until about
the ‘60s, if you will, and then it started growing in with
trees.
JUSTICE NORCOTT: So, as far as air safety’s
concerned, it’s a recent problem.
MR. BASHAW: Well, it’s been a problem ever
since the airport’s been there.
App. 13
JUSTICE NORCOTT: The existence of the
height of the trees, I mean.
MR. BASHAW: Yes, Your Honor, ever since the
airport’s been there.
With respect to explicit pre-emption, Your Honor,
again, it’s our position that navigable airspace is, despite
claims by the appellees to the contrary, in this particular
case, literally, above the blades of grass because, as testi-
fied by the only aviation expert who testified at trial, he
explained why this RPZ was so important.
[14] It’s an area where planes need to have some
comfort that if they fail in take-off, that they can land
without causing harm and damage.
So, it’s, again, the position of the airport parties that
the navigable airspace is, in this case, well above the
heights of the shrubs. It’s as close as the blades of grass in
this particular area and for this particular case.
Enforcement of the Inland-Wetlands Act in this case,
as agreed to by the Trial. Court and as argued by the
appellees, what it would result in is having to go and get a
permit from the Inland-Wetlands agency to remove any
obstructions to navigation.
If those obstructions are not permitted to be removed,
then they will grow into the RPZ, they will grow into the
approach slope to the runway and, in fact, because the
airport is located in a flood plain, if a tree were to grow in
the middle of the runway, they cannot remove that tree
under the theory that’s proposed by the Trial Court and by
the appellees. They have to get permission from a local
entity who can use their discretion and say, No, that tree
must stay, we're not giving you a permit.
App. 14
That tree is in the navigable airspace. That is within
the exclusive sovereignty of the United States. It’s ex-
pressly pre-empted by the Federal Aviation Act, and, more
to the point, it’s expressly pre-empted by the Airline
Deregulation Act. The Airline Deregulation Act explicitly
says no state law may interfere with any route to an [15]
airport.
Clearly, if you have a tree growing in the middle of a
runway, or let’s get more practical with this case. If these
trees are not allowed to be removed and they will grow to
such heights at the end of the runway that they will
effectively prohibit the use of that runway, it will be too
dangerous to use that runway.
The runways only 2100 feet to begin with right now.
It’s not a long runway, but as the trees grow in height, the
ability of pilots to come into that airport and use the
appropriate approach angle becomes less and less.
JUSTICE BORDEN: Was there any evidence
that before this clear cutting took place, Mr. Bashaw, the
airport’s defendants asked to contact the owners of the
property and/or the Department of Transportation and
said, Look, we’ve got a problem of airport safety here.
We've got to do some cutting.
MR. BASHAW: Other than, Your Honor, request-
ing that the DOT come out and do an inspection when they
first operated the airport, which the DOT did —
JUSTICE BORDEN: But that was several years
before.
MR. BASHAW: That was right after they ac-
quired the airport, that’s right. It was several years before
they did the clear cutting. |
App. 15
JUSTICE BORDEN: Yes, [’m talking about
before going on and just clear cutting someone else’s
property, even though it’s adjoining the airport, was there
any evidence [16] that they said, We’ve got a problem. Its
your property. DOT is basically the surrogate for the FAA.
We think we have to cut the trees because planes are at
risk.
Did anything like that happen?
MR. BASHAW: There were discussions with the
Land Trust and the Nature Conservancy but it dealt —
JUSTICE BORDEN: Im talking about in the
evidence in this case.
MR. BASHAW: Not in the evidence in this case,
your Honor, because it was the position of the airport that
they had a prescriptive right to go onto that property and
remove the trees, which the Trial Court agreed that the
airport did have a prescriptive right to remove the trees.
A difference of opinion, of course, is in the scope of
that and the Trial Court claimed that the airport exceeded
the scope, but the airport did have a prescriptive easement
to go onto that property and remove certain trees, and, so,
no, so, evidence in this case did not discuss that particular
issue.
JUSTICE PALMER: Counsel, was it to remove
certain trees or to top off certain trees, or both?
MR. BASHAW: Well, the Trial Court said that
there was evidence that both had occurred, that there had
been evidence of trimming of trees in the past and also
felling of the trees at their base.
App. 16
JUSTICE PALMER: Just refresh my - did the
Trial Court conclude that the defendant had a prescriptive
easement to [17] remove certain trees altogether?
MR. BASHAW: Yes. The Trial Court said that
with respect to the prescriptive easement, the prescriptive
easement covered the removal and/or topping of trees on a
— basically, it is based on an as-needed basis and on a
regular basis, cutting them at the base — there was evi-
dence of that in the past — but what the Trial Court said
triggers that requirement is either the DOT coming onto
the property and saying, You need to remove those trees,
or complaints from pilots as they’re coming in, saying,
Look, I almost hit that tree, or, I did. You know, my land-
ing gear nicked those trees coming in.
When pilots complain or the DOT says you need to do
something —- this is the Trial Court’s decision and we
actually disagree with some of the scope, we think the
scope is broader — but the Trial Court at least said, under
those circumstances, you have the right to go out and
remove the trees that are causing the problems.
That can be topping, if that’s possible, or I could be
felling them at their base which also was done in the past.
JUSTICE ZARELLA: What about a tree that is
wholly under the approach slope that you’ve talked about?
MR. BASHAW: Well -
JUSTICE ZARELLA: What if the tree is a ten-
foot tree —
MR. BASHAW: Yes.
App. 17 :
[18] JUSTICE ZARELLA: —- doesn’t go into the
airspace. Do you have a right, under the prescriptive
easement, to remove that tree?
MR. BASHAW: Well, under the Trial Court’s
ruling?
The Trial Court’s ruling I would have to honestly say
unless for some reason that tree was uniquely positioned
so that pilots are saying, You know, that thing is danger-
ous, it needs to be removed, even though it’s beneath the
glide slope, then I think under the Trial Court’s ruling,
that tree could be removed, but, generally speaking, |
think the Trial Court’s ruling, basically is, you know, as
the DOT identifies it, and the DOT might identify that
tree as being offending —
JUSTICE BORDEN: How many —
MR. BASHAW: -so it’s possible that it could.
JUSTICE BORDEN: — is there one runway?
MR. BASHAW: Yes - well, technically, there is
one paved length of runway. It, essentially, is two run-
ways. In a sense, it’s one runway for the south and one
runway for the north. You see in the briefs it’s referred to
as Runway 32. There’s a Number 32 painted on the end of
that runway.
JUSTICE BORDEN: How wide is that?
MR. BASHAW: The runway I believe is about a
hundred feet wide? I’m not quite sure. I may be off on that.
I don’t know exactly.
JUSTICE BORDEN: in round numbers, how
wide is the plaintiffs’ property?
App. 18
[19] MR. BASHAW: The plaintiffs’ property. The
appellants’ property? The airport’s property?
JUSTICE BORDEN: No, the plain -
MR. BASHAW: - Land Trust?
JUSTICE BORDEN: - the Land Trust property.
MR. BASHAW: Well, the Land Trust property is
actually — from the front end of their property where it
borders the creek, which is the property line with the
airport property, to where it borders the Nature Conser-
vancy property, its about 300 feet wide, thereabouts.
JUSTICE BORDEN: And, as | understand it,
your clients clear cut the entire 300-feet width.
MR. BASHAW: Oh, yes, yes, Your Honor, my
clients removed all the woody vegetation, essentially, from
the brook to that 300-foot extension and also three trees
that were located on the Nature Conservancy property
which is as you (unclear) to the pond.
JUSTICE BORDEN: Well, what I’m trying to
get in my mind, because we don’t have a map in front of
us, is if you've got a runway a hundred feet wide and
you've got planes coming in or going up, I want to know
how wide that property is that was clear cut to get a sense
of the need and the danger.
I mean, I can see, arguably, in a path roughly along
the same line of the runway a hundred feet or maybe 120
feet, ten feet on either side — planes don’t usually, kind of,
land or take off on an angle — and I’m trying to get a [20]
sense of how much on either side of that, say, 120-foot
width the clear cutting was done.
App. 19
MR. BASHAW: Well, it might be helpful, Your
Donor, for me to just do one thing as a preface to that.
The federal Part 77 glide-slope regulations, what they
basically provide is for a 200-foot area just south of the
paved portion of the runway. That’s 250 feet wide. That
has to be cleared of all vegetation. That’s called “primary
surface”.
Beginning at the end of that primary surface and now
sloping upward at a 20 to 1 ratio is what’s called the “glide
slope”.
That glide slope also expands at a 5 to 1 ratio, so it’s
widening ever so gradually as it’s going up, so the Trial
Court ruled that the cutting occurred within that pre-
scribed area, that space.
Just to finish on the explicit pre-emption issue and
following up on the Airline Deregulation Act, again, if the
trees are allowed to grow in this area under the Inland-
Wetlands Act or if the airport is going to be punished
under CEPA for removing trees that are obstructions, that
will necessarily cause planes to re-route.
They will either have to come in from the other section
of the runway, which might not be the optimum conditions
for air flight, or they might have to go to another airport,
and under the Airline Deregulation Act, that is not prohib-
ited, that’s not allowed. [21] The case law that’s cited in
the brief under the Airline Deregulation Act says that the
language in that act is very, the print effect is very, very
broad, perhaps broader than under the Federal Aviation
Act provision cited to the Court.
JUSTICE ZARELLA: On this approach slope
that you’re talking about, could the FAA order you to cut
App. 20
down a tree that was, say, 200 feet tall, that obviously
protruded into the airspace?
Could the FAA, through the DOT, order you to cut
that down?
MR. BASHAW: No, the FAA cannot order you to
do that under the Part 77 regulations. What the FAA can
do, however, is what they will do is they'll come up, they'll
identify a problem.
In fact, what Your Honor is actually getting to is a
point that I'll jump to (unclear) the Trial Court’s discussion
of Catchings versus Glendale (phonetic), which basically
said that these Part 77 regulations are advisory, they’re
not enforceable.
Now, it’s true. On their face, the Part 77 regulations
do not permit the FAA or the DOT to order the airport
owner to remove that tree. However, what could happen is
the Connecticut DOT issues an airport a license to operate
under, again, authority from the FAA.
In order to have that license and to continue to use
that license and have it renewed, you need to have clear
[22] glide paths, so if you do not remove those trees or
don’t have the ability to remove those trees, you could lose
your license, you won't be able to operate, and that issue is
relevant under the Part 77 analysis.
I'll refer the Court in particular to what the case is
called Big Stone Broadcasting. It’s out of the District of
South Dakota.
In that case, the issue was somebody wanted to build
a tower, a radio broadcast tower, near an airport. The FCC
needed to issue a license for it, but the FCC won't issue a
App. 21
license unless they have a determination of no hazard to
air travel from the FAA.
Well, the FAA looked at the issue, looked at the glide
slopes in particular and said, We find that there’s no
hazard here. The State of South Dakota, however, came in
and said under their own regulations, That is a hazard
and we won't let you build that tower.
Well, the proponents of the tower claimed that the
State decision was pre-empted and they discussed specifi-
cally the Part 77 regulations and how they’re only advi-
_ sory, but the Court in Big Stone said it doesn’t matter
because those particular regulations have utmost impor-
tance because in order for the FCC license to be issued,
you needed that determination under Part 77.
Similarly, in this case, to have a license to operate and
to continue to have that license to operate and not have it
be at risk of being revoked, you need to maintain glide [23]
slopes. You need to remove those trees if you have the
property right to do so.
In this case, the Trial Court said we do have the
property right under circumstances where a pilot might
say, That tree’s in the way and needs to be removed, so it’s
a very similar case.
The other point from Big Stone is the Big Stone court
said, We don’t necessarily subscribe to the view that the
FAA doesn’t have authority somewhere in federal courts to
enforce their regulations under Part 77.
