trained and no polo matches held on the Birdsall property.
With regard to the Orenstein-Moon property, the evidence
revealed that the horse barn was constructed in 1954, long before
the Farmland Preservation Act was enacted. There was no evidence
introduced that Moon had a public horse stable, was involved in
horseback riding or conducted polo matches on his property.
Based on the evidence presented, and in fact, the lack of
evidence, the Court finds that a prudent person, looking
objectively at the three properties, would not find them roughly
equivalent or similarly situated. The thrust of the Equus plan
was polo playing and conducting polo matches, activities totally
absent at the other two properties. The "relevant aspect" to
weigh the similarities is polo playing and polo matches, not
housing or training horses. Comparing these respective properties
would be contrasting "apples with oranges." Accordingly, the
plaintiff having failed to prove the first prong of a Section
1983 equal protection cause of action, namely, the persons
compared must be similarly situated, the plaintiff's Section 1983
equal protection cause of action is dismissed.
B. The Plaintiff's Motion to Amend
During the trial, the plaintiff moved to amend the complaint to
"resurrect" its Section 1983 substantive due process claim and
for the Court to exercise its supplemental jurisdiction power to
compel the Town to issue a permit. As stated above, the permit
has been issued and the latter part of the motion is denied as
moot. The Section 1983 substantive due process claim was
previously dismissed by the Court in its August 27, 1997 ruling.
This oral motion to amend was supported by a written motion dated
June 15, 1998. This motion was precipitated by the Appellate
Division decision of August 8, 1994 which directed that the Town
grant the Equus application and remitted the matter to the Town
Board "for the imposition of any appropriate conditions." The
plaintiff complains that the Town has delayed unnecessarily and
imposed unreasonable conditions. The plaintiff's motion requested
the following relief: "(i) pursuant to 28 U.S.C. § 1367, to
exercise supplemental jurisdiction over the State law issues
herein; (ii) pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure ("F.R.C.P.") for an order permitting plaintiff to amend
the complaint to include a cause of action for a mandatory
injunction; and (iii) pursuant to F.R.C.P. Rule 15(d), for an
order permitting plaintiff to supplement the complaint due to
defendants' continued failure to issue a permit to plaintiff."
With regard to the Town's delay in issuing the permit, it
produced Deputy Town Attorney Wayne Bruyn, who explained after
the 1994 Appellate Division decision, the Town held a public
hearing and on August 18, 1995 adopted resolutions issuing the
construction permit with six stated conditions. One of the
conditions required a new site plan. Bruyn stated that the
plaintiff did not submit a site plan for two years until the Fall
of 1997. Another condition is that all structures subject to this
construction permit must obtain building permits. These
applications were not made by the plaintiff until the Fall of
In September, 1997, a representative of Equus appeared before
the Town Board with a sketch showing the leased premises to be 43
acres rather than the original 65 acre area. Because this was a
new plan, the Planning Board made certain comments, after which
the plaintiff submitted a more detailed plan showing structures
including fences, sheds and plastic shelters. Apparently, the
site plan submitted by Equus on April 3, 1998. The Town Board met
on May 15, 1998 and requested the Planning Board to review this
new application. The Town Board approved the site plan by
resolution dated June 8, 1998, and issued the permits with
certain conditions on June 19, 1998.
The Federal Rules of Civil Procedure provide that "leave [to
amend a pleading] shall be freely given when justice so
requires." Fed.R.Civ.P. 15(a); see also Nerney v. Valente & Sons
Repair Shop, 66 F.3d 25 (2d Cir. 1995); Gumer v. Shearson,
Hammill & Co., 516 F.2d 283, 287 (2d Cir. 1974). According to
the Supreme Court, only "undue delay, bad faith, or dilatory
motive on the part of the movant repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party . . . [or] futility of the amendment" will
serve to prevent an amendment prior to trial. Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); accord
Dluhos v. Floating and Abandoned Vessel Known as New York,
162 F.3d 63, 69 (2d Cir. 1998)Richardson Greenshields Sec., Inc. v.
Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987).
The Second Circuit reiterated that "[t]he district court has
discretion whether or not to grant leave to amend, and its
discretion is not subject to review on appeal except for abuse of
discretion." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993) (quoting 3 Moore's Federal Practice ¶ 15.08,
at 15-16 (2d ed. 1992) (footnotes omitted)); see also Jones v.
N Y State Div. of Mil. and Naval Affairs, 166 F.3d 45 (2d Cir.
1999); Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d
Cir. 1990). "In exercising its discretion, the district court is
required to heed the command of Rule 15(a) to grant leave to
amend `freely . . . when justice so requires.'" Ruffolo, 987
F.2d at 131 (quoting Fed.R.Civ.P. 15(a)).
