Opinion
No. X07-CV01 0076812S
May 21, 2004
MEMORANDUM OF DECISION
On eight days between February 24 and March 9, 2004, the court presided over a joint trial to the court involving a case filed by plaintiffs, James Ventres, as enforcement officer for the East Haddam Inland Wetlands and Watercourses Commission ("the Commission"), and the Commission, against defendants, the Goodspeed Airport, LLC, Timothy Mellon, Timothy Evans, (collectively "the airport defendants"), the East Haddam Land Trust ("the Land Trust"), and the Nature Conservancy, which case has docket number X07-CV01-0076812. The second case was one filed by plaintiff Arthur J. Rocque, Jr., as Commissioner of the state Department of Environmental Protection (DEP), against the same defendants, except for Evans, which case is docketed as X07-CV02-0080540. In this memorandum the court will also decide the issues raised by the cross claims of the defendants filed in the wetlands commission case. Trial of the counterclaims of Mellon, Evans, and Goodspeed Airport, LLC, has been bifurcated for adjudication at a later date.
The disputes in these matters stem from the following incident. Between November 29 and December 5, 2000, at the direction of Mellon, the owner of the airport, Evans, an independent contractor, clear-cut approximately 2.5 acres of floodplain forest located on land owned by the Land Trust and land owned by the Conservancy. Evans severed all trees, bushes, and woody stemmed vegetation growing on this acreage. The remaining stumps ranged from ground level to a few feet in height. Around 340 trees were felled, as well as innumerable shrubs. Some of the trees cut by Evans were as old as 100 years and had grown seventy-two feet high.
The clear-cut land lies directly south of a tidal brook, which brook forms the boundary between airport land to the north and the Land Trust property to the south. The Conservancy owns land south of the Land Trust parcel, and to the south of that property is Chapman's Pond. A 2000-foot runway on the airport property runs generally from north to south and ends about 630 feet north of the tidal brook. The clear-cut area would be bisected by the center line of the runway if that center line were extended in a southerly direction. The Land Trust property is about 335 feet wide from the tidal brook to the Conservancy land The Conservancy property extends about 100 feet southerly until it reaches the high tide edge of Chapman's Pond.
The airport defendants never sought a permit or other approval from the Commission to clear-cut the area, which is roughly 300 feet wide and 325 feet long, nor did these defendants obtain permission from the Land Trust or the Conservancy to enter their property and cut vegetation. Additional facts will be recited where pertinent.
In X07-CV01-0076812, Ventres, on behalf of the Commission, sues the airport defendants, for clear-cutting in regulated wetlands without a permit or Commission approval to do so. Pursuant to General Statutes § 22a-44(b), the Commission seeks the imposition of civil penalties, an award of attorneys fees, expenses and costs, and injunctive relief. The Land Trust and Nature Conservancy, by way of cross claims, sue these defendants for indemnification, trespass, conversion, and the unreasonable impairment or destruction of natural resources under the Connecticut Environmental Protection Act (CEPA), and seek such compensatory damages, attorneys fees and costs, punitive damages, and injunctive relief as is provided by law, in particular General Statutes § 52-560 and CEPA. The airport and Mellon cross claim against the Land Trust and Nature Conservancy for trespass, negligence, negligent and absolute nuisance, conversion, and indemnification.
In X07-CV02-0080540, the DEP sues the airport and Mellon in two counts under CEPA, alleging a violation of statutory law governing wetlands and watercourses, and the unreasonable impairment or destruction of a forest, respectively. The DEP seeks declaratory and injunctive relief, attorneys fees, expenses, and costs, and monetary damages as provided for under CEPA.
I THE EAST HADDAM INLAND WETLANDS AND WATERCOURSES COMMISSION CLAIMS IN X07-CV01-0076812
General Statutes § 22a-44(b) states:
Any person who commits, takes part in, or assists in any violation of any provision of Sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commission and regulations promulgated by municipalities . . . pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense.
In 1974, pursuant to General Statutes §§ 22a-36 and 22a-42, the town of East Haddam designated the East Haddam Inland Wetlands and Watercourses Commission as the local agency charged with regulating inland wetlands for the town. On October 17, 1974, the commission adopted regulations which were last revised on June 1, 1995.
Section 5 of the local regulations proscribes the engaging in regulated activity in wetlands without first securing a permit from the Commission. The clear-cut area is entirely wetlands, as that term is defined by General Statutes § 22a-38(15) and § 2.1.r of the local wetlands regulations, because that land consists of poorly or very poorly drained soils and is part of the Connecticut River floodplains.
The Commission has proven, by a preponderance of the evidence, that the clear-cutting of the 2.5 acres of floodplain forest is a regulated activity within the meaning of the local regulations and state statutes. The clear-cutting which took place on this wetlands was a "regulated activity" because the local regulations define that phrase to embrace any activity within or use of a wetlands which involves the alteration of the wetlands, with certain, specific exceptions inapplicable to the circumstances of the present case.
The floodplain forest which was clear-cut comprised diverse species of hardwood trees and woody shrubs. As noted above, around 340 trees and tree sprouts were severed on Land Trust property and a few more on Conservancy land These trees acted as a flood brake, slowing the velocity of the occasional floodwaters of the Connecticut River which regularly spill into the floodplains and eventually into Chapman's Pond. The slower the flow of floodwater, the less erosion, scouring, and damage to the submerged land and water bodies is done. The taller and denser the floodplain forest, the greater the buffering capacity to slow floodwaters. Undoubtedly, the felling of all trees and woody vegetation over 2.5 acres in the midst of a floodplain corridor between the Connecticut River and Chapman's Pond altered that wetlands and the abutting floodplains and wetlands.