Court didn’t discuss where that authority arose but
they weren't buying it.
App. 22
Now, Catchings versus Glendale also is not even a pre-
emption case; Big Stone is. Catchings versus Glendale is a
case dealing with negligence.
The issue there was: Was the airport negligent in not
maintaining a clear glide slope?
The Court said since there’s nothing that mandates
them to do this, there’s no duty, and, therefore, for negli-
gence per se issues, we can’t find that there’s a cause of
action. It wasn’t even a pre-emption case.
Also — and this goes to the issue of implicit preemp-
tion — the test for implicit pre-emption which comes out of
Florida Lime Growers, basically says if there is federal
superintendence of a field, of an area, then any state
regulation, any state action that is aimed at or is similar
to, that has any impact on that federal superintendence,
[24] must be pre-empted.
It doesn’t matter whether that federal superinten-
dence arises out of Part 77 regulations that are not en-
forceable or recommendations or advisory because, in
particular, what you have to do for that test, and I urge
the Court to do this, is you look, first, at the two statutes
that we’ve already cited.
Then, you look at the Senate report and the House
report that was issued when the Federal Aviation Act was
adopted, and the language is cited in the brief.
In particular, Congress said when they adopted the
Federal Aviation Act: Aviation is unique among transpor-
tation industries and its relation to the federal govern-
ment. It is the only one whose operations are conducted
almost wholly within federal jurisdiction and are subject
to little or no regulation by the states or local authorities.
App. 23
Thus, the federal government bears virtually complete
responsibility for the promotion and supervision of this
industry in the public interest. (End of reading)
So, there’s a statement by the Senate of how impor-
tant it is to have national federal superintendence of the
area, of maintaining air safety and protecting the clarity of
navigable airspace.
The House also said that the purpose of the Federal
Aviation Act is to give the FAA administrator full respon-
sibility and authority for the advancement and [25] en-
forcement of safety regulations.
Add to that the Part 77 regulations which establish
these glide slopes. Add to that the advisory circular which
recommends clear runway protection zones, and then add
to that, as well, the numerous federal court decisions that
say that the regulation of the airspace by the FAA is
pervasive.
One case in particular, again, just referring the Court,
is United States versus City of Berkeley.
It’s a 1990 decision and it basically says where local
control over federal activity obstructs the achievement of a
congressional objective, local regulation is pre-empted.
Congressional objective such as enhanced air safety may -
not be thwarted by local fiat.
Again, the point here is the law, it cannot be much
clearer, of the presence of federal superintendence of the
area of air safety and maintaining clear approaches to
airports and areas for —
JUSTICE BORDEN: Was there any evidence in
the case of — there certainly wasn’t any evidence, I take it,
App. 24
that either the FAA or the DOT told your clients to cut
these trees.
MR. BASHAW: Other than, again, Your Honor,
than identifying back in ’99 a line of trees that were
obstructions, yes.
JUSTICE BORDEN: Yes. Was there any evi-
dence that there had been pilot complaints about the
trees?
MR. BASHAW: For the trees that existed at that
time?
[26}-There was testimony in the past about planes
hitting trees but not specifically with respect to these
particular trees. These trees were much taller than the
trees in the past.
JUSTICE BORDEN: I guess to make it more
narrow, was there any evidence that this clear cutting of
the entire piece was done in response to pilot complaints?
MR. BASHAW: I don’t believe that there was
testimony to that effect.
JUSTICE BORDEN: So, your argument is that
your clients, that federal pre-emption is so pervasive that,
basically, any state laws that impinge in any way on the
right to do that are simply pre-empted.
MR. BASHAW: That’s correct, Your Honor.
That —
JUSTICE BORDEN: Trespass or otherwise.
MR. BASHAW: Well, no, not true there, Your
Honor.
App. 25
What our position is, Your Honor, that you do not need
an order from the DOT to remove the trees. You do not
need a directive from them.
If the trees protrude into the federal glide slope or if
they are otherwise located in a runway protection zone
and you otherwise have the property right to remove those
trees, than you don’t have to go get permission from the
DOT. You do not need permission from the FAA to remove
those trees. You can do it because you're trying to maintain
air safety.
[27] Now, you do need —
JUSTICE BORDEN: What if there were -
instead of trees, what if someone had built — I mean, I
know this is a land trust so it wasn’t, but let’s suppose it’s
not a land trust.
There’s a building there, a house, but there are no
complaints by pilots that the height of the house is imped-
ing their take-offs or their landings.
Neither DOT nor FAA has said, We’ve got to do some-
thing about that house. The house is 20 or 30 feet high,
whatever it is.
I take it your argument would be that because of
federal pre-emption, your client could go out and bulldoze
the house and he couldn’t be —
MR. BASHAW: Actually, no, Your Honor.
JUSTICE BORDEN: No?
MR. BASHAW: I want to be clear.
If that was my client’s house —
App. 26
JUSTICE BORDEN: No, no, no, no, this is a
house on someone else’s —
MR. BASHAW: Okay. If this is somebody else’s
house?
JUSTICE BORDEN: - this is the house on that
land.
MR. BASHAW: No, no, I’m not making any
claim, Your Honor, that this gives you the right to go onto
somebody else’s property, to go and cut down and remove
their trees. There’s a case, I think it was City of West-
chester, — it’s a Connecticut decision — that dealt with
abrogation |28] easements.
I’m not making a claim that the regulations give you
some sort of an easement, a right to go onto somebody
else’s property, but in this case, in this case that we had
here, we had the property right to go onto that property
and clear the trees.
What I’m saying is we had that property right but,
yet, the appellees are saying, You still needed to get
permission from the Inland-Wetland Commission to
remove those trees, and we’re going to punish you under
CEPA for removing those trees.
Our position is when you have the property right to go
do the work, then you cannot have local interference or
state interference with that activity.
That’s our position, Your Honor.
JUSTICE BORDEN: So your argument for
federal pre-emption, I’m not sure I understand its relation
to the easement.
App. 27
Your clients claimed a prescriptive easement. I mean,
if -
MR. BASHAW: And the Trial Court so found,
but, yes —
JUSTICE BORDEN: But that’s challenged.
MR. BASHAW: That’s correct.
JUSTICE BORDEN: I mean, it’s not like they
had a deed, you know, an easement by deed which said you
have the right to do this.
MR. BASHAW: That’s right.
(29] JUSTICE BORDEN: They went and they
did it and the Trial Court agreed with them. The other
side challenges that in their cross appeal —
MR. BASHAW: Correct.
JUSTICE BORDEN: - but I’m still trying to -
that’s a matter of state property law.
MR. BASHAW: I agree, Your Honor.
JUSTICE BORDEN: How does that affect, one
way or the other, whether you're pre-empted?
It seems to me if your pre-emption argument is
correct, it’s correct irrespective of whether you had an
easement to do that. Isn’t that so?
MR. BASHAW: Well, let me give you another
example, Your Honor.
JUSTICE BORDEN: Well, no, I’m trying to -
MR. BASHAW: Yes —
App. 28
JUSTICE BORDEN: - I’m trying to under - you
said to me, well, you couldn’t just go bulldoze somebody’s
house — well, your time is up but I'll have to take a little
bit of it — you couldn’t go bulldoze somebody’s house
because in this case you had an easement to cut trees.
MR. BASHAW: Right.
JUSTICE BORDEN: But I don’t understand
how — I thought if you have federal pre-emption because
this is airspace, under federal pre-emption local laws are
pre-empted, so even if this had happened in the 14th year
instead of the — well, in the 16th year so you didn’t have
an [30] easement by prescription — your federal pre-
emption argument would be the same, wouldn't it?
MR. BASHAW: Well, again, Your Honor, I think
still pre-emption — the whole point of pre-emption is if I
have the right to remove the trees.
The airport itself, the airport property itself which is
located in a flood plain, all right, the Inland-Wetlands
position is ] have to go and get their permission to remove
the trees that are on my own property.
I could get punished under CEPA, my client could get
punished under CEPA for removing those trees on his own
property. That’s what’s pre-empted. You can’t let local laws
affect the airport’s ability to maintain clear space around
its airport when it has the property night to do so.
I do not claim —
JUSTICE BORDEN: So, then, are you saying
that your pre-emption argument rests on the validity of
the Trial Court’s finding of the prescriptive easement?
App. 29
MR. BASHAW: Certainly, yeah, it dcesn’t give
me the right. If there’s no prescriptive easement, Your
Honor —
JUSTICE BORDEN: Let’s suppose that this had
happened — let’s suppose that the Trial Court had rejected
your easement. They said, Yes, you did it but it wasn’t
continuous or it wasn’t open and notorious. You failed in
some proof of your prescriptive easement cause of action.
MR. BASHAW: Correct. But it —
JUSTICE BORDEN: So you didn’t, the Trial
Court [31] rejected your claim of an easement. Would you
still have a pre-emption argument —
MR. BASHAW: Not with re —
JUSTICE BORDEN: -— on the claim of the
Inland-Wetlands Commission?
MR. BASHAW: Not with respect to the East
Haddam Land Trust and the Nature Conservancy land.
I would, however, still have the right because, remem-
ber, the cease and desist order that was issued to the
airport prohibits them from removing vegetation on their
own land.
JUSTICE BORDEN: I'm-
MR. BASHAW: But, yes, Your Honor, the answer
to your —
JUSTICE BORDEN: - let’s put aside your own
land. The other party’s land —
MR. BASHAW: Yeah, I -
App. 30
JUSTICE BORDEN: -— are you saying to me
now, because this is something I never understood, you’re
saying that your pre-emption argument is premised on
your easement.
MR. BASHAW: I cannot remove the trees. Even
if I have pre-emption, I cannot go onto somebody else’s
land and remove the trees. The FAA regulations don’t
permit me to do it. The DOT can come out and say those
trees are a problem, I don’t have the right to, but if I have
not otherwise secured the property rights to go onto that
land and do the work, I can’t do it.
(32] If I do have the property right, which is the facts
in this case as determined by the Trial Court, then a local
agency or a state agency cannot, then, step into the fray
and say, No, you’re prohibited from doing that because, in
this case, the trees happen to be located in a wetland.
JUSTICE BORDEN: Well, I understand your
argument. It just seems to me a rather novel use of federal
pre-emption.
I’ve never heard of saying, well, the federal law is
supreme and pre-empts the state law only if the person
claiming it has some state law right to do what he’s doing.
I thought pre-emption is pre-emption and it doesn’t
matter whether you — well, now I understand your argu-
ment but I hadn’t understood you to make that argument
before, Mr. Bashaw. Okay.
MR. BASHAW: I think Ill just, since I’m over
my time -
JUSTICE SULLIVAN: You’ve got 21 minutes
left.
App. 31
MR. BASHAW: Good. I'll go into my rebuttal
time.
The other portion of pre-emption is conflict pre-
emption. I guess I probably won’t rehash. The same
argument applies tothat. -
You cannot have exclusive sovereignty of the airspace
and you cannot effect the routes of aircraft coming to an
airport if, and in this case what will happen is the trees
will grow into the glide slope or grow into the RPZ and
may grow onto the airport’s own land, and they’re prohib-
ited [33] from doing it ’cause it’s in a wetland or because
it’s in an area of international importance.
JUSTICE ZARRELLA: But your exclusive
sovereignty argument, that depends upon, according to
what you just talked to Justice Borden about, that de-
pends upon your having a property right. There’s no
airspace issue above other people’s property unless you
have a property interest in it.
MR. BASHAW: If you have the property right, if
you have the right to go on — you can’t have somebody else
come in and then tell you you can’t remove those trees,
and that was the facts of this case because now I do have
exclusive sovereignty.
There is exclusive sovereignty over that particular
land. I own it. The airport owned, they owned the land.
They have the property right to go in and do the activity.
