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GOLDFINE v. KELLY

January 3, 2000

ERIC GOLDFINE, PLAINTIFF,
V.
M. PENNY KELLY, GERARD SCIABBARRASI, MARGARET LLOYD, EDWARD POLESE, ERIC NELSON AND THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

  OPINION AND ORDER

This civil rights action arises out of plaintiff Eric Goldfine's attempts to develop a residential subdivision on property he owns within the watershed area for New York City. Defendants include the City of New York (the "City"), Penny Kelly, Margaret Lloyd, Edwin Polesi and Gerard Sciabarassi, all Department of Environmental Protection ("DEP") employees, and Eric Nelson, member of a civic association that opposed the development. In his complaint, plaintiff alleges unconstitutional taking of his property, denial of equal protection, denial of due process, conspiracy to interfere with his civil rights, and supervisory liability pursuant to 42 U.S.C. § 1983. Plaintiff also alleges pursuant to 42 U.S.C. § 1985 that defendants engaged in an alleged conspiracy to interfere with his civil rights.

The City and DEP employee defendants now move pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's First Amended Verified Complaint ("the Complaint"). Defendant Nelson separately moves pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the Complaint. For the purposes of this opinion, the Court will treat defendants' motions together. For the reasons discussed below, the motions are granted.

BACKGROUND

Plaintiff is the sole trustee and sole beneficiary of the Eric Goldfine Self-Employed Retirement Plan and Trust (the "Trust"). The Trust purchased approximately 512 acres of vacant real property ("Lakepointe Woods") in the Town of Carmel, County of Putnam, State of New York, for the purpose of developing a residential subdivision.*fn1 In May 1995 plaintiff submitted a subdivision plan for a portion of Lakepointe Woods to the Town of Carmel Planning Board (the "Planning Board"). Pursuant to the advice of the Planning Board, plaintiff submitted a second, more expansive, plan to subdivide Lakepointe Woods into 105 lots for the construction of homes.

Lakepointe Woods is located within the area from which the City obtains its drinking water, known as the City of New York's watershed area. For this reason, various aspects of plaintiff's proposed development must comply with City regulations governing activities which can threaten water quality. The City has deemed Lakepointe Woods as being within one of the most sensitive or critical areas of the watershed. The Complaint contains two lines of allegations: those pertaining to environmental testing of the site by the DEP and those pertaining to the DEP's attempts to acquire the Lakepointe Woods land.

I. Site Testing Allegations

After plaintiff submitted his subdivision plan, defendant Penny Kelly was assigned to be the DEP representative for the Lakepointe Woods project.

At an early Planning Board meeting, strong opposition to the Lakepoint Woods project was expressed by members of the China-Barrett Association (referred to in the Complaint as the "Sedgewood Club"), a civic association for adjacent property owners. Defendant Nelson is a representative of the Sedgewood Club. Plaintiff alleges that Kelly showed her allegiance to the Sedgewood Club by sitting with them at Planning Board meetings and speaking with them in the hallway.

Plaintiff's subdivision plan called for individual well and septic systems. This plan was conceptually approved by the Putnam County Department of Health and the State Health Department. Despite this approval, Kelly suggested to the Planning Board that plaintiff install central water and sewer systems.

In or about July 1996, the Planning Board granted Sketch Plan approval for the Lakepointe Woods development. Plaintiff began testing of the land in order to gather information to prepare the Draft Environmental Impact Statement ("DEIS") in accordance with the State Environmental Quality Review Act ("SEQRA"). The DEIS had to be submitted to the Planning Board before Preliminary Subdivision Approval could be obtained. Thereafter, Kelly began to oversee the preliminary fieldwork being done by plaintiff's project engineer. Plaintiff alleges that Kelly demonstrated an "utter lack of cooperation to work with plaintiff, his engineer and staff to move forward with the required tests." (Compl. ¶ 34.) Plaintiff's allegations of Kelly's lack of cooperation include that Kelly canceled site visits, spent minimal time on the Lakepointe Woods site, worked slowly, conducted unnecessary independent soil tests, and refused to reveal any of her findings to plaintiff or plaintiff's engineer. (Compl. ¶¶ 35-46.) Plaintiff alleges that as a result of Kelly's refusal to share testing results, he has been unable to complete the requisite Environmental Impact Statement. (Compl. ¶ 49.) However, plaintiff did complete and circulate a DEIS. (Compl. ¶ 65.)

