a claim of futility), Rivervale has chosen instead to ground its futility claim on asserted bias.
Rivervale claims that the local authorities are biased against it, that the alleged disparate zoning treatment of Rivervale "effects and was intended to effect punishment and retribution without judicial trial for past acts by UWR and its subsidiaries, including Rivervale", Complaint P 29, resulting in a bill of attainder in violation of Article I, § 10, cl. 1 of the United States Constitution, and that equal protection was denied.
A municipal zoning ordinance is initially presumed to be valid, see City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985), and will not be held unconstitutional if its wisdom is at least fairly debatable and the ordinance bears a rational relationship to a permissible state objective. Id.
Bias in connection with a legislative enactment is primarily judged on an objective basis: does the enactment itself manifest bias, or can bias be inferred from the factual circumstances? Whereas extrinsic evidence of bias on the part of an administrative decision-maker exercising discretionary or quasi-adjudicative authority may ordinarily be considered, such evidence is allowable with respect to legislative enactments only where special circumstances, such as invidious discrimination, e.g., racial bias, may be involved. See generally United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968).
No showing of bias, objective or otherwise, has been made here. In support of its claim that the Town intended to punish Rivervale for previous acts of UWR and its affiliates, Rivervale points to the rezoning of its property from R-40 to R-80 and to its allegation that Local Law No. 5 "furthered no legitimate purpose since it failed to implement the stated goals contained in the Town's own Proposed Master Plan Implementation Report." Kinzey Aff. P 7. Both of these claims were rejected by the Appellate Division of the New York Supreme Court. That court, after addressing the issue of the Town's compliance with the SEQRA environmental review process, reached the merits of Rivervale's other claims; it found that the rezoning was consistent with the Town's master plan and that the discretionary zoning was "entirely reasonable." Rivervale Realty v. Town Bd., 170 A.D.2d 762, 565 N.Y.S.2d 583, 584 (N.Y. App. Div., 3d Dep't 1991). The state court also found that even if the Town mistakenly believed Rivervale's property to be watershed property, the purposes of limiting future development and preserving open space were reasonable. Id. Whether or not there is any preclusive effect to this decision,
see Part VI below, Rivervale has not created a triable issue of material fact with respect to the reasonableness of the Town's adoption of its zoning amendments.
Even if the constitutional issues raised by Rivervale in this federal action are not precluded, the responses given by the Town's planning consultants to Rivervale's protests during the public hearings on the adoption of Local Law No. 5 do not support a reasonable inference of constitutionally impermissible bias. The record indicates, for example, that one basis upon which the Town rejected Rivervale's requests for an advance affirmative legislative exemption from the zoning amendment was material contained in a report submitted to the Town by Rivervale itself:
The communities in the Company's watershed are mainly bedroom communities . . . They are dependent upon a certain aesthetic character [to] which the Company properties contribute. The properties also act as a natural, aesthetic buffer to these highly developed residential areas. Therefore, significant development of the Company property would diminish the aesthetic character of the area. Valuable green areas and open space would be lost as well as a natural resource buffer.
Generic Environmental Impact Statement, Proposed Revised Zoning Code, Orangetown, New York, Comment No. LD-6-3, Laurino Aff., Exh. H at 15.
Submission to a fatally biased tribunal is itself a constitutional injury, see Hammond v. Baldwin, 866 F.2d 172, 176 (6th Cir. 1989). However, the party alleging bias is required to submit proof of partiality or its appearance on the part of the decision-makers, such as substantial pecuniary interest in the outcome, see Gibson v. Berryhill, 411 U.S. 564, 579, 36 L. Ed. 2d 488, 93 S. Ct. 1689 (1973).
Rivervale has offered no evidence of bias or intentionally discriminatory conduct by the Town defendants.
Rivervale has provided no newspaper citations, no records of previous town meetings on other subjects, and no comments made by town officials to support its conclusory allegations of past "great animosity" to UWR or to give factual evidence of the nature of "past disputes." See Laurino Aff. P 10; see also Part VIII below.
Consequently, Rivervale has not established a triable issue of material fact with regard to its claim of futility. See Xikis v. The City of New York, 1990 WL 156155, at 6 (E.D.N.Y.) (rejecting futility claim even though plaintiff alleged local boards were "openly hostile" to commercial use of plaintiff's property).