We have a state and local agency stepping in, saying,
No, no, no, no, sorry. We can now allow trees to grow to 70
feet tall in that area, obstructing planes, and the poor pilet
who’s in the air — on a dark night, this airport has no
control tower — is coming in in bad weather, expects that
App. 32
they’re going to have a clear approach slope because every
airport is supposed to do it the same way. There’s to be
national uniformity.
If because some local wetlands agency decides, Nope,
were not going to let you remove those trees in this
circumstance, the poor guy or woman is going to hit the
[34] tree, they’re going to die.
That’s why it’s so important that there be some
uniform standards involved in this, so if you have the right
— and, as an overlay to that, courts say you need to have
the property rights, you need to acquire the property
rights.
JUSTICE PALMER: You couldn’t run an airport
like that under federal law, though. You couldn’t continue
to run an airport like that, so you'd have to shut down the
airport.
MR. BASHAW: That’s correct because — ~
JUSTICE PALMER: And -—
MR. BASHAW: Many airports are funded by the
federal government. They get grants; this airport does not.
In order to get those grants, you have to first show the
federai government that you ~have all those property
rights. They want to make sure that there aren’t going to
be problems with towers and trees and houses popping up
at the end of a runway that they just spent millions of
dollars to help you fund.
JUSTICE BORDEN: Well, then, how did you get
the license to run the airport before the 16 years of pre-
scriptive use ran?
App. 33
MR. BASHAW: Well, when the —
JUSTICE BORDEN: You didn’t have any —
MR. BASHAW: Well, there were no trees, Your
Honor, back in 1964 and ’65. When they constructed the
airport, [35] they took all the trees down.
JUSTICE BORDEN: But, certainly, there were
trees — the 16 years was from ’83 to 99. Right?
MR. BASHAW: Yes.
JUSTICE BORDEN: So, certainly, there were
trees in ’88, ’87, ’86, ’85.
MR. BASHAW: And, as a matter of course, Your
Honor, the evidence does show that some of those trees
exceeded this glide slope, and, on a regular basis, the DOT
did in fact re-issue the license.
However, that doesn’t —
JUSTICE BORDEN: But you didn’t have any
property right at that point. Your property right didn't
ripen until ’89.
MR. BASHAW: Well, by then, Your Honor, again,
I'm not an expert on tree growth necessarily but, having
the trees been cut in 1964 and ’65, it’s going to take them
awhile to grow up until they’re actually up into an ap-
proach slope, so I don’t know how long that takes but there
is a certain period of time.
JUSTICE BORDEN: Okay.
MR. BASHAW: I guess at this point, Your
Honors, what I will do is reserve the rest of my time to
deal with rebuttal to the claims of the appellees.
App. 34
JUSTICE SULLIVAN: Okay. You have 17
minutes.
MR. BASHAW: For rebuttal. Thank you, Your
Honor.
JUSTICE SULLIVAN: Okay. Now, you have 60
minutes [36] but I can’t keep track of how you're going to
divide it up. You'll have to keep track yourself. Okay?
MR. BRANSE: That’s what we intend to do,
Your Honor, yes. Thank you.
JUSTICE SULLIVAN: Okay.
MR. BRANSE: May it please the Court, my
name is Attorney Mark Branse and I’m representing East
Haddam in the Wetlands and Water Courses Commission
and James Ventres, who are charged with the enforcement
of the state’s Inlands-Wetlands Act within the Town of
East Haddam.
I will be addressing the alternative grounds for
affirmance which is (unclear) the facts of this case do not
even present an FAA pre-emption claim.
I will also be addressing the legal aspects of that, and
Assistant Attorney General Brooks will also be addressing
that.
_1_will speak for approximately 20 minutes. I'll be
followed by Assistant Attorney General Brooks, then by
Assistant Attorney General Wrinn, who, between them,
will speak for approximately 20 minutes, and, then,
finally, Attorney Michael Donnelly who represents the
East Haddam Land Trust and also the Nature Conser-
vancy which we're referring to as the Trusts.
App. 35
Initially, I must start by correcting certain factual
misstatements by opposing counsel.
Mr. Bashaw told you that the trees were cut in 1964
and 1965. The testimony in this record by the man who
{37] created that airport and numerous other witnesses is
that it never looked the way it does today in memory.
The oldest witness, Mr. Gelston, stated that he re-
membered it looking like that before 1936 when his father
cleared hay in that area.
No one could recall this area, as the Trial Court
described it, “denuded” the way it is today; no one, not one
witness.
It’s also been stated that the so-called “5010 report” —
that’s the DOT report, which is Trial Exhibit 9 and also
Exhibit 30; it’s at Appendix 68 of our brief — the claim is
that it identified the tree line, so-called tree line for
removal; that is false.
That report identified seven identified trees scattered
across the airport property for removal.
Mr. Mellon asked for permission from the wetlands
office to remove those seven scattered trees. The wetlands
office determined that the removal of seven trees, like a
tree from your backyard, was not a regulated activity and
authorized the activity and it occurred.
There was no directive to remove the tree line. It is
identified only as what’s called a “limiting obstruction”.
If Your Honors look at that same report, you will see
that the limiting obstruction for Runway 16 is the East
App. 36
Haddam swing bridge. Does that mean that Mr. Mellon
was authorized to demolish the swing bridge?
{38] You will also see that the limiting obstruction for
other runways is a hill. Does that mean that he was
authorized to remove the hill?
The fact is that that is not what the 5010 report
stated, and Your Honors have it before you to check it.
Mr. Bashaw’s indicated that the cease and desist order
was appealed; it was not appealed. There is a mandatory
hearing within 10 days under 22a-44a of the General
Statutes. That hearing, as he pointed out, was adjourned
because the defendant here, the appellant, objected to the
composition of the panel.
Be that as it may, the point is there was no appeal
because there was no application. There was not even,
under :... Cannatta and Wilkinson cases, an application to
the Commission to cetermine its jurisdiction.
If the claim was that the Commission had no jurisdic-
tion, the property owner could have presented what it is
they proposed to do, why they felt that it was a permitted
activity, and, if dissatisfied, appealed, but that is not what
occurred here at all.
Mr. Bashaw’s also indicated that there was testimony
about trees, about planes hitting the trees. I hope in his
rebuttal you will ask him to tell you where in the testi-
mony that is because it does not exist.
The only accident about which testimony was heard
by the Trial Court was a 1991 accident in which a plane
cleared the trees and crashed into Chapman pond.
App. 37
[39] In a trial I asked the appellants’ expert witness,
Does that mean that Mr. Mellon was authorized to fill in
the pond, since that is where the plane actually crashed?
The answer from their expert, No, that would no [sic] so
authorize it.
Lastly, Mr. Bashaw’s told you that pilots expect these
clear zones when they land at airports. That is also incor-
rect.
If the Court looks at the testimony of Warren Stan-
dard, who was the designated DOT inspector for this
airport, at our Appendix 66, you will see that one of the
reasons for the inspections is that the DOT notifies the
FAA of observed obstructions, such as the swing bridge or
a hill or a tree, and these are placed in notices to pilots,
much like the charts that are published for ships at sea.
The problem is you can’t put a buoy in the middle of
the air the way you can in the water, so the DOT and FAA
notify pilots, Be aware when you land at this airport;
there’s an obstruction and this is what the obstruction is.
So, it is simply not correct that all pilots expect all
airports to be clear. In fact, at this airport, at the time that
Mr. Mellon purchased it, it had an approach slope of seven
to one, as displayed by Exhibit 212 which was the report
(unclear) time and also in Exhibit 9.
In fact, through all the inspections between 1978 and
1999, a total of 14 inspections, in only three of them did
this airport actually have the required 20 to 1 approach
slope and, yet, its license was never revoked.
[40] I also want to comment on this idea of license
revocation. What the Court is hearing is a most novel
argument.
App. 38
The argument is that state wetlands laws are pre-
empted by state DOT airport licensing laws if they are
predicated in some sense on DOT advisory guidelines.
Mr. Bashaw’s conceded that the Part 77 surface, as
he’s describing, are advisory, that they are unenforceable
and cannot be mandated, so what he’s really saying is that
the compulsory element arises from the DOT license and,
yet, there is no citation for the proposition that one state
regulatory scheme can pre-empt another state regulatory
scheme.
I don’t think Your Honors will find such a proposition
supported by our case law.
The essential element of pre-emption is that the
federal government has filled the field. The cases that are
cited in their brief deal with, for example, City of Burbank
where the City attempted to regulate noise.
All of their cases involve situations where some state
or local law tried to regulate something that has been
extensively regulated by the FAA.
In this case, the wetlands regulations of Connecticut
and of East Haddam do not — the East Haddam Commis-
sion did not put these trees in, they did not make them
grow.
The Commission does not purport to regulate any-
thing about the routes of planes or anything about the
operation [41] of an airport. It seeks only to regulate
activities within wetlands.
Another statement I should address was that the
cease and desist order told Mr. Mellon he couldn’t mow his
App. 39
lawn. He’s been mowing his lawn ever since without any
objection from us.
The cease and desist order, which the Court can
actually view in the record — it is at Appendix page 29 -
simply prohibits further regulated activities which have
not in fact occurred.
Basically, the appellants here are conceding that the
foundation of their pre-emption claim, this Part 77 regula-
tion, is advisory and, yet, they can cite for no proposition,
for no authority for the idea that advisory guidelines pre-
empt state environmental laws.
When their expert was asked, Have you ever, in your
25 years as an FAA inspector, authorized or directed a
violation of a state or local wetlands law, the answer was,
and I quote, Oh, no, unquote.
The Mellon parties basically argue before this Court
that they have the powers of the FAA without the proce-
dural protections of the FAA.
In the Flowers Mill case (phonetic) at page 184, the
case describes the process the FAA goes through before it
determines what is a substantial obstruction, and it talks
about soliciting comments from, and I quote, interested
parties.
[42] There’s a process, a legal process for determining
whether an obstruction is substantial and the Mellon
parties and their expert witness conceded that and they
concede it in their brief. Yet, it was completely circum-
vented in this case, so we feel there is no pre-emption
based on the facts of this case or based on analysis of the
case law.
App. 40
I would turn, next, to the case of Avalon Bay. Basi-
cally, their argument is that since this Court would not
extend wetlands jurisdiction wherever a salamander may
stroll across the countryside, that that holding means that
you can turn a flood plain forest into a meadow, that you
can flatten every living thing.
I put up a chart over here for the Court that shows
this approach slope, and this is from the actual 5010
report, the 1990 DOT report — it’s in the record — and you
can see that it uses an example, a tree, as a possible
obstruction and shows how it’s to be dealt with, which is
the displaced threshold. It’s discussed in our brief.
I think what’s important about this is to note that the
trees and shrubs that were cut in this case were well
below the approach slope. Some of them certainly did
protrude into it, but, as the appellants have said in their
brief, many did not. There were “innumerable shrubs”, to
use the wording of the Trial Court, that were below it and
yet were cleared.
So, our positioz: is that under the Avalon Bay case,
this Court never intened that decision to justify this type
[43] of activity. If that is unclear, this is certainly a golden
opportunity to clarify 1t and we hope you will do so.
We also feel that Public Act 04209, which we've really
briefed, is retroactive and does indicate that the Commis-
sion is allowed to regulate the clearing of vegetation.
I'd also point out to this Court something that may be
confusing because there’s only one memorandum of deci-
$10n.
App. 41
The Court did discuss eagles and other wildlife as-
pects of this property. They discussed it only in the context
of the state’s CEPA claim.
Relative to the wetlands action, the Trial Court’s
noted impact was the increase in velocity of storm waters
flowing across this cleared property, the increased likeli-
hood of erosion and sedimentation, and both Professor
Patten and Mr. Gephardt testified extensively about those
effects, so, in ruling on the wetlands action, the Trial
Court referenced only physical issues and did not bring up
the issue of wildlife until it reached a CEPA claim.
