The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This case arises out of claims by T.S. Haulers, Inc. ("T.S.
Haulers" or the "plaintiff") that the Town of Riverhead (the
"Town" or a "defendant"), Town Councilmen James Lull ("Lull" or
a "defendant"), Philip Cardinale ("Cardinale" or a "defendant"),
and Christopher Kent ("Kent" or a "defendant") (collectively,
the "defendants") improperly denied it a special use permit to
sand mine its property, thus violating 42 U.S.C. § 1983 by
depriving the plaintiff of its rights to equal protection
substantive and procedural due process, and committing a prima
facie tort. Presently before the Court is a motion by the
defendants to dismiss the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").
The following facts are taken from the amended complaint. In
1995, T.S. Haulers purchased a 57-acre parcel of unimproved real
property in the Town of Riverhead for the approximate sum of
$550,000 (the "parcel"). The parcel is located within an
"Industrial A" zoning district, and it borders New York State
Route 25. Although not specifically stated in the amended
complaint, it is apparent that T.S. Haulers wants to use the
parcel of land to mine sand and gravel, which it would then
offer for sale to the public.
According to the amended complaint, state and local law
require that mining operations receive a permit from the New
York State Department of Environmental Conservation (the "DEC")
and a special permit from the Town before any sand mining can
occur. T.S. Haulers states, "Upon information and belief, once a
DEC permit has been issued, the Town's sole authority at that
point is on the issues of traffic and reclamation."
In 1996, T.S. Haulers applied to the Town Board for a special
permit to operate a non-nuisance industry, which apparently
would allow the company to sand mine the parcel. On March 7,
1997, the Town Board denied the special permit application,
stating that it was not certain whether sand mining was
permitted on property in an "Industrial A" zoning district. The
plaintiff claims that, in truth, the Town Board denied the
permit application because it was under political pressure from
various civil and environmental associations that are opposed to
Within several months of the Town Board's denial, T.S. Haulers
sought a ruling from the Zoning Board of Appeals for the Town of
Riverhead (the "ZBA"), as to whether sand mining was permitted
in an "Industrial A" zoning district. On December 16, 1997, the
ZBA issued a decision finding that sand mining is a non-nuisance
industry that is permitted in an "Industrial A" zoning district.
Meanwhile, in April 1997, the Town obtained an ex parte
temporary restraining order from the Supreme Court of the State
of New York, Suffolk County. The complaint does not indicate who
was precluded from engaging in what activity, but given the
context of the allegation, it reasonably can be inferred that
T.S. Haulers was temporarily restrained from sand mining. In
November 1997, the Town brought a contempt action against the
plaintiff, in the Supreme Court, Suffolk County, based on an
alleged violation of the April temporary restraining order. The
parties reached a tentative settlement, whereby, among other
things, the Town agreed to withdraw its temporary restraining
On or about February 23, 1998, the DEC issued T.S. Haulers a
permit allowing it to sand mine the parcel. According to T.S.
Haulers, that permit was based in part upon the DEC's belief
that the Town's requirements had been satisfied.
In August 1998, the Town brought a state-court contempt
proceeding against T.S. Haulers, allegedly in retaliation for
DEC's issuance of the sand mining permit. The Supreme Court
scheduled a hearing for December 8, 1998, but did not reach a
final determination. The amended complaint does not indicate
whether a hearing was held.
Meanwhile, the Town amended its Code to include an "Industrial
C" zoning district in which sand mining was prohibited. The
amendment had the effect of prohibiting sand mining on the
plaintiffs 57-acre parcel. However, in December 1998, the New
York Supreme Court (Emerson, J.S.C.) issued a decision that
annulled the amendment, see William Tintle, Sr. v. Town of
Riverhead, No. 98-21188. Although the amended complaint does
not specifically allege that the defendants attempted to rezone
the plaintiffs parcel within an "Industrial C" zoning district
to prohibit them from sand mining, such a conclusion is
reasonably inferred from the plaintiffs allegation that
following the Tintle decision, the parcel owned by T.S.
