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March 22, 2000


The opinion of the court was delivered by: Larimer, Chief Judge.


This action involves alleged violations of, inter alia, the Clean Water Act (CWA), 33 U.S.C. § 1251, et seq., by the United States Army Corps of Engineers ("the Corps"), which authorized the issuance of a permit for the filling of a wetland site, and by a private developer for its modifications to the site. In essence, this case was commenced because some members of the community near the project site disagree with the opinion and judgment of the various federal, state, and local governmental agencies concerning this project. At this late stage in the project's development, plaintiffs seek to do here in federal court what they have failed to do over the past six years in other fora, that is, to stop the project or change it to their liking.

The vehicles that plaintiffs seek to use here are the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq., and § 701, et seq., and the CWA. They claim that because the CWA was not followed, the project should be stopped. However, because plaintiffs have inordinately delayed in pressing their claims, plaintiffs' claims must fail. For the reasons discussed below, defendants' motions for summary judgment are granted.

Factual Background

Plaintiffs commenced this action in March 1998 against defendants Linden Associates and Linden Associates LLC (collectively "Linden"), the Secretary of the United States Army, the United States of America, and the United States Army Corps of Engineers ("the Corps") (collectively, the federal defendants).

Plaintiffs seek review of the Corps' determination that the filling of a wetland qualified for a nationwide permit, pursuant to the CWA, 33 U.S.C. § 1344(e). They claim, inter alia, that the Corps' issuance of the nationwide permit was arbitrary and capricious, and that an individual permit was necessary under the CWA. Plaintiffs also allege that Linden lacks a dam permit required by New York Environmental Conservation Law, § 15-503. In their complaint, plaintiffs purport to seek, inter alia: (1) a declaratory judgment that Nationwide Permit # 26 ("the Nationwide Permit") is null and void; (2) to preliminarily and permanently enjoin Linden from placing fill within the subject wetlands; and (3) the recovery of their litigation costs and fees.

The twenty acre site at issue is being developed by Linden for a mixture of light industrial and office uses on a parcel located north of Linden Avenue and south of Old Penfield Road on the boundary between the towns of Brighton and Penfield in New York. The parcel has come to be known colloquially as "Linden Tech Park," and is the site of an abandoned sewage treatment plant. Currently, the project consists of improving the third of four subdivided lots with a two-story, 54,000 square-foot light industrial building with 169 parking spaces, attendant landscaping, lighting, and walkways. To mitigate environmental impacts identified during the State Environmental Quality Review Act ("SEQRA") process, the development also entails providing a conservation easement ranging in width from 150 to 200 feet along Allens Creek, which borders the site to the north.

Because the development of Linden Tech Park would entail disturbing what Linden calls "approximately 1.65 acres of the 3.08 acres of low-quality urban wetlands" that comprise the site, Linden applied to the Corps to be covered under the Nationwide Permit. Linden further asserts that the development replaces approximately one acre of the so-called low-quality wetlands with a newly created stormwater management wetland system consisting of a series of marshes and micropools designed to filter surface water contaminants. Linden plans to reduce thermal impacts by using a bottom draw system from a deep micropool prior to discharge into an existing wetland. The remaining approximately 0.65 acres of wetlands to be filled are claimed to be mitigated by Linden's donation of $44,000 toward a wetland development project at Hamlin Beach State Park, which is located many miles to the north on Lake Ontario. On or about May 31, 1994, Consultant D.J. Parrone & Associates commenced "predischarge notification" for the project on behalf of Linden, suggesting that the work Linden sought to conduct in wetlands on the site qualified for treatment pursuant to the Nationwide Permit. Administrative Record ("AR") Item 7.

Several of the plaintiffs reside in the immediate vicinity of the proposed development, and plaintiffs Parker and Baric reside on a parcel overlooking the Linden Tech Park site. Plaintiffs are opposed to development of Linden Tech Park, and have repeatedly made their opposition known in various fora. The Corps first learned of plaintiffs' opposition in March 1994. See AR Item 1 (memorandum from plaintiff Kevin Parker to Corps, dated March 21, 1994). The Corps received additional submissions from plaintiffs prior to Linden's May 31, 1994 request for approval of its plans under the Nationwide Permit. AR Items 3-5.

Many of the plaintiffs organized and raised objections to the Penfield Planning Board's ("Planning Board") project approvals. As a result, the Planning Board rescinded its original subdivision and site plan approvals and requested further information and a renewal of the SEQRA process. It appears that over four and one half years of environmental reviews and litigation followed with full involvement by plaintiffs.*fn1

A second Article 78 proceeding was commenced to annul subdivision and site plan approvals and environmental protection overlay district permits based upon alleged errors in SEQRA review and development approvals. By order and judgment, entered April 18, 1997, New York State Supreme Court Justice William Polito granted defendants' motion to dismiss because the action had not been brought within the required time period. Over one year later, plaintiffs perfected their appeal to the Fourth Department, which reversed and remanded the matter. On November 2, 1998, Justice Polito again dismissed plaintiffs' Article 78 petition, and, thereby, upheld the Planning Board's SEQRA determinations, preliminary and final subdivision and site plan approval, and permits issued by the Town of Penfield.

A third Article 78 proceeding was filed on January 26, 1998, that time to annul the County of Monroe Industrial Development Agency's ("COMIDA") SEQRA Findings Statement and issuance of a financial assistance package. By Decision and Order, entered March 16, 1998, New York State Supreme Court Justice Kenneth Fisher dismissed the petition, and found that COMIDA had adequately performed its SEQRA review, and that all of COMIDA's hearings and meetings were properly conducted. The instant action was not commenced until well after the commencement of these largely unsuccessful state court proceedings.

The plaintiffs have steadfastly maintained their opposition throughout the Corps' processing of Linden's application, presenting arguments that the work should not be allowed, or that it should not be authorized pursuant to a Nationwide Permit on a number of occasions. See AR Items 1, 3-4, 20, 23, 26, 31, 35 and 44. The Corps and the plaintiffs communicated regularly concerning the state of Linden's application, both by way of Corps responses to Freedom of Information Act Requests (AR Items 13, 18) and by way of less formal communication. AR Items 19, 26.

On July 23, 1997, the Corps confirmed that the Nationwide Permit applied to Linden's proposal to fill portions of the parcel in question, and imposed certain conditions upon use of the same permit. AR Item 39. The Corps copied the July 23 correspondence to named plaintiff Jean Baric.

The authorization provided in the Corps' July 23 correspondence allowed Linden to commence construction at any time between approximately August 7, 1997 and December 13, 1998, provided that it furnish two weeks' pre-construction notification. The Corps approved modifications to Linden's plans in September, 1997. AR Items 40-41. No ...

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