Lastly, I would like to address the issue of remedy.
Basically, our position here is that the Trial Court’s
decision rewards the shoot-first, ask-questions later
mentality.
There are on the Connecticut River many homes that
are well over a million dollars, in the millions of dollars.
Their value is dependent, in part, on having a view of the
44] river. That view is often blocked by trees.
We have a case here where we have an airport where
some planes can land there and some can’t. There is no
federal law that says there must be an airport for every so
many square miles or per county. There is no federal law
that says that every airport must be able to accommodate
every. plane. Some you can accommodate, some you can't,
but presumably you can make more money if you can
accommodate more planes or bigger planes.
What the Trial Court is saying is that you can cause
$150,000 worth of damage, give or take some factor, and
pay $17,500 to fix it.
App. 42
The clear message there is don’t apply for a permit,
don’t seek a declaratory ruling, don’t get an order from the
DOT or anybody else, just go cut it and you'll get a slap on
the wrist.
You'll get a penalty for, certainly in this case and I
think in many eases on riverfront properties, is pocket
change and that is for remedial legislation which is what
the Wetlands Act is; that is not appropriate.
We also feel that the Trial Court erred in stopping the
calculation, stopping the calculation clock upon the :ssu-
ance of the cease and desist order.
The cease and desist order was issued by statute. 22a-
44a authorizes commissions to issue orders that say, Stop
doing regulated activities, and the purpose of that is in the
hopes that these matters can be resolved at the local [45]
level, without resort to a court action.
By stopping the calculation of penalties when that
order was issued, the message the Trial Court is sending
is, Don’t issue an order, just go to court.
If this Commission had not issued an order, if it had
just brought suit, the penalties would be calculating today
or certainly through the end of the trial.
So, the very procedure set up by statute to try to seek
local resolution, the process that’s set up to protect wet-
lands has been used to protect the violator, to say, Oh, he
was ordered not to do a regulated activity; therefore, he
could not do a restoration plan. That is wrong.
The appellants could have submitted a restoration
plan any time they wanted; they didn’t.
App. 43
Even under their claims of (unclear) of interest, no
later than June 11 of the Year 2001 — and we've included
the minutes of that meeting in our appendix — Attorney
Bashaw conceded that a quorum of the Commission
existed that met his requirements for impartiality and
that could hear an application that was actually filed and
certainly could have heard a restoration plan.
So, in summary, we feel that there is no pre-emption
at fact or at law. We feel that this Court’s decision in
Avalon Bay is not a bar to the Commission’s jurisdiction,
and we feel that the remedy in this case is so inadequate
as to be an abuse of discretion and to undermine the entire
purpose of this remedial legislation.
[46] With that, I will defer to my colleague, Assistant
Attorney General Janet Brooks.
MS. BROOKS: May it please the Court, I am
Assistant Attorney General Janet Brooks and I will spend
15 minutes dealing with all issues of Mellon’s appeal of the
commissioner’s suit and al] issues in the cross-appeal with
the exception of the issue of personal liability of Mr.
Mellon, which will be addressed in five minutes by my
colleague, Attorney Wrinn.
I am sole counsel for the appellees who will address-
ing the CEPA issues in this matter and I will begin there.
There’s a CEPA issue within the appeal of Mr. Mellon
and that is that he believes Count 3, the only count on
which the Court awarded relief, is actually not separate
and distinct from Count 1 and is the exact same thing as
Count 1 which the Trial Court ruled that no relief could be
granted.
App. 44
This happened at the end of trial — excuse me, not
even at the end of trial -— when the memorandum was
issued. There had been no motion to dismiss or motion to
strike and the wording, apparently, feels like a motion to
strike from the way the Court ruled.
Count 1, as its captioned in the complaint, was a
CEPA count based on the unreasonable conduct to the
wetlands and water course.
Count 3, and this can be found in our appendix —
Appendix Al is Count 1; Appendix A6 is Count 3; the
CEPA [47] count as to the unreasonable impairment or
destruction of the forest — so there are two separate and
distinct, at least two separate and distinct natural re-
sources that were adversely impacted by the same con-
duct, by the clear cutting; that is, there was harm to the
wetlands and water courses by the elimination of the 2.5
acres and there was a separate and distinct harm to the
forest.
Mr. Mellon argues that it was all really a walking,
talking wetlands matter and it should have, the Count 3
should have been subsumed into Count 1 and thereby
having all the CEPA counts disappear in accordance with
the Trial Court’s reasoning, so for all the reasons that are
set forth in my brief, the protection of the forest is sepa-
rate and distinct.
Regardless of whether there was or wasn’t an impact
to the wetlands or water course, there would be a separate
and distinct cause of action to protect the forest.
In the world of environmental protection, this is called
“multi-media”, that there are multi natural resources that
are impacted. This is the bread and butter of what the
App. 45
commissioner does all the days: evaluate the different
impacts arising from the same conduct or same act.
The other aspect of CEPA that is implicated in this
appeal is raised in our cross-appeal and that is that Count
1 was erroneously dismissed, if you will, if that’s the word,
that the Court did on its own in the memorandum of
decision.
(48) The Trial Court began in its evaluation of Count 1
by noting that DEP had established, by a preponderance of
the evidence, that there was impairment of the wetlands,
and it said it was going onto the second step in the CEPA
analysis, which is, is it unreasonable and it pointed to
Waterbury versus Washington which is the appropriate
standard to review unreasonableness.
Then, without making any conclusion as to the unrea-
sonableness, using the Waterbury versus Washington
standard, it moved to the C Cam decision (phonetic), and
it immediately concluded that a claim or cause of action
which notes that there is a failure to have received a
license cannot be the basis for a CEPA claim and notes an
eight-page swath in the C Cam decision.
The C Cam decision did find that there is no standing
for the CEPA plaintiffs there to pursue their issues of
administrative irregularity in the permitting process.
C Cam, the Court noted that there was no allegation
of direct harm to the environment, that it was a company
operating without a valid permit and without a valid
emergency authorization, and there the C Cam court said
that a claim of an invalidly issued permit does not direcily
threaten the public trust in the natural resources.
App. 46
The C Cam court took great pains to leave standing as
valid law the, commissioner’s suits with CEPA counts in
addition to claims of a failure to have an environmental
permit.
[49] I would direct the Court to pages 140 and 141
where the C Cam court catalogued three cases which the
commissioner brought a CEPA count in addition to a
statutory cause of action; say, a failure to have a solid
waste permit, failure to have a water discharge permit and
the like.
It particularly said the focus in those cases brought by
the commissioner was on the conduct, the polluting or
impairing conduct.
Then, the C Cam court went and compared Fish I to
Fish II and said C Cam is just like Fish II. In fact, there
were more or less the same plaintiffs in Fish I and C
Camp but Fish I, the C Cam court said, was an action for
injunction for direct environmental harm, consequences of
the operation of a cooler water system, but Count 2, just
like C Cam, was based on administrative irregularities in
the permitting process.
The DEP suit here is like Fish ] for direct environ-
mental consequences of the clear cutting of 2.5 acres of
forest in wetlands of international significance.
I say that by going to the complaint itself and, yes, we
did plead in Count 1 that there was a failure to have a
permit, and why did we do that? Because Waterbury versus
Washington instructs us that is the measure of unreason-
ableness.
App. 47
So, it wasn’t sufficient for me to plead that there was
clear cutting of trees on the neighbor’s property and [50]
that that constituted an impairment of wetlands.
It was the clear cutting of trees on the neighbor’s
property without a permit which constituted unreasonable
impairment, so, yes, we had to note that there wasn’t a
permit for it to succeed in the post-Waterbury versus
Washington world.
I would also note that the commissioner’s suit is not
an action against the administrative agency, the East
Haddam Wetlands Agency, saying, Why didn’t you take
some enforcement action? The commissioner seeks relief
from the conduct which impaired the wetlands.
JUSTICE BORDEN: So, you're saying that
when the Trial Court said that we decided in C Cam, I
guess it was Rogue versus C Cam or C Cam versus Rogue.
MS. BROOKS: C Cam versus Rogue.
JUSTICE BORDEN: When we decided — the
Trial Court was wrong in reading that case as saying lack
of a permit itself can’t be the basis for a CEPA claim.
That’s an improper reading of that case —
MS. BROOKS: That’s right.
JUSTICE BORDEN: I’m just trying to get your
argument — because Waterbury versus Washington says
that when you're trying to define “unreasonable environ-
mental conduct”, you have to look at the statutory scheme
that the legislature has set up governing that, and the
licensing or the permitting before you do something
defines the unreasonableness under Waterbury.
App. 48
{51] MS. BROOKS: Precisely.
JUSTICE BORDEN: All right.
MS. BROOKS: So in that event, we would urge
the Court, then, to reinstate Count 1.
There’s no need for further action because the Court
already found that we proved the impairment by a pre-
ponderance of the evidence, so what only would remain is
whether it was unreasonable, and that is was the Wet-
lands Act violated?
The Trial Court made that finding in the joint action
brought by, (sic) and the other action brought by the East
Haddam Wetlands Commission found there was a wet-
lands violation.
The importance of reviving Count } is if, that’s if the
appellant, if Mr. Mellon loses on all of its appeal, the
importance of winning on this count, reviving Count 1, is
not so significant, but if Mr. Mellon persuades this Court
that Count 3 is nothing other than Count 1, it really is a
walking, talking wetlands violation, then it’s of the es-
sence for the commissioner that Count 1 is restored.
I'd like to address a few matters on the pre-emption
argument that were not raised; that is, I believe Mr.
Bashaw’s argument is that field pre-emption, occupation of
the field is when you put together all the different layers,
you can’t come to any other conclusion, then, that the
Federal Aviation Law pre-empts or so pervades the field
that there can be no conclusion that these environmental
laws are [52] pre-empted, but I want to knock down, like
bowling pins, some of these essential elements.
One is the runway protection zones.
App. 49
First, we had Mr. Bashaw admit that once you are at,
say, the glide slope, that the glide slope would kick in the
ability, at best, to remove the trees or the vegetation above
that, the obstruction above it, and he needed to craft an
argument that would get to the vegetation below the glide
slope. For that he relied on the existence of a circular from
the FAA setting out a definition of runway protection
zones.
In Mr. Bashaw’s appendix at page A51, we'll see why
that is not and does not have the effect of law.
The circular begins at A51 and at A52 it says these are
recommendations. The use of the standard is mandatory if
it’s for airports that take federal money.
It’s both a fact that it did not take federal money and
Mr. Bashaw said this airport does not receive federal
money; therefore, its only advisory, Number One.
Then we turn to the actual runway protection zone
regulation or advisory comments in question at page A74
of Mr. Bashaw’s appendix.
He said that the function of this RPZ is to enhance the
protection of people and property. This is achieved through
airport-owner control over the RPZ’s, and I skip a sen-
tence. Control is preferably exercised through the acquisi-
tion of sufficient property interest in the RPZ. I [53] was
reading from Section 212.
Going down to Section 212b where it says recommen-
dations, it indicates where the owner of the airport does
not have access to the land and does not own the property
right to control the use of the land, the RPZ land use
standards ‘swe recommendation status for that portion of
the RPZ not controlled by the airport owner.
App. 50
So, we've eliminated the RPZ’s so we don’t have any
authority that Mr. Bashaw provides for the cutting below
the slope zone.
Then we have the Trial Court and not only the Catch-
ings case but also — the Catchings case that tells us that
the Part 77 regulations which establish and identify
obstructions are just a tool for evaluating where an ob-
struction exists.
In fact, this Court had an opportunity in answering a
certified question from the Second Circuit, looking at an
abrogation easement, to examine what happens - that’s
the County of Westchester versus Greenwich in the early
‘90s — to examine what happens when there are obstruc-
tions in the glide zone, and, in fact, this Court noted that
the consequence of having a high obstruction is not in the
height of the trees — there, there were also high trees — it’s
on the length of the runway, and the Court noted in that
case that that runway was displaced, its threshold was
displaced, reduced by over a thousand feet.
