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