Not having requested an exemption or variance and hence none having been denied, Rivervale has not demonstrated the evidence of injury requisite for consideration of its due process, equal protection, and takings claims, and these claims are premature. See Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984) (Article III § 2 of the United States Constitution limits federal courts to adjudicating an actual "case or controversy").
Rivervale argues that the zoning determinations were illegally based on the identity of the owner of the property rather than the locality and topography of the land owned by Rivervale, see Kinzey Aff. P 20. The Town did not single out UWR in referring to its properties, contiguous to other similarly rezoned areas, by name but also referred to such other properties in terms of the identity of the owner: "The Henry Kaufman Camp" and "The Rockland Country Club and two adjacent parcels". See Laurino Aff., Exh. E at 7.
I find neither a genuine issue of material fact nor any merit with respect to Rivervale's bill of attainder claims.
In the appeal of Rivervale's Article 78 proceeding, the Appellate Division, Third Department, sustained the reasonableness of Local Law No. 5. Rivervale Realty v. Town Bd., 170 A.D. 2d 762, 565 N.Y.S.2d 583 (N.Y. App. Div., 3d Dep't, 1991). Rivervale challenges that reasonableness again in the present litigation.
Duplicative, overlapping litigation is burdensome to both the adversaries and to the legal system. For these reasons, withholding known claims growing out of the same circumstances as those pleaded in order to obtain more bites at the apple invites their preclusion. See generally, e.g., Smith v. Russell Sage College, 54 N.Y.2d 185, 192-93, 445 N.Y.S.2d 68, 429 N.E.2d 746 (1982). Thus failure to raise available federal constitutional claims in the course of judicial review of state or local administrative action may result in their preclusion. See Fay v. South Colonie Central School District, 802 F.2d 21, 29 (2d Cir. 1986) (even if plaintiff's claims were not litigated in an Article 78 proceeding, they could have been litigated there); Genova v. Town of Southampton, 776 F.2d 1560, 1561 (2d Cir. 1985).
Similarly, where a claim is necessarily decided in order to reach the decision adopted, res judicata or collateral estoppel may apply. See Fay, 802 F.2d at 28; Friarton Estates Corp. v. City of New York, 681 F.2d 150 (2d Cir. 1982); Herman v. City of New York, 1988 WL 117428 (S.D.N.Y.), at 2; Albenga v. Ward., 635 F. Supp. 660, 663 (S.D.N.Y. 1986); Collard v. The Incorporated Village of Flower Hill, 604 F. Supp. 1318, 1322-23 (E.D.N.Y. 1984), aff'd 759 F.2d 205 (2d Cir.), cert. denied, 474 U.S. 827, 88 L. Ed. 2d 72, 106 S. Ct. 88 (1985); Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 482 N.E.2d 63, 67, 492 N.Y.S.2d 584, 588 (1985).
The Full Faith and Credit Act, 28 U.S.C. § 1738, requires all federal courts to give preclusive effect to a state-court judgment whenever the courts of the state in which the judgment was rendered would do so. Migra v. Warren City School District, 465 U.S. 75, 81, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984).
At the same time it is important for courts to be vigilant to avoid preclusion of claims which in reality could not be pursued because of procedural, factfinding, jurisdictional, or subject matter limitations in state procedures for review of administrative action. Parties seeking to challenge administrative rulings must not be required to forfeit federal rights where the state court cannot rule on a claim.
Rivervale sought to annul Local Law No. 5 on the grounds that its adoption was in violation of lawful procedures under SEQRA, and that its adoption and application as to Rivervale's property were illegal, arbitrary and capricious, and lacked a rational basis. Def. Motion for Summary Judgment, Exh. A (Verified Petition, Dec. 14, 1988). Rivervale argues that its constitutional claims in this federal action, which Rivervale did not assert in the state action, are more broadly based on the enactment of the zoning amendments as a whole. Yet the central roles of the environmental study and of the public hearings held prior to the Town's adoption of the zoning amendments, both of which were part of the record before the state courts, suggest that claim preclusion applies here. In any event, principles of issue preclusion and a lack of merit in Rivervale's other claims require dismissal of Rivervale's complaint, and therefore I need not decide the outer parameters of claim preclusion in this case.
The New York Appellate Division upheld the lower court's dismissal of Rivervale's Article 78 challenge to the Town's SEQRA review. Unlike the lower court, the Appellate Court reached the merits. It ruled, inter alia, that the application of Local Law No. 5 to Rivervale's property was not "illegal, arbitrary or an abuse of discretion" and that the Town's "discretionary zoning determination [with respect to Rivervale's property] is entirely reasonable." Rivervale Realty, 170 A.D.2d 762, 565 N.Y.S.2d at 584.