Under General Statutes § 22a-42a(c)(1) and § 5.1 of the local regulations, no regulated activity, including the clear-cutting of 2.5 acres of floodplain forest as was done by and for the airport defendants, can proceed without obtaining a permit from the Commission. As recounted earlier, these defendants never sought nor secured such a permit. Therefore, unless the airport defendants can interpose a special defense which removes them from this permit requirement, they are liable under § 22a-44(b) for the remedies and penalties provided therein.
II SPECIAL DEFENSES A. PREEMPTION
The first special defense asserted by the airport defendants is federal preemption. These defendants argue that because the Federal Aviation Administration (FAA) has promulgated regulations which prohibit the presence of obstructions, such as tree limbs, within the navigable airspace known as an "approach slope," and because trees growing in the area which was clear-cut regularly attain heights which protrude into that airspace, the local and state laws requiring a permit to remove these trees are preempted. The court rejects this argument.
There exists "a strong presumption against federal preemption of state or local legislation." Dowling v. Slotnik, 244 Conn. 781, 794 (1998). Only when the federal government has shown a "clear and manifest" purpose to supersede state and local authority does preemption apply. Id., 795.
Consequently, it is assumed that a federal agency had no intent to preempt the exercise of local police power unless (1) the federal law or regulation expressly directs the ouster of local authority; (2) such intent should be inferred because the federal government has legislated comprehensively so as to occupy the entire field in question, leaving no room for local regulation in the area; or (3) the local regulation under scrutiny conflicts with federal rules because it is impossible to comply with both provisions or because the local law creates an obstacle to the accomplishment or execution of federal objectives. Commission On Human Rights v. Sullivan Associates, 250 Conn. 763, 772-73 (1999).
The parameters of the imaginary surfaces which compose the air corridor known as the approach slope are set forth in Federal Aviation Regulations (FAR) Part 77, 14 C.F.R. § 77.1ff. It is these standards which the airport defendants claim preempt local regulation of the tree cutting which occurred in this case.
Part 77 sets forth criteria for determining whether objects, natural or manmade, protrude into the approach slope so as to obstruct air navigation. The text of Part 77 lacks any language which reasonably suggests that the standards contained therein for approach slope surfaces were meant to preempt state or local law regarding the objects which might intrude into the approach slope.
Next, the standards of Part 77 neither completely occupy nor exhaust the field of inland wetlands regulations as those regulations might burden or impinge upon the removal of protruding tree tops. Part 77 is bereft of discussion pertaining to wetland usage or environmental concerns generally. Those standards do not dictate how such natural obstacles should be pruned or removed or how often or what techniques ought to be employed in wetlands.
It had been held that the absence of such language in Part 77, which preemptive language is present in other FAR parts, implies that the standards of Part 77 neither prohibit the presence of such obstacles nor require the removal of any obstruction. Catchings v. Glendale, 743 P.2d 400, 404 (Ct.App.Ariz. 1987). The criteria contained in Part 77 merely guide airports in evaluating whether a given object poses a hazard to air navigation. Id.
The mere fact that federal and local law deal with the same general topic creates no inference of federal preemption. See Cox Cable Advisory Council v. DPUC, 259 Conn. 56 (2002); Dowling v. Slotnik, supra; and Commission On Human Rights v. Sullivan Associates, supra. In the present case, the federal approach slope standards and the local and state wetlands provisions regulate disparate activities and are concerned with unrelated topics. The federal approach slope guidelines and state and local wetlands regulations touch only remotely and tangentially.
These local and federal regulations cover different ground. The wetlands regulations contain neither prescriptions nor proscriptions regarding navigable airspace or the removal of objects therefrom. The local regulations do not forbid the trimming or removal of trees growing in a floodplain but simply require that a permit issue before such activity occurs. The state and local wetlands provisions neither conflict with nor render impossible the satisfaction of the standards propounded under Part 77.
Because the pertinent FAA rules fail explicitly to preempt local wetlands regulation, fail to occupy the field of wetland use near airports, and there is no irreconcilable conflict between the goals of Part 77 regarding safe approach slopes and local wetland permit requirements, no federal preemption exists to negate the airport defendants' liability in this case.
B. MUNICIPAL ESTOPPEL
The airport defendants plead a second special defense alleging that the Commission is estopped from requiring the airport to obtain a permit before removing trees in the floodplains which adjoin the airport's property as long as the Connecticut Department of Transportation ("DOT") has characterized the presence of trees growing into the approach slope surfaces as hazardous to the safe use of the airport's runway. It should be observed that the DOT has been designated as the inspecting agent of the FAA with respect to safety inspections of this airport.
These defendants contend that municipal estoppel arises from two incidents in the past. First, in July 1999, about sixteen months before the clear-cutting, Ventres told Mellon that no wetlands permit was necessary to remove seven trees growing in wetlands located on airport property to the north of the tidal brook as long as the DOT had identified those trees as interfering with airport safety. Second, Ventres was present in the fall of 1999, during discussions between the airport and representatives of the Land Trust regarding a proposal to realign the runways. The realignment proposal included the removal of several trees south of the brook which divided the two properties. The airport defendants claim that, during these negotiations, Ventres never voiced the need to obtain a permit in order to actuate the proposal.