So, for all of those reasons, I don’t believe there [54] is
any pre-emption in this matter, and, at best, it would
never have protected any environmental regulation below
the glide path, even if the Court were to find federal pre-
emption.
At this point, I will turn it over to Attorney David
Wrinn.
MR. WRINN: May it please the Court, I am
Assistant Attorney General David Wrinn. I also represent
the Commissioner of Environmental protection in this
matter.
App. 51
I’m confining my remarks ir haste to a single issue,
and that is Mr. Mellon’s personal liability.
The brief that the commissioner has filed has set forth
in a great deal of detail the matter here, which is one of
action and participation and not one of status or vicarious
liability or derivative liability, marking in that way a
major division between responsibility under background
principles of tort and environmental remedies and the
territory that belongs to the corporate forum and such
concepts as piercing the corporate vail.
This case has nothing to do with matters of the misuse
of the corporate forum and everything to do with what Mr.
Mellon personally undertook under the facts of the case
and as found by the Trial Court.
The Trial Court —
JUSTICE BORDEN: You're saying, Mr. Wrinn,
that when we’re in the environmental area, if the nominal
acter [sic] is a corporation, we don’t use the normal pierc-
ing the corporate [55] vail.
If the nominal acter [sic] is a corporation but, obvi-
ously, corporations can only act through their agents who
are human beings, the normal rules of piercing the corpo-
rate vail for attaching personal liability to the agent of the
corporation, those rules don’t apply; we have a different
set of rules.
Is that what you're saying?
MR. WRINN: That's correct and in the BEC
case, which | argued to this Court four and a half years
ago, that decision lays out with great care and particular-
ity precisely that divide and how that works; that a
App. 52
corporate officer is, and has always been under the law of
this state, responsible for the torts in which he partici-
pates.
Also, he would be equally responsible for the environ-
mental statutes that he violates.
In the BEC case we have the Connecticut Water
Pollution Control Act. In this case we have CEPA as the
statutory source of the violation.
In fact, we have a supplemental environmental
statute which strives to protect the public, the public
trust, and in that context our claim is that Mr. Mellon
actively participated in the destruction, the clear cutting
of two and a half acres of flood plain forest in an area that
has, indeed, international significance.
Mr. Mellon testified that he took responsibility for
whatever Mr. Evans cut: Whatever he cut was on my [56]
instructions because I told him to cut.
Mr. Evans basically testified that he was told by Mr.
Mellon to, quote, cut everything regardless of size or
species. Again, when asked who directed Mr. Evans to cut
these trees, Mr. Mellon responded, I did.
So, without doubt, this is a case that readily, easily
falls into the category of corporate officer participating,
along with the corporate entity, in the violation and in the
acts complained of which would be the violation of CEPA.
By the way, it would also be a violation of the Wet-
lands Act for all the same reasons.
In summary, again, looking to the analysis in BEC
which treats the special circumstance of a statute but also
App. 53
the background circumstances of the common law as they
(unclear) environmental protection remedial legislation to
effect the sound policy of the protection of natural re-
sources of this state, there is nothing in either statute that
would preclude Mr. Mellon from being held liable on the
same analysis that the SEC, court reviews in the process
of having determined in that case Mr. Irvin Shiners’
(phonetic) responsibility for the (unclear) that occurred in
that case.
The only thing that the appellants can point to is a
section of the Limited Liability Act, and that is 34-134
which is entitled Members and Managers as Parties to
Action, but I would assert to you that that says no more
than is the law in this state with respect to corporations of
any [57) description, which is that you don’t make an
officer liable merely because of his status.
We haven’t done that. We alleged that he involved
himself in certain actions and the proof of trial more than
corroborated this, proved it.
That section, 34-134, says that: A member or a man-
ager 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. (End of reading)
That just restates the same learning that can be found
in the Scribner versus O’Brien case and Kilduff versus
Adams, both of which cases, by the way, are discussed in
the BEC analysis where those corporate officers were
deemed responsible for having undertaken a responsible
share in the actions that led to the violation of the statute,
so it’s no different here.
App. 54
In summary, what this case is about is about partici-
pation; it’s not about status.
Thank you.
MR. DONNELLY: May it please the Court, my
name is Mike Donnelly. I represent the trust defendants in
this case; that is, the East Haddam Land Trust and the
Nature Conservancy.
By Way of background, these parties are non-profit
landowners who own the property on which the cutting in
question took place; that is, the two and a half acres to
[58] the south of the runway.
They hold these properties in trust for future genera-
tions. These are not commercial properties. They are, in
fact, held in as close to a natural state as is reasonably
possible.
The trust parties believe that the Trial Court’s deci-
sion should be upheld with respect to the pre-emption
issue and with respect to the CEPA issue that you've just
heard counsel for the Inland-Wetlands Commission and
the DEP talk to. We adopt their positions and I will not be
speaking on them.
I’m going to turn, instead, to the portions of the cross-
appeal where the trust parties are seeking affirmative
relief from this Court. There are three items that, time
permitting, I would like to touch on.
The first is the question of the prescriptive easement.
The second is the Trial Court’s striking of the unfair-trade-
practices claim, and the third is our request for a remand
for a hearing in damages under Section 52-560.
App. 55
Of these three items, by far the most important to the
trust parties is the question of prescriptive easement.
I’m not, frankly, sure whether counsel for the Mellon
parties was addressing the scope of the easement or
whether he was arguing pre-emption in portions of his
discussion, but I think it’s important to correct at least the
implication that was given with respect to what the Trial
Court held as to the existence of an easement.
[59] I would like to read what is found at page 27 of
the decision, which I believe is on page 61 of the final
appendix that was filed recently by counsel for the Mellon
parties.
The Trial Court found, quote, a prescriptive easement
to go onto the two-and-a-half-acre area on occasion and
trim or cut trees which interfered with the safety of air
traffic taking off or landing on the runway, closed quote.
You have, I believe, heard counsel for the Mellon
parties say that that would permit the airport to go onto
the Land Trust property and cut a ten-foot tree or shrub if
the airport could get one of its pilots to complain about
that tree or shrub.
That is absolutely a guarantee of future litigation
between these two parties.
The Land Trust and the Nature Conservancy hold
property in trust. It is their duty to reinstate this flood
plain forest for the purposes of protecting Chapmans
Pond.
The Trial Court found a variety of impacts which
result from the removal of the flood plain forest, scouring
the like.
App. 56
The airport you have heard indicate that it believes
that as long as it has this complaint from a pilot, it can go
and cut virtually anything on the property.
The Trial Court erred by granting this ill-defined
easement.
JUSTICE BORDEN: Mr. Donnelly, was there
any evidence [60] presented by the airport defenaants that
would have justified a more narrow and clearly-defined
easement than the Trial Court granted?
I mean, they —
MR. DONNELLY: That’s a complicated question,
in my mind at least.
There was evidence presented that, almost on random
occasions, the predecessor operators of the airport went in
and cut or trimmed — it was not clear which — on occasion
to take out certain limbs, sometimes certain trees at other
times.
The evidence that was presented to the Trial Court is
clear, though, with respect to contemporaneous documents
from the DOT files that, from the period in 1978 through
1994, this 20 to 1 glide slope that we’ve talked about was
virtually never in place. It ranged from 7 to 1 in 1978 —- I’m
sorry — 14 to 1 in 1978 to 7 to 1 in 1999.
JUSTICE BORDEN: Well, let me put it another
way. Maybe this will answer my question.
I take it there were trial briefs in this case —
MR. DONNELLY: Correct.
App. 57
JUSTICE BORDEN: - and one of the claims of
the airport defendants was that they had proven a pre-
scriptive easement.
MR. DONNELLY: Correct.
JUSTICE BORDEN: In their final brief to the
Court, to the Trial Court, did they define the scope of their
[61] claimed proven prescriptive easement with any more
particularity than the Trial Court formulated?
MR. DONNELLY: My understanding of their
claim has always been that the clear cutting was within
the scope of their claimed easement.
JUSTICE BORDEN: So their claim was that
they had an easement to go in and do what they did to
begin with.
MR. DONNELLY: Correct.
I believe Mr. Mellon’s test —
JUSTICE BORDEN: And the Trial Court didn’t
give them that but he gave them this kind of —
MR. DONNELLY: - ill defined.
JUSTICE BORDEN: — what you call “ill de-
fined”. All right. Thank you.
MR. DONNELLY: And, in fact, based on the ill-
defined nature of the easement, I filed a motion for articu-
lation, and the Trial Court’s response to that was an
acknowledgement that it could not articulate the easement
any more clearly than it did under the circumstances of
the case.
App. 58
It is our view that this ill-defined easement is con-
trary to repeated findings and holdings of this Court which
has repeatedly said that it is the duty of a party which is
seeking to obtain an easement to define the boundaries
with some particularity.
The boundaries that were talking about here are
boundaries not only of length and width but, by virtue of
[62] what we're talking about, they are boundaries of
height of the trees.
I suppose that there is an alternate possibility but it
was never really raised, which is cutting on a periodic
basis to the ground, let them grow up and cut them down
again ten years later, but there was neither any evidence
of that nor was there any claim that that’s where we're
going.
What we were talking about is, essentially, a three-
dimensional path and it has not been defined, and I
submit that under the holdings of this Court, as a result,
the determination of the Trial Court should be reversed;
there is no need to remand on this issue.
In addition, the Trial Court also erred by finding an
easement despite the fact that there was a boundary-line
agreement between the predecessors of the two parties.
The boundary-line agreement is part of the record.
The boundary-line agreement is what set — you heard
Attorney Bashaw indicate that the boundary between these
two parties was the middle of the creek. The boundary-line
agreement is the document that set that boundary.
It was signed by both the predecessor to the Land
Trust and the predecessor to the airport, and, according to
the terms of the document, which, again, are within the
App. 59
record, the airport gave up all rights essentially to do
anything on the southern part of that boundary line.
In exchange, the predecessor to the Land Trust gave
up its rights to do anything to the north of that boundary
[63] line except to pass and re-pass along a road that’s on
the airport property.
JUSTICE BORDEN: Why is that inconsistent
with — putting aside the lack of particularity, why is a
boundary-line agreement necessarily inconsistent with a
prescriptive easement?
It seems to me that, if anything, it could support it
because one of the — oh, I guess your argument is if you
know you've given up your rights to the property south of
you, you can’t be claiming that you're doing this cutting as
of right (unclear).
MR. DONNELLY; I believe that that is true; that
is my personal belief.
I don’t know that that, frankly, is consistent with what
this Court has held in the past. “As of right” is a little bit
of a tricky issue, I think, to this Court at times.
What is more important with respect to the boundary-
line agreement is Section 47-38 of the General Statutes.
That is a mechanism by which a party which has its
property under attack, if you will — someone is seeking to
obtain an easement over it — that party does not have to go
to court, that party does not have to result to self-help.
Instead, under Section 47-38 it can give written notice
to the other party that it maintains that it owns the
property in question, and from there it has to serve this
App. 60
notice on the other party and then file it on the land [64]
records.
What we have here is a notice signed by both parties.
It is not just served. It is, in fact, an agreement of the two
parties, signed by each party, and it was filed on the land
records.
In Crandall v. Gould this Court analyzed 47-38 and
found that when it is in place, when the notice has been
given, that this stops the running of the prescriptive time
period for all time going forward.
In Crandall v. Gould what was actually in place was
an injunction. It was not an agreement. It was an injunc-
tion but the Court found that the injunction satisfied the
47-38 requirements, the notice requirements under 47-38
and that it stopped the running.
