Opinion
No. X01 UWY-CV-01-4002704-S
December 20, 2007
MEMORANDUM OF DECISION
I BACKSTORY
The plaintiffs, Peter R. and Joy A. Giuliano, have brought this action against the state of Connecticut Department of Transportation (state or ConnDOT), alleging that the flight pattern for aircraft at Bradley International Airport (Bradley) in the town of Windsor Locks, Connecticut, was modified in October 2000, in such a way that aircraft departing runway 24 now pass over the plaintiffs' property such that the frequency of the overflights and noise generated by the aircraft have interfered with the plaintiffs' use, possession and enjoyment of their property so as to constitute a "taking" without just compensation in violation of the fifth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 11 (count one — inverse condemnation); and that the state violated provisions of the Connecticut Environmental Policy Act, General Statutes § 22a-1 et seq. (CEPA) (count two — violations of the Connecticut Environmental Policy Act). The matter was heard by the court on April 4 and 5, 2007, and May 1, 2007. After post-trial briefs and replies were filed, the court requested comment on specific questions, and those responses were received on October 19, 2007.
The operative complaint is the second amended complaint dated July 24, 2006.
II FINDINGS OF FACT
The plaintiffs are citizens and residents of the state of Connecticut who presently reside at 144 South Main Street, East Granby, Connecticut 06026. Parties' joint written stipulations of uncontested fact, #1 (hereinafter stipulations).
The plaintiffs are the owners of record of immediately adjacent property located at 136 South Main Street, East Granby, Connecticut, which property is also the subject of the "Takings" claim recited in count one of the plaintiffs' second amended complaint. Stipulations, #2.
The plaintiffs' foregoing properties are located within a "noise sensitive area" of air traffic from Bradley. Stipulations, #3.
"Noise sensitive area" is defined by regulations of the Federal Aviation Administration (FAA) as any area experiencing air traffic at less than 3,000 feet above ground level (AGL). Stipulations, #4.
ConnDOT is an executive agency of the state of Connecticut with its principal office located at 2800 Berlin Turnpike, Newington, Connecticut 06131-7546. Stipulations, #5.
ConnDOT is the sole owner and operator of Bradley, as provided by chapter 242 of the General Statutes, § 13b-39 et seq., and chapter 266 of the General Statutes, which give ConnDOT jurisdiction over and responsibility for the regulation of aeronautics in the state of Connecticut generally, and chapter 266a of the General Statutes, which extends those powers and duties particularly to Bradley. Stipulations, #6.
Bradley operates under a Part 139 Airport Operation Certificate, which is a general classification of airports, which allows for air carrier, or commercial passenger traffic operations. Testimony of Barry Pallanek, Trial Transcript, April 5, 2007, p. 27.
Runway 24 is the longest and busiest of four runways located at Bradley and is the "primary runway" for departures, with a generally southwesterly trajectory from the airport. Stipulations, #7.
In 1997, the state began receiving increased noise complaints from residents of the town of Simsbury. The state had done nothing to account for the increase in flights over Simsbury. The state inquired of the FAA if it had done anything to result in the increase in flights.
The state learned that in July 1997, the FAA had made some changes out of Boston Central for aircraft overflying the Bradley area above 3,000 feet, which the FAA did not expect to affect anything occurring at Bradley. As a result of the changes out of Boston Central, changes to the departure procedures for runway 24 at Bradley occurred, resulting in the increase in noise complaints from residents of Simsbury, Connecticut. This change was implemented unilaterally by the FAA without notice to ConnDOT and was anticipated to have no effect on airspace below 3,000 feet AGL.
The state requested that the FAA reassess the situation to see what effect the changes out of Boston Central were having at Bradley. The FAA indicated to the state that the FAA could look at the change but because the departure change would occur below 3,000 feet in a noise sensitive area, the FAA would have to do an environmental assessment.
At all times relevant to this matter, Robert Juliano was the bureau chief of the bureau of aviation and ports at ConnDOT.
On or about May 13, 1998, and following, ConnDOT notified the FAA of ConnDOT's intention to address the "noise issue" at Bradley with a two-part approach: the conduct of the so-called "Mini-Study" to assess the feasibility of making adjustments to the departure patterns of aircraft leaving Bradley from runway 24, and a more extensive 14 C.F.R. Part 150 Airport Noise Compatibility Study (Part 150 Study) that would address the preparation of noise exposure maps and a land use noise compatibility program for all incoming and outgoing aircraft at Bradley.
Although the FAA advised the state to consider conducting the Part 150 Study, rather than a smaller study of just runway 24 departures, Juliano opted for the smaller scale study of runway 24. Juliano did so because the Part 150 Study would have taken several years to complete and he did not feel that it was appropriate for those affected by the change implemented by the FAA in 1997 to have to wait for a Part 150 Study to be completed.
