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T.S. HAULERS, INC. v. TOWN OF RIVERHEAD

March 26, 2002

T.S. HAULERS, INC., PLAINTIFF,
V.
TOWN OF RIVERHEAD, JAMES LULL, INDIVIDUALLY AND AS COUNCILMAN FOR THE TOWN OF RIVERHEAD, PHILIP CARDINALE, INDIVIDUALLY AND AS COUNCILMAN FOR THE TOWN OF RIVERHEAD, CHRISTOPHER KENT, INDIVIDUALLY AND AS COUNCILMAN FOR THE TOWN OF RIVERHEAD, DEFENDANTS.



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.").

I. BACKGROUND

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 sand mining.

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 order.

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."

While the Tintle case was pending in state court, the Town passed a resolution that prohibited sand mining in Industrial A and B zoning districts. T.S. Haulers contends that after an unsuccessful attempt to rezone the parcel, the Town outlawed sand mining for the sole purpose of preventing T.S. Haulers from obtaining a sand mining permit.

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 permit.

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 pretextual.

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 that sand 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 ...


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