Plaintiff also alleges that Kelly demanded a water courses study of Lakepointe Woods after the DEIS was completed and asserted that a man-made drainage ditch was a "water course". Plaintiff disputes that the drainage ditch is a "water course" as defined by DEP's watershed regulations. If the drainage ditch is a water course, some 200 feet of a proposed road would have to be removed. That road connects to an existing road on the Sedgewood Club property.

In April 1998, plaintiff approached Kelly to discuss how to expedite the stormwater management process. Kelly told plaintiff to wait until after the upcoming public hearing on the DEIS to prepare the stormwater management plan. In June 1998, a public hearing on plaintiff's completed DEIS was held by the Planning Board. Kelly recommended to the Planning Board that it require plaintiff to file a supplement to the DEIS to adequately address stormwater issues. (Compl. ¶ 66.) Kelly also raised the issue of whether central water and sewer systems should be required at Lakepointe Woods.

In July 1998, plaintiff organized a meeting with two other DEP employees: defendant Margaret Lloyd, Kelly's supervisor, and defendant Edwin Polesi, supervisor of both Kelly and Lloyd. At the meeting, plaintiff advised Lloyd and Polesi of Kelly's lack of cooperation on the Lakepointe Woods project, and requested that she be removed from the project. Plaintiff alleges that although at the meeting defendants assured him that Kelly would be removed, later they informed him that Kelly would remain on the project. Plaintiff made additional requests in writing and orally for the removal of Kelly, but defendants declined to take any action.

In September and October 1998, Kelly became unavailable to conclude testing at Lakepointe Woods. A new representative was assigned, but that representative was not qualified to do the water course testing, so defendant Lloyd took over the project. Plaintiff alleges that Lloyd erroneously declared the curtain drain to be a "water course" and threatened plaintiff with a notice of violation for clearing land. Also, after Lloyd's visit to the site, DEP issued a letter declaring that the clearing of land may require a stormwater pollution prevention plan.

II. Attempts at Acquisition Allegations

In early 1996, plaintiff was contacted by defendant Gerard Sciabbarrasi, a DEP employee. Sciabbarrasi informed plaintiff that the Lakepointe Woods property was located within the DEP's "critical acquisition zone 1A" based upon its proximity to a reservoir in the New York City Watershed. Because of its location, the DEP wanted to purchase Lakepointe Woods. Sciabbarrasi repeatedly telephoned plaintiff asking him to consider selling Lakepointe Woods to the DEP. Sciabbarrasi advised plaintiff that he and Kelly "had no connection" and there was a "Chinese Wall" between the acquisition department of the DEP and Kelly's approval department. (Compl. ¶ 95.)

Plaintiff offered to sell the DEP two other parcels of land located in DEP's "critical 1B zone," but Sciabbarrasi declined, allegedly stating "I won't buy those properties because you will use those monies to develop Lakepointe." Sciabbarrasi then commissioned an independent appraisal of Lakepointe Woods without informing plaintiff.

In October 1997, Sciabbarrasi visited plaintiff at home and made a presentation regarding the acquisition of Lakepointe Woods. The Complaint alleges that Sciabbarrasi told plaintiff that Lakepoint Woods would bring in an offer of more than $4 million from the DEP. On the same day as his visit, Sciabbarrasi forwarded a draft copy of a standard DEP Contract of Sale, with the purchase price omitted, for plaintiff's review.

It was not until March or April 1998 that Sciabbarrasi contacted plaintiff to inform him that he was "outraged" by the results of DEP's first appraisal. (Compl. ¶ 118.) At Sciabbarrasi's recommendation, plaintiff had another appraisal done at his expense. At another meeting, plaintiff presented his appraisal of Lakepointe Woods for $4.75 million. Sciabbarrasi showed plaintiff his appraisal for approximately $2 million, but told plaintiff that he would order another appraisal. The second DEP appraisal was never completed. The DEP has never made an official offer to purchase the Lakepointe Woods property.

Plaintiff alleges that Sciabbarrasi or Kelly provided the appraisal information to defendant Nelson, president of Sedgewood Club. At a June 1998 Planning Board public hearing, Nelson read into the record: "We understand that the City of New York is now prepared to purchase the property in its undeveloped state for at least three times what Mr. Goldfine paid for it. . . ." (Compl. ¶ 126.) On the basis of this evidence, the Complaint alleges that Kelly, Sciabbarrasi and Nelson conspired to deprive plaintiff of his right to develop his property.

III. The Complaint

On the basis of the foregoing facts, plaintiff brings the following causes of action:

In Counts 1 and 5, plaintiff brings claims under 42 U.S.C. ยง 1983 for unconstitutional taking of property without just compensation ...


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