FAA Order 1050.1D, Policies and Procedures for Considering Environmental Impacts, published December 5, 1986, by the United States Department of Transportation, as amended (Order 1050.1D), is the guidance document that directs how the FAA is to comply with the National Environmental Policy Act (NEPA) in its review and documentation of certain categories of environmental impacts. Stipulations, #9.
Appendix 3 to Order 1050.1D requires the preparation of an environmental assessment (EA) for new or revised air traffic control procedures that routinely route air traffic over noise sensitive areas. Stipulations, #10.
Under NEPA and Order 1050.1D, the FAA's process of determining whether to modify the departure procedures for runway 24 implicated an internal FAA review of the EA. Stipulations, #11.
This FAA review could have either: (a) made a finding of no significant impact (FONSI), in which case the FAA could lawfully proceed with the proposed action without further environmental review; or (b) determined that significant impact was sufficiently likely to trigger the requirement for a more extensive environmental impact statement (EIS). Stipulations, #12.
Depending on its workload, the FAA typically completes the type of environmental assessment required for the proposed change of runway departure procedures internally. However, in this case, the FAA advised ConnDOT that the process would be expedited by the retention by ConnDOT of third-party consultants. Stipulations, #13.
ConnDOT entered into an agreement dated July 28, 1997, as supplemented on May 14, 1998, with HNTB Corporation (HNTB) as the prime contractor for a broad scope of renovations and expansions at Bradley. Stipulations, #14.
HNTB subcontracted with Harris Miller Miller Hanson, Inc. (HMMH) by an agreement effective August 7, 1998, to prepare a certain Environmental Assessment for Modification of Departure Procedures for Runway 24 at Bradley International Airport. This EA was dated July 2000, and was approved for circulation in September 2000. Stipulations, #15.
The EA was alternately referred to by ConnDOT and the FAA as the "Mini Noise Study" and anticipated the completion of the more comprehensive Part 150 Study. Stipulations, #16.
Prior to the preparation of the EA, a scope of services meeting was held on May 18, 1998. In attendance at the meeting, among others, was Edgar Hurle. Hurle was the transportation planning director in the office of intermodal and environmental planning for ConnDOT, who also was referred to as the director of environmental planning, with the two titles being used interchangeably. As such, he had direction over transportation planning and environmental and project programming for ConnDOT. The purpose of the May 18 meeting was to discuss the scope of the environmental assessment.
It was Hurle's determination at that May 18 meeting that there were no state EA requirements for the departure changes, and in the alternative, if there were state EA requirements, the federal requirements would satisfy any state requirements. His determination was based on two factors. First, the runway departure procedures were not covered by ConnDOT's environmental classification document. Second, runway departures are entirely under the control of the FAA, so the change would be solely a federal action, not a state action. Hurle believed that the ultimate authority for taking an action such as the departure change was with the FAA. Hurle also met with Jeffrey Smith, planning specialist with the state of Connecticut office of policy and management (OPM). Smith managed the CEPA process, legislation that insures public notice and that information is disseminated regarding environmental impacts of state projects. In addition to managing the process, OPM's role also involves signing off on whether the CEPA process was adequately followed. Hurle made the decision that the requirements of §§ 22a-1 though 22a-1h, inclusive, and its implementing regulations, sections 22a-1a-1 through 22a-1a-12 of the Regulations of Connecticut State Agencies, did not apply to aircraft departure procedure changes or, if they did, they would be satisfied by compliance with the federal NEPA requirements.
Smith and Hurle discussed whether or not CEPA would be applicable to the change in runway 24 departure procedures. It was Smith's determination that it was not necessary to undertake the CEPA process since ConnDOT would not be making the decision as to whether or not to undertake the action.
Once the aircraft have moved onto the taxiway, the state has no control over them as the aircraft have entered the national airspace. When aircraft depart Bradley, the Air Traffic Control Tower (ATCT) controls the flight paths the aircraft take. The state has no control over the aircraft or the ATCT staff. When the state applies for airport improvement grants for Bradley from the FAA, the state agrees to operate in accordance with certain conditions set forth in grant assurances, including that the airport will be open to commercial or general aviation aircraft. As part of the grant assurances the state has entered into with the FAA, the state cannot restrict airline use of the airport. It must allow airlines which wish to do business at Bradley the opportunity to do so. As part of the grant assurances the state has entered into with the FAA, Bradley must be open twenty-four hours per day. It cannot close the airport or individual runways without FAA permission except on a limited basis to repair or remove dangerous runway conditions, to place the proper markings on the runways or taxiways, or to remove snow.