Zoning ordinances "will survive substantive due process challenge unless they are 'clearly arbitrary and unreasonable, having no substantive relation to the public health, safety, morals, or general welfare.'" RRI Realty Corp. v. Incorporated Village of Southhampton, 870 F.2d 911, 915 (2d Cir.), cert. denied, 493 U.S. 893, 107 L. Ed. 2d 191, 110 S. Ct. 240 (1989) (quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 71 L. Ed. 303, 47 S. Ct. 114 (1926)). The Appellate Division's determination of these issues is highly relevant to, if not dispositive of, Rivervale's constitutional claims.
Rivervale's equal protection claim alleges disparate zoning treatment of Rivervale, no legitimate governmental interests in the rezoning, and intentional and unlawful discrimination against Rivervale as part of an "identifiable or easily ascertainable group of property owners." Complaint PP 21-25. State and local governmental decisions must only be rationally related to a legitimate state interest, unless a given distinctive treatment involves either a fundamental right or a suspect classification, see Nordlinger v. Hahn, 112 S. Ct. 2326, 120 L. Ed. 2d 1, 60 U.S.L.W. 4563 (1992), neither of which is involved here. The central question then is whether the Town had a rational basis for rezoning Rivervale's property.
The Appellate Division found that the Town's zoning decision with respect to Rivervale was "entirely reasonable" and consistent with the Town's master plan. Moreover, there is no evidence that only Rivervale's land was rezoned to R-80. See Laurino Aff., Exhibit E, at 7; see also Part V above. And some imprecision is permitted in regulations such as those at issue here. See Greene v. Town of Blooming Grove, 879 F.2d 1061, 1064 (2d Cir. 1989). Thus there is neither a triable issue of material fact nor any merit to Rivervale's equal protection claim.
Rivervale also asserts that the rezoning of its acreage constituted an unconstitutional taking of its property without just compensation under the Fifth and Fourteenth Amendments. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2889, 120 L. Ed. 2d 798, 60 U.S.L.W. 4842 (1992), reaffirmed prior rulings that for a regulatory taking to occur, a property owner must have been "called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle." Id., 112 S. Ct. at 2895. The Lucas Court noted that "'the economic impact of the regulation on the claimant and . . . the extent to which the regulation has interfered with distinct investment-backed expectations' are keenly relevant to takings analysis generally." Id., at 2895 n. 8, quoting Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978). The Court in Lucas also stated that "it seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers," 112 S. Ct. at 2899.
Deprivation of the best possible economic use of property does not alone constitute a taking. See Penn Central, 438 U.S. at 127; Sadowsky v. New York, 732 F.2d 312, 317 (2d Cir. 1984) ("prohibition of the most profitable or beneficial use of a property will not necessitate a finding that a taking has occurred"). In Sadowsky, the court reasoned that the proper inquiry is whether the use allowed is sufficiently desirable to permit property owners to "sell the property to someone for that use." 732 F.2d at 318.
Rivervale cannot show that it was deprived of economically viable use of its property or that it is unsalable; subsequent to the adoption of Local Law No. 5, it conveyed 227 acres of its property for $ 25 million Laurino Aff. P 12. Rivervale has not submitted any proof of acquisition cost or fair market value at the time the property was acquired, nor any estimate of the current fair market value of its remaining rezoned property. See generally, Trevaskis, "Measure of Damage for Regulatory Taking," 3 Probate and Property, No. 2 at 17 (ABA Mar./Apr. 1992).
Rivervale attempts to minimize the significance of its $ 25 million sale and to maximize the alleged economic hardship imposed by the rezoning on 92 of its remaining 143 acres:
Rivervale was extremely fortunate to have negotiated very favorable terms for Rivervale on this transaction [the sale of 227 acres]. Rivervale does not expect its future sales of remaining properties will be as fortuitous. . . . Of Rivervale's remaining property, there are no large parcels of contiguous acreage. . . Moreover, the real estate market has changed to the seller's detriment since the sale of the golf course parcel. Rivervale is informed that the Japanese buyer of the 227 acres has put the parcel on the market at seventeen million dollars ($ 17M), a price substantially lower than the twenty-five million ($ 25M) it had paid to Rivervale.