The offending activity in that case began, again,
shortly after the injunction was entered and ran for some
29 years after that, although I believe in my brief I say it
was 19 years. That’s a typographical error. It’s 29 years
afterwards, well beyond the 15 years, but the Court, this
Court said that’s not good enough. Under 47-38, it’s over.
You can’t start a new prescriptive period. The Trial Court
never even addressed the 47-38 issue.
JUSTICE BORDEN: Tell me again why - I
mean, the typical 47-38 notice is Property Owner A files a
notice on the land records, saying, I own this land — puts a
boundary description — and that means that my neighbor
who has been entering on this land, cutting down trees or
digging up [65] whatever, from that day forward any
prescriptive use by the neighbor stops.
App. 61
Now, fit the boundary-line agreement into that for me,
into that scenario.
MR. DONNELLY: Sure. You and I are neighbors
and I’m cutting your trees and, instead of you writing —
JUSTICE BORDEN: Oh, I own here, you own
there.
MR. DONNELLY: Right.
JUSTICE BORDEN: Whatever you think you
can do, the land record says you can’t do on my land.
MR. DONNELLY: And, not only that, we shake
hands instead of the typical situation where you have a
sheriff give the notice.
JUSTICE BORDEN: All right.
MR. DONNELLY: With respect to each of these
issues, there are no issues of fact. There are merely ques-
tions of law and, as a result, again, we ask that this Court
simply reverse the finding that there is a prescriptive
easement and there is no need for any additional action
with respect to the prescriptive easement.
We do, however, ask that this Court remand the Case
with respect to the unfair-trade-practices claim.
Now, I'd like to point out —
JUSTICE SULLIVAN: With respect to what? I
didn’t hear you.
MR. DONNELLY: The _ unfair-trade-practices
claim.
App. 62
Now, the Trial Court’s decision indicates incorrectly
[66] that we waived our rights under the unfair-trade-
practices claim ‘cause we failed to brief it.
When the Court looks at the record in detail, it will
see that we didn’t brief it because the claim had already
been stricken.
The rationale that the Trial Court gave for striking
the claim was that these two parties are not consumers or
competitors. They don’t have a consumer or a competitive
relationship.
However, this Court has never held that there is a
requirement for a consumer or a competitive relationship
but, rather, that allegations fit within the cigarette rule,
and | think the most recent decision on that came out two
days ago.
Here, set forth in our, I believe, original brief to this
Court, we have set out the entirety of our unfair-trade-
practices claim.
We believe that it does comply with the cigarette rule;
that is, that the allegations are essentially a straightfor-
ward slap suit and, as a result, the actions of the airport in
both cutting the trees and in filing litigation against the
individual members of the Land Trust, as well as claims
against the Land Trust itself, offends public policy, is
immoral, oppressive, unethical and unscrupulous and it
does substantial [sic] injure business persons in that the
Land Trust and the Nature Conservancy are business
people.
[67] It’s a non-profit business but they are, in fact, in
the business of maintaining property.
App. 63
For this re —
JUSTICE BORDEN: So it’s the slap suit allega-
tion that forms the crux of your CUTPA claim.
MR. DONNELLY: Correct.
The other item for which we seek remand is for
damages under Section 52-560 which is the tree-cutting
statute.
Below, we had a licensed arborist who was going to
testify with respect to the replacement value of the 300-or-
so trees that were cut down on our property.
The Trial Court relied on a case called Flint v. Lincoln
in order to keep us from presenting this evidence.
The decision in Flint v. Lincoln basically turns on — I
should take a step back. 52-560 provides for treble dam-
ages for the reasonable value of trees that are taken out on
another person’s property.
Flint v. Lincoln, and a handful of lower court other
than that, have held that the reasonable value of trees is
calculated in one of a couple of ways but not for replace-
ment value; that is, typically it’s the cord wood value of the
wood as firewood or as timber, or it is the value of the
property before the cutting with the trees un it and after —
essentially, an ornamental value.
With all due respect to the Flint Appellate Court, that
does not fit these circumstances.
{68] The value of this property, as the Trial Court
found, is as a buffer to Chapman Pond. It is held in the
public trust for that purpose and, as a result, it has rela-
tively little commercial value, as would any land trust
App. 64
property; relatively low commercial value once the requi-
site easements are placed on it that give the tax-exempt
status for the donation of property to land trusts.
As Attorney Branse said earlier, we are in age now
where there are multi-million-dollar houses. It is abso-
lutely the wrong message.
It is absolutely, in my view, inconsistent with the
wording of 52-560 with respect to the reasonable value —
with providing damages as to the reasonable value of the
trees to allow someone to go onto a neighbor’s property to
improve their view or to improve the glide path to their
runway, to allow them to take out the trees and then
simply have to pay for firewood value for that property.
We are not looking — the other thing that the Trial
Court focused on with respect to rejecting our presentation
of this evidence, granting a motion in limine not allowing
our arborist to testify, was the difficulty you would find in
analyzing the replacement value: how to deal with healthy
trees, how to deal with trees that are older, how to deal
with the spacing of trees.
I submit, that that is a red herring because quite
frankly, that type of analysis is exactly what trial courts do
all the time with real estate appraisers.
[69] Real estate appraisers look at comparable proper-
ties and then adjust them upwards or downwards, depend-
ing on whether this house is in better condition, that
neighborhood is a better neighborhood.
There is nothing inherently impossible about making
the same kind of analysis with respect for the replacement
value of trees, particularly in a circumstance like here
where the value of the property is for the public trust. It is
App. 65
to protect Chapmans Pond in this area of international
significance.
With that, unless there any questions, I'll step down.
Thank you, Your Honors.
JUSTICE SULLIVAN: Okay.
MR. BASHAW: Again, for the record, John
Bashaw, representing the appellants. So many issues; so
little time.
Let me touch — I think what Ill do is I'll work back-
wards if the Court will permit.
With respect to the 52-560 claim, which is the value of
the timber that was cut, we obviously agree with the
Maldonado decision and with the Stanley decision.
It is inherently difficult to value these trees. Half of
the trees that were cut on this property were of a species
known as Ilanthis Eltisima (phonetic) which all parties
agree is an invasive spsre and species that nobody wants
on this property. How do you value what, essentially, is a
junk tree?
(70] I guess all trees have value but for purposes —
JUSTICE BORDEN: Well, if that’s the case then
if it can’t be valued, then presumably the plaintiff, with
respect to those trees, would lose its proof, wouldn't
persuade the Court that there was any value lost.
MR. BASHAW: Then —
JUSTICE BORDEN: Why shouldn't they be
entitled to at least be able to prove the replacement value
of trees that aren’t junk trees?
App. 66
MR. BASHAW: Well, I guess it’s similar, Your
Honor, to all sorts of types of expert testimony that is just
inherently unreliable that’s not permitted to be allowed in
court.
For example, in this case they also said the val — what
about the trees that are rotten? How do you value the
trees —how do you put a value on a tree that has a rotten
bowl inside the tree and the tree is dead? All right. And
there is evidence.
If you look in the record, there is a report by Dave
Edson — he’s one of the forestry experts — he (unclear) find ~
that a lot of the trees that were cut were rotten.
Well, they may have a value to a woodpecker but —
JUSTICE BORDEN; Well, but, I mean, I don’t
know of any general rule of — I mean, I know we have
these cases that say, at least in tort cases generally that if
you're looking at, if someone comes along and mistakenly
chops down your tree in front of your house, that generally
the value is the [71] value of your property with and
without the tree, not how much would it cost to replace the
hundred-year-old oak tree.
Do we do that because — is that the rule because
you re never going to be able to prove it?
MR. BASHAW: According to my understanding
of the cases that have been cited today, Your Honor, that is
the decision (unclear).
It’s inherent — I can only use the language of the
(unclear) — it is inherently incapable of being determined,
and so the Trial Court has set three different alternatives
for: establishing value, and they attemped [sic] to put
App. 67
nobody on to testify to any of those other values, market
value. They didn’t put anybody on.
They wanted to come in and talk, have somebody
come in and talk about replacement value, and their claim
is, according to their brief anyway, it’s because this is a
different type of property.
Well, the Court’s decisions in the past are not based
upon the type of property on which the tree was cut; it’s
based upon the methodology. The methodology’s just
inherently impossible to apply.
Moving to the CUTPA claim, this is not a slap suit.
Remember, it was the Inland-Wetlands Commission that
sued the Land Trust. The airport parties didn’t sue the
Land Trust. They got brought in because they were the
owners of the property, so this is not a slap suit.
We didn’t file suit against the Land Trust and the [72]
individual members in these cases. They were brought in
by another party, and to then propose a theory of law that
says because an individual has resources, economic re-
sources to defend himself in a claim, that that somehow is
unscrupulous, immoral, unethical? ;
The Court has never ruled that way, and despite the
fact that there’s no business relationship at all either,
which is a prerequisite to CUTPA, So I think the Trial
Court ruled correctly in striking their CUTPA claim.
With respect to the prescriptive easement, I think I
just want to clarify a few items by Attorney Donnelly. If
you will bear with me, I'll get the reference from the brief.
App. 68
I think Attorney Donnelly said that the trees, I guess,
all that was shown that they were cut on — oh, I think he
used the words “random occasions”.
Well, in page 26 through 28 of the airport parties’
reply brief in this matter is set forth in detail the actual
testimony that was provided to the Trial Court by the
witnesses who were present while all this tree cutting
activity occurred.
I don’t need to recite it since my time is limited here,
but I would refer the Court to those sections where those
witnessses [sic] tell in detail how the trees were cut. They
were cut by chain saw, openly, during the daytime. They
were cut every four to five years on a more extensive basis
and every year as pilots complained about [73] the trees.
With respect to the claim that there’s no evidence
about the height at which the trees were cut, again,
attached as exhibits to the reply brief are actual color
photographs taken from the DOT file that show, over time,
a distinct notch, the U-shape, if you will, where the cutting
had occurred, so that gives some representation to the
Trial Court that, clearly, there is a difference in height ,
between the two sides where no cutting occurred and
where the cutting did occur.
That —
JUSTICE BORDEN: When you made your, final
claim for prescriptive easement in the final briefs, I take it
you had some presentation to the Trial Court of what you,
wanted your prescriptive easement to be. What was it?
_ MR. BASHAW: Well, we recited — Your Honor, it
is actually our position in this case that we should have
App. 69
the right to cut the trees as they did because of the cutting
that occurred in 1964 and ’65.
Now, I think I stated clearly and correctly in my
earlier presentation that a larger area was cut in the ’64-
’65 time period and some small trees were left in that area,
so I do not disagree with the representation by Attorney
Branse that the area never looked like it did in 2000.
There may have been a few trees left in 64, 65, based
upon review of aerial photographs by an expert by the
name of David Edson, and his testimony is in the record,
so [74] with that exception, with the presence of a few
trees in that area, I believe that the airport had a larger
right to cut the trees than what the Trial Court required.
However, in this case there was plenty of evidence to
support the decision that the Trial Court reached. We
think the scope was broader but we think there was
evidence certainly to support what they reached.
JUSTICE BORDEN: Well, but what do you say
to Mr. Donnelly’s claim that generally our cases say that if
you have a prescriptive easement, the person claiming it
has-to do it with reasonable specificity?
MR. BASHAW: Well -
JUSTICE BORDEN: Do you agree that that is
the general standard?
MR. BASHAW: Well, I agree that tha: is the
general standard and obviously the facts —
JUSTICE BORDEN: Well, what is at all specific —
MR. BASHAW: Well —-
App. 70
JUSTICE BORDEN: - about as necessary to
what? To produce safety.
MR. BASHAW: Well, obviously, Your Honor, |
mean —
JUSTICE BORDEN: It doesn’t say where,
doesn’t say, you know —
MR. BASHAW: Well -
JUSTICE BORDEN: - from time to time?
MR. BASHAW: Well, actually —
JUSTICE BORDEN: It doesn’t say where, when,
how.
