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December 3, 1991


The opinion of the court was delivered by: McCURN, Chief Judge.



In September, 1990, the court heard oral argument on defendant's motion for summary judgment and for Rule 11 sanctions. Following oral argument, the court reserved decision and requested that the parties provide additional briefing on the due process claim. Thereafter, the parties engaged in extensive settlement negotiations. At the parties' request, the court agreed to hold this motion in abeyance pending the outcome of the settlement negotiations. Despite serious efforts, the case could not be settled. The court was so advised in March, 1991, when the parties asked the court to finally decide this outstanding motion. Following constitutes the court's decision in this regard.


This is a somewhat factually complicated case in that it involves a subdivision application to a town planning board, and a subsequent application for a building permit. Therefore, in an effort to place the legal issues raised by defendant's motion into the proper factual context, the court will first provide a general discussion of the relevant facts. Then, facts specific to a given cause of action will be discussed in greater detail in the section pertaining to that cause of action.

In July, 1986, plaintiff The Leonard Partnership ("the partnership"),*fn1 a family partnership, submitted a subdivision application to the Planning Board ("the Board") for defendant and third-party plaintiff, the Town of Chenango ("the Town").*fn2 According to the Town, certain questions arose during the application review process pertaining to the nature of the water and sewer services to be provided to the proposed subdivision. Those questions had to be answered by the partnership prior to the final stages of the subdivision application procedure.

In October, 1986, the Town Engineer recommended that public water be required.*fn3 One month later the Broome County Department of Planning and Economic Development recommended that the Town withhold its approval of the subdivision application until questions regarding water and sewer services were resolved.*fn4 Apparently in an attempt to answer some of those concerns, Dobbs Engineering Firm, P.C. ("Dobbs"), the engineering firm retained by the partnership in connection with this project, informed the Board that the partnership planned to use septic sewer systems in the proposed subdivision.*fn5 Dobbs further advised the Board that its original plan to use individual wells had been rejected by the Broome County Department of Health ("DOH").*fn6 In addition, Dobbs reported to the Board that "[w]e will have public water,. . . ."*fn7 Evidently that response did not satisfy either the Town Planning Board or the Broome County Planning Board; nor did it satisfy the DOH. Thus, primarily out of a concern over the water and sewer systems, the Town Planning Board did not take any further action regarding the subdivision application. The Town Planning Board was awaiting additional submissions from the partnership, as well as for comments from other government agencies.*fn8

In February, 1987, the DOH notified the Town Engineer that "[i]nstallation of public water will be a requirement of this Department" because of the proximity of the subdivision property to the Town landfill.*fn9 One of the reasons given for the public water requirement was DOH's belief that a water septic system based upon 45 individual wells adjacent to the landfill might result in the migration of contaminants from the landfill to the subdivision property and into the groundwater thereunder.*fn10 The DOH believed that public water was "readily accessible" and could be easily extended to the partnership's property because of the Town's plan to extend public water to serve another development near the partnership's property.*fn11 In addition to the public water requirement, a Senior Public Health Engineer for DOH also informed the Town Engineer of the necessity of developing a "comprehensive sewage plan for the entire area including existing houses. . . ."*fn12 In March, 1987, David Leonard, one of the partners in the partnership, applied for and was issued individual sewage specifications with a private well for the construction of a single family dwelling on the subject property.*fn13 The DOH engineer, claims, however, that the issuance of those individual sewage specifications by the DOH was erroneous because when David Leonard applied for those specifications, he failed to inform DOH that the lot was part of the subdivision property near the landfill.*fn14 As a result, the DOH engineer wrote the Town's Ordinance Officer recommending that the building permit for this property be withheld.*fn15 He also indicated that DOH would not issue any further individual sewage specifications.*fn16 In DOH's view, the application for the single family residence was simply a means to circumvent DOH's public water requirement.

