The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge
The basic facts of this case appear in this court's Memorandum and Order dated January 11, 1991, familiarity with which is assumed. Plaintiff Elias filed suit against the Town of Brookhaven and its Planning Board and Town Board, seeking to restrain enforcement of a zoning ordinance passed by the town. Before adoption of the ordinance, Elias's property was zoned for commercial use. He alleges he bought a 18.09 parcel of property in the Town of Brookhaven on July 14, 1986 for $ 454,755.20 and planned to develop it as a shopping center and to that end submitted several environmental reports required under state law.
During the period while the environmental impact was being reviewed the town had hired consultants to prepare a master plan for land use throughout the town. Pursuant to that plan and on July 5, 1988 the town changed, among other things, the zoning classification of various parcels of commercial land, including that owned by Elias, to allow only residential use.
Elias filed suit alleging that the new ordinance was not rationally related to any legitimate objectives of the town, and in any event so devalued and destroyed the economic and use value of the property as to constitute a "taking" within the meaning of the Fifth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. He also argues in a supplemental submission that the ordinance constitutes "spot zoning" in violation of the Equal Protection clause of the Fourteenth Amendment.
This court treated defendants' motion to dismiss as one for summary judgment and directed the parties "to file and serve such further papers as they desire but particularly addressed to the issue whether the zoning ordinance as amended deprives plaintiff of all economically viable use of his property."
There is no merit in Elias's equal protection argument.
He says that because his land "borders on major heavily trafficked highways with attendant noise, pollution and safety hazards to pedestrians and small children", the land is "not at all rationally related to the residential use" for which it is now zoned.
On its face the change in zoning does not appear to be discriminatory against Elias. Defendants have submitted evidence that the Town Board considered preservation of the environment, control of excessive commercial development, and prevention of traffic congestion among the reasons for rezoning the land. These are legitimate town concerns.
Moreover, the Zoning change throughout the town was made pursuant to a comprehensive plan and legitimate criteria. The ordinance thus did not single out Elias. Indeed, he recognized as much in his amended complaint when he alleged that "the Town was concerned with the overall proposed commercial development of the Town without regard to the specific site characteristics of the subject parcel." Where zoning is made in accordance with an overall plan it can hardly be the "spot zoning" that Elias claims.
Elias's brief and a supplemental declaration of his counsel suggest that the ordinance was enforced against him in a discriminatory manner because the town provided others "in similar cases" with "hardship relief" but did not do the same for him. He has provided absolutely no evidence that others received such "relief" or that anyone who did was similarly situated to him. Mere generalized allegations will not defeat a ...