Before invoking municipal estoppel, the airport defendants have a heavy burden of demonstrating the existence of the following elements:
(1) that Ventres, the Commission's enforcement officer, did or said something calculated or intended to induce Mellon to believe that no permit was needed before clear-cutting 2.5 acres of floodplain forest located south of the tidal brook; and
(2) that the airport defendants changed their position based on Ventres' acts or words. Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn. App. 561, 578 (2003).
Municipal estoppel may be applied only:
(1) with great caution;
(2) if the resulting wetlands violation has been unjustifiably induced by Ventres; and
(3) when special circumstances make it highly inequitable or oppressive to enforce the wetland regulations. Id.
As a general rule, estoppel is inappropriate against a public agency in the exercise of a governmental function. Ammirata v. Zoning Board of Appeals, 65 Conn. App. 606, 617 (2001). The court finds that the airport defendants have failed to prove, by a preponderance of the evidence, that Ventres' deeds or words were calculated or intended to induce Mellon to believe that the airport had municipal permission to clear-cut nearly 350 trees and sundry bushes on the Land Trust property. It strains credulity to posit that permission to cut seven trees on airport property wetlands justified a belief that Ventres was intending to confer blanket approval to denude 2.5 acres of floodplain forest at a different location on Land Trust property without a permit or that Ventres intended to induce Mellon to believe that Ventres' imprimatur had been placed upon such an undertaking.
Regarding the second incident, Ventres merely acted as a mediator to facilitate negotiations among the relevant parties, viz, the airport, the Land Trust, and the Goodspeed Opera House. He was not engaged at the time in the enforcement of Commission regulations. Also, it is highly doubtful that a municipal agent's silence can estop the agency from enforcing its regulations. Bauer v. Waste Management of Connecticut, 234 Conn. 221, 245 (1995). The rendering of assistance by a municipal officer or agent as to some aspects of a project, without more, is insufficient to create an implied authorization to complete the project nor to perform other project-related activities so as to estop the municipality from enforcing its laws. Zoning Commission v. Lescynski, 188 Conn. 724, 733 (1982).
C. UNCLEAN HANDS
The third special defense repeats the allegations regarding Ventres' participation in the negotiations in the fall of 1999 and attempts to invoke the doctrine of unclean hands. This defense fails for two reasons.
First, the same findings and reasoning which caused the court to reject the municipal estoppel claim apply to this defense. The airport defendants have failed to meet their burden of proving that Ventres acted with unclean hands in mediating negotiations regarding realignment of the runway.
Next, the doctrine of unclean hands recognizes that one seeking equitable redress must have acted equitably in the first instance. Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 334 (2002). Although the Commission's prayer for relief includes a claim for "[a]ny other remedy at law or equity as may appertain," the basis for liability is a statutory one under § 22a-44(b). Thus, only if the court were to consider ordering some equitable remedy outside of the relief legislatively provided by § 22a-44(b) would this doctrine even apply.
D. VESTED RIGHTS
The fifth special defense alleges that the issuance, in 1975, of a permit by the Commission to cut trees to the south of the runway spawned a vested right to clear-cut the 2.5 acres in perpetuity. The plaintiffs have denied that such an expansive permit ever issued.
No credible evidence was adduced at trial supporting this allegation. Therefore, the airport defendants have failed to prove this special defense.
E. PERMIT UNNECESSARY DEFENSE
In the sixth special defense these defendants assert that the airport has a vested right to cut trees for airport safety reasons, without first obtaining a permit, because such conduct was lawful when the airport was established in 1965, nearly a decade before the Commission came into being. This assertion is meritless.
Section 22a-42a(b) states, in part, that local inland wetlands regulations "shall become effective at such time as is fixed by the inland wetlands agency . . ." Section 22a-42a(c)(1) provides " [ o]n or after the effective date of the municipal regulations promulgated pursuant to section (b) of this section, no regulated activity shall be conducted upon any inland wetland or watercourse without a permit." (Emphasis added.)
In addition, the Commission regulations became effective October 17, 1974. These regulations also command that "[n]o person shall henceforth conduct a regulated activity in a regulated area of the Town of East Haddam without first obtaining a permit for such activity from the Commission." (Emphasis added.)
Neither the statute nor the local regulations include a grandfather provision exempting tree cutting in a floodplain forest simply because, before 1974, that activity did or could lawfully occur without a permit. Indeed, the Commission's regulations do contain such a provision for residential building lots for which a building permit issued which predates July 1, 1974. The conspicuous absence of a similar exemption for other regulated activity compels the conclusion that no such vested right exists.
The remaining special defense pertains to remedy and not liability and will be addressed, if necessary, later in this decision.
III CEPA CLAIMS
In X07-CV02-0080540, the DEP alleges three counts under § 22a-16, against Mellon and the airport for violations of CEPA, General Statutes § 22a-14ff. The second count was previously withdrawn. In X07-CV01-0076812, the Land Trust and Nature Conservancy have filed a CEPA cross claim against these defendants under § 22a-16. All of these CEPA claims are resolved in this section, and a recitation of additional facts is necessary to achieve this resolution.
The 2.5-acre clear-cut section of the floodplain along the Connecticut River, in proximity to Chapman's Pond, is part of a two-mile stretch of floodplain which is internationally recognized as having important environmental significance. The Chapman's Pond complex of wetlands and watercourses, including the clear-cut area, affords a rare combination of ecological factors and habitats in which a great diversity of wildlife can flourish. Upland forest, floodplain forest, marshland, mudflats, tidal streams, ponds, and a major estuarial river coexist in a relatively small neighborhood. This ecological mosaic supplies several "edge" or transitional environments which appeal to a wide variety of flora and fauna.