Haulers was once again zoned as "Industrial A."
In a decision dated April 13, 1999, the Supreme Court, Suffolk
County, denied the Town's motion for summary judgment and
directed the plaintiff to submit an application for a special
permit under the Town Code. T.S. Haulers submitted the special
permit application, but the Town refused to accept it on the
ground that sand mining was now illegal in Industrial A and B
zoning districts. T.S. Hauler's sought relief in state court,
and the Supreme Court, Suffolk County, issued an order directing
the Town to process the plaintiffs application for a special
In early 2000, the Town's Planning Board recommended denying
the plaintiffs special permit application, because placing sand
and material on the ground constituted outdoor storage, which
was prohibited by another section of the Code. T.S. Haulers
contends that the reasons supporting the Town's denial were
Subsequently, the Town Board held a hearing and moved to grant
the plaintiffs application. However, at the time of the vote,
one councilman was absent, another abstained, and the remaining
three members voted against the application. Accordingly, the
plaintiffs application for a special permit was denied.
An Article 78 proceeding was commenced to set aside the
results of the Town Board hearing on the basis of procedural
improprieties. The Supreme Court, Suffolk County (Hall, J.)
declared the Town Board's decision denying the special permit
null and void on the ground that the hearing was conducted and
decided improperly. At the time the defendants filed their
motion to dismiss, the Town Board had not set a new hearing
date. However, at the time the defendants filed their reply
papers, the Town Board had issued a decision denying the
plaintiffs application for a special permit. This Court is aware
that the Article 78 proceeding is again pending in the Supreme
Court before Justice Hall.
Further, T.S. Haulers contends sand mining has become a highly
publicized and politicized issue. The company states that many
local newspapers run articles describing alleged environmental
dangers associated with sand mining. Therefore, claims the
plaintiff, the defendants' actions are a response to publicity
rather than an application of the law.
T.S. Haulers claims that it has been unable to obtain a
building permit to construct buildings the company needs to
house its machinery and equipment, because the defendants have
refused to properly process its special permit application.
Therefore, the plaintiff has been forced to purchase other
property on which it can store its machinery and equipment.
In November 2000, Island Water Park, Inc. ("Island Water
Park") sought to mine sand and gravel from a 40-acre parcel in
order to create two lakes for water skiing. Island Water Park
intends to sell the sand and gravel for the approximate sum of
$2,500,000, which sum it will use to finance the project. In
response to DEC's inquiry as to whether sand mining is permitted
on the Island Water Park site, the Town stated that the ban on
sand mining applies only to Industrial A and B zoning districts,
not Planned Recreational Park districts, in which the Island
Water Park site was located. The Town also stated that, in any
event, Island Water Park would be exempt from the provisions of
the Code, because the company was removing sand for construction
instead of for the sole purpose of mining. T.S. Haulers claims
mining is not permitted in the Planned Recreational Park
district according to the Town Code. The amended complaint
alleges that although T.S. Haulers is similarly situated to
Island Water Park, the Town is applying the laws unequally so
that Island Water Park is exempt from all the land use
requirements to which T.S. Haulers is being subjected.
On April 20, 2001, the DEC issued a mining permit to the
"Woods at Cherry Creek, LLC" (the "Woods at Cherry Creek") to
dig sand and gravel from an 8.2 acre parcel of land to construct
a golf course. The Town Board approved mining on the site, which
was not located in an "Industrial A or B" zoning district but,
rather, in a more restrictive zoning district.
On an unspecified date, the Town approved an application by
PRG, Inc. ("PRG"), for a special permit to sand mine a site
located diagonally across the street from the plaintiffs parcel.
Upon hearing that the Town had granted the mining permit to PRG,
T.S. Haulers contacted the DEC. According to the information
provided by the DEC, the Town advised the DEC that sand mining
permits were not necessary for PRG's site. As such, the DEC has
not required a mining permit from PRG, and PRG ...