As the Court determined in its original decision dismissing the
Section 1983 substantive due process claim, "Substantive due
process protects against government action that is arbitrary,
conscience shocking, or oppressive in a constitutional sense, but
not against a government action that is `incorrect or
ill-advised.'" Kaluczky v. City of White Plains, 57 F.3d 202,
211 (2d Cir. 1995) (quoting Lowrance v. Achtyl, 20 F.3d 529,
538 [2d Cir. 1994]). When considering this issue, the federal
courts should be careful not to evolve into zoning boards of
appeal to review nonconstitutional issues of land use
determinations by local administrative agencies. Sullivan v.
Town of Salem, 805 F.2d 81, 82 (2d Cir. 1986). The rule as was
clearly stated by the Second Circuit in Interport Pilots Agency,
Inc. v. Sammis, 14 F.3d 133, 144 (2d Cir. 1994):
The due process clause "was intended to prevent
government `from abusing [its] power, or employing it
as an instrument of oppression.'" DeShaney v.
Winnebago County Dep't of Social Services,
489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)
(quoting Davidson v. Cannon, 474 U.S. 344, 348, 106
S.Ct. 668, 88 L.Ed.2d 677 () . . . The Supreme
Court has warned, however, that is "has always been
reluctant to expand the concept of substantive due
process because guideposts for responsible
decisionmaking in this unchartered area are scarce
and open-ended." Collins v. City of Harker Heights,
503 U.S. 115, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261
(1992). The due process clause "is not a guarantee
against incorrect or ill-advised [government]
decisions." Bishop v. Wood, 426 U.S. 341, 350, 96
S.Ct. 2074, 48 L.Ed.2d 684 (1976).
A substantive due process claim based on allegedly
tortious conduct by a state actor therefore
ordinarily requires evidence of conduct that "can
properly be characterized as arbitrary, or
conscience-shocking, in a constitutional sense."
In this case, if, after the Appellate Division decision, Equus
promptly followed through on its original plan with regard to the
65 acres, and the Town continued to obstruct the granting of the
permit by imposing unreasonable or onerous conditions, the Court
would have seriously considered granting the motion to add a
substantive due process cause of action.
However, here, the plaintiff did nothing to implement its
victory in the Appellate Division for three years. Further, when
it acted, it presented a new and revised plan to the Town Board.
The Court is not naive enough to believe that the Town did not
seize upon this opportunity to further obstruct and delay the
plaintiff. Unfortunately, by its lengthy delay and submission of
a new plan, the plaintiff presented the Town with the opportunity
to start the process over again. This factual scenario could not
support a conscience shocking or oppressive substantive due
process constitutional violation. Accordingly, the plaintiff's
application to amend the complaint to add a Section 1983
substantive due process cause of action is denied.
C. The Plaintiff's Motion for the Court to Accept the State
Law Claims Under its Supplemental Jurisdiction Power
The plaintiff also moved to exercise supplemental jurisdiction
over the state law issues, including a request for a mandatory
injunction directing the Town Board to issue a permit. As stated
above, because the permit has been issued, this motion is denied
as moot. However, even if the mootness issue was not present, the
Court would deny this motion. In this opinion, the Court has
already dismissed the plaintiff's federal Section 1983 claim, and
would decline to exercise its supplemental jurisdiction over any
remaining or potential state law claims. See In re Merrill Lynch
Ltd. Partnerships Litig., 154 F.3d 56, 61 (2d Cir. 1998) (citing
United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130,
16 L.Ed.2d 218 ). A district court may decline to exercise
supplemental jurisdiction if it has "dismissed all claims over
which it has original jurisdiction." 28 U.S.C. § 1367(c)(3).
Although this Court has the power to exercise supplemental
jurisdiction over the ensuing potential state law claims
notwithstanding the absence of a federal law issue, Mizuna, Ltd.
v. Crossland Federal Svgs. Bank, 90 F.3d 650, 657, (2d Cir.
1996); Promisel v. First Am. Artificial Flowers, Inc.,
943 F.2d 251, 254 (2d Cir. 1991) cert. denied, 502 U.S. 1060, 112 S.Ct.
939, 117 L.Ed.2d 110 (1992), the Court would decline to do so in
this case. The issues of compliance with a state appellate court
decision; the reasonableness of the conditions imposed; whether
the Town Board has deliberately violated the appellate court
ruling; and the remedies available to Equus, are all matters
peculiarly within the province of the available state forum.
Also, the evidence at the trial would not permit the Court to
make such rulings, possibly requiring another trial, which could
more conveniently be held in a state forum. Finally, considering
and weighing the values of judicial economy, convenience,
fairness and comity, (United Mine Workers v. Gibbs, 383 U.S. at
726-727, 86 S.Ct. 1130), the Court would decline to exercise
supplemental jurisdiction with regard to the plaintiff's state
Accordingly, for the reasons stated, the Court directs the
Clerk of the Court to enter a judgment in favor of all the
defendants dismissing the complaint in its entirety and to close
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