Grande Vista, LLC v. United States ( 2023 )

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND GRANDE VISTA, LLC and PAUL LUTOV, Plaintiffs, v. Civil Action No. TDC-20-0616 UNITED STATES OF AMERICA, Defendant. MEMORANDUM OPINION Plaintiffs Grande Vista, LLC and Paul Lutov have filed a civil action against the United States of America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680 (2018), in which they allege trespass and nuisance arising from an incident in which a United States Air Force (“USAF”) fighter jet experiencing a flight emergency jettisoned fuel tanks that landed on their property. The parties have filed Cross Motions for Summary Judgment, which are fully briefed. Having reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Cross Motions for Summary Judgment will be GRANTED IN PART and DENIED IN PART. BACKGROUND L The Property Paul Lutov is the managing member of Grande Vista, LLC, a Maryland limited liability company that owns an 18.75-acre parcel of land located in Fort Washington, Maryland (“the Property”). Lutov purchased the property in 2001 for $500,000. On August 13, 2007, the Property was appraised at a market value of $5 million, □ The Property is zoned “Rural Residential,” or “R-R,” a residential category that permits single family détached housing on lots with a minimum size of 20,000 square feet but also would permit the development of an assisted living facility on the site upon approval of a special exception. Plaintiffs planned to seek such a special exception to build a development to be designated as a “medical/residential” development and to include an independent senior living community with a medical care facility on site. To qualify for such an exception and to be permitted to have unlimited density on the Property, the site would have to contain 25 or more . acres of contiguous land. Accordingly, Plaintiffs planned to purchase three additional parcels of land adjacent to the Property, totaling 6.25 acres, for a total of 25 contiguous acres. Il. The Fuel Tanks On April 5, 2017, a USAF F-16 jet experienced an ineflight emergency, which forced the pilot to jettison two external fuel tanks and then eject from the aircraft. Prior to jettisoning the fuel tanks, the pilot dumped the fuel from the external tanks in accordance with governing aviation _ standard operating procedures. Steve Richards, the former Chief of Environmental Management of the USAF Civil Engineering Squadron at-Joint Base Andrews in Maryland, has asserted that after the fuel was emptied from the external tanks, they retained only “minor amounts” of residual fuel. Joint Record (“J.R.”) 256, ECF Nos, 73-2, 73-3. The first fuel tank landed on the Property. The second fuel tank landed on a nearby property. III. Remediation Efforts On or about May 30, 2017, the USAF hired a contractor, H-1 Cadence, Joint Venture, LLC (“the Contractor”), to remediate any contamination of the affected area. Richards served as the. liaison between the USAF and the Contractor but did not oversee or supervise its activities. The Contractor was required to provide all necessary personnel, supervision, labor, transportation, equipment, and materials to “perform all operations necessary to remediate and revitalize the main F-16 crash site and two (2) fuel cell locations.” J.R. 262. The Contractor’s required remediation activities consisted of: (1) excavating and expanding the crater formed by the crash to recover remaining aircraft debris; (2) sampling the soil to determine the boundaries for remediation; (3) removing and disposing of soil containing contaminants of potential concern, including benzene, toluene, ethylbenzene, xylene, thin-layer chromatography volatile organic compounds (TLC VOCs”), total petroleum hydrocarbon diesel range organics (