The floodplain forest surrounding Chapman's Pond serves as a winter haven for, at times, as many as eighty bald eagles, a threatened species. Winter roosting bald eagles need tall trees with wide tops, ready accessibility to open water despite frigid conditions, a supply of fish in that open water, and seclusion from the sights and sounds of civilization. The Chapman's Pond area is a prime winter roosting area for bald eagles in the United States. Bald eagles have roosted in some of the trees which grew in the clear-cut area.
The floodplain forest area which was clear-cut formed a visual and auditory barrier separating Chapman's Pond from the airport and villages to the north. The clear-cutting broke the continuity of the natural buffer surrounding Chapman's Pond. The activity of the airport and the businesses and residences north of the pond now penetrates through the corridor left by the felling of the vegetation and disrupts the tranquility which had previously existed. The Goodspeed Bridge is now easily seen from the pond; a sight which had been obscured for decades before the clear-cutting.
The opening of the 2.5 acres of floodplain forest has exposed that land and the surrounding land to the invasion and proliferation by nonnative plant species. Lacking indigenous parasites and predators, these invasive species exploit the opportunity offered by the removal of the forest shade, and choke out the chance for native flora to thrive there. Japanese stilt grass, an invidious foreign annual, has spread rapidly over portions of the clear-cut acreage. Tree sprouts, which would otherwise rise from the stumps of the severed trees and attain mature height are being browsed by deer at a pace which makes recovery of the forest in the area a tenuous proposition. In order to promote regrowth of the floodplain forest, abundant planting of indigenous trees and shrubs, protected by deer fencing, will be needed.
Floodplains, as the word suggests, are prone to inundation caused by the periodic or seasonal overflow of water which is normally contained by the banks of a water body. As mentioned above, the clear-cut area is subject to such flooding by the Connecticut River, and the formerly forested area, being composed of the stout, nonfrangible trunks of mature trees, acted to curb the velocity of the flowing flood water. The absence of this arboreal cushion poses the real risk that flood water from the Connecticut River will flow faster through the clear-cut area and deposit larger quantities of silt and debris into Chapman's Pond than would previously have been sustained. The ecology of Chapman's Pond would be altered should that scenario occur.
A. THE FIRST COUNT CT Page 7858
The first count of the DEP complaint asserts a violation of CEPA, under § 22a-16, for unreasonable impairment to wetlands and watercourses based on the absence of a permit as required by § 22a-42a(c)(1). The court concludes that the DEP has proven, by a preponderance of the evidence, that the actions of Mellon, on behalf of the airport, in directing the leveling of the 2.5 acres of floodplain forest, impaired the floodplain upon which the forest stood and the wetlands and watercourses nearby.The second element that the DEP must establish is that this impairment was unreasonable. The regulation of wetland activity is set forth in Chapter 440 of Title 22a of the General Statutes. When a specific, environmental legislative scheme is "designed to govern the particular conduct that is the target of the action, that scheme gives substantive content to the meaning of the word `unreasonable' as used in the context of an independent action under CEPA." Waterbury v. Washington, 260 Conn. 506, 557 (2002). Compliance or noncompliance with that regulatory scheme will determine whether the activity in question is unreasonable. Id.
Paragraph 19 of the first count of the DEP complaint unequivocally states that the airport defendants unreasonably impaired wetlands "[b]y, clear cutting trees . . . without a permit issued under the Inland Wetlands and Watercourses Act." Paragraph 18 specifically cites a violation of § 22a-42a(c)(1) as the basis for this CEPA count. Section 22a-42a(c)(1) is, as mentioned above, the statutory section which prohibits performing regulated acts in a wetlands without a permit. However, the failure to obtain a license or permit to engage in conduct which impinges on the environment cannot form the basis for a CEPA claim under § 22a-16. Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 138-45 (2003). Therefore, no valid CEPA claim is alleged in the first count, and no relief can be granted under that count.
B. THE THIRD COUNT
The third count of the DEP complaint and the sixth count of the cross claim of the Land Trust and the Nature Conservancy allege unreasonable impairment or destruction of the floodplain forest, qua forest, by the clear-cutting. Based on the factual findings recited above, the court concludes that these parties have proven, by a preponderance of the evidence, that Mellon and the airport impaired and/or destroyed 2.5 acres of environmentally significant floodplain forest.
The court also finds that this clear-cutting was unreasonable under all of the circumstances. In the past, only trimming and selective cutting of trees was employed to remove such obstacles to air navigation which the growing trees created. There existed no sound reason to abandon that conservative practice. To sever every tree and woody-stemmed bush, regardless of height and species, destroyed important floodplain forest excessively and unnecessarily. The airport could have complied with Part 77 of the FAA regulations regarding approach slope without the total decimation of woody vegetation between the tidal brook and Chapman's Pond.
Therefore, unless some special defense absolves them from liability, Mellon and the airport are legally responsible under the CEPA claims of both the DEP and the cross claimants.
C. SPECIAL DEFENSES TO CEPA CLAIMS
The airport and Mellon interpose several special defenses to the CEPA claims. The first, fifth, sixth, and seventh special defenses raise federal preemption, estoppel, and vested rights claims similar to the special defenses asserted in the case brought by Ventres and rejected by the court in sections II.A, II.C, and II.D of this memorandum. For the same reasons the court rejects these special defenses in this case also.
