by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

NUISANCE; PUBLIC NUISANCE; TREES: Trees growing normally next to a County airport do not constitute a public nuisance even though their increased height over the years requires a higher, steeper approach to the airport runway than usual. County of Westchester v. Town of Greenwich, Connecticut, 76 F.3d 42 (2d Cir. 1996).

Earlier cases had determined that the County had acquired no prescriptive avigation and clearance easements to the airspace above the trees. The County had never obtained formal air rights in that airspace and was unable to do so, except by purchase, because it did not have the power of condemnation. (The airport is in New York, but the trees are in Connecticut.)

Objection to the height of the trees was therefore based on an allegation of public nuisance. To succeed, there must be some offensive or obstructive condition which interferes with a right common to the general public. In addition, there must be a showing that (i) the condition complained of has a natural tendency to create danger and inflict injury upon persons or property, (ii) the danger is a continuing one, (iii) the use of the land is unreasonable or unlawful, and (iv) the existence of the nuisance is the proximate cause of the injuries and damages. Failure to establish either a right common to the public in the airspace or any one of the four specified elements is fatal to the claim.

The claim failed on element (iii): use of the land is unreasonable or unlawful. Use of the airspace over an owner's land for the growing of trees is reasonable and lawful. It refused to apply Connecticut cases that had found nuisances where landowners abutting public highways had permitted growth of trees or plantings in such a way as to hinder visibility for drivers on the road. It indicated that, unlike the roadway situation, the airport owner was in a situation to anticipate the clearance needs of the airport in advance of construction and to arrange with neighbors to acquire restrictions on impeding that path.

The Court also suggested that a contrary holding might constitute a taking of property owners rights without compensation.

Comment: Should the "reasonableness" question in this case be any different because we have a public nuisance claim rather than a private nuisance claim? The court doesn't seem to think so. It analogizes to private nuisance hypothetical situations.

Further, although the court indicates that the question is whether "the use of the land is `unreasonable' it spends quite a lot of time comparing the relative situations of the airport and the tree owners. This approach is more consistent with typical nuisance analysis, which does not look strictly to whether a particular use is "reasonable" in the abstract, but rather whether the use is reasonable in comparison to the impact on the neighboring property.

Having set itself to compare the uses, however, the court here does focus rather intently on the fact that the growing of trees is an "ordinary" activity, and therefore should be limited to accomodate neighboring uses only, at best, under extraordinary circumstances. It refuses to take into account the relatively severe impact on the public interest by cutting back on airport use vs. the possible minimal impact on the neighbors of topping their trees.

Comment 2: The case is consistent with other nuisance and takings cases that tend to be far less tolerant of airport uses than they are of other public transportation uses, such as highways and railroads. Perhaps the court has put its finger on the reason for these differences when it stresses the fact that airport planners ought to be able to arrange for clearance to permit their activities in advance.

Unfortunately, this rationale does not take into account what happens when technology, population density, or other factors place new demands on the airport to accomodate airplane traffic that requires different glide path zones than were originally anticipated.

Despite the fact that decisions like this one often result in neighbors being able to use their protected land interests to collect significant sums due to their relationship to nearby airports, and despite the fact that the presence of the airports in most cases likely will increase the value of the landowners' land over time, the balance struck by the courts arguably is a better one than the conclusion that airport planners can run roughshod over the property expectations of the airport neighbors.

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