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MOODY HILL FARMS L.P. v. UNITED STATES DOI

September 4, 1997

MOODY HILL FARMS LIMITED PARTNERSHIP, DOUGLAS DURST and SUSANNE DURST, RAYMOND McENROE, FRANK S. PEROTTI and DORIS PEROTTI, Plaintiffs, against UNITED STATES DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, Defendant.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: SWEET

Sweet, D.J.

 Plaintiffs Moody Hill Farms Limited Partnership, Douglas Durst, Susanne Durst, Raymond McEnroe, Frank S. Perotti and Doris Perotti, ("Plaintiffs"), have brought this motion pursuant to Rule 56(b), Fed. R. Civ. P., for summary judgment regarding their action pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq., (the "APA"), challenging the denial by the Keeper of the National Register of Historic places (the "Keeper") of Plaintiffs' petition to remove the Hamlet of Coleman Station, ("Coleman Station"), from the National Register of Historic Places, ("National Register"). Defendant the National Park Service of the United States Department of the Interior, (the "NPS"), has also moved for summary judgment and, pursuant to Fed. R. Civ. P. 26(c), for denial of discovery.

 For the reasons set forth below, the Moody Hill Plaintiffs' summary judgment motion is denied in part and granted in part, and the NPS' motion for summary judgment is denied.

 Parties

 Moody Hill Farms Limited Partnership ("Moody Hill") operates a composting facility and organic farm at its principal place of business in Coleman Station, a hamlet in the Town of Northeast in Dutchess County, New York. The property on which Moody Hill operates is included within the Coleman Station Historic District.

 Douglas and Suzanne Durst are the owners of the property upon which Moody Hill operates. Douglas Durst ("Durst") is also a partner in Moody Hill. Raymond McEnroe ("McEnroe") owns a two hundred acre farm, of which twenty-one acres are included within the Coleman Station Historic District. McEnroe is a partner with Durst in Moody Hill (collectively "Moody Hill Plaintiffs"). Frank and Doris Perotti (the "Perottis") own a farm adjacent to the Coleman Station Historic District.

 The NPS administers the National Register, which lists districts, sites, buildings, structures and objects of historical, architectural, archeological, cultural and engineering significance.

 Prior Proceedings

 Plaintiffs filed the instant action on December 29, 1995, seeking judicial review of the Keeper's denial of its petition for removal of Coleman Station from the National Register. Plaintiffs allege that the denial was arbitrary and capricious because the Keeper failed to follow the regulatory requirements for designation of historic districts. In addition, Plaintiffs assert that notice of listing on the National Register was insufficient because the owners of property within the district were not notified until a year and a half after the listing took place, and the Perottis, who own property adjacent to the Coleman Station Historic District, were not notified of the listing at all. While no notice requirement exists under the National Historic Preservation Act ("NHPA"), Plaintiffs maintain that their right to timely, individual notification arises from the Due Process Clause of the Fifth Amendment.

 On February 26, 1997, Plaintiffs filed this motion for summary judgment. The NPS also moved for summary judgment and oral argument was heard on May 7, 1997, at which time the motion was deemed fully submitted.

 Facts

 Coleman Station is a hamlet in the Town of Northeast in Dutchess County, New York. In February 1993, several local residents submitted an application to the National Register and the State Register requesting nomination of Coleman Station as a Historic District. It may be fair to infer that the organic fertilizing employed by Moody Hill did not endear the farm to its neighbors. The New York State Office of Parks, Recreation and Historic Preservation, (the "NYHP"), sent notice to property owners within the district, notifying them of the nomination to the State and National Registers, as required by federal regulations. 36 C.F.R. § 60.6(c). *fn1" The Moody Hill Plaintiffs submitted objections regarding the nomination to the National and State Registers on the grounds that the area did not meet the necessary criteria. *fn2" In August 1993, the Deputy Commissioner of the NYHP approved Coleman Station for listing on the State Register without written opinion, and forwarded the nomination to the Keeper.

 On October 25, 1993, seventy-four days after the approval of Coleman Station for listing on the State Register, property owners within Coleman Station received notice that Coleman Station had been listed on the State Register. The Moody Hill Plaintiffs then filed an Article 78 proceeding in Supreme Court, Dutchess County, challenging the listing as arbitrary and capricious on three grounds: (1) Coleman Station did not meet the criteria for such a listing as established by the New York State Parks, Recreation and Historic Preservation Law; (2) notice of determination of the listing did not provide notice within the time required by the New York Code of Rules and Regulations, 9 N.Y.C.R.R. § 427.5; and (3) the decision had been issued without a written finding in support as required by the regulations. Id. On June 29, 1994, the New York Supreme Court, Dutchess County, granted Moody Hill's Article 78 proceeding and annulled the determination which listed Coleman Station on the State Register. The court based its decision on the violation of state ...


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