1.
The second special defense alleges that the DEP can maintain no cause of action under CEPA for the clear-cutting of floodplain forest because the Inland Wetlands and Watercourses Act (IWWA) is the sole source of remedy for any impairment of wetlands. The airport defendants point to the fact that the IWWA was enacted after CEPA to support this claim.
Although specialized environmental legislation may create a scheme which delimits unreasonable impairment with respect to CEPA actions under § 22a-16, the CEPA action is independent of the remedies afforded under that legislative scheme even though the regulated activity falls within that scheme. Waterbury v. Washington, supra, 528-29. Consequently, even though the IWWA may provide recourse under its provision for any unauthorized impairment of wetlands, the DEP and the cross claimants are free to pursue the remedies available under CEPA in an independent action for unreasonable impairment of the floodplain forest.
2.
The third special defense posits that the DEP lacks authority to bring a CEPA claim which alleges unreasonable impairment of a floodplain forest. The purported basis for this defense is that the regulation of floodplain activity has been delegated by the state to the East Haddam Inland Wetlands and Watercourses Commission by virtue of § 22a-42.
Section 22a-42(a) declares that it is "the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities . . ." Section 22a-42(c) mandates that each municipality establish an agency to carry out the dictates of the IWWA.
However, § 22a-16 explicitly confers concurrent authority on any "agency of the state or of a political subdivision thereof" to initiate suit for unreasonable impairment or destruction of "air, water and other natural resources." The airport defendants' argument flies directly in the face of the plain language of § 22a-16, and no other statutory provision nor case law militates against such concurrent authority to sue under CEPA. Therefore, the court finds this special defense meritless.
3.
The fourth special defense is that the felling of trees falls outside the purview of the IWWA, and, therefore, no claim under CEPA is viable. The airport defendants rely on the case of Avalon Bay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150 (2003), as support for this proposition.
Reliance on Avalon Bay Communities Inc., supra, is misplaced. First, that case was not a CEPA action, but instead it was an appeal from the denial of a local wetlands permit. Second, and more significantly, that case involved the local wetlands agency's attempt to regulate conduct performed outside of wetlands because of the impact of that conduct on the wetlands inhabitants. Id., 152 and 155. The applicant, in that case, had proposed no activity within the wetland, therefore no permit was required to engage in activity elsewhere. Id.
In contrast, the CEPA action in the present litigation is based on the impact of clear-cutting of all woody vegetation growing in a section of wetlands. The holding of Avalon Bay Communities, Inc., supra, is inapposite.
Having determined that the DEP and the cross claimants satisfied their burden of proof under § 22a-16 and that the defendants have failed to demonstrate any valid special defense to this cause of action, the court holds that the clear-cutting at the behest of those defendants constituted a CEPA violation.
IV REMAINING CROSS CLAIMS OF THE LAND TRUST AND NATURE CONSERVANCY
The Land Trust and Nature Conservancy also plead that the entry onto their land and clear-cutting of the trees and bushes growing there, ordered by Mellon on behalf of the airport and without their permission, amounted to trespass to land and conversion.
A. TRESPASS
In order for the cross claimants to prevail on their cross claim of trespass to land, they must prove, by a preponderance of the evidence, that they owned and possessed the 2.5 acres entered into and clear-cut by Evans at the request of Mellon and the airport. An action for trespass is possessory, and one in which title to land is usually only incidentally material. McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 749 (1993). However, where injunctive relief is sought, as in this case, ownership becomes an essential element of the cross claim. Id. The cross claimants can establish constructive possession by proving both title and the absence of exclusive possession in another. Id.
In the present case, the parties have stipulated that the Land Trust and Nature Conservancy have title and own the 2.5 acres which are the subject of this suit, and the court finds that no other person or entity held exclusive possession besides these cross claimants. Also, the court has found, as noted above, that Evans entered upon and clear-cut the acreage in question at the request of and on behalf of Mellon and the airport. Thus, the remaining issue to be resolved is whether Evans' entry and clear-cutting was wrongful.
In this regard, it is also undisputed that none of the airport defendants had permission from the cross claimants to enter this area or cut any vegetation and that the entry and cutting was done intentionally. Therefore, unless Mellon or the airport had the right, without permission from the cross claimants, to engage in that conduct on the land of the cross claimants, the actions of Evans between November 29 and December 5, 2000, on behalf of Mellon and the airport comprised a trespass to land for which Mellon and the airport are liable.
B. PRESCRIPTIVE EASEMENT
Mellon and the airport claim to have acquired such a right by way of a prescriptive easement.
General Statutes § 47-37 provides that a prescriptive easement may be acquired in land of another if the adverse use of that land "has been continued uninterrupted for fifteen years." The airport is required to prove that it and/or its predecessors in the chain of title of the airport land, as the dominant estate, entered and had cleared trees and brush on the servient estate, the 2.5 acres, under scrutiny, openly, visibly, continuously, and uninterruptedly for fifteen years and under a claim of right. Roman v. Johnson, 48 Conn. App. 498, 501 (1998).
"Use under a claim of right simply means without recognition of the rights of the owner of the servient tenement." Id. Unlike adverse possession, which requires proof of essential facts by clear and convincing evidence, a prescriptive easement may be proven by a preponderance of the evidence. Simonds v. Shaw, 44 Conn. App. 683, 687 (1997). The burden of proof is on the party claiming the benefit of the prescriptive easement. Reynolds v. Soffer, 190 Conn. 184, 188 (1983). Also, in Connecticut there is no presumption of permissive use that the party urging the prescriptive easement must overcome. Id.
