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United States District Court, S.D. New York

June 13, 2005.

JOHN P. CAHILL, Individually and as Commissioner of the New York State Department of Environmental Conservation, MARY ELLEN KRIS, Individually and as Regional Director, Region Two, WILLIAM R. ADRIANCE, Individually and as Chief Permit Administrator of Region Two, STUART M. FOX, Individually and as Deputy Chief Administrator of Region Two, and JEFFREY RABKIN, Individually and as Environmental Analyst, Region Two, Defendants.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


The plaintiff East Bay Recycling, Inc. ("East Bay") and the defendants John Cahill, Commissioner of the New York State Department of Environmental Conservation ("DEC") ("Cahill" or the "Commissioner"), Mary Ellen Kris, Regional Director, ("Kris" or "Regional Director"), William R. Adriance, Chief Permit Administrator ("Adriance" or the "Administrator"), Stuart M. Fox, Deputy Chief Administrator ("Fox" or "Deputy Administrator"), and Jeffrey Rabkin, Environmental Analyst ("Rabkin" or "Analyst") (collectively the "Defendants" or the "State"), have filed objections to the Report and Recommendation of Magistrate Douglas F. Eaton (the "Report and Recommendation"), dated February 8, 2002. For the reasons set forth below, the objections are overruled, and the recommendations are hereby adopted.

Prior Proceedings

  The proceedings in this action have proven to be difficult and unhappily marked by delay, both substantive and procedural. The action was commenced on August 17, 2000 by East Bay by the filing of a complaint that alleged due process and equal protection claims arising out of the refusal of the Defendants to approve East Bay's application for a permit to construct and operate a solid waste station in the Bronx, New York.

  The Defendants moved to dismiss, and the motion was referred by the Honorable Deborah A. Batts to Magistrate Eaton, who issued a Report and Recommendation on March 23, 2001. East Bay filed an amended complaint on April 10, 2001, the Defendants moved for summary judgment, and on February 8, 2002, Magistrate Judge Eaton filed the comprehensive 57-page Report and Recommendation at issue here.

  Magistrate Judge Eaton granted summary judgment dismissing the First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Eleventh and Fourteenth Claims and the Third Claim to the extent that it alleged a claim based on malicious intent. East Bay's Rule 56(f) motion for a continuance was granted with respect to the Third Claim to the extent it alleged a claim based on a lack of rational basis, the Sixth Claim as the Magistrate Judge construed it, the Twelfth Claim for declaratory judgment, and the Thirteenth Claim for attorneys' fees. The Magistrate Judge further recommended that claims for monetary damages against the Defendants in their official capacities be dismissed for lack of jurisdiction and that summary judgment be granted dismissing claims against the Defendants in their individual capacities.

  Objections to the Report and Recommendation were filed by the State on March 3, 2002 and by East Bay on March 8, 2002. The docket does not contain an entry with respect to a hearing on the objections.

  On July 23, 2004, upon the recusal of Judge Batts, the action was assigned to the Honorable Barbara S. Jones. On August 31, 2004 the action was reassigned to the Honorable Gerard E. Lynch. On October 13, 2004, the action was reassigned to this Court.

  A scheduling order was entered on December 6, 2004, supplemental materials were filed, and the objections were heard and marked fully submitted on February 16, 2005.

  An Overview

  The Magistrate Judge in the Report and Recommendation, familiarity with which is assumed, presented an overview of the issues presented by East Bay's complaint. That overview states, in pertinent part, as follows:

Plaintiff's primary argument (contained in the First and Second Claims) . . . attacks DEC's decision to review (rather than automatically rubber-stamp) the environmental analysis performed by the New York City Department of Sanitation ("DOS").
To outline the context of this argument, I insert here a brief description of the legal provisions governing environmental reviews, and a few key facts. . . . Responsibility for the environmental review of solid waste transfer stations in New York City is shared by DEC and DOS pursuant to a 1992 Stipulation and Order (the "Stipulation"). The Stipulation calls for a "coordinated review," and sets forth a procedure in which each agency sends to the other a "draft" declaration — either "negative" (indicating that there would be no significant environmental impact) or "positive" — concerning specified environmental factors. With respect to Plaintiff's application, DEC sent DOS a draft negative declaration as to certain environmental factors. DOS then conducted a lengthy review (in which DEC failed to participate) concerning other environmental factors, and sent a draft negative declaration ("DOS's East Bay Negative Declaration") to DEC. The Stipulation provides that DEC "may" co-sign such a draft negative declaration. DEC informed Plaintiff that DEC was required to conduct its own review of DOS's environmental findings before it could co-sign DOS's East Bay Negative Declaration. . . . Plaintiff alleges that, for other applicants who have obtained a draft negative declaration from DOS, DEC relies on DOS's analysis and co-signs DOS's negative declaration without any independent DEC review of DOS's analysis. The record shows that this was indeed DEC's practice from 1992 to 1998, with respect to all applicants previous to Plaintiff. However, Defendants assert that, commencing with Plaintiff's application, DEC adopted a practice of independently reviewing DOS's environmental analyses. Defendants provide information as to three instances (subsequent to Plaintiff's application) where DEC, after reviewing DOS's analysis, has required the applicant to provide further information and to make revisions or take other action relating to the application. Defendants also contend (a) that there are misstatements and inconsistencies in Plaintiff's application which provide a rational basis for Defendants' actions, and (b) that there is no evidence of malicious intent.
I conclude that Defendants have established as a matter of law (a) that their decision to review DOS's analysis of Plaintiff's application did not violate Plaintiff's equal protection rights, and (b) that Plaintiff is not entitled to a declaratory judgment that DOS's East Bay Negative Declaration is binding on DEC.
Plaintiff also alleges an equal protection claim with respect to DEC's delay in processing Plaintiff's application and DEC's subsequent insistence (following Plaintiff's eventual demand for a decision and DEC's letter denying the permit) that Plaintiff could not "reactivate" the application review (as DEC's denial letter recommended) but must re-start the entire application process. (Third, Sixth and Seventh Claims). The result has been that DEC has refused to listen to Plaintiff's response to DEC's criticisms and has told Plaintiff to go back to "square one" and start the lengthy application process all over again.
A brief reference to key facts is again necessary to understand the basis for Plaintiff's claim. For over 14 months after DEC received DOS's East Bay Negative Declaration, DEC failed to inform Plaintiff as to the matters about which DEC was concerned (thus withholding from Plaintiff the opportunity to respond to those concerns), despite a specific promise by DEC of prompt action and despite Plaintiff's repeated inquiries (and offers to provide additional information, if required). Plaintiff filed a demand for a decision on its application, and DEC responded in a letter which cited deficiencies in the application and "strongly suggest[ed]" that Plaintiff contact the DEC regional office "to discuss how to reactivate application review with a re-submission of a revised application." Plaintiff, seeking to follow that recommended course, submitted further information and revisions to its original application in response to DEC's expressed concerns. DEC did not deal with the merits of Plaintiff's responses. It did not reactivate Plaintiff's original application, but rather insisted that Plaintiff would have to file an entirely new application and repeat, from the beginning, the expensive and time-consuming application process (including a new environmental review).
Plaintiff alleges that, by these actions, Defendants intentionally treated Plaintiff differently from others similarly situated. Plaintiff further alleges both (a) lack of a rational basis and (b) malicious intent.
February 8, 2002 Report and Recommendation of Magistrate Judge Eaton to Judge Batts, No. 00 Civ. 6147 (DAB)(DFE) ("Report and Recommendation"), at 4-5.

  The Objections Of The Plaintiff Are Overruled

  In its March 4, 2002 written objections to the Report and Recommendation, East Bay raised two objections: First, East Bay argued that the Magistrate Judge erred in his dismissal of the Eighth Claim because of his misunderstanding of the Environmental of Assessment Statement process. Second, East Bay alleged that the Magistrate Judge erred in dismissing the First Claim when he concluded that DEC was not precluded from making its own review and not required to approve the Negative Declaration of the Department of Sanitation ("DOS"). After making these objections, East Bay also sought by Supplemental Affirmation of February 11, 2005, to obtain additional discovery on the basis of the absence of DOS documents in the DEC files. These objections are overruled for the reasons which follow.

  The EAS Process

  It is East Bay's position that the Magistrate misunder-stood the EAS process:

The Magistrate misapprehended the fact that while the DEC was or was not participating in the coordinated review, the EAS itself was changing or evolving.
(East Bay Written Objections