[75] MR. BASHAW; Well, actually, Your Honor,
again, I'll reference you to the pages of the brief, of the
reply brief I just did because the Court did say there was
evidence of where it occurred.
It occurred in the area in which the cutting occurred,
which is a fairly well-defined area, in December of 2000. It
is well defined as to when it occurred.
It occurred every four to five years on a more exten--
sive basis where they would go out and cut for two to three
days and then every year on an occasional basis, as some-
body would complain about a limb that got in the way or
one tree that had popped up out of the canopy that needed
to be cut down.
I don’t think anybody could ask, somebody to say
specifically, well, exactly how many trees did you remove
each and every single time and exactly where on that 2.5
acre parcel?
App. 71
That’s impossible to discern other than them saying it
was in, again, the photographs show where that cut area
is. They clearly show where the cutting occurred. They
show the relative height to what the trees were cut.
In fact, some of those photographs even provide
written on them the glide slopes, so that will also give you
some indication of the height of the trees.
JUSTICE BORDEN: What do you say to his
argument about the boundary-line agreement?
MR. BASHAW: Well, first of all, the handshake,
I [76] think he referred to the handshake agreement
between the parties wasn’t between my client and — |
JUSTICE BORDEN: Well, it doesn’t matter.
Were talking about —
MR. BASHAW: But —
JUSTICE BORDEN: - we're talking about a
boundary-line agreement which is recorded on the land
records which everybody says, I give up my rights to your
property, you give up my (sic) rights to my property.
MR. BASHAW: But for purpose —
JUSTICE BORDEN: Why doesn’t that perform
the function of the statutory notice?
MR. BASHAW: Because, as I understand it,
Your Honor, for purposes of establishing that claim under
47-38, under Section 47-39 you actually have to serve that
document on the party against whom your're saying, trying
to defeat the prescriptive easement from running.
App. 72
Filing it on the land records is not enough. You have to
serve it as if you were serving a civil complaint; that’s in
47-39. They didn’t satisfy the prerequisites for establish-
ing a cause of action under 47-38.
JUSTICE BORDEN: Even though it was signed.
MR. BASHAW: But it was signed by a prior
party to the airport, and that’s the reason, Your Honor, I
believe —
JUSTICE BORDEN: Well, what difference does
that make? I mean, there, the —
MR. BASHAW: Well, because you're trying to
take a [77] right away from somebody, Your Honor, and
that’s why I believe there’s a requirement for service.
JUSTICE BORDEN: Look, Mr. Bashaw, if A
and, B own the adjoining properties at one point and they
come to a boundary-line agreement and they sign it and
they serve it — they each give a copy to a sheriff and he
serves it on each other — and let’s suppose, you know, it
says, and this is under 47-38 — now your client comes
along and buys the property from A and B. The fact that
your client didn’t sign it doesn’t insulate your client from
the effect of it.
MR. BASHAW: Well, I -
JUSTICE BORDEN: You take whatever rights
or liabilities your predecessor in title takes. Are you saying
that 46-38 has to be renewed every time there’s a transfer
of title?
MR. BASHAW: I believe, Your Honor, what the
law requires, and I’m only reading what 47-39 requires,
App. 73
that the persun against whom you're trying to stop the
running of an ongoing prescriptive easement, it has to be
served on them.
JUSTICE BORDEN: Is that your only argument —
MR. BASHAW: No, it is not, Your Honor.
JUSTICE BORDEN: - for the invalidity of that?
MR. BASHAW: I also believe, I agree with the
Trial Court’s ruling that even if 47-38 applied, it only stops
to cease whatever continuing prescriptive easement might
be running at that particular point in time. It doesn’t
prohibit it from re-establishing itself at some point in [78]
time.
The Trial Court said, and I agree, there is a distinc-
tion between Crandall versus Gould, which was a judicial,
it was a permanent injunction that was issued against a
property owner and the Court said, for that purpose, as a
matter of public policy, we’re not going to let somebody
come in and violate a permanent injunction for the pur-
pose of establishing a prescriptive easement.
JUSTICE BORDEN: So, then, it only stops it
but it doesn’t prevent it from starting up again?
MR. BASHAW: I agree, yes, Your Honor.
JUSTICE BORDEN: So, then, if they have two
property owners and one property owner realizes that the
other property owner is encroaching on his land, trying to
get in a prescriptive easement, so he creates a document
under 47-38, serves it on the other party, okay, records it
on the land record, and the other party stops for 30, 60, 90
days, six months a year, and then starts up again.
App. 74
The 47-38 document has no effect?
MR. BASHAW: I believe that’s correct, Your
Honor.
JUSTICE BORDEN: Okay. Not much of a
protection, then,
MR. BASHAW: I believe that that’s what the
law requires, though, and that’s what the courts have
held.
I also want to make sure that I believe, and Attorney
Donnelly was talking about the, he read right from the
Trial Court’s decision about what the prescriptive ease-
ment [79] provided, and I don’t think he was claiming that
I mischaracterized it ‘cause I think I did characterize it
correctly, which is the prescriptive easement exists and is
triggered by complaints from pilots and by a determina-
tion by a DOT that trees need to be removed.
I believe that’s what I said in my earlier arguments,
and I just want to make sure that I did not misrepresent
that fact.
With respect to the personal-liability issue addressed
by Attorney Wrinn, this is a single-member LLC, of course,
and Mr. Mellon is that single member, so, of course, he will
be the one who speaks to a contractor to go do work.
He will be the one who signs the check on behalf of the
LLC. That’s unavoidable when you have a single-member
LLC. I don’t know what that gets him as far as the facts of
this case.
JUSTICE BORDEN: What about the BEC case?
App. 75
MR. BASHAW: Well, the problem with the BEC
case, Your Honor, is that case was limited, first of all,
explicitly by its own terms of the Water Pollution Control
Act. Secondly, that was the Responsible Corporate Officer
Doctrine that was established by the Court.
Now, in this case — in the Water Pollution Control Act,
under the definition of “person”, they specifically included
officers, directors, a basis that gave the Court to set a
responsible corporate officer policy.
The Inland-Wetlands Act, with respect to an action
[80] under 22a-44b, which is the cause of the action
brought by the inland-wetlands case (sic) in this case, it
doesn’t include reference to corporate officers, directors,
etc., the same language used in the Water Pollution
Control Act, and, importantly, Section 22a-44c of the
Inland-Wetlands Act, which is for knowing violations of
the act, it specifically does include officers and directors.
So, for some reason, the legislature made a decision
that, with respect to an action under 22a-44b, we’re not
going to include officers and directors.
JUSTICE BORDEN: Well, if Mr. Mellon, instead
of ordering these trees cut down, were driving an automo-
bile —
MR. BASHAW: I’m sorry, Your Honor, was —
JUSTICE BORDEN: If Mr. Mellon, instead of
ordering these trees cut down, had been driving an auto-
mobile owned by the LLC and injured somebody, or let’s
suppose if Mr. Mellon, instead of ordering these trees cut
down, drove off the road and rampaged through the land
trust property and knocked over trees and shrubs and
damaged the ground, he would be not only the LLC by
App. 76
vicarious liability, assuming he was in the business of it,
he would be personally responsible for that tort.
MR. BASHAW: Sure. I don’t disagree with that,
Your Honor. You’re —
JUSTICE BORDEN: Why should he not be
’ personally responsible for this just because he was the
LLC officer doing it?
[81] MR. BASHAW: Well, Your Honor, I re-
sponded to your question regarding BEC, so under the
Responsible Corporate Officer Theory of Liability, I don’t
think it exists in this case.
What you're talking about are some of the other
theories of law that are proposed by the —
JUSTICE BORDEN; But in BEC we said that’s
consistent with the fact that corporate officers are person-
ally responsible for the torts that they commit.
MR. BASHAW: I don’t disagree with that theory
of law that if you commit your own tort; you're responsible
for it, but my response to that, Your Honor, is to actually
look at the actual complaints that were filed in this matter
and, in particular, if you look at the inland-wetlands
complaint — I'll use that as an example — in Paragraph 5 of
their complaint they identify Timothy Mellon in this case
as “the defendant, Timothy Mellon, as a member, manager
and owner of Goodspeed.”
They don’t make any allegations that he’s liable
because he’s assisted in a violation, he’s cooperated in a
violation or participated in a violation. He’s named as a
member, manager and owner of Goodspeed.
* App. 77
That is the only basis they name him in their com-
plaint on it, and under Section 34-134 that’s prohibited;
you can’t do that.
If you also look at the DEP’s complaint and you look at
how they name Mr. Mellon, they name Mr. Mellon a
member, [82] manager and owner of Goodspeed Airport,
LLC.
Now, at trial did they proceed to, then, establish
evidence that he spoke to Mr. Evans and he wrote the
check? Yes, single-member LLC. He’d be the only one to do
it but they didn’t plead it. That’s our response to that.
JUSTICE BORDEN: Well, was there any claim
that he couldn’t be held liable because of the pleading?
MR. BASHAW: There was a — the airport parties
moved at trial to have all personal liability stricken from
the case, and the trial judge denied that requey -.
Your Honor, my time is up. I thank the Court for
listening to the arguments today, and I obviously refer the
Court to many of the arguments that I was not able to
make today are set forth in our briefs, and I ask the Court
to review the briefs.
Thank you very much for your time.
JUSTICE SULLIVAN: Thank you, Counsel.
(The hearing is ended.)
App. 78
SC17280 TTD
JAMES VENTRES ET AL.
V.
GOODSPEED AIRPORT, LLC, ET AL.
CERTIFICATION
I, Joy E. Franklin, do hereby certify that the foregoing
pages are a true and accurate transcription of the tape in
the above-entitled matter heard in the Supreme Court by
Chief Justice William Sullivan, Justice David M. Borden,
Justice Flemming L. Norcott, Jr., Justice Richard N.
Palmer, and Justice Peter T. Zarella on April 14, 2005, in
Hartford, Connecticut.
Dated this 18th day of December, 2005, in Hartford,
Connecticut.
/s/ Joy E. Franklin
Joy E. Franklin
Court Monitor
AIRPORT DESIGN
/INCORPORATES CHANGES 1 THRU 5/7
AC: 150/5300-13
Date: 9/29/89
Advisory Circular
6L “ddy
App. 80
[LOGO] Advisory
U.S. Department Circular
of Transportation
Federal Aviation
Administration
Subject: AIRPORT DESIGN
Date: 9/29/89 AC No: 150/5300-13
Initiated by: AAS-110 Change:
1. PURPOSE. This advisory circular (AC) contains the
Federal Aviation Administrations (FAA) standards and
recommendations for airport design.
2. CANCELLATION. This (AC) cancels the following
publications:
a. AC 150/5300-2D, Airport Design Standards -— Site
Requirements for Terminal Navigational Facilities, dated
March 10, 1980.
b. AC 150/5300-4B, Utility Airports — Air Access to
National Transportation, dated June 24, 1975.
ec. AC 150/5300-12, Airport Design Standards -
Transport Airports, dated February 28, 1983.
d. AC 150/5325-5C, Aircraft Data, dated June 29,
1987.
e. AC 150/5335-2, Airport Aprons, dated January 27,
1965.
3. APPLICATION. The standards and recommenda-
tions contained in this advisory circular are recommended
by the Federal Aviation Administration for use in the
App. 81
design of civil airports. For airport projects receiving
Federal grant-in-aid assistance, the use of these standards
is mandatory. At certificated airports, the standards and
recommendations may be used to satisfy specific require-
ments of Federal Aviation Regulations (FAR) Part 139,
Certification and Operations: Land Airports Serving
Certain Air Carriers, Subpart D.
/s/ Leonard E. Mudd
Leonard E. Mudd, Director
Office of airport Safety and Standards
Chapter 2. AIRPORT GEOMETRY
200. INTRODUCTION. This chapter presents the
airport geometric design standards and recommendations
to ensure the safety, economy, efficiency, and longevity of
an airport.
