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December 18, 1981


The opinion of the court was delivered by: CURTIN

This case concerns the Pittston Warehouse Corporation's (Pittston) efforts to recommence shipping operations at the Port of Rochester and the City of Rochester's (the City) plans to redevelop the port and harbor into primarily a recreational area. The Port of Rochester is located within the boundaries of the City on the Genesee River, immediately south of where the river flows into Lake Ontario. Since the early nineteenth century, the port has been used for commercial activity, as a nexus for the transportation of goods on the Genesee River, and as a Great Lakes port, shipping and receiving international commerce. *fn1" In recent years, however, the port has declined in use, caused by changes in shipping patterns and the use of other modes of transportation. As a result, the last ship docked at the Port of Rochester in 1974.

The Pittston Corporation has leased the port from the City continuously since 1960, and under the terms of the lease, it is authorized to undertake docking, loading, and discharging of steamship vessels as well as related stevedoring, warehousing, and shipping operations. This lease between the parties generates approximately.$ 61,500 a year in rent for the City. *fn2"

Despite the fact that the port received no ships in 1975, in December of that year Pittston renewed its lease with the City to continue shipping operations. *fn3" In 1978, with its renewed lease but no commercial shipping activity forthcoming, Pittston entered into conversations with two Canadian corporations, C N Marine Corp. and Rideau Shipping Co., Ltd., to explore the possibility of a new type of steamship service between Rochester and the Province of Ontario.

 This new service would provide for transporting tractor trailer trucks from the Province of Ontario to Rochester by ship across Lake Ontario and is known as "roll-on/roll-off trailer ship service." This type of service is not now used between the United States and Canada; however, this particular waterborne transportation route might prove economically feasible, stemming from the increased price of truck fuel. By saving highway transportation expenses, this water route may provide an alternative, less costly means for the transportation of goods between the two nations. Support for this concept also came from the United States Maritime Administration which authorized an economic evaluation of roll-on/roll-off trailer ship service that was completed in January of 1980. The evaluation report stated that a route between Toronto, Ontario, across Lake Ontario to Rochester represented the largest potential for trailer ship operations along the Great Lakes between the two countries. *fn4"

 During the recent period of shipping inactivity, residents of the area surrounding the port and the City of Rochester have been engaged in development plans to turn much of the port and harbor area into a recreational marine area. Pittston kept the City informed of its negotiations and plans for roll-on/roll-off trailer ship service, and with the impetus of the impending conclusion of these negotiations, various public meetings were held concerning the proposed shipping operations in the winter and spring of 1980. On April 8, 1980, representatives of C N Marine, Rideau Shipping, and Pittston attended a meeting of the Rochester City Council, where they explained their proposal for roll-on/roll-off trailer ship service.

 At this same meeting and after this presentation, the City Council enacted three laws restricting commercial shipping operations in the harbor area. Resolution 80-22 authorized the City Manager to develop zoning ordinances to "create a harbor district, in which the permitted uses will be those water dependent and commercial uses which will enhance the character as an attractive and recreational harbor." Ordinance 80-139 changed the zoning classification of the area from a manufacturing, open-space, and commercial harbor district to a "River-Harbor District," and included Pittston's leased port and harbor area within this new zone. Ordinance 80-140 defined the uses of the River-Harbor District and, in part, prohibited the port and harbor to be used for "(1) all manufacturing uses, (2) warehouse and distribution centers, (3) commercial cargo and shipping terminals," (emphasis in the original legislation). All of these enactments were to take effect immediately, and all were adopted by the City Council unanimously. *fn5"

 Nevertheless, Pittston contacted the Rochester Director of Community Development by letter dated April 17, 1980, and announced the successful conclusions of negotiations necessary to undertake the trailer ship operations and the commencement of the transportation service in August of 1980. This letter was reviewed by the City Council, and in direct response, the Council enacted Ordinance 80-199 on May 13, 1980. This ordinance expressly prohibits the use of roll-on/roll-off trailer ship service at the Port of Rochester but ostensibly "does not prevent any port shipping of the type that had occurred historically until recent years." *fn6"

 Pittston then filed this action in the United States District Court, which was initially dismissed for failure to state a cause of action by the late Honorable Harold P. Burke in September of 1980. On appeal, the United States Court of Appeals for the Second Circuit reversed and remanded the case for further proceedings. Pittston now moves for partial summary judgment, claiming all four of these Rochester enactments are invalid under the United States Constitution.

 The City of Rochester cross moves for summary judgment on the issues of Pittston's standing or whether a justiciable controversy has been presented by the enactment of Resolution 80-22, Ordinance 80-139, and Ordinance 80-140 (the River Harbor enactments) affecting Pittston, and the City defends all four enactments as permissible within the scope of the Constitution. The material facts are not in dispute, and all these cross motions for summary judgment are considered upon oral argument, as well as the complaint, answer, briefs, and supporting material submitted to the court.

 Pittston attacks the Rochester legislative enactments on three constitutional grounds: (1) that they unconstitutionally interfere with foreign and interstate commerce pursuant to the commerce clause; (2) that the enactments are preempted by federal legislation; and (3) that the enactments unconstitutionally impair Pittston's leasehold rights under the contract clause of the Constitution. For the reasons hereinafter stated, the court need only address the commerce clause issues.

 Concerning Resolution 80-199 which bans roll-on/roll-off trailer ship cargo shipping, the City defends the ordinance as a valid exercise of its police power to protect the environment, public health, safety, and welfare. In regard to the three River Harbor enactments (Resolution 80-22, Ordinance 80-139, and Ordinance 80-140) which ban commercial cargo and shipping terminals as well as warehouse and distribution centers, the City of Rochester contends that the zoning doctrine of prior existing use applies. This doctrine would permit Pittston to continue its operations "for as long as the lease lasts" *fn7" between the corporation and the City.

 Thus, the City argues that the River Harbor enactments prohibit only future commercial use and do not affect Pittston, given Pittston's present status as leaseholder. Rochester contends that others seeking commercial use now banned in the River Harbor district, or presumably Pittston, should it desire to renew the lease, could seek a zoning variance from the River Harbor district prohibitions. Rochester suggests that for these reasons, the constitutional issues raised by Pittston concerning these ordinances are not now properly before the court.

 A federal court's jurisdiction can be invoked only when the plaintiff has suffered "some threatened or actual injury resulting from the putatively illegal action." Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S. Ct. 1146, 1148, 35 L. Ed. 2d 536 (1973). Additionally,

a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would ...

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