Section 22a-1a-4 of the Regulations of Connecticut State Agencies requires state agencies to prepare an environmental classification document for the purpose of identifying categories of activities that may necessitate the preparation of environmental assessments and the corresponding requirements of either a FONSI or the finding that the more extensive preparation of an environmental impact evaluation is needed. The environmental classification document is required to include a list of typical federal/state actions for which environmental impact statements are prepared pursuant to the National Environmental Policy Act, and for which the agency is the cognizant or sponsoring agency. Regs., Conn. State Agencies § 22a-1a-4(b)(3). ConnDOT's environmental classification document identifies "[a]ny . . . action which may significantly affect the environment in an adverse manner" as within the category of "[t]ypical actions whose degree of impact is indeterminate but which could have significant environmental impacts," the proposal of which necessitates the preparation of an environmental assessment, except as exempted under category III as a "joint federal/state action for which environmental impact documents are prepared pursuant to the National Environmental Policy Act . . ."
General Statutes § 22a-1f(a) more specifically allows state agencies to adopt environmental statements previously prepared by federal agencies, provided that "all such statements shall be considered and reviewed as if they were prepared under sections 22a-1a to 22a-1f, inclusive."
For purposes of preparing the EA, five alternatives were considered for the proposed modification to aircraft departure procedures for runway 24, all of which were designed to require jet aircraft heading to the west and north of Bradley to turn right to a heading of 280 degrees or greater. Stipulations, #18. Procedures for departures heading to the east or south were unchanged. Stipulations, #19.
The EA, pursuant to FAA regulation, defines "dBA" as decibels "weighted" for the higher frequency sounds associated with so-called "Stage 2" aircraft still in use at Bradley in 2000 during implementation of the federally mandated phase-out in favor of quieter "Stage 3" aircraft. Stipulations, #20.
The EA, pursuant to FAA regulation, defines "SEL" as a single aircraft departure event Peak Sound Exposure Level. SEL may be understood as the highest measured noise impact, at any given location, from a single air traffic departure event. Stipulations, #21.
The EA, pursuant to FAA regulation, defines "DNL" as a Day-Night Average Sound Level, as measured and averaged by a specialized technique. The DNL rating relates to the long-range cumulative impact of aircraft noise and is measured by an averaging technique. DNL may be understood as the twenty-four hour average measured noise impact, at any given location, from all air traffic events on a given runway over the course of one year. Stipulations, #22.
A DNL "noise contour" refers to a graphic depiction of the outer limits of sound impact at any given DNL rating. Noise contour maps are used for the purpose of identifying land areas that fall within a given DNL range. Stipulations, #23.
The threshold of significance for noise impact is defined in the EA, pursuant to federal regulation, as meaning an increase of noise by 1.5 dBA or greater within a DNL contour of 65 or more decibels (the 65 dBA DNL Contour). Stipulations, #24.
Based on findings in the BA that "Alternative B," as described in the EA, resulted in a reduction of the number of people falling within the 65 dBA DNL Contour, the FAA issued a FONSI approving the proposed modification dated, as signed by various officials respectively, on August 8, September 1 and September 7, 2000. Stipulations, #25.
A change of departure procedures from runway 24, adopting the 280° northwest compass heading described as Alternative B in the EA, was implemented on October 3, 2000. Under the new departure procedures implemented on October 3, 2000, aircraft over-fly the plaintiffs' property.
In March 2001, HMMH, at the request of ConnDOT, did noise measurements at the plaintiffs' property. The noise measurements were performed between March 12 and March 21, 2001. The measurements analyzed radar data known as automatic radar terminal service, the type of radar installed by the FAA at Bradley, known as "ARTS" data.
Between March 12 and March 21, 2001, 103 jet aircraft over-flew the plaintiffs' property at an average altitude of 1940 feet AGL; 26 prop aircraft, at an average altitude of 1822 feet AGL; and 11 unidentified aircraft, at an average altitude of 2235 feet AGL. The average altitude for all aircraft over-flying the plaintiff's property during this period was 1941 feet AGL. No aircraft over-flying the plaintiffs' property were below 1000 feet AGL, and only 11 were below 1500 feet AGL. The majority of the aircraft over-flying the plaintiffs' property were between 1500 and 2500 feet AGL.
In January 2002, at the request of ConnDot, HMMH conducted seven days of noise measurements at three locations in East Granby, Connecticut, and analyzed the altitudes of aircraft flying over those locations. The three locations were 10 Concord Drive, East Granby, Connecticut, referenced as Site 31; 9 Wintergreen Lane, East Granby, Connecticut, referenced as Site 32; and 10 Trevor Lane, East Granby, Connecticut, referenced as Site 33.
HMMH staff conducted measurements at the three locations between January 10 and January 17, 2002, and obtained ARTS data for those sites for the period January 9 to January 31, 2002.
FAA guidelines provide that the threshold level of incompatibility for land use is sixty-five DNL. The federal Department of Housing and Urban Development uses sixty-five DNL as the threshold level of incompatibility for land use. Noise monitoring done by HMMH at the plaintiffs' property between March 12 and March 21, 2001, determined that the DNL values ranged from fifty to sixty-four and the average for the nine days of measurements was fifty-nine DNL.
