BARRINGTON D. PARKER, JR., U.S.D.J.
This action seeking declaratory, injunctive and monetary relief for the violation of civil rights, pursuant to 42 U.S.C. § 1983, is before this Court on Defendants' motions to dismiss. The Defendants, County of Orange and Orange County Sewer District No. 1 ("the County") and Langdon Marsh and Jean-Ann McGrane ("the State"), move to dismiss pursuant to 12(b) (1) for lack of subject matter jurisdiction and pursuant to 12(b) (6) for failure to state a claim.
HBP owns a 6.8-acre parcel of land located in the Village of Harriman, County of Orange and within the boundaries of Sewer District No. 1 and Region III of the New York State Department of Environmental Conservation ("DEC"). HBP seeks to develop the land into a 15-lot single family detached residential subdivision. The County created and administers Sewer District No. 1, a special district vested with the authority and duty to treat and dispose of sanitary sewage and to approve individual sewer connections to the District's sewage facilities. The construction of the facilities was allegedly financed with sewer assessments levied and collected from benefitting properties, including HBP's subdivision.
HBP alleges that without a main line extension permit, its proposed subdivision is completely denied access to the sewer services, depriving it of all reasonable use of its property. HBP also alleges that other property owners, who do not need approval of a new main line extension permit, have unlimited use of the sewage facilities.
HBP claims that the conduct of the Defendants violates its civil rights by unconstitutionally taking its property without just compensation, denying it equal protection of the law, and denying it due process of law, pursuant to the Fifth and Fourteenth Amendments. The County moves to dismiss the complaint, pursuant to Rules 12(b) (1) and 12(b) (6) of the Federal Rules of Civil Procedure, on the grounds that (1) this Court lacks subject matter jurisdiction, (2) principles of res judicata and collateral estoppel bar the action, and (3) HBP has failed to state a claim against it upon which relief can be granted. The State moves to dismiss the action pursuant to Rules 12(b) (1) and 12(b) (6) of the Federal Rules of Civil Procedure, on the grounds that (1) the Eleventh Amendment bars HBP's claim against the State and (2) HBP has failed to state a claim against it upon which relief can be granted.
A. Lack of Subject Matter Jurisdiction
Citing Siler v. Heckler, 578 F. Supp. 744 (N.D.Ga. 1983) and Morabito v. Blum, 528 F. Supp. 252 (S.D.N.Y. 1981), the County argues that this Court lacks subject matter jurisdiction because HBP's constitutional claims against it are clearly frivolous. The County asserts that because the State denied approval of HBP's main line extension permit, HBP only has a state law claim against the State, and not the County, who has approved every permit that it has the power to approve.
Jurisdiction is not defeated, however, by the possibility that the allegations in the complaint might fail to state a claim. As the Supreme Court noted in Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946), "it is well-settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy."
Accordingly, courts have held that a constitutional claim must be wholly insubstantial before a federal court dismisses it for lack of jurisdiction. For example, in Siler, the Court held "unless a constitutional claim is clearly immaterial and made solely for the purpose of obtaining jurisdiction or wholly insubstantial and frivolous, a federal court should not dismiss it for lack of jurisdiction. Rather, the court should accept jurisdiction and then subject the claim to the tests required for a Rule 12(b) (6) motion or a motion for summary judgment under Rule 56." Siler, 578 F. Supp. at 747 (N.D.Ga. 1983) (citations omitted). See also Morabito, 528 F. Supp. 252, 260 (S.D.N.Y. 1981)("while there is judicial authority for the proposition that dismissal for lack of subject matter jurisdiction is appropriate where the complaint fails to allege a substantial federal claim, it is well settled that such dismissals should be confined to cases where the complaint on its face, without resort to extraneous matter, is so plainly insubstantial as to be devoid of any merit, enabling the court to conclude that the claim asserted is patently frivolous or wholly insubstantial.")