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LELAND v. MORAN

June 22, 2000

VICTORIA M. LELAND; ROY R. LELAND; AND MAXINE CHAPIN, PLAINTIFFS
V.
MARC MORAN; ALAN FUCHS; ALBERT KLAUSS; DAVID G. POLLOCK; TOWN OF WAWARSING; GERALD DEPEW; JOSEPH STOECKLER, JOHN KISSELL; VILLAGE OF ELLENVILLE; RAYMOND YOUNGER; MICHAEL MILLS; JOSEPH STRAUB; AND VILLAGE OF ELLENVILLE POLICE DEPARTMENT, DEFENDANTS



The opinion of the court was delivered by: Hurd, District Judge

 
MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On September 13, 1999, plaintiffs commenced the instant action, pursuant to 42 U.S.C. § 1983, alleging that the defendants violated their rights under the Fourteenth Amendment and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901-6992k ("RCRA"). Plaintiffs have also asserted a claim against the defendants for negligence.

Defendants Village of Ellenville, Raymond Younger, Michael Mills, Joseph Straub, and the Village of Ellenville Police Department (collectively referred to in this opinion as "Ellenville defendants"), have moved to dismiss the RCRA claim for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1),*fn1 and to dismiss the remaining claims for failure to set out facts upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs oppose. Oral argument was heard on May 25, 2000, in Albany, New York. Decision was reserved.

II. FACTS

The following is a summary of facts as alleged in the complaint. Such facts are assumed to be true for purposes of this motion. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 408 (2d Cir. 2000) (stating that "[on] a motion to dismiss on the pleadings, we take as true the allegations contained in plaintiff['s] . . . complaint, which provides the basis of our recitation of the facts.").

In the early 1980's, the Ellenville Scrap Yard ("ESY"), which is located adjacent to the property owned by the plaintiffs, began operating without a permit as a solid waste management facility. ESY stored waste tires and accepted construction and demolition ("C & D") debris and other solid waste for disposal.

In March of 1987, the owners of ESY proposed a Settlement of Claim to the Department of Environmental Conservation ("DEC"), acknowledging that ESY was operating as a solid waste management facility without a permit and agreeing to pay a $1,500.00 fine and close and cover the area where C & D material had been dumped. Several inspections made by the DEC between May 1, 1989 and June of 1998 revealed that ESY continued its illegal dumping activities. The inspectors noted large amounts of C & D debris, oily runoff entering surface waters, and contaminated soil. Environmental testing revealed elevated levels of cadmium, chromium, copper, lead, mercury, zinc, and PCB's on and around ESY's property. However, the site was never closed.

As a result of ESY's continued violations, two Consent Orders were entered into between the owners of ESY and the DEC. In the first one, entered into in January 1995, the owners of ESY agreed to make a preliminary assessment of the site and recommend remediation. In the second Consent Order, entered into in May of 1997, the owners agreed to remove all illegal waste by September 1, 1997 and pay a $2,500.00 fine. Neither order was complied with. Finally, on April 29, 1998, after another inspection revealed continued dumping at ESY and no efforts to clean up the site, the DEC sent a notice of violations to the owners of ESY. On August 28, 1998, the New York State Supreme Court, County of Ulster issued a temporary restraining order closing ESY and prohibiting further receipt of waste.

During this time, the plaintiffs called Ellenville officials several times to complain about the problems at ESY and to request that ESY be shut down. Plaintiffs were told that the ESY situation was the DEC's problem and they had no authority to take any action. The illegal dumping continued and the Ellenville defendants took no steps to remedy the situation or close the site. To date, no cleanup has ever occurred at ESY.

Plaintiffs claim that the Ellenville defendants violated their due process rights under the Fourteenth Amendment by failing to enforce the Village of Ellenville Zoning Code ("Zoning Code"). The Ellenville defendants contend that plaintiffs' Fourteenth Amendment claim must be dismissed because the plaintiffs have no constitutionally protected property interest. The Ellenville defendants further claim that plaintiffs' claims against the Village should be dismissed because the plaintiffs have failed to demonstrate municipal liability in this case. The individual Ellenville defendants assert that they are protected from liability under the doctrine of qualified immunity. Finally, the Ellenville defendants seek dismissal of plaintiffs' negligence claim. Each of these arguments will be addressed seriatim below.

III. DISCUSSION

A. Motion To Dismiss Standard

A cause of action shall not be dismissed for failure to state a claim under Fed. R.Civ.P. 12(b)(6), "unless 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, 355 U.S. at 45-46, 78 S.Ct. 99. In considering a motion brought pursuant to Fed.R.Civ.P. 12(b), the court must assume all of the allegations in the complaint are true, and draw all reasonable inferences in plaintiffs favor. See Stuto v. Fleishman, 164 F.3d 820, 824-25 (2d Cir. 1999). In reviewing the sufficiency of a complaint at the pleading stage, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A dismissal under Rule 12(b)(6) may be made where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992) (citing Austern v. Chicago Bd. Options Exch., Inc., 898 F.2d 882, 885 (2d Cir.), cert. denied, 498 U.S. 850, 111 S.Ct. 141, 112 L.Ed.2d 107 (1990)). Where a motion to dismiss is made prior to any discovery or the filing of an answer, the court is loath to dismiss ...


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