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DELLS, INC. v. MUNDT

September 4, 1975

The DELLS, INC., Plaintiff,
v.
Paul F. MUNDT et al., Defendants


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by defendants Town of Clarkstown, Gerber, Maloney, D'Antoni, Lodico and Pizzutello for an order dismissing the complaint (actually the amended complaint) for failure to state a claim upon which relief can be granted (Fed.R.Civ.P. 12 (b)(6)) and for lack of jurisdiction over the subject matter (Fed.R.Civ.P. 12(b)(1)).

 Plaintiff The Dells, Inc. is a New York corporation which, since about 1949, has owned several hundred acres of land in New City, Town of Clarkstown, County of Rockland, New York. The area of the Town in which the land of plaintiff is located is not part of any incorporated village and seems properly to be described as a "hamlet", an area of a town which is built up but not part of an incorporated village.

 Defendant Town of Clarkstown (the Town) is an incorporated town in Rockland County.

 Defendants Mundt and Vines were each, at different times, Supervisor of the Town.

 Defendant Roland was Town Attorney of the Town.

 Defendant Knutsen was a housing developer and builder in the Town.

 The other individual defendants are members of the Town Board (the "Board").

 The Marshal's returns indicate that all defendants have been served.

 The complaint was filed on February 14, 1975. A "Verified Amended Complaint" was filed on April 17, 1975. The major difference between the two documents appears to be the addition, in the amended complaint, of five paragraphs (paras 45-50) dealing with the enactment, on February 19, 1975, by the Town Board of an ordinance. The amended complaint also adds a "Third Claim for Relief" (paras 62-68) based in large part on the added factual averments, and a "Fourth Claim for Relief" (paras 69-73) based on both the original averments and the added ones.

 1.

 Because the "Verified Amended Complaint" includes "transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented", it should properly have been entitled "Amended and Supplemental Complaint", and leave of Court should have been sought before filing it. Fed.R.Civ.P. 15(d). This was not done. However, no party has objected to the filing and the Verified Amended Complaint (hereafter "the complaint") will be treated as properly filed.

 2.

 The action is said to arise under the Constitution of the United States, and the Civil Rights Act of 1871 (42 U.S.C. §§ 1983, 1985). Jurisdiction is based on both general federal question jurisdiction (28 U.S.C. § 1331) and civil rights jurisdiction (28 U.S.C. § 1343). For the purposes of general federal question jurisdiction, the requisite jurisdictional amount is pleaded and appears to exist.

 3.

 The complaint is a long and rambling document of 73 paragraphs of which the first 50 are described as "background" and are repeated in each "claim for relief". There is not a "short and plain statement of the claim" (Fed.R.Civ.P.8 (a)) and evidence is freely pleaded. As far as can be made out, the following is the factual situation disclosed by the complaint and by court records.

 For many years plaintiff has owned a tract of land in the Town. Part is leased to Dellwood Country Club, is used as a club, and has the usual improvements. The remainder of the tract, called "The Dells" is contiguous to the country club, and is unimproved. Apparently plaintiff owns other land in the area; the complaint is confusing in this respect but in any event it appears that only The Dells is the subject of this action.

 A zoning ordinance of the Town became effective August 6, 1967. It is impossible to tell from the complaint how this zoned The Dells but from state court opinions (later to be described) it appears that the zone classification for all The Dells was "Laboratory-office" (L-O).

 Before August 6, 1967, there had been two zone classifications for different portions: L-O and single-family detached residences on lots of not less ...


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