The plaintiffs' noise expert, Bennett Brooks, determined that the plaintiffs' property fell outside the sixty-five DNL contour, somewhere between sixty and less than sixty-five DNL.
The highest and best use of the plaintiffs' property on September 30, 2000, was for subdivision purposes.
The defendant's expert, Steven B. MacCormack, a real estate appraiser with MacCormack Appraisal Services, was informed by the East Granby tax assessor that she did not make negative adjustments for valuation for homes in the flight pattern because she could not discern any negative trend. Also, MacCormack was informed by the East Granby town planner that he did not feel there was any depreciation because of the departure procedures.
MacCormack analyzed the effect of the change in runway 24 departure procedures by doing a market study comparing data from seven similar subdivisions in East Granby, four of which had overhead take-off patterns similar to the plaintiffs' property and three of which did not. The market study was done on an annual basis for the periods ending September 30, 2001, through September 30, 2005.
MacCormack's analysis showed that the value trends in house sales in subdivisions with take-off patterns similar to those of the plaintiffs' property saw modest to significant gains in appreciation from 2001 to 2005.
The subdivision abutting the plaintiffs' property, located on Trevor Lane, had an appreciation rate of between four and ten percent per year.
One of the highest market sales in the area occurred at 16 Trevor Lane, a property right next to the plaintiffs' property; this property sold for $508,600 or $161.15 per square foot on July 11, 2005.
The overall appreciation rate was higher for the sales located in subdivisions with departure paths similar to the departure paths affecting the plaintiffs' property.
III DISCUSSION A Count One — Inverse Condemnation
"The fifth amendment to the United States constitution, as applied to the states through the due process clause of the fourteenth amendment . . . provides that 'private property [shall not] be taken for public use, without just compensation.' U.S. Const., amend. V. Article first, § 11, of the Connecticut constitution similarly provides that '[t]he property of no person shall be taken for public use, without just compensation therefor.'" Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 727-28, 894 A.2d 259 (2006). A "taking" can occur without the actual acquisition of the property. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922).
Aircraft overflights can constitute a taking. United States v. Causby, 328 U.S. 256, 261-62, 264-67, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). In Causby, the Court found with regard to aircraft that flew eighty-three feet over the respondents' property that "[t]he super adjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself" Id., 265. The Court further stated: "We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface." Id.
In Aaron v. United States, 311 F.2d 798, 801 (Ct.Cl. 1963), the Trial Commissioner found that those who owned property over which planes flew at an elevation below the navigable airspace were entitled to compensation but that they were not entitled to compensation for overflights that were within the navigable airspace. The United States Court of Claims in Aaron held that the Trial Commissioner's holding was correct and stated: "It is true that the inconvenience and annoyance experienced from the passage of a plane at 501 feet above a person's property is hardly distinguishable from that experienced from the passage of a plane at, say, 490 feet, but the extent of a right-of-way, whether on the ground or on water or in the air, has to be definitely fixed. Acts that are permissible within the limits of the right-of-way are forbidden beyond its limits, and vice versa. Congress has fixed 500 feet as the lower limit of navigable air space; hence, what may be permissible above 500 feet is forbidden below it, unless compensation is paid therefor." Id.
At the time of Aaron, the Civil Aeronautics Authority fixed the navigable air space at 1000 feet over congested areas and 500 feet over other areas. Aaron v. United States, supra, 311 F.2d 801.
The Aaron court did state: "This is not to say that a case could not arise where the unavoidable damage to a person's property occasioned by travel in the navigable air space would be so severe as to amount to a practical destruction or a substantial impairment of it. When such a case arises we would then have to consider whether the relevant statutes and regulations violated the property owners' constitutional rights; but plaintiffs have not made out such a case." Id.
In Branning v. United States, 654 F.2d 88, 91 (Ct.Cl. 1981), aff'd, 784 F.2d 361 (Fed. Cir. 1986), the defendant conducted practice landings and takeoffs, including "'field minor landing practice' (FMLP)," which were intended to simulate the aircraft carrier takeoffs and landings. During an FMLP operation, the trainees, as per the prescribed flight pattern, had to take off from the runway on the defendant's Marine Corps Air Station, fly aircraft in a "racetrack pattern" directly over the plaintiff's property at an altitude of 600 feet AGL and then return to the runway. Id. Each aircraft repeated the pattern several times as the training exercise was being performed on a squadron-by-squadron basis over the course of several days during each month in which training was being performed. Id. Originally, the training utilized single-engine (A-4) and vertical takeoff (AV-8 Harrier) aircraft, but later used twin-engine (F-4) aircraft. Id.
