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March 29, 1993

Rivervale Realty Co., Inc., Plaintiff,
The Town of Orangetown, New York, a municipal corporation; Joseph Colello, Charles McLiverty, Cornelius O'Sullivan, Roger Pellegrini and Thomas Swift, individually and in their respective official capacities as members of the Town Board of the Town of Orangetown; and John A. Rocco, Barry W. Conroy, Jr., Gus Keramidas, Anthony Kressevich, Jr., and Mary Ann Gavioli, individually and in their respective official capacities as the Planning Board of the Town of Orangetown, Defendants.

The opinion of the court was delivered by: VINCENT L. BRODERICK



 This case involves claims by a real estate development company challenging, on various bases, the constitutionality of a local zoning ordinance. Plaintiff has invoked 42 U.S.C. § 1983.

 While it has not decided what use it will make of the properties it asserts have been unconstitutionally affected by the zoning amendment, Rivervale seeks anticipatory injunctive and declaratory relief. Although Rivervale's complaint appears to attempt to raise questions as to the constitutionality of the enactment of the amendment of the local law, Complaint PP 25, 34, Rivervale's principal thrust seems to be that there are constitutional infirmities in the application of the zoning amendment to Rivervale's property. *fn1" The complaint alleges that the amended local law constitutes a bill of attainder and that the local authorities were biased against Rivervale; that there has been a denial of equal protection and of substantive due process; and that the action of the local authorities constituted an unconstitutional taking.

 All defendants (the Town of Orangetown, the Town Board, the Planning Board and individual members of those boards) have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth in this memorandum order, I grant the motion.


 In December 1986 the Town of Orangetown ("Town") adopted a "Master Plan" based on a comprehensive two-year review of the Town's development and of its zoning code. The Master Plan contained proposed amendments to the Town's zoning code that were designed to guide commercial and residential development. On August 15, 1988 the Town Board adopted the amendments as Local Law No. 5 of 1988 ("Local Law No. 5"). Local Law No. 5 incorporated the proposal of the Town's Planning Board ("Planning Board") that the lands owned by any subsidiary of United Water Resources, Inc. ("UWR"), including the property at issue here belonging to plaintiff Rivervale Realty Co., Inc. ("Rivervale"), be rezoned from "Low Density Residential," or R-40 ("R-40"), which permits a density of use equal to one dwelling unit per gross acre, to "Rural Density Residential," or R-80 ("R-80"), which permits a density of use equal to one dwelling unit per two gross acres. This replacement of one-acre zoning with two-acre zoning reduced by approximately half the number of residential units that may be built on the rezoned land.

 Over the next year and a half the Town held public hearings and considered applications by property owners for exceptions to the zoning amendments. *fn2"

 While Rivervale protested against the rezoning to Rural Density Residential of 316 of its approximately 370 acres, *fn3" Rivervale did not apply for either an area-wide or a use variance. It rather sought to annul Local Law No. 5 through an Article 78 petition in New York State Supreme Court in December 1988, alleging lack of compliance by the Town with the State Environmental Quality Review Act ("SEQRA"), N.Y. Envt'l Conserv. Law §§ 8-0101 et seq. (McKinney 1984).

 In October 1989 the New York State Supreme Court denied Rivervale's Article 78 petition for lack of standing. In the Matter of the Application of Rivervale Realty Co., Inc. v. The Town Board of the Town of Orangetown (N.Y. Sup. Ct., Rockland Co., Index # 5988/88, see Defendants' Motion for Summary Judgment, Exh. B).

 On November 29, 1989, I denied the defendants' motion to dismiss the complaint or to stay this action pending state appellate review, finding that Rivervale "raises a bundle of constitutional questions which merit exploration and resolution." Transcript, Nov. 29, 1989, see Kinzey Aff., Exh. 5 at 24.

 In February 1991 the New York State Supreme Court Appellate Division, Third Department rejected the lower court's determination that Rivervale lacked standing, but it affirmed dismissal of Rivervale's petition on the merits, finding that in the SEQRA study the required "hard look" had been taken at the economic and environmental impacts of the zoning amendments. It held that the rezoning was reasonable:

The record clearly reveals that the rezoning was designed, in large part, to limit future development and preserve open space in a manner consistent with respondent's master plan. This discretionary zoning is entirely reasonable and, considering our limited authority to review, must be upheld. . . . We reject petitioners' remaining contentions.

 Rivervale Realty, 170 A.D.2d 762, 565 N.Y.S.2d at 584. Rivervale did not appeal from this decision.

 The New York appellate court having rendered a final decision in Rivervale's Article 78 proceeding, on defendants' summary judgment motion I now confront those constitutional issues, left open at the time I upheld the complaint, with respect to which I did not "anticipate there will be resolution in the state courts." Transcript, Nov. 29, 1989, Kinzey Aff., Exh. 5 at 24.


 Rule 56(c) Fed. R. Civ. P. provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The purpose of the motion is to determine whether there is a genuine issue for trial. A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see Converse v. General Motors Corp., 893 F.2d 513, 514 (2d Cir. 1990). On this motion for summary judgment, I am required to give Rivervale, the party opposing the motion, the benefit of any reasonable inferences from proofs submitted in determining whether there is a genuine issue of material fact which, if determined in favor of Rivervale, would warrant judgment in its favor. But Rivervale, the party with the burden of proof, has the obligation to persuade me at this stage that there is such evidence that a "reasonable jury could return a verdict" for it. Absent evidence to that effect, the defendants are entitled to judgment dismissing the claims involved. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson, 477 U.S. at 249.


 A threshold issue is the ripeness of the claims for adjudication. The United States Supreme Court addressed this issue in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985), and established a two-pronged test for determining ripeness in cases challenging as confiscatory local land use controls. The first prong is that the government entity charged with implementing the regulations must have "reached a final decision regarding the application of the regulations to the property at issue." Id, at 186. The second prong is that the person or entity challenging the local law must have sought compensation from the local entity if "a reasonable, certain and adequate provision for obtaining compensation" has been provided. Id. at 194.

 A. Williamson's First Prong.

 The final decision standard set forth in Williamson's first prong entails an inquiry as to whether or not the "initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury." Id. at 193. The Williamson Court noted that in land regulation cases, application for a variance is generally ...

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