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March 18, 1998


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 In this action challenging the validity and constitutionality of Local Law No. 17 of 1996 of the Town of East Hampton, County of Suffolk (the "Superstore Law"), the Town of East Hampton and the Town Board of East Hampton (collectively the "Town") move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for which relief can be granted. For the reasons set forth below, defendants' motion is granted in part and denied in part.


 The following facts are taken from the complaint and are assumed to be true for the purpose of this motion. Plaintiff, The Great Atlantic & Pacific Tea Corporation ("A&P"), is a contract vendee of an approximately four acre parcel of land situated on Montauk Highway in the Town of East Hampton. The parcel, located in a "Neighborhood Business" zoning district under the Town's zoning code, bears structures and facilities that, for many years, were used as and in connection with a Gertz department store and, later, a Stern's department store. Retail stores are uses permitted as of right in a Neighborhood Business zone, and the Gertz and Stern's department stores constituted retail stores under the Town's zoning code prior to the adoption of the Superstore Law. Prior to enactment of the Superstore Law, the Town's zoning code 1) did not limit the size of buildings used for retail stores, other than the limitations resulting from lot coverage and off-street parking requirements; 2) did not define a "supermarket" as a separate use; and 3) did not define "retail stores" on the basis of floor areas or building sizes occupied by such stores.

 In October 1996, the Town Board of the Town of East Hampton adopted and filed with the State of New York the Superstore Law, amending Chapter 153 of the East Hampton Town Code to restrict the establishment of large retail stores within East Hampton, particularly outside of the Central Business zone. The Superstore Law defines a "superstore" as a retail store located within a building whose gross floor area equals or exceeds 10,000 square feet. A "supermarket" is defined as a superstore in which food and/or beverages constitute the predominant goods for sale. The Superstore Law prohibits the establishment of superstores and supermarkets except in the Central Business zoning district. Moreover, even within the Central Business district, a building used for a superstore may not have a gross floor area greater than 15,000 square feet, and a building used as a supermarket may not have a gross floor area greater than 25,000 square feet. Consequently, because A&P's proposed supermarket exceeds 25,000 feet, it cannot be established in either the Central Business or Neighborhood Business zones. Under the terms of the Superstore Law, A&P would be barred from establishing even a 10,000 square foot supermarket at the Montauk Highway site.

 Plaintiff further alleges that 1) the Superstore Law was passed with the intent, and has the effect, of rendering unapprovable its pending application to develop a 33,878 square foot supermarket anywhere in the Town; 2) the Town's motive in passing the Superstore Law was to prevent A&P from establishing a superstore that would be capable of offering the public a wider variety of merchandise at lower prices than existing retail stores in the Town, thereby limiting competition to existing stores; and 3) the Town further intended to discriminate against entities wishing to establish superstores and against persons who lack the economic means to purchase goods at higher prices from existing Town merchants or lack the resources to travel to superstores located outside the Town. Plaintiff asserts that stores and buildings exceeding the statutory floor areas imposed by the Superstore Law do not threaten public health, public safety, public morals, or the general welfare to any greater degree than do stores and buildings that fall within the statutory limits.

 A&P brings this suit against the Town, seeking a declaratory judgment that the Town's passage of the Superstore Law was beyond its legislative authority, and that the law itself violates the New York and federal constitutions in that it denies A&P due process and equal protection, and interferes with interstate commerce. A&P also asserts that the law violates 42 U.S.C. § 1983 and is an illegal restraint of trade under New York law.


 I. Legal Standard Governing Motions to Dismiss

 The Second Circuit recently summarized the rules governing the disposition of motions to dismiss under Rule 12(b)(6):

A court's task in determining the sufficiency of a complaint is "necessarily a limited one." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The issue is not whether a plaintiff will or might ultimately prevail on her claim, but whether she is entitled to offer evidence in support of the allegations in the complaint. Id. "Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Id. A dismissal is warranted under Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). In addition, in ruling on defendant's motion, the court must accept as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff. Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976).

 Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 62 (2d Cir. 1997).

 A plaintiff need not set out in detail the facts upon which his claim is based, so long as he states his claim in a manner to give defendant fair notice of what his claim is and the grounds upon which it rests. Greenberg v. New York State, 919 F. Supp. 637, 640 (E.D.N.Y. 1996) (citing Conley, 355 U.S. at 47). Therefore, where a complaint charges each element necessary to recover, dismissal of the case for failure to set out evidential facts can seldom be warranted. Id., at 640 (citing United States v. Employing Plasterers Ass'n, 347 U.S. 186, 188-89, 98 L. Ed. 618, 74 S. Ct. 452 (1954)). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a practical matter and, as a matter of law, insufficient to state a claim. Id. (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987)).

 In considering a motion to dismiss for failure to state a claim, a court must limit itself to the facts stated in the complaint or in documents attached to the complaint or incorporated by reference; if the court wishes to consider matters outside the pleadings, it must treat the motion as one for summary judgment. Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 44 n.2 (2d Cir. 1997); Kramer v. Time Warner, 937 F.2d 767, 773 (2d Cir. 1991). Affirmations or attachments to affirmations that are not part of the challenged pleading may not be considered. Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996).

 The Court notes that the Town has submitted various exhibits in support of its motion. Plaintiff's counsel has submitted documents and his personal affidavit. However, to consider matters outside the pleadings, the Court must convert this Rule 12(b)(6) motion to dismiss into one for summary judgment under Rule 56. Discovery in this matter was stayed by Magistrate Judge Boyle on October 23, 1997, pending resolution of the instant, potentially dispositive motion. Because the Court believes it would be premature to consider a motion for summary judgment at this stage of the proceedings, the Court will not consider these materials. *fn1"

 II. Plaintiff's ...

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