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BETTIS v. TOWN OF ONTARIO

September 17, 1992

BRUCE M. BETTIS, MARY JO BETTIS, RICHARD S. FERRARA and CHRISTINE FERRARA, Plaintiffs,
v.
TOWN OF ONTARIO, NEW YORK, LILLIAN B. GALVIN, as Executrix of the Last Will and Testament of Edward F. Galvin, ROBERT MOGRAY, ALBERT BLYTHE, RONALD KREILING, ANTHONY MALONE, HERSHEY-MALONE, n/k/a M.R.B. GROUP, P.C., VIRGINIA SCULLY, n/k/a VIRGINIA SCULLY-HILL, DAVID ALLYN and H. JOHN COLEMAN, Defendants.



The opinion of the court was delivered by: DAVID G. LARIMER

 BACKGROUND

 Plaintiffs brought this action under the Federal Water Pollution Control Act, commonly known as the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. ┬ž 1251 et seq., to obtain injunctive relief, a declaratory judgment, and money damages. Defendants have moved for summary judgment under Fed. R. Civ. P. 56. *fn1"

 Plaintiffs are two married couples who own property in the Scully Subdivision ("the subdivision") in the Town of Ontario, New York ("the town"). Two of the plaintiffs, Bruce and Mary Jo Bettis ("the Bettises") bought their lot in 1986; the other two plaintiffs, Richard and Christine Ferrara ("the Ferraras") bought theirs in 1990. Plaintiffs allege that in 1991 they discovered that the town had diverted a stream into certain pipes and ditches, causing erosion and damage to plaintiffs' property.

 Plaintiffs claim that when they bought lots within the subdivision and built homes there, they did not realize that the property had been a wetland. Plaintiffs contend that the land was not suitable for building and that defendants did not advise them of that fact.

 Plaintiffs filed their complaint in federal court on March 12, 1992. Plaintiffs have sued the town and Lillian B. Calvin, Edward Calvin's widow and the executrix of his will. In addition, a corporation and seven other individuals are named as defendants.

 MRB Group ("MRB") is an engineering firm that served as the town engineer during the relevant time. Anthony Malone is the president of MRB. Plaintiffs allege that MRB and Malone participated in the design and approval of the subdivision, including the alleged diversion of the stream into channels which discharged onto plaintiffs' property.

 Defendant Ronald Kreiling, a civil engineer, was allegedly employed by the town in 1985. Plaintiffs contend that he also took part in the design and approval of the subdivision.

 Robert Mogray was the town supervisor and Albert Blythe was the town highway supervisor. Apart from being identified, Mogray is not expressly named in the factual allegations of the complaint, although there are a number of references to the town's "agents and employees." Blythe allegedly knew that Edward Galvin had excavated and filled in wetlands and that the area was unfit for building construction.

 Virginia Scully-Hill, with her now-deceased husband William Scully, is a former owner of the subdivision. She and her late husband allegedly sold a part of the subdivision to Edward Galvin.

 David Allyn is alleged to be a builder who, as an agent for Edward Galvin, entered into an agreement with the Bettises to construct a one-family house on a lot in the subdivision. Plaintiffs contend that Allyn fraudulently represented to them that a house could be built on the site in compliance with applicable laws and regulations and in a good and workmanlike manner.

 H. John Coleman was allegedly the prior owner of the lot now owned by the Ferraras. He is alleged to have made fraudulent representations to the Ferraras similar to those attributed to Allyn.

 DISCUSSION

 The complaint contains five causes of action. The first alleges that defendants jointly and severally have violated the Clean Water Act. The other four causes of action allege the following pendent state law claims: nuisance; fraud in connection with the sale of the Bettises' lot; violation of Article 24 of the New York Environmental Conservation Law; and fraud in connection with the sale of the Ferraras' lot.

 The Clean Water Act is the only claim that has a federal court nexus. All of the other claims relate to alleged claims under state law.

 Defendants move to dismiss the Clean Water Act cause of action on a number of grounds and also seek dismissal of the pendent state law claims especially if the Clean Water Act cause of action is dismissed.

 Because I believe that there is no basis, on several grounds, for a claim under the Clean Water Act, that cause of action is dismissed. There being no other federal connection to this lawsuit, I decline to retain jurisdiction over the other pendent state law claims under 28 ...


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