Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KITTAY v. GIULIANI

September 7, 2000

DAVID KITTAY, AS TRUSTEE OF DUKE & BENEDICT, INC., PLAINTIFF,
V.
RUDOLPH W. GIULIANI, AS MAYOR OF THE CITY OF NEW YORK, THE CITY OF NEW YORK, GEORGE E. PATAKI, AS GOVERNOR OF THE STATE OF NEW YORK, THE STATE OF NEW YORK, JOHN P. CAHILL, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, ANTONIA C. NOVELLO, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, THE NEW YORK STATE DEPARTMENT OF HEALTH, JAMES TIERNEY, AS INSPECTOR GENERAL OF THE NEW YORK CITY WATERSHED, JOSEPH MIELE, SR., AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ROBERT J. BONDI, AS PUTNAM COUNTY EXECUTIVE, THE COUNTY OF PUTNAM, FRANK J. DEL CAMPO, AS SUPERVISOR OF THE TOWN OF CARMEL, THE TOWN OF CARMEL, LOIS C. ZUTELL, AS SUPERVISOR OF THE TOWN OF SOUTHEAST, THE TOWN OF SOUTHEAST, ANN MARIE BAISLEY, AS SUPERVISOR OF THE TOWN OF KENT, AND THE TOWN OF KENT, DEFENDANTS.



The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

MEMORANDUM DECISION AND ORDER

Plaintiff David Kittay, as Trustee of the bankruptcy estate of Duke & Benedict, Inc. ("D & B"), commenced this action against defendants seeking declaratory judgment, injunctive relief and damages for violations of plaintiff's rights under the United States Constitution, 42 U.S.C. § 1983 ("§ 1983"), the New York State Constitution, the New York Public Health Law ("NYPHL"), and New York common law.

Defendants Rudolph W. Giuliani, the City of New York, the New York City Department of Environmental Protection and Joel A. Miele, Sr., its Commissioner (collectively, the "City Defendants"), and George Pataki, the State of New York, John P. Cahill, the New York State Department of Environmental Conservation, Antonia C. Novello, the New York State Department of Health and James Tierney (collectively, the "State Defendants") move, separately, to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The defendants also include Putnam County, the Towns of Carmel, Southeast and Kent, as well as a number of local officials servicing those entities. All of these defendants have joined the Motions to Dismiss which, for the reasons set forth below, are granted.

BACKGROUND

D & B is a Delaware corporation engaged in real estate development located in White Plains, New York. D & B filed for Chapter 11 bankruptcy protection on January 24, 1997, and Kittay was appointed as Trustee in January 1999. D & B's assets almost entirely consist of approximately 650 acres of undeveloped real property located within the Watershed area in Putnam County, New York. D & B claims that the regulations, challenged in this litigation, inhibiting development in the Watershed area, unlawfully render its property unuseable.

The factual underpinnings in this matter span many years and involve numerous state and local officials and governmental entities. For purposes of deciding this motion, however, the Court must construe the pleadings in favor of the plaintiff, and accept as true all factual allegations in the Amended Complaint. See Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998); Serrano v. 900 5th Avenue Corp., 4 F. Supp.2d 315, 316 (S.D.N Y 1998). The following facts are construed accordingly.

I. Regulation of New York City Water

New York City provides drinking water to nearly nine million citizens of the State of New York, including seven and a half million city residents and over one million residents in four upstate counties. The Watershed area from which the City obtains its drinking water stretches over a two thousand square mile area, touching parts of eight upstate counties, sixty towns and twelve villages.

Historically, the State has granted New York City extraterritorial power to protect the purity of its water supply and to regulate activities in the Watershed regions that could denigrate those waters, and these powers have been applied with varying degrees of intensity since the late 1700s.*fn1 See NYPHL § 1100(1). In the early 1990's, the United States Environmental Protection Agency (the "EPA") and the New York State Department of Health ("NYS Department of Health") ordered the City to meet certain clean water standards. Environmental experts purportedly advised that the City build a water filtration system to meet these standards, which would cost City residents nearly $6-8 billion for construction and $300 million per year for operation. According to plaintiff, in order to avoid the enormous cost of this system, the City decided to exercise its extraterritorial regulatory powers and proposed new regulations to restrict land use by upstate property owners in the Watershed.

A. The MOA

Due to opposition and extensive litigation by local communities and private landowners challenging the proposed regulations, plaintiff contends that the City, with the help of New York State, entered into secret negotiations with local government officials from the various municipalities making up the Watershed. Throughout the year-long negotiations, private landowners were allegedly excluded and were subjected to a State-imposed gag order on information concerning the progress of the negotiations.

In January 1997, New York City entered into a comprehensive agreement with the EPA, the State of New York, over eighty Watershed municipalities, and several environmental groups. This agreement, known as the New York City Watershed Memorandum of Agreement (the "MOA"), established a cooperative framework through which the various government agencies and other parties would resolve uses affecting water purity in the Watershed.*fn2 Three parts of the MOA are relevant to this action.

First, the MOA provides the terms of the City's land acquisition program under which the City may offer to purchase certain sensitive properties from a willing landowner at "fair market value" (as defined in the MOA)*fn3, which the landowner is free to reject. MOA at ¶¶ 54-86.

Second, the MOA calls for numerous payments by the City to local Watershed governments to "enhance water quality in the Watershed and the economic and social character of the Watershed communities." MOA at ¶ 119. In particular, the City agreed to pay millions of dollars in "Good Neighbor Payments" to each municipal signatory according to the percentage of land area that each municipality has within the Watershed, to be used "solely to pay for the capital costs of designing, constructing and installing public works or public improvements, or purchasing public equipment . . . that will benefit the public at large." MOA at ¶ 147(b)(iii). Moreover, the City agreed to reimburse Watershed officials for the expenses incurred in negotiating the terms of the MOA, including legal fees.

According to plaintiff, these payments were made as improper inducements to secure local acceptance and implementation of the MOA, and local elected officials were made to understand that they would receive promotions or appointments to positions in certain administrations if they accepted the Watershed agreement.

Third, the MOA calls for the adoption by each Watershed municipality of proposed administrative regulations designed to protect the sources of public water from contamination. MOA at ¶¶ 87-96.

According to plaintiff, the final version of the MOA was presented to the legislative bodies of the Watershed municipalities and their constituent landowners for consideration with virtually no time for review or debate. Although some local legislators protested that they had not been given time to read the MOA and proposed regulations, the agreement was ultimately approved and implemented by virtually all the government entities affected.

B. The Regulations

Consistent with the MOA, the proposed regulations were approved by the NYS Department of Health and New York City under the NYPHL (the "Regulations"), taking effect in the City on May 1, 1997 and as State regulations in July, 1998. Because the Regulations were promulgated by both the City and the NYS Department of Health, they were subject to the public notice and comment procedures set forth in the City Administrative Procedure Act ("CAPA") and the State Administrative Procedure Act ("SAPA"). Under both CAPA ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.