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TOWN OF ORANGETOWN v. GORSUCH

July 26, 1982

TOWN OF ORANGETOWN, Plaintiff,
v.
ANNE M. GORSUCH, et al., Defendants


Owen, District Judge.


The opinion of the court was delivered by: OWEN

OPINION AND ORDER

OWEN, District Judge.

 Defendant moves to dismiss plaintiff's complaint for failure to state a claim. Except as to plaintiff's third claim for relief, defendant's motion is denied. As to plaintiff's third claim, defendant's motion is granted.

 Plaintiff, the Town of Orangetown ("Orangetown"), is a municipality in Rockland County. A sewage treatment plant is located there. By this suit for declaratory and injunctive relief, plaintiff seeks to prevent the expansion of that plant.

 Plaintiff has named as defendants in this action a number of local, state, and federal parties who play a role in the expansion of the plant. The motion before me today has been brought by only one of those defendants, Robert Flacke, the Commissioner of the New York Department of Environmental Conservation (the "state defendant"). Pursuant to a stipulation endorsed by this court on July 9, 1981, Commissioner Flacke is now before me only in his official capacity.

 The sewage treatment plant in Orangetown presently services not only Orangetown itself but also the neighboring Rockland County communities of Ramapo and Clarkstown. Domestic, commercial, and industrial sewage from these three communities flows across the County to the plant in Orangetown where it is treated. Plaintiff contends that the existing plant is already a public nuisance and that the existing plant is already a public nuisance and that the expansion of the plant will only aggravate that nuisance by encouraging further development in the County and thereby increasing the burden on the Orangetown plant and its environs.

 Plaintiff's attack challenges the funding of the proposed expansion. Construction of sewage treatment facilities is a costly undertaking. Plaintiff estimates that the total cost of the Orangetown expansion will reach approximately $120 million with funding to be provided from federal, state, and local revenues. Combined, the federal and local contributions to the plant will total $100 million.

 The Environmental Protection Agency will administer the federal contribution to the Orangetown plant. Where the EPA administers a program such as the Orangetown expansion, it provides money in three stages. At Stage One a grant is provided for facilities planning; Stage Two funds the preparation of construction drawings and specifications; construction funds are provided by a Stage Three grant. Plaintiff seeks to cut off the expansion of the Orangetown plant at Stage Two.

 The essence of this lawsuit, thus, is the allegation that defendants cannot move forward with the expansion of the plant because defendants have not complied with the requisite federal and state environmental requirements and because the plant constitutes a continuing public nuisance.

 Plaintiff asserts four claims for relief. First, plaintiff alleges that defendant violated the National Environmental Protection Act, 42 U.S.C. § 4331, et seq. ; second plaintiff alleges a violation of the Clean Water Act, 33 U.S.C. § 1281, et seq. ; plaintiff's third claim alleges a violation of the New York State Environmental Quality Review Act, ECL § 8-0101, et seq. ; plaintiff's final claim alleges that the proposed expansion of the plant will constitute a public nuisance.

 Before me is the state defendant's motion to dismiss plaintiff's suit as it applies to him in his official capacity. Flacke contends that the Eleventh Amendment bars the prosecution of all of plaintiff's claims in federal court and, moreover, that plaintiff is prohibited from bringing any of its claims as parens patriae for its residents. As to plaintiff's individual claims for relief, the state defendant contends: first, that plaintiff's first and second claims must be dismissed pursuant to Rule 12(b)(6); second, that plaintiff's third claim for relief must be dismissed because it was filed beyond the applicable four-month limitations period set forth in Section 217 of the New York Civil Procedure Law and Rules; and, third, that plaintiff's fourth claim for relief must be dismissed because the alleged public nuisance has been caused not by the proposed expansion but by the past operation of the existing plant. I consider each of state defendant's arguments seriatim.

 A. The Eleventh Amendment does not bar equitable relief as against the state defendant.

 In Flacke's motion papers as first filed with this court, he contended that the Eleventh Amendment barred all of the remedies sought by plaintiff, e.g., money damages, and injunctive and declaratory relief. Since that date, however, the parties have agreed to drop the fifth claim alleging money damages, thus limiting plaintiff's claims against the state defendant to those alleging equitable relief. Flacke nevertheless continues to contend that the Eleventh Amendment bars relief.

 The Eleventh Amendment however, does not bar a federal court from granting prospective equitable relief as against a state official. See Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). Moreover, "it has long been familiar doctrine . . . that the Eleventh Amendment does not prevent a federal court from directing a State official to bring his conduct into conformity with federal law." Byram River v. Village of Port ...


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