With these principles in mind, the court makes the following additional findings of fact and rulings of law.
On December 3, 1970, the then owners of the properties to the north and south of the tidal brook, including the 2.5 acres in question, entered into a boundary agreement whereby these previous owners of the airport property quitclaimed to the owner of the land containing the 2.5 acres that are the center of this dispute any "right, title, interest, claim and demand whatsoever" as to the land south of the tidal brook, which property includes the acreage upon which the prescriptive easement is claimed by the airport. As a result of that agreement, if the airport has prescriptive rights to the land south of the tidal brook, those rights must have begun to be acquired only after the date of that boundary agreement, viz. December 3, 1970. This is so because the agreement relinquished any interest, rights, or claims "whatsoever" which may have existed previously regarding that property.
Later, on June 7, 1978, the president of the airport, in a letter to the CT DOT Bureau of Aeronautics, acknowledged that the airport had no authority or right to remove or trim trees located south of the tidal brook without first obtaining the permission of the owner of that land The court finds that, as of June 7, 1978, no entry upon and cutting of trees or brush was conducted, as of right, by the airport on the 2.5 acres in question.
Additionally, General Statutes § 47-27(b) states that "[n]o length of possession, use or occupancy of land belonging to a nonprofit land-holding organization shall create or continue any right in or to such land" (Emphasis added.) A "nonprofit land-holding organization" is defined by that section to include any nonprofit, nonstock corporation having as a principal purpose "the conservation and preservation of land" Both the Land Trust and Nature Conservancy come within this definition and have recourse to § 47-27(b) to thwart the acquisition of prescriptive easements over their land Section 47-27 applies to prescriptive easements as well as to adverse possession claims. Dalton Enterprises v. Boston and Maine Corp., 48 Conn. App. 251, 253 (1998).
Left unresolved by our appellate level case law is the breadth of the phrase "create or continue any right in or to such land" (emphasis added). One might inquire whether that phase means that a prescriptive easement previously acquired is lost if the servient estate is purchased by an entity qualifying for the benefit of § 47-27. Fortunately, this court can address and decide the issues of this case without answering that inquiry.
In Nigro v. Boston Maine Corp., Superior Court, Waterbury J.D., d.n. 106723 (July 21, 1993), Pittman, J. ( 9 Conn. L. Rptr. 491), the trial court held that the identical language of § 47-27(a), which affords similar protection to railroad property, cannot divest a prescriptive easement which was acquired before the effective date of that section of the statute, which was enacted in 1905. The court finds Judge Pittman's reasoning persuasive and holds that any prescriptive easement burdening the land in question acquired before the effective date of § 47-27(b) remains extant.
The effective date of § 47-27(b), as announced in P.A. 99-64, was May 27, 1999. The court concludes that the passage of P.A. 99-64, now codified as § 47-27(b), prohibits the acquisition of prescriptive easements on the cross claimant's land after May 27, 1999, but fails to extinguish any prescriptive rights fully gained before that date. Therefore, if the airport has any prescriptive easement to enter upon and cut vegetation south of the tidal brook on land owned and possessed by the cross claimants, that easement must have been acquired, if at all, by the passage of the requisite fifteen years entirely during the interval between June 7, 1978, and May 27, 1999.
In their post-trial brief, the Land Trust and Nature Conservancy contend that the execution of the boundary agreement forever disabled the owners of the airport property from acquiring any prescriptive rights regarding property south of the tidal brook. These cross claimants argue that the holding of Crandall v. Gould, 244 Conn. 583 (1998), mandates this conclusion. The court disagrees.
In Crandall, supra, a permanent injunction had issued in 1960 enjoining the claimants from using a private right of way. The claimants attempted to gain use of this easement, prescriptively, by repeated violations of the permanent injunction. Our Supreme Court rebuffed such an attempt and held that one who violates a court order cannot come to court expecting to obtain relief based on that violation. Id., 592. The Court refused to condone such contempt of court. Id., 593.
The facts of the present case are patently dissimilar. The airport defendants have violated no court order. While entering the cross claimants' land may contravene the rights to exclusive possession conveyed by the boundary agreement, every prescriptive easement is similarly acquired. If the execution of a deed foreclosed the possibility of a later-acquired prescriptive easement, it is difficult to envision when such an easement could ever be obtained.
The court finds that the owner of the airport property did acquire, prescriptively, some rights to enter and cut trees on the cross claimant's land south of the tidal brook during this interval. Sometime in 1983, Arthur D'Onofrio purchased the airport. Periodically throughout his ownership, which ended when he sold the property to Goodspeed Airport, LLC, in July 1999, D'Onofrio had his employees or agents trim or cut down some trees growing in the 2.5-acre section in question. He never sought permission from the landowners of that property or anyone else to engage in this activity.
The timing of the trimming or cutting was precipitated either by an inspection report authorized by the DOT, which had detected trees obstructing safe air navigation or, more commonly, by pilots complaining about these natural obstacles to take off and landing corridors. The nature and extent of the cutting and trimming by D'Onofrio varied from the mere pruning of the tops of taller tress to the severance at ground level of certain trees. Sometimes only a few trees were affected, and, at other times, several trees were felled. As mentioned above, such activity occurred only as regularly as the growth of the trees dictated through official inspection or pilot complaint.
