The opinion of the court was delivered by: Scullin, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Presently before the Court is Defendants' motion to dismiss
the complaint for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure or, in
the alternative, for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. The Court heard oral argument
in support of, and in opposition to, this motion on March 5,
2002, and reserved decision. The following constitutes the
Court's determination of the pending motion.
Plaintiffs own a three-acre parcel of undeveloped real
property, which adjoins the Business Park. Plaintiffs' deed to
the property references the existence of "caves" on the
property. These caves are actually remnants of an underground
limestone mine abandoned more than 100 years ago.
Until the mid-1960s, when it was abandoned, Plaintiffs ran a
commercial mushroom farming operation on the property. Since
that time, the property has been fallow. Plaintiffs' three-acre
parcel is now zoned RRR residential. Farming, including mushroom
farming, is prohibited in the City's residential zones on
parcels of less than five acres. Thus, either a commercial or
agricultural use of the property would require discretionary
site plan approval from the City of Kingston Planning Board.
In 1991, Plaintiff Mark Knaust petitioned the City to reduce
his taxes. At that time, he asserted that the property had a
full value of $7,000 and that it had no potential as income
producing or commercial property. See Affidavit of Diana
Miller, sworn to May 14, 1996 ("Miller Aff."), at Exhibit "A,"
attached to the Affidavit of Michael J. Moore, sworn to October
1, 2001 ("Moore Aff."), at Exhibit "14." In December 1995, as
administrative proceedings related to the Business Park neared
conclusion, Plaintiffs announced plans to revive their
commercial mushroom farming operation and have since claimed
that the property has significant, unique economic value.
However, Plaintiffs have not taken any steps to obtain the
zoning change, use variance or site plan approval from the City
which they need to conduct a commercial or agricultural venture
on their property.
During the Spring of 1995, the City of Kingston and the
Kingston Planning Board negotiated a series of contracts and
agreements with a number of companies for the development and
construction of the Business Park on a 107-acre parcel of
property adjacent to Plaintiffs' property. Phase I of the
project was partially funded with an economic development grant
of $1.86 million from EDA, which was used to construct the
Business Park's infrastructure. Local and State agency approvals
for the Business Park were secured between April 1995 and April
1996 and construction commenced in May 1996.
As part of its infrastructure, the Business Park included a
management system, which has been fully install ed and
operational since December 1996 Storm water runoff from the
Business Park consists of precipitation encountering building
roofs, paved areas of the parking lot and access road, and
landscaped and wooded areas. To manage this runoff, the City of
Kingston Local Development Corporation ("KLDC") devised a storm
water collection system involving two levels of treatment. Storm
water passes into open grates fitted with vapor traps and deep
sumps to remove contaminants and sediments in the water. See
Affidavit of Dennis Larios, P.E., dated May 14, 1996 ("Larios
Aff."), at ¶ 6, attached to the Moore Aff. at Exhibit "6." Storm
water is then conveyed to two 5,000 gallon "Vortechs" units for
a second level of treatment. See id. at ¶ 7. From the
"Vortechs" units, treated storm water is conveyed to an
abandoned quarry on the Business Park property, then to a
stilling pool and then to an existing surface water drainage
swale. See id. at ¶¶ 9-10.
State and federal environmental regulatory agencies have
reviewed this storm water management system and determined that
it involves a benign discharge of treated storm water to surface
waters. On March 7, 1996, the New York Department of
Environmental Conservation ("DEC") indicated that this system
"adequately addresses this Department's concerns regarding
potential groundwater contamination," and describes the Business
Park's storm water as presenting "no greater contamination
threat than . . . a shopping center." The letter also states
that any contaminants will be "properly treated by the . . .
Vortechs . . . systems." See Affidavit of Richard F. Riseley,
sworn to May 14, 1996 ("Riseley Aff."), at Exhibit "1," attached
to the Moore Aff. at Exhibit "5." Similarly, in May 1996, the
United States Environmental Protection Agency ("EPA") determined
that the storm water management system was not subject to EPA
jurisdiction as an "underground injection well." See Riseley
Aff. at Exhibit "3."
B. Prior proceedings in this case
Plaintiffs allege in their complaint that the subterranean
lake on their vacant residentially-zoned property adjacent to
the Business Park was contaminated and threatened with
contamination from the Business Park's storm water management
system, allegedly resulting in a taking in violation of the
Fifth and Fourteenth Amendments to the United States
Constitution. See Complaint at ¶¶ 1, 2, 15, 16, 18. Plaintiffs
initially moved for a preliminary injunction to halt the federal
funding and construction of the Business Park. This Court denied
that motion for failure to demonstrate "probable irreparable
harm" holding that "at best, Plaintiffs have demonstrated that
there is a `possibility' that storm water runoff from the
Kingston Business Park will make its way into the Plaintiffs'
lake." Knaust v. City of Kingston, 978 F. Supp. 86, 95
(N.D.N.Y. 1997), vacated as moot, 157 F.3d 86 (2d Cir. 1998).
The Court also "question[ed] whether Plaintiffs ha[d]
demonstrated the `injury in fact' necessary to assert standing."
Id. at 96 n. 13. Finally, the Court noted that "Plaintiffs'
Takings Clause claim will likely fail because the Plaintiffs
have not demonstrated that there has been a physical invasion of
their property[.]" Id.