The Branning court found that the F-4 aircraft utilized in performing the FMLP training "created more noise than the previously flown A-4 aircraft and such greater noise was sufficient to constitute an immediate and direct intrusion upon plaintiff's property, which intrusion was so substantial as to detract from and interfere with plaintiff's full enjoyment of the property by limiting plaintiff's exploitation of it as a medium density residential development, its highest and best use." Id., 96. The Branning court determined that the facts of the case warranted consideration of the exception articulated in Aaron; id., 98; and stated: "[I]t is clear that the Government's liability for a taking is not precluded merely because the flights of Government aircraft are in what Congress has declared to be navigable airspace and subject to its regulation." Id., 99. The Branning court found that a taking occurred of the plaintiff's property and stated: "The present case is a case, as the court foresaw in Aaron v. United States, [ supra, 311 F.2d 801], in which 'the unavoidable damage [reduction of the highest and best use] to a person's property occasioned by [the noise created during] travel in the navigable air space [is] so severe as to amount to a practical destruction of it.' This is a case of first impression in which the court may consider the altitude of the flights over the property, but must give primary consideration to the effect of aircraft noise where the Government itself has adopted and published standards of compatibility of use of the subjacent property. Since the subjacent property owner has suffered a diminution of the value of the property in this case, there has been a taking of an easement over and through the airspace superjacent the property of the plaintiff." (Emphasis added.) Branning v. United States, supra, 654 F.2d 102.
Pursuant to federal regulation (as of 1986, 14 C.F.R. § 91.79), the courts had concluded that the threshold for public domain or navigable airspace was 500 feet in noncongested areas and 1000 feet in congested areas. Stephens v. United States, 11 Cl. Ct. 352, 358-59 (Cl.Ct. 1986). This threshold was in existence as of October 3, 2000. See 14 C.F.R. § 91.119 (2000).
"In order to obtain compensatory damages, a plaintiff must establish not only a breach of a legal duty, but also causation and harm." Binette v. Sabo, 244 Conn. 23, 69-70, 710 A.2d 688 (1998). "In federal constitutional tort actions, damages are designed to redress injuries caused by deprivations of federal constitutional rights, not to redress the deprivations of such rights." (Emphasis in original.) Id., 70, citing Memphis Community School District v. Stachura, 477 U.S. 299, 307-08, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). Thus, the plaintiff needs to establish economic harm and thereby damages in order to recover for a taking. Melillo v. New Haven, 249 Conn. 138, 149-50, 732 A.2d 133 (1999).
In Melillo, the plaintiffs purchased a house in East Haven in September 1979. Id., 140. Tweed-New Haven Airport (Tweed) straddles land in New Haven and East Haven. Id., 139-40. The plaintiffs' house is located approximately 450 feet north of Tweed's northern boundary and less than 1500 feet from the end of runway 2-20 at Tweed. Id.
Commercial jet traffic flew out of Tweed during two periods between 1967 and 1975. Id., 140. From 1975 to 1984, no commercial jets flew in or out of Tweed. Id., 141. Then, on November 10, 1984, Air Wisconsin conducted a commercial jet test flight. Id. Air Wisconsin subsequently began regularly scheduled commercial jet service into Tweed on February 15, 1985, and these flights continued through December 1986. Id.
The plaintiffs brought an action in state court alleging, inter alia, that the Air Wisconsin overflights caused a permanent taking of their property through inverse condemnation in violation of the Connecticut constitution. Id. 142. The trial court concluded that the subject property, prior to the plaintiffs' ownership of said property, was taken, for constitutional purposes, sometime between 1967 and 1975, but because the plaintiffs did not own the property then, they could not recover for that taking. Id., 145. In addition, the trial court found "that the 'noise and turbulence [of the Air Wisconsin overflights from 1984 to 1986] substantially interfered with the [plaintiffs'] enjoyment of [their] property and caused some minor physical damage — such as loosened shingles — to the property,' and that the 'noise and turbulence [caused by the Air Wisconsin overflights] were roughly the same' as that caused by the jet overflights occurring between 1967 and 1975." Id., 144-45. With regard to any loss in value that the plaintiffs' property may have sustained as a result of this taking, the trial court stated: "[T]he evidence does not support a finding that the value of the [plaintiffs'] property was significantly altered by the Air Wisconsin [overflights]. The testimony of the plaintiffs' expert to the contrary — unsupported by any written report — was not credible. The value of the property has undoubtedly been lessened by virtue of the property's proximity to the airport, but that was the case in 1979 when the [plaintiffs] purchased it. To state the matter another way, I cannot find that the [plaintiffs] have sustained any significant economic damage as a result of the Air Wisconsin [overflights]." Id., 145.