The cutting was always done openly, in daylight, and in a conspicuous manner involving the use of chainsaws. The effect of this periodic trimming and thinning on the maximum height of the tree canopy in the 2.5-acre section was apparent as can be seen in photographs of the area during D'Onofrio's ownership. The floodplain forest to the east and west of the subject area was perceptibly higher than the 2.5-acre section. This cutting was performed as regularly, continuously, and uninterruptedly as one would reasonably expect given the fact that the need for such cutting varied depending on tree regrowth rates. The circumstance that the actual entry and cutting was intermittent causes no gap in the running of the fifteen-year statutory period. Simonds v. Shaw, supra. The nature of the use demands that such be the case.
The court concludes that the dominant estate, the airport property, acquired a prescriptive easement to go onto the 2.5-acre area, on occasion, and trim or cut trees which interfered with the safety of air traffic taking off or landing on the runway. This adverse activity was done openly and continuously from 1983 to July 1999 and without recognition of the rights or interests of the possessor of this land.
C.
The court next determines whether the extent of that prescriptive was exceeded by or compatible with the clear-cutting which transpired between November 29 and December 5, 2000.
A prescriptive easement is more limited than an easement obtained by grant. Gioielli v. Mallard Cove Condominium Ass'n, Inc., 37 Conn. App. 822, 831 (1995). The usage which creates the prescriptive easement "limits and qualifies it." Id. Prescriptive easements must impose as little burden on the servient estate as the purposes of the easement will reasonably permit. Id. One cannot expand the nature and extent of such an easement so as to increase unreasonably the imposition on the subordinate real estate.
If it is reasonable to assume that the increase in usage would have provoked the owner of the servient property to take action to interrupt the usage had the intensification occurred during the prescriptive period, the expanded usage exceeds the prescriptive easement acquired. McCullough v. Waterfront Park Ass'n, Inc., supra, 756. An increase in frequency of use can constitute such a provocation. Id., 756-57.
In the present case, it is abundantly obvious that clear-cutting every tree and woody-stemmed bush in the 2.5-acre site is a usage so dramatically different in extent than the felling of several trees every few years which occurred during the prescriptive period from 1983 to 1998, that one would reasonably expect the Land Trust and Nature Conservancy or any owner of the 2.5 acres to react, as well they did, to prevent such usage from happening again. The clear-cutting of the 2.5 acres was unreasonable conduct far beyond the right to cut the occasional protruding limb or tree, as had occurred during the prescriptive period. It was unforeseeable to the owners of the servient property that the periodic trimming and severing of a few or even several trees at a time, during the statutory fifteen years, would intensify to the level of stripping 2.5 acres of all woody vegetation. Prescriptive rights confer no privilege to engage in unforeseeable acts which go beyond the activity conducted during the prescriptive years. Gioielli v. Mallard Cove Condominium Assn, Inc., supra, 832-33. Therefore, the airport defendants are liable for trespass to land for the clear-cutting activity described above.
D. CONVERSION
The Land Trust and Nature Conservancy also allege that the clear-cutting constituted a conversion. The tort of conversion only applies to the wrongful appropriation of personal property. Hartlin v. Cody, 144 Conn. 499, 508 (1957). Real property includes land and the plants growing on that land McKelvey v. Creevey, 72 Conn. 464, 467 (1900). While the severing of plants may be a trespass to land, as found in Section IV.C of this memorandum, it fails to embrace conversion, and the court decides this count of the cross-complaint in favor of the airport defendants.
E. CUTPA
In their fifth cross claim, the Land Trust and Nature Conservancy allege a CUTPA violation. These parties have failed to brief this claim, and it is considered abandoned.
V. CROSS CLAIMS OF THE AIRPORT DEFENDANTS
In X07-CV01-0076812, the airport and Mellon have filed cross claims against the Land Trust and Nature Conservancy. These cross claims sound in trespass, conversion, negligence, negligent nuisance, absolute nuisance, and indemnification. The essence of these claims is that the Land Trust and Nature Conservancy have allowed trees located on their land to grow into the approach slope above their property and refused to provide "unqualified access" to the airport to cut these trees.
Although the court has found that the airport has a limited prescriptive easement to enter the property of the Land Trust and Nature Conservancy and cut certain trees, this easement imposes no burden upon the owners of the servient estate to do the cutting for the airport. The Land Trust and Nature Conservancy have merely allowed their property to remain in a natural state. It would serve no useful purpose to go beyond stating that these cross claims are devoid of factual support and legal merit.
VI. REMEDIES A.
As explicated in Section I of this memorandum, in X07-CV01-0076812, the Commission has established entitlement to the remedies afforded by § 22a-44(b). That section allows the court to assess civil penalties of up to $1000 per offense. Each day of a continuing offense is defined under § 22a-44(b) to be a separate offense. That provision also empowers the court to enjoin a continuing violation and order that the violation be corrected or removed. Additional facts are recited to address this issue.
On January 2, 2001, after learning of the clear-cutting, Ventres, by the power granted to him under § 22a-44(a), issued a cease and desist order which prohibited the airport defendants from engaging in any further regulated activity at the site. The order restated the Commission regulations definition of regulated activity which embraces any operation with or use of a wetland involving the removal or depositing of material in or alteration of the site.