On April 27, 1987, David Leonard then applied for a building permit to construct a single family house with attached garage on the subject property.*fn17 On May 11, 1987, the Town's Ordinance Officer denied that application stating that the application was "incomplete" in that it was not accompanied by a site plan; nor had Mr. Leonard obtained the DOH's approval for water supply and septic systems.*fn18

Plaintiffs then commenced this lawsuit in January, 1988, alleging six causes of action. The first cause of action is brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. The second, third and fourth causes of action are based upon the New York State law of public nuisance. The fifth cause of action seeks restitution under New York State law on a theory of unjust enrichment. Finally, in the sixth cause of action plaintiffs allege that the Town has taken their property without just compensation and violated their due process rights.

The Town advances a number of reasons as to why each of those causes of action must fail as a matter of law. The court will first consider the federal claims because if the Town is entitled to summary judgment dismissing those claims, the court will in all likelihood not be inclined to entertain the remaining pendent state claims.


I.  CERCLA Cause of Action

With respect to the CERCLA cause of action, basically plaintiffs allege that the Town's municipal landfill, directly adjacent to their property, is contaminated with hazardous substances, which have been released from the site and have damaged their property. Plaintiffs further allege that they have incurred "substantial expenses and response costs" to "assess the damages to natural resources and to the ground water. . . ."*fn19 In an attempt to determine the exact nature and extent of this broadly stated CERCLA claim, the Town served two sets of interrogatories upon plaintiffs.

In the first set, the Town specifically asked plaintiffs to list and describe in detail expenses incurred with respect to the subject property.*fn20 Along those same lines, the Town asked plaintiffs to provide it with detailed information concerning any tests or studies conducted upon the property.*fn21 Plaintiffs responded that they had incurred engineering fees in the amount of $3,123.66.*fn22 Plaintiffs further responded that, "legal fees and engineering fees are accruing."*fn23 When asked to describe in "detail" the reasons for those expenses, plaintiffs simply responded: "Engineering fees to develop property; others are self-explanatory."*fn24

The Town then requested documentary evidence relating to those expenses.*fn25 In response, plaintiffs provided an invoice from their engineering firm indicating that its "fee for consulting engineering services rendered" as of November 2, 1986 was $3,623.66, and that a retainer had been paid in the amount of $500.00.*fn26 Plaintiffs also produced a copy of a check in the amount of $500.00 made payable to their engineering firm.*fn27 Plaintiffs produced what appears to be a receipt indicating a payment to Dobbs Engineering; the amount paid appears to be $3,123.66.*fn28 Plaintiffs admit, however, that as of October 27, 1988, no hydrogeological tests or studies had been undertaken; nor had any independent lab tests been performed.*fn29 (Presumably that is still plaintiffs' position, because they have never supplemented those answers to interrogatories.) Plaintiffs' engineering firm did consider an alternate water supply system ("AWS"), though.*fn30

The Town contends that plaintiffs' CERCLA cause of action is defective because they have not incurred costs due to the alleged release or threatened release of hazardous substances, as required under the statute. The Town further contends that even if this court finds that plaintiffs have incurred that type of costs, their CERCLA claim must, nonetheless, fail because such costs clearly do not constitute "response" costs within the meaning of 42 U.S.C. § 9607(a)(4) (West Supp. 1991). Finally, the Town asserts that any costs allegedly incurred by plaintiffs are not recoverable because such costs are not consistent with the national contingency plan, as § 9607(a)(4)(A) requires. Thus, the Town asserts, summary judgment must be granted dismissing plaintiffs' CERCLA cause of action. In the alternative, the Town moves for a declaratory ruling that any recovery by plaintiffs on their CERCLA claim be limited to an amount not to exceed $500.00 — the amount the Town believes plaintiffs are claiming as response costs in their answers to interrogatories.

It is very difficult, in fact nearly impossible, to discern from their papers exactly what plaintiffs' position on this issue is, except to say that, not surprisingly, that they contend that they have and will incur CERCLA response costs. Plaintiffs simply make the bald assertion that "[t]here are `response costs.' . . .;" yet they do not specify in their memorandum of law or elsewhere what they believe those costs to be.*fn31 Plaintiffs also make the statement, unsupported by any legal authority, that "Studies and reports by experts to accomplish remedial action are also recoverable costs."*fn32 More importantly, though, is that plaintiffs did not submit any proof on this motion establishing that they incurred any such costs. Lastly, plaintiffs are apparently also seeking to recover ...

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