Index No. 0324/94, June 29, 1994 (Beisner, J.).
On August 19, 1994, the Moody Hill Plaintiffs received notice that the NYHP was considering renomination of Coleman Station as a historical district for both the State and National Registers. Because the Moody Hill Plaintiffs had not yet received notice that the National Register listing had occurred, this letter reinforced their impression that their objections as to both listings would be considered. The Moody Hill Plaintiffs submitted written objections raising questions as to whether Coleman Station met the standards and criteria necessary for State or National Register listing.
Meanwhile, at the federal level, on August 31, 1993, the NPS published notice in the Federal Register that Coleman Station was being considered for entry on the National Register, as required by federal regulations. 36 C.F.R. § 60.16(a). On September 30, 1993, Coleman Station was listed on the National Register. Pursuant to federal regulations, notice of the listing was published in the Federal Register the same day and notice was sent to the NYHP, id. § 60.13(b), who was responsible for notifying property owners within the district. Id. § 60.6(u).
The NYHP did not notify property owners of the National Register listing until December 31, 1994, seventeen months later. No notice was provided for adjacent property owners. Federal regulations do not impose any time limit for the State Agency to provide notice of listing on the National Register, nor do the regulations require provision of notice to owners of contiguous property.
In mid-January 1995, the NYHP notified the Moody Hill Plaintiffs that it would consider their objections only as to nomination to the State Register, but not as to the National Register. At a hearing on February 2, 1995, the Board decided not to renominate Coleman Station to the State Register.
On February 28, 1995, Plaintiffs submitted a petition to remove Coleman Station from the National Register, pursuant to 36 C.F.R. § 60.15,
on grounds that: (1) the property did not meet the National Register criteria for evaluation; (2) there was an error in professional judgment as to whether the property meets the criteria for evaluation; and (3) there was prejudicial procedural error in the listing process. In support of the first two grounds, Plaintiffs alleged that the boundaries of the Coleman Station Historic District were defective and that Coleman Station lacked the "historical integrity" required by 36 C.F.R. § 60.4(a). In support of their assertion of prejudicial procedural error, Plaintiffs alleged that the seventeen month delay in notice to property owners within the district and lack of notice to owners of adjacent property violated their procedural due process rights under the Fifth Amendment. The Plaintiffs also asserted that the National Register listing was voided by the New York State Supreme Court's annulment of the State Register listing and the NYHP's subsequent failure to renominate the district to the State Register.
Moody Hill's petition for removal was accompanied by a letter from the Deputy Commissioner for the NYHP, which stated that questions had been raised regarding the integrity of this district, and that an error in drawing the boundaries may have occurred.
On August 18, 1995, the Keeper denied the petition for removal. Regarding the eligibility of the historic district, she found that the nomination materials established eligibility for listing according to the criteria set forth in the federal regulations. Regarding the possibility that errors may have occurred regarding the boundaries of the district, as mentioned in the Deputy Commissioner's cover letter, the Keeper first noted that the Deputy Commissioner had not provided further information or a State opinion on the matter, and held that "As the record stands, we find no basis for professional error in delineating the boundaries for the historic district." Regarding the Plaintiffs' due process argument, the Keeper stated:
We do not understand [the State Court determination] to conclude that the State listing violated due process rights. Rather the opinion expressly concludes that the State listing process was invalid only because the state failed to notify the property owners of the listing within the 45 days of the listing as required by 9 N.Y.C.R.R. 427.5(f)(1) and that the state failed to make an administrative finding as required by 9 N.Y.C.R.R. 427.5(d).
On December 29, 1995, the Moody Hill Plaintiffs and the Perottis filed this action seeking judicial review of the NPS' denial of the petition for removal. As an initial ground for reversal of the Keeper's decision, Plaintiffs again contend that their rights to procedural due process have been violated. They assert that listing Coleman Station on the National Register substantially affected their property right because the listing subjects their property to the strictures of the State Environmental Quality Review Act ("SEQRA"). Under SEQRA, an owner of property within or substantially contiguous to a National Historic Register district must submit an Environmental Impact Statement ("EIS") before taking any action on his or her property which involves approval or funding from a state or local agency. 6 N.Y.C.R.R. § 617.4(b)(9). According to Plaintiffs, imposition of SEQRA implicates their property interest, and therefore the delay in notice to property owners within the district and lack of required notice to adjoining property owners violated their procedural due process rights.
