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February 21, 2002


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.


A. Factual History

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 Area:

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; ...

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