As the trial court determined that the plaintiffs' property was taken sometime between 1967 and 1975, it rejected the claim that the plaintiffs were entitled to compensation for a permanent taking of their property resulting from the Air Wisconsin overflights. Id. The trial court did note that an earlier, permanent taking was not an automatic bar to the plaintiffs' establishing a second compensable permanent taking resulting from the Air Wisconsin overflights. Id., 145-46. The trial court did determine that the plaintiffs may have been able to prevail on a claim of a compensable taking with regard to the Air Wisconsin overflights "if the plaintiffs had been able to establish that the property had 'been permanently "taken" by moderate jet overflights from 1967 to 1975 and then permanently "taken" to an even greater extent by the substantially more severe [Air Wisconsin] overflights from 1984 to 1986.'" Id., 146.
On appeal, the plaintiffs argued that the evidence had established that the Air Wisconsin overflights had resulted in a permanent taking of their property under the Connecticut constitution. The plaintiffs maintained that the trial court relied on factual findings that were not supported and faulty conclusions of law in determining that the jet overflights from 1967 to 1975 resulted in a taking. Id., 147-48. The plaintiffs contended that because of this unsupported finding, they were required to show that the Air Wisconsin overflights more severely interfered with the subject property's use and enjoyment than the earlier 1967 to 1975 jet flights did. Id., 148. The plaintiffs also argued that the court's finding that the plaintiffs failed to prove economic damages stemming from the Air Wisconsin overflights was "clearly erroneous." Id.
On appeal, the Supreme Court found that the record did not support a finding of a taking resulting from the 1967 to 1975 overflights. Id. Therefore, the Supreme Court found that the trial court's rejection of the plaintiffs' taking claim, which was based on a finding of a prior taking, was improper. Id., 149. Nevertheless, the Supreme Court concluded that the trial court's finding that the plaintiffs failed to prove economic harm to their property as a result of the Air Wisconsin overflights was not clearly erroneous. Id., 150.
In Melillo, the Supreme Court discussed the testimony of the experts who testified at trial. Id., 150-53. In Melillo, the experts for each side used a comparable sales approach, but the plaintiffs' appraiser found the appreciation rate of properties in East Haven and New Haven that were not subject to the Air Wisconsin overflights to be higher than the appreciation rate for the subject property; id., 150; whereas the defendant's appraiser determined "that properties in the flight zone showed an average annual percentage increase in value in the middle range of the overall market." Id., 151. Thus, the defendant's appraiser concluded that the subject property's value did not decrease as a result of the Air Wisconsin overflights. Id. The trial court found credible the testimony of the defendant's appraiser. Id. In reference to the conflicting opinions of the appraisers, the Supreme Court stated that "[i]t is the proper function of the court to give credence to one expert over the other." (Internal quotation marks omitted.) Id. Thus, although the trial court found that the jet overflights that occurred between 1984 and 1986 "substantially interfered with the [plaintiffs'] enjoyment of the property"; (internal quotation marks omitted) id., 149; and the Supreme Court held that this finding was sufficient "to establish that the plaintiffs had satisfied the Causby test for proving the taking of an avigation easement"; id.; the trial court concluded that the plaintiffs in Melillo could not recover for the taking because it found that the plaintiffs failed to prove that these overflights had a negative effect on the value of the subject property, a conclusion that the Supreme Court held was reasonable. Id., 150, 154.
"'An avigation easement is an easement of right to navigation in airspace over designated land.' . . . Westchester v. Greenwich, 227 Conn. 495, 497 n. 1, 629 A.2d 1084 (1993). There are essentially two types of avigation easements: 'A clearance easements and flight easements. 'A clearance easement is acquired to assure that no structure exceeds a maximum height, if structures are allowed at all. This will give aircraft an unobstructed view and provide a safety margin for flights that may have to descend due to pilot error, poor weather conditions, etc. The flight easement allows the frequent overflight of aircraft over the encumbered land and constitutes a separate and distinct easement from the clearance easement.' J. Eaton, Real Estate Valuation in Litigation (1982) pp. 256-57 . . . For a general discussion of avigation easement law, see 4A J. Sackman, Nichols on Eminent Domain (3d Ed. Rev. 1998) § 14A.05, pp. 14A-116 through 14A-125." Melillo v. New Haven, supra, 249 Conn. 143 n. 11.
The issue, therefore, in the instant case is whether the plaintiffs' property was economically harmed as a result of the October 2000 change in flight path. If the plaintiffs' property was not economically harmed because of this change, then as per Melillo, the plaintiffs cannot prevail on their compensable taking claim.
To determine if the value of the plaintiffs' eighty-eight acre East Granby property lost value, the after-sales comparison approach was used by the appraisers of both parties. This approach involves computing the difference in value of the plaintiffs' property at its highest and best use (in this case a residential subdivision of the property) before and after the runway 24 flight pattern change. This analysis entails computing the number of lots suitable for the property, the price of these lots, and any decrease in value due to the new flight pattern. It should be noted that the difference in the number of lots found suitable for a subdivision of the property by the plaintiffs' appraiser and the defendant's appraiser (thirty-one lots by the plaintiffs' appraiser versus seventeen lots by the defendant's appraiser) is not considered by the court to be a material factor in determining value. The issue is the value of the lots, not the number of lots.