Second, Plaintiffs allege that Coleman Station was improperly nominated and listed. Plaintiffs assert that the Keeper overlooked prejudicial procedural error in the nomination to the National Register which occurred when the State Register listing was voided, thereby voiding the State Agency determination that the district met listing criteria. According to the Plaintiffs, the State Agency determination is a necessary predicate to the National Register listing. Finally, Plaintiffs contend that the Keeper overlooked the fact that the district fails to meet the criteria for National Register listing.
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court is not expected to resolve disputed issues of fact, Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir. 1987), but to determine whether there are any factual issues which require a trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp, 475 U.S. 574, 585-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The court must view the evidence in the light most favorable to the non-moving party. O'Brien v. National Gypsum Co., 944 F.2d 69, 72 (2d Cir. 1991). However, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." 475 U.S. at 586.
A. An Issue of Fact Exists as to Whether Plaintiffs' Property Interests are Implicated by Imposition of SEORA
Plaintiffs claim that, independent of the procedures under the NHPA, timely and individual notification of listing on the National Register is required by the Due Process Clause. In order to assert a violation of procedural due process rights, Plaintiffs must "first identify a property right, second show that the [government] has deprived him of that right, and third show that the deprivation was effected without due process." Local 342, Long Island Public Serv. Employees, UMD, ILA, AFL-CIO v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994); Irwin v. City of New York, 902 F. Supp. 442, 446-47 (S.D.N.Y. 1995). Property rights are not subject to due process protection unless the plaintiff has "more than a unilateral expectation of it. The plaintiff must, instead, have a legitimate claim of entitlement." Id. at 447 (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). "Property interests are not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source, such as state law." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) (quoting Roth, 408 U.S. at 577). Because the property interest claimed here involves New York State regulation of land use, the existence and dimensions of the property interest should be determined by New York State Law.
New York law uses an entitlement analysis to determine if the benefit claimed by a plaintiff constitutes a property interest. Walz v. Town of Smithtown, 46 F.3d 162, 167-68 (2d. Cir. 1995); RRI Realty Corp. Inc. v. Village of Southampton, 870 F.2d 911, 918 (2d Cir. 1989). In applying the entitlement analysis test, the court must focus on the degree of official discretion exercised in granting or denying the claimed benefit. RRI 870 F.2d at 918. "The question can be particularly difficult in cases involving governmental regulation of the manner in which an owner may use his property." Sullivan v. Town of Salem, 805 F.2d 81, 84 (2d Cir. 1986). Where the state agency retains full discretion to grant or deny the application, no property interest sufficient to invoke due process considerations is established. "An entitlement to a benefit arises only when the discretion of the issuing agency is so narrowly circumscribed as to virtually assure conferral of the benefit." Gagliardi v. Village of Pawling, 18 F.3d 188, 192 (2d Cir. 1994)(quoting RRI, 870 F.2d at 918).
Plaintiffs contend that protectible property rights are implicated by the listing in the National Register because such a listing subject any property within or adjacent to the historical district to the strictures of SEQRA, which was enacted in order to "incorporate the consideration of environmental factors into the existing planning, review and decision-making processes of state, regional and local government agencies at the earliest possible time." To that end, SEQRA directs agencies to require an EIS for "actions they directly undertake, fund or approve." 6 N.Y.C.R.R. § 617.1(b). SEQRA sets forth a list of actions which automatically require the preparation of an EIS. Id. § 617.4. This list of "Type I Actions" includes any physical change made on property within or adjacent to a historical district listed on the State or National Register. Id. at § 617.4(b)(9).
In relevant part, SEQRA defines "action" as:
(1) projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure that: (i) are directly undertaken by an agency; or (ii) involve funding by an agency; or (iii) require one or more new or modified approvals from an agency or agencies . . .