201. PRINCIPLES OF APPLICATION.
a. Need to Plan. The significance of the interrela-
tionship of the various airport features cannot be overem-
phasized. It is important that airport owners look to both
the present and potential functions of the airport.
(1) Existing and planned airspace required for
safe and efficient aircraft operations should be protected
by acquisitions of a combination of zoning, easements,
property interests, and other means. AC 150/5190-4, A
Model Zoning Ordinance to Limit Height of Objects
Around Airports, presents guidance for controlling the
height of objects around airports.
; (2) All other existing and planned airport
elements, including the following, should be on airport
property:
App. 82
(a) Object free areas;
(b) Runway protection zones;
(c) Areas under the 14 CFR Part 77 Subpart
C airport imaginary surfaces out to where the surfaces
obtain a height of at least 35 feet (10 m) above the primary
surface; and
(d) Areas, other than those which can be
adequately controlled by zoning, easements, or other
means to mitigate potential incompatible land uses.
b. Airport Functions. Coordination with the FAA and
users of the airport should assist in determining the
airport’s immediate and long range functions which will
best satisfy the needs of the community and traveling
public. This involves determining the following:
(1) The operating characteristics, sizes, and
weights of the airplanes expected at the airport;
(2) The airport reference code (ARC) resulting
from (1);
(3) The most demanding meteorological condi-
tions in which airplanes will operate;
(4) The volume and mix of operations;
(5) The possible constraints on navigable air-
space; and
(6) The environmental and compatible land-use
considerations associated with topography, residential
development, schools, churches, hospitals, sites of public
assembly, and the like.
App. 83
c. Airport Layout Plan. When developing the airport
layout plan, application of the standards and recommen-
dations in this publication to the long range functions of
the airport will establish the future airport geometry. See
appendices 6 and 7 for detailed information on the devel-
opment of the airport layout plan.
202. RUNWAY LOCATION AND ORIENTATION.
Runway location and orientation are paramount to airport
safety, efficiency, economics, and environmental impact.
The weight and degree of concern given to each of the
following factors depend, in part, on: the airport reference
code; the meteorological conditions; the surrounding
environment; topography; and the volume of air traffic
expected at the airport.
a. Wind. Appendix 1 provides information on wind
data analysis for airport planning and design. Such an
analysis considers the wind velocity and direction as
related to the existing and forecasted operations during
visual and instrument meteorological conditions. It may
also consider wind by time of day.
b. Airspace Availability. Existing and planned
instrument approach procedures, missed approach proce-
dures, departure procedures, control zones, special use
airspace, restricted airspace, and traffic patterns influence
airport layouts and locations. Contact the FAA for assis-
tance on airspace matters.
c. Environmental Factors. In developing runways to
be compatible with the airport environs, conduct environ-
mental studies which consider the impact of existing and
proposed land use and noise on nearby residents, air and
water quality, wildlife, and historical/archeological fea-
tures.
App. 84
d. Obstructions to Air Navigation. An obstruction
survey should identify those objects which may affect
airplane operations. Approaches free of obstructions are
desirable and encouraged, but as a minimum, locate and
orient runways to ensure that the
* * *
(c) When the thresholds are staggered and
‘the approach is to the far threshold, the minimum 2,500-foot
(762 m) separation requires an increase of 100 feet (30 m) for
every 500 feet (152 m) of threshold stagger.
209. RUNWAY TO PARALLEL TAXIWAY AND TAXI-
LANE SEPARATION.
a. Standards. Tables 2-1 and 2-2 present the runway
centerline to parallel taxiway/taxilane centerline separa-
tion standard. This distance is such to satisfy the re-
quirement that no part of an aircraft (tail tip, wing tip) on
taxiway/taxilane centerline is within the runway safety
area or penetrates the obstacle free zone (OFZ). The —
computer program cited in appendix 11 may be used to
determine the increase to these separation distances for
elevation. ;
b. Recommendations. To have room for the acute-
angled exit taxiway, provide a runway centerline to
parallel taxiway centerline of at least 400 feet (120 m) for
Airplane Design Groups I and II, 500 feet (150 m) for
Airplane Design Group III, and 600 feet (180 m) for
Airplane Design Groups IV, V, and VI.
210. BUILDING RESTRICTION LINE (BRL). A BRL
should be placed on an airport layout plan for identifying
suitable building area locations on airports. The BRL
should encompass the runway protection zones, the
App. 85
runway object free area, the runway visibility zone (see
paragraph 503), NAVAID critical areas, areas required for
terminal instrument procedures, and airport traffic control
tower clear line of sight.
211. OBJECT CLEARING CRITERIA. Safe and
efficient operations at an airport require that certain areas
on and near the airport be clear of objects or restricted to
objects with a certain function, composition, and/or height.
The object clearing criteria subdivides the 14 CFR Part 77,
Subpart C, airspace and the object free area (OFA) ground
area by type of objects tolerated within each subdivision.
Aircraft are controlled by the aircraft operating rules and
not by this criteria.
a. Standards. Object clearance requirements are as
follows:
(1) Object Free Area (OFA). Object free areas
require clearing of objects as specified in paragraph 307,
Runway Object Free Area, and paragraph 404, Taxiway
and Taxilane Object Free Area (OFA).
(2) Runway and Taxiway Safety Areas. Runway
and taxiway safety areas require clearing of objects, except
for objects that need to be located in the runway or taxi-
way safety area because of their function. Objects higher
than 3 inches (7.6 cm) above grade should be constructed
on low impact resistant supports (frangible mounted
structures) of the lowest practical height with the frangi-
ble point no higher than 3 inches (7.6 cm) above grade.
Other objects, such as manholes, should be constructed at
grade. In no case should their height exceed 3 inches (7.6
cm) above grade. Underground fuel storage facilities should
not be located within runway and taxiway safety areas (see
AC 150/5230-4), Aircraft Fuel Storage, Handling, and
App. 86
Dispensing on Airports). Tables 3-1, 3-2, 3-3, and 4-1
specify runway and taxiway safety area standard dimen-
sions.
(3) Obstacle Free Zone (OFZ). Obstacle Free
Zones require clearing of object penetrations, except for
frangible visual NAVAIDs that need to be located in the
OFZ because of their function. Paragraph 306 specifies
OFZ standard dimensions.
(4) Threshold. The threshold obstacle clearance
surfaces, defined in Appendix 2, paragraph 5, require
clearing of object penetrations.
(5) NAVAIDs. Certain areas require clearing for
the establishment and operation of NAVAIDs. These
NAVAID critical areas are depicted in chapter 6.
(6) 14 CFR Part 77 Obstructions to Air Naviga-
tion. Obstructions to air navigation must be removed
unless an FAA aeronautical study, based on proposed
operations, determined otherwise. To determine otherwise,
the FAA must find no substantial adverse effect as defined
in Order 7400.2, Procedures for Handling Airspace Mat-
ters, Chapter 7, Evaluating Aeronautical Effect, Section 1,
General. The FAA, normally, limits aeronautical studies of
existing objects to obstructions to air navigation which are
not included in the criteria cited in paragraphs 211a(1)
through (5).
(7) Runway Protection Zone (RPZ). The RPZ
requires clearing of incompatible objects and activities as
specified in paragraphs 212a(1)(a) and 212a(2).
(8) General. Other objects which require clearing
‘are those which generally can have an adverse effect on
the airport. These include objects in the inner part of the
App. 87
approach area (coinciding with the RPZ) such as fuel
handling and storage facilities, smoke and dust generating
activities, misleading lights, and those which may create
glare or attract wildlife.
b. Recommendations. Other objects which are
desirable to clear, if practicable, are objects which do not
have a substantial adverse effect on the airport but, if
removed, will enhance operation. These include objects in
the controlled activity area and obstructions to air naviga-
tion which are not covered in paragraph 211.a, especially
those penetrating an approach surface. On a paved run-
way, the approach surface starts 200 feet (61 m) beyond
the area usable for takeoff or landing, whichever is more
demanding. On an unpaved runway, the approach surface
starts at the end of the area usable for takeoff or landing.
212. RUNWAY PROTECTION ZONE (RPZ). The
RPZ’s function is to enhance the protection of people and
property on the ground. This is achieved through airport
owner control over RPZs. Such control includes clearing
RPZ areas (and maintaining them clear) of incompatible
objects and activities. Control is preferably exercised
through the acquisition of sufficient property interest in
the RPZ.
a. Standards.
(1) RPZ Configuration/Location. The RPZ is
trapezoidal in shape and centered about the extended
runway centerline. The controlled activity area and a
portion of the Runway OFA are the two components of the
RPZ (see figure 2-3). The RPZ dimension for a particular
runway end is a function of the type of aircraft and ap-
proach visibility minimum associated with that runway
end. Table 2-4 provides standard dimensions for RP2Zs.
App. 88
Other than with a special application of declared distances,
the RPZ begins 200 feet (60 m) beyond the end of the area
usable for takeoff or landing. With a special application of
declared distances, see Appendix 14, separate approach
and departure RPZs are required for each runway end.
(a) The Runway OFA. Paragraph 307
contains the location, dimension, and clearing standards
for the Runway OFA.
(b) The Controlled Activity Area. The con-
trolled activity area is the portion of the RPZ beyond and
to the sides of the Runway OFA.
(2) Land Use. In addition to the criteria speci-
fied in paragraph 211, the following land use criteria apply
within the RPZ:
(a) While it is desirable to clear all objects
from the RPZ, some uses are permitted, provided they do
not attract wildlife, are outside of the Runway OFA, and
do not interfere with navigational aids. Golf courses (but
not club houses) and agricultural operations (other than
forestry or livestock farms) are expressly permitted under
this proviso. Automobile parking facilities, although
discouraged, may be permitted, provided the parking
facilities and any associated appurtenances, in addition to
meeting all of the preceding conditions, are located outside
of the object free area extension (as depicted in figure 2-3).
Fuel storage facilities should not be located in the RPZ.
(b) Land uses prohibited from the RPZ are:
residences and places of public assembly, (Churches,
schools, hospitals, office buildings, shopping centers, and
other uses with similar concentrations of persons typify
App. 89
places of public assembly.) Fuel storage facilities should
not be located in the RPZ.
b. Recommendations. Where it is determined to be
impracticable for the airport owner to acquire and plan the
land uses within the entire RPZ, the RPZ land use stan-
dards have recommendation status for that portion of the
RPZ not controlled by the airport owner.
c. FAA Studies of Objects and Activities in the
Vicinity of Airports. The FAA policy is to protect the
public investment in the national airport system. To
implement this policy, the FAA studies existing and
proposed objects and activities, both off and on public-use
airports, with respect to their effect upon the safe and
efficient use of the airports and safety of persons and
property on the ground. These objects need not be obstruc-
tions to air navigation, as defined in 14 CFR Part 77. As
the result of a study, the FAA may issue an advisory
recommendation in opposition to the presence of any off-
airport object or activity in the vicinity of a public-use
airport that conflicts with an airport planning or design
standard or recommendation.
213. to 299. RESERVED
App. 90
STATE OF CONNECTICUT
DEPARTMENT OF TRANSPORTATION
2800 BERLIN TURNPIKE, P.O. BOX 317546
NEWINGTON, CONNECTICUT 06131-7546
Phone: 860-594-2537
September 1, 1999
Mr. Timothy Mellon
P.O. Box 441
Lyme, CT 06371
Dear Mr. Mellon:
Subject: Goodspeed Airport and Seaplane Base
5010 Inspection
On August 11, 1999, I conducted the mandatory 5010
inspection of Goodspeed Airport and Seaplane Base. The
- airport’s general appearance was good. The surrounding
grass areas were mowed and the area was clean and well
kept.
However, during the inspection, a
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