The plaintiffs' appraiser, Dean C. Amadon of Amadon Associates, Inc., found the plaintiffs' property able to support thirty-one lots based on a land development plan. Prior to the runway 24 flight path change, Amadon estimated that the market value of a fee-simple estate was estimated to fall within a range of $17,361 to $27,827 per lot. Out of this range, Amadon estimated that the selling price of the plaintiffs' property was $25,000 per lot, for a total estimated value of the property of $775,000.
In order to determine the value of the plaintiffs' property after the runway 24 flight path change, Amadon stated both at trial and in his appraisal report that he discussed the effect of the increased noise with realtors in the area. At trial, Amadon testified that these realtors estimated the flight path change on runway 24 depreciated the plaintiffs' property by fifteen to twenty-five percent. These percentages were impliedly intuitive analyses of the realtors based on their experience in real estate transactions in the area. Amadon concluded that the plaintiffs' property diminished in value by twenty percent because of the flight path change.
In Amadon's appraisal report he stated that the general consensus among the realtors with whom he spoke was that the subject property decreased by fifteen to twenty percent in value because of the runway 24 flight path change.
The court finds that Amadon did not do an independent analysis of the situation at Bradley and how the runway 24 flight path change affected the value of the plaintiffs' property. Rather, Amadon used information from two articles, which he attached to his appraisal report. However, he was unable to explain how he used the methodologies contained in those articles to reach his conclusion. What he did do was speak with unidentified realtors, without even identifying the location of the property he was appraising, and use their estimates of the effect of flight paths on property values to validate the conclusions reached in the articles. In fact, although it does not appear in his report, when Amadon analyzed sales in the area that occurred after the 2000 runway 24 flight path change, he found that the same trend in value (an increase) occurred whether properties were located within the departure path or not. In fact, he could find nothing in the sales data to support his conclusion of a twenty percent diminution.
MacCormack testified and stated in his appraisal report that there had not been a decrease of real property values in the area with increased overflights, and counterintuitively, the property values of property within flight takeoff patterns similar to the pattern affecting the plaintiffs' property, had increased at a greater rate than the prices of comparable sites not located within similar flight takeoff patterns. MacCormack found the subject property able to be subdivided into seventeen lots based on a Concept Development Plan by Ferrero Hixon Associates, LLC, which showed that the subject property could be subdivided into thirty-one lots. MacCormack determined that fourteen of those lots would likely not be permitted by the town planner because of the wetlands and flood zone in the area. McCormack based his decision on approvals granted for an abutting subdivision on Trevor Lane as well as the approvals granted for another subdivision in East Granby.
Utilizing comparable property sales, MacCormack determined that the adjusted sales price per lot of the comparable properties, where the sales occurred between September 1998 and March 2000, ranged from $14,440 to $22,470. A per lot value of the subject property as of September 30, 2000, of $17,500 was chosen based on the sales of comparable properties with particular emphasis on one particular sale.
Utilizing the after-sales comparison approach whereby MacCormack examined the sales from 2001 to 2005 of houses in subdivision that were subject to similar flight takeoff patterns that the subject property was as of the 2000 runway 24 flight path change and sales from 2001 to 2005 of houses in subdivisions that were not subject to a similar flight takeoff pattern, he found that the overall appreciation rate was highest for sales located in subdivisions affected by the similar flight takeoff patterns. In fact, MacCormack saw that the highest number of complaints to town officials regarding flight takeoff noise was from homeowners in his in-flight comparable #4 subdivision, yet the sales in that neighborhood demonstrated that the neighborhood had the highest overall appreciation rate of all the comparables. MacCormack concluded that the subject property did not suffer any loss in value due to the runway 24 flight path change.
Based on the more credible evidence presented, this court does not find that the overflights led to an economic harm to the plaintiffs, i.e., a decrease in the value of the subject property. Rather, under the Melillo analysis, this court finds that there is no demonstrable economic hair, because the evidence from the appraisal utilizing the sales comparison approach (as presented by MacCormack) shows that the subject property did not lose value as a result of any alleged taking.
This court finds the defendant's appraiser's conclusions, which were based on the after-sales comparison approach to be more credible than the plaintiffs' appraiser's conclusions, which were partly based on conversations he had with local realtors. The defendant's expert's opinion is based on concrete and specific examples. Since economic harm is not established, the plaintiff cannot recover damages for any alleged taking.
Based on the more credible evidence, the change of the departure procedure from runway 24 did not result in any loss in value to the plaintiffs' property. Therefore, with regard to count one, this court finds in favor of the defendant.
