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JULIANO v. MONTGOMERY-OTSEGO-SCHOHARIE SOLID WASTE

November 1, 1997

ALBERT JULIANO and JUDENE JULIANO, Plaintiffs, against MONTGOMERY-OTSEGO-SCHOHARIE SOLID WASTE MANAGEMENT AUTHORITY, MONTGOMERY COUNTY, OTSEGO COUNTY, and SCHOHARIE COUNTY, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 This is essentially a takings case. Plaintiffs Albert and Judene Juliano own 166 acres in the Town of Charleston, Montgomery County, New York. Although Plaintiffs reside elsewhere, they purchased the 166 acres in 1987 with the stated intent of operating a shooting and hunting club.

 Defendant Montgomery-Otsego-Schoharie Solid Waste Management Authority ("MOSA") is a New York Public Authority created to establish a solid waste management facility within Montgomery, Otsego, and Schoharie Counties. MOSA's powers include the power to condemn any real property within its area of operation in order to establish the siting of a solid waste facility. In February, 1992, MOSA identified fourteen preliminary siting areas. On April 10, 1992, MOSA contacted each of the owners of the fourteen parcels, including Plaintiffs, to obtain permission for a visual site inspection. Plaintiffs granted permission for the inspection on April 21, 1992.

 After inspecting the fourteen preliminary sites, Site "G", which included Plaintiffs' property, was identified as one of three primary sites for further field investigation. On September 28, 1992, MOSA and Plaintiffs entered into an agreement ("Testing Agreement") where in consideration of the sum of $ 1,000 Plaintiffs consented to the entry and testing of their premises. *fn1"

 MOSA began testing in October, 1992. The testing included excavation of test pits, drilling and sampling of borings, installation of monitoring wells and piezometers, surface and bore hole geophysical survey, hydraulic conductivity testing, and pumping tests. Testing continued until at least May, 1995, and MOSA concedes that 24 monitoring wells and 8 piezometers remain on the property. *fn2" These well and meter casings are four inches in diameter and extend 2 to 3 feet above the ground.

 MOSA states that it has not made a decision whether to proceed with development of Site G for a regional sanitary landfill to service its three county service area. MOSA avers that a decision whether to proceed will be made in 1997, and if the project goes forward, the Juliano premises will be acquired by the state under New York's Eminent Domain Procedure Law and Plaintiffs will be compensated. Alternatively, if MOSA decides to abandon the project, it concedes that it will be obligated to compensate Plaintiffs for any damage to their property as required by the Testing Agreement.

 Defendants MOSA and the individual counties seek summary judgment for the following reasons:

 
(1) The individual counties have no legal duty under the Public Authorities Law for the actions of MOSA.
 
(2) MOSA has not effectuated a permanent taking.
 
(3) Plaintiffs have not exhausted their required state remedies.

 On September 26, 1997, in a decision rendered from the bench after oral argument, the Court dismissed Plaintiffs' Complaint as to Montgomery County, Otsego County, and Schoharie County. Accordingly, only MOSA remains.

 II. DISCUSSION

 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 A. MOSA's Taking

 Although Plaintiffs have labeled the present action using the generic term "inverse condemnation," the Court actually sees two takings issues in the facts of this case. The first issue is whether the 24 monitoring wells and 8 piezometers remaining on Plaintiffs' property constitute a "permanent physical occupation" requiring just compensation. The second issue is whether MOSA's designation of Plaintiffs' property as a potential site for a proposed sanitary landfill constitutes a regulatory taking requiring just compensation. *fn3"

 Before the Court can address either aspect of Plaintiffs' takings claim we must first determine whether these questions are ripe for federal court review. The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S. Ct. 2485, 2496, n.18, 125 L. Ed. 2d 38 (1993). In Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), the Supreme Court set forth a two-pronged test for assessing the ripeness of takings-type claims. The first prong requires the government entity charged with enforcing the regulations at issue to have rendered a "final decision." Williamson, 105 S. Ct. at 3116. The second prong requires the plaintiff to have sought compensation if the state provides a "reasonable, certain and adequate provision for obtaining compensation." Id. at 3120 (quoting Blanchette v. Connecticut General Ins. Corps., 419 U.S. 102, 95 S. Ct. 335, 349, 42 L. Ed. 2d 320 (1974)).

 Here, under the physical occupation theory of takings liability Plaintiffs have met both prongs of the ripeness test. First, an alleged physical taking is by definition a final decision for the purpose of satisfying Williamson's first requirement. See, e.g., McKenzie v. City of White Hall, 112 F.3d 313, 316 (8th Cir. 1997). As to the second prong of the Williamson test, there is no evidence in the record that New York provides a "reasonable, certain and adequate provision for obtaining compensation" for the physical occupation of Plaintiffs' land. Although MOSA argues that New York's Eminent Domain Procedure Law provides a mechanism for challenging condemnation proceedings, MOSA itself concedes that a condemnation proceeding is a necessary prerequisite for such a challenge. (MOSA's Mem. of Law at 10 n.1). Because Plaintiffs are seeking compensation for MOSA's physical occupation of their property, rather than challenging a condemnation proceeding that has not occurred, and may never occur, they presently have no state remedy and thus this action is ripe for judicial review.

 As to Plaintiffs' regulatory takings claim, however, no final decision has been rendered. Cf. Littman v. Gimello, 115 N.J. 154, 557 A.2d 314, 317 (N.J.), cert. denied, 493 U.S. 934, 107 L. Ed. 2d 314, 110 S. Ct. 324 (1989) (rejecting property owners claim that "the identification of their property for a hazardous waste incinerator . . . has created a 'yellow cloud' that hangs over their property and has denied them all beneficial use of the land"). Pursuant to MOSA's search for a suitable landfill site, Plaintiffs' property was initially designated as a preliminary site and now as a primary site. ...


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