The opinion of the court was delivered by: Platt, District Judge.
Defendants County of Suffolk, et al. ("Suffolk") move
pursuant to Rule 56 of the Federal Rules of Civil Procedure for
summary judgment of Plaintiffs' Henry Dittmer's, et al.'s
("Dittmer") facial Equal Protection challenge. Dittmer
cross-moves for summary judgment of that claim. Both parties
have filed statements of material fact for which they feel there
is no genuine issue for trial pursuant to Local Civil
Rule 56.1 ("56.1 Statements").
For the following reasons, Suffolk's Motion for Summary
Judgment is GRANTED, and Dittmer's Cross Motion for Summary
Judgment is DENIED.
This case was brought by a property owner on his own behalf
and on behalf of approximately 167 other similarly situated
property owners to redress alleged constitutional violations
stemming from the enactment of the New York Pine Barrens
Protection Act ("Act") on July 13, 1993, codified in Article 57
of the New York Environmental Conservation Law. (Second Am.
Compl. ¶ 2.)
Dittmer owns land within the Pine Barrens. Dittmer v. County
of Suffolk, No. 96-CV-2206, slip op. at 1 (E.D.N.Y. July 7,
1999). Defendants are three towns in eastern Long Island
(Brookhaven, Riverhead, and Southampton), Suffolk County, a
corporate entity formed by the State to implement the Act
("Commission") and its members: the Suffolk County Executive
("Gaffney"), the Governor's Representative to the Commission
("Cowen"), and the Town Supervisors for Brookhaven, Southampton,
and Riverhead ("Grucci," "Connuscio," and "Stark" respectively).
Id. at 1-2.
The Act divides the Pine Barrens into a "Core Preservation
Area" and a "Compatible Growth Area," each consisting of roughly
50,000 acres. Dittmer, No. 96-CV-2206, slip op. at 2. New York
State formed the Commission to implement the Act, and the
Commission prepared a Comprehensive Land Use Plan ("Plan") in
furtherance of that purpose. Id.
The Act contemplates that the Plan will protect the Core
Preservation Area by prohibiting or redirecting new development.
N.Y. ENVTL. CONSERV. LAW § 57-0121(3)(c). The Plan prohibits and
redirects new development primarily by transferring development
rights. Dittmer, No. 96-CV-2206, slip op. at 3.
The Commission transfers development rights by granting
landowners within the Core Preservation Area Pine Barrens
Credits ("PBC") for those rights which the Act, in prohibiting
development, allegedly renders valueless. Id. at 3-4. The
Commission grants PBCs through the Pine Barrens Credit
Clearinghouse ("Clearinghouse"). Id.
PBC recipients may either: (1) use them to increase
development density on other property they own outside of the
Core Preservation Area (but within specifically designated
receiving areas within the Compatible Growth Area); or (2) may
sell them to owners of such receiving parcels. Id. at 4. The
Clearinghouse acts as the purchaser of last resort for persons
who may not otherwise sell their PBCs. Id. It buys them at 80%
of their minimum value as established by the Commission. Id.
Persons who own land in the Core Preservation Area may develop
their property if they obtain permits from the Commission upon a
showing of extraordinary hardship. N.Y. ENVTL. CONSERV. LAW §
57-0123(3) (incorporating section 57 0121(10)'s permit
procedure). As of November 27, 2000, the Commission granted
thirty-five development permits and denied twelve.*fn1
Dittmer, No. 96-CV-2206, slip op. at 4. Additionally, property
in the Core Preservation Area may be developed: (1) if developed
for agricultural or horticultural uses; (2) if developed under a
residential development plan that complies with current zoning
regulations and that received preliminary or final development
approval on or before June 1, 1993; or (3) if used to construct
single family homes on road-side parcels identified by the
Commission. N.Y. ENVTL. CONSERV. LAW § 57-0107(13). This list of
developmental possibilities is not exhaustive. See id.
This Equal Protection claim alleges that Dittmer's property
was treated differently than similarly situated, federally owned
property.*fn2 (Second Am. Compl. ¶¶ 14 15.) Dittmer contends
that Riverhead officials negotiated the designation of federally
owned property in Calverton ("Calverton Property") with the
parties responsible for mapping the protected areas.*fn3
(Second Am. Compl. ¶ 15.) Town officials purportedly conditioned
their approval of the Pine Barrens conservation effort on
exempting the federally owned property from the Core
Preservation Area, resulting in the exclusion of parts of the
Calverton Property from the Core Preservation Area. (Second Am.
Compl. ¶ 15.)
The Calverton property includes 10,000 and 7,000 foot jet
runways, ammunition bunkers, radar facilities, airplane taxi
ways, jet hangers, fuel storage depots, an air traffic control
tower, airplane maintenance facilities, a railroad spur, a
sewage treatment plant, personnel buildings, cleared fields,
safety areas and landing approaches and take-off corridors.
(Mem. in Supp. Defs.' Mot. for Sum. J. at 9.) The Calverton
property also contains the Calverton National Cemetery, which
was used as a burial grounds for armed service members. (Mem. in
Supp. Defs.' Mot. for Sum. J. at 9.)
The Act places the following areas into the Core Preservation
thence westward along the southerly boundary of River
Road (Grumman Boulevard or Swan Pond Road) to the
southeast corner of that parcel containing Conoe (or
Canoe) Lake and identified as District 600, Section
137, Block 1, Lot 1; thence northward, westward, and
southward along the borders of that parcel containing
Conoe (or Canoe) Lake to River Road (Grumman
Boulevard); thence westward along the northerly
boundary of Grumman Boulevard to the southeasternmost
corner of the undeveloped portion (as of June 1,
1993) of the United States Navy/Grumman Corporation
property located on the north side of Grumman
Boulevard and adjacent to the Grumman entrance known
as the South Gate; ...