B Count Two — CEPA
General Statutes § 22a-1b(a) provides: "Each state department, institution or agency shall review its policies and practices to insure that they are consistent with the state's environmental policy as set forth in sections 22a-1 and 22a-1a."
General Statutes § 22a-1b(c) provides: "Each state department, institution or agency responsible for the primary recommendation or initiation of actions which may significantly affect the environment shall in the case of each such proposed action make a detailed written evaluation of its environmental impact before deciding whether to undertake or approve such action . . ."
General Statutes § 22-1c provides: "As used in sections 22a-1 to 22a-1i, inclusive, 'actions which may significantly affect the environment' means individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state, which could have a major impact on the state's land, water, air, historic structures and landmarks as defined in section 10-410, existing housing, or other environmental resources, or could serve short term to the disadvantage of long term environmental goals. Such actions shall include but not be limited to new projects and programs of state agencies and new projects supported by state contracts and grants, but shall not include (1) emergency measures undertaken in response to an immediate threat to public health or safety; or (2) activities in which state agency participation is ministerial in nature, involving no exercise of discretion on the part of the state department, institution or agency."
The issue in this case is whether CEPA applied to ConnDOT's actions with regard to the 2000 runway 24 flight path change. ConnDOT has conceded that it did not follow the notice, comment and review procedures that are outlined in CEPA with regard to its actions. While the plaintiffs argue that under the facts of the present case, ConnDOT was subject to CEPA's requirements, ConnDOT contends that it did not undertake any action that triggered CEPA's requirements.
The plaintiffs argue that ConnDOT's position that it was exempt from CEPA is without a legitimate basis because: "(1) the facts unequivocally establish that ConnDOT was 'responsible for the primary recommendation or initiation' of the runway departure modification implemented by the FAA; (2) the EA in question was prepared by ConnDOT's own consultants; and (3) even if it is arguable that the EA was somehow 'indirectly' prepared by the FAA in order to meet its own NEPA requirements, [General Statutes §] 22a-1f(a) still imposes on ConnDOT the duty to consider and review the statement 'as if it had been prepared under CEPA." (Emphasis in original.) Plaintiffs' post-trial brief dated July 9, 2007, p. 9.
In their July 17, 2007 reply brief, the plaintiffs maintain that their position is not that ConnDOT was required to prepare a CEPA document under the circumstances of this case; instead, they contend that the preparation of the NEPA document under these circumstances required the notice and comment steps of a CEPA review.
ConnDOT argues that the FAA has exclusive jurisdiction over the airspace in the United States. It is ConnDOT's position that it "cannot affect, control or interfere with the departure procedures established by the FAA; those procedures are within the exclusive province of the FAA and any decision with respect to such procedures rest entirely with the FAA." Defendant's post-trial brief, dated July 9, 2007, p. 17-18. ConnDOT asserts that both Hurle and Smith testified that they determined that because the ultimate decision as to whether to make the 2000 runway 24 flight departure change lay with the FAA, and the state could not affect the ultimate outcome of the process, compliance with NEPA, but not CEPA was required.
49 U.S.C. § 40103(a)(1) provides: "(a) Sovereignty and public right of transit. (1) The United States Government has exclusive sovereignty of airspace of the United States." (Emphasis added.) 49 U.S.C.S. § 40103(a)(1) (LexisNexis 2004).
49 U.S.C. 40103(b) provides in relevant part: Use of airspace. (1) The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest.
(2) The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for —
(A) navigating, protecting, and identifying aircraft;
(B) protecting individuals and property on the ground;
(C) using the navigable airspace efficiently; and
(D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects . . ." 49 U.S.C.S. § 40103(b) (LexisNexis 2004).49 U.S.C. § 40102(a)(32) provides: "'navigable airspace' means airspace above the minimum altitudes of flight prescribed by regulations under this subpart and subpart III of this part [ 49 USCS §§ 40101 et seq. 44101 et seq.], including airspace needed to ensure safety in the takeoff and landing of aircraft." 49 U.S.C.S. § 40102(a)(32) (LexisNexis 2004).
The court finds that given that ultimate decision as to whether to modify the departure procedures at runway 24 lay with the FAA, and that the FAA could have chosen to do nothing when ConnDOT initially approached the FAA about reconsidering the 1997 change, and the FAA could have done nothing or ignored the recommendations in the EA after ConnDOT presented the FAA with the EA, that ConnDOT's actions in initially approaching the FAA about reconsidering the 1997 change in departure procedure is not state action that triggers the requirements of CEPA. The court also finds that neither the preparations of the EA that ConnDOT undertook through the hiring of a contractor nor the presentment by ConnDOT of the completed EA to the FAA is state action that triggers CEPA. Therefore, with regard to count two, this court finds in favor of ConnDOT.
IV CONCLUSION
In conclusion, the court finds for the defendant with regard to count one and count two, without costs.