In accordance with § 22a-44(a), the Commission scheduled a hearing, within ten days of issuance of the order, regarding whether the cease and desist order ought to remain in effect. However, because a sufficient number of Commission members or alternates recused themselves, no quorum was available on the date of the hearing. The hearing was never rescheduled. The Commission has taken no action with respect to the cease and desist order.
Section 22a-44(a) obligates the Commission to hear the facts and, within ten days of the completion of the hearing, notify the subject of the order that the original order remains in effect, that a revised order is in effect, or that the order has been withdrawn. That section states further that the "original order shall be effective upon issuance and shall remain in effect until the agency affirms, revises or withdraws the order."
The court holds that the original cease and desist order issued by Ventres in January 2001 remains in effect because that order was never acted upon by the Commission. That order prevents the airport defendants from implementing any corrective or remedial plan because such action would necessarily involve the removal and deposition of material at the site and would alter wetlands, albeit for environmentally beneficial purpose. Under these circumstances, the court cannot view the inaction of the airport defendants, after the date of the cease and desist order, as a continuing violation for purposes of assessing a civil penalty.
The court assesses against the airport defendants, jointly and severally, a civil penalty, under § 22a-44(b), of $500 per day for the thirty-five days from November 29, 2000 to January 2, 2001, the date the cease and desist order issued. The total civil penalty, therefore, equals $17,500, which is ordered to be paid to the DEP, as required by that subsection, within thirty days of the filing of this memorandum. The court also enjoins the Goodspeed Airport, LLC, and Timothy Mellon from engaging in any regulated activity on the land south of the tidal brook without obtaining a permit or approval from the Commission beforehand This applies to each instance of activity unless the Commission issues a blanket permit.
Because the court has not assessed penalties after the date the cease and desist order issued, it is not necessary to address the fourth special defense asserting that the plaintiffs failed to mitigate their damages.
The court will address the issues regarding an award of attorneys fees after a hearing at a later date.
The court declines to order any corrective or remedial action for two reasons. First, the land upon which such action would occur is owned by others. Second, the court will be issuing orders under the CEPA claims bearing on this issue.
B. CT Page 7870
As determined in Section III, the DEP and the Land Trust and Nature Conservancy have proven a CEPA violation under § 22a-16. General Statutes § 22a-16a provides that "in lieu of any other penalties, damages or costs, or in addition to a reduced penalty, damages or costs awarded" the court "may order the defendant . . . (3) to make financial contributions to an academic or government-funded research project related to environmental protection or conservation of natural resources . . ."
The court exercises the prerogative afforded by § 22a-16a(3) and, in lieu of other penalties, damages, or costs, orders the defendants to make a financial contribution of $50,000 to an academic or government-funded research project related to environmental protection or conservation of natural resources, which recipient will be identified by the DEP. The payment will be made within six months of the date the DEP notifies the court and the parties of the entity receiving the contribution.
The court chose this option rather than ordering the adoption of a particular restoration or remediation plan for the following reasons. The violators are not the landowners, and the history of a lack of cooperation among the parties makes it difficult to reach any consensus regarding the best method to accomplish the goals of restoration and/or remediation. Indeed, no party proposes a replication of the conditions which existed before the clear-cutting occurred. That situation results because invasive species, such as ailanthus trees, had already established themselves at this site for many years, and it is highly desirable ecologically to eradicate such invaders and replace them with native species. Also, any plan may involve replanting, the use of deer fencing, the application of herbicides against foreign species, etc. which actions are regulated activity requiring approval of the Commission after a hearing. The financial contribution solution appears to the court to be the most practical, reasonable, and balanced remedy to apply under all the circumstances of this case. It is expected that the DEP will identify a recipient connected to the Chapman's Pond preserve, if possible.
Again, the issues of an amount of attorneys fees and expenses will be addressed after a hearing at a later date.
C.
Next, the court determines the appropriate damages arising from the trespass cross claim of the Land Trust and Nature Conservancy. The cross claimants submitted no evidence as to the value of the severed trees as cut wood nor as to any diminution of the value of the land proximately caused by the clear-cutting. Instead, the cross claimants, at trial, urged the court to award treble damages under General Statutes § 52-560 based on the replacement value of the trees.
The cross claimants concede that their claim for damages is controlled by the holding in Stanley v. Lincoln, 75 Conn. App. 781 (2003). That case reaffirmed the long-standing interpretation that § 52-560 embodies the common-law measure of damages for the cutting down of trees on another's land Id., 785-86. Damages recoverable for the unlawful felling of trees, under § 52-560, are either the value of the trees as cut wood, such as for lumber or firewood, or the diminishment in value of the property which resulted from the cutting. Id. Replacement cost is an improper measure of damage. Id., 789. Remedies, other than that provided under § 52-560, for the unauthorized severing of trees will not be implied. Id., 790.
Essentially, the cross claimants want this court to abrogate the measure of damages principles recently reiterated in Stanley v. Lincoln, supra, because they wish to make "new law." Any decision to abandon recent precedent is the function of an appellate tribunal and not that of the trial court.
In the absence of any evidence regarding the proper measure of damages, the cross claimants are entitled to recover only nominal damages for the "mere unlawful entry upon land" Id., 785. Accordingly, the court awards nominal damages of one dollar on the trespass cross claim.
The court does, however, enjoin the Goodspeed Airport, LLC, and Timothy Mellon and their agents or employees from entering the cross claimant's land, without the owner's consent, except as is consistent with the prescriptive easement usage which the court has found to exist in Sections IV.B and IV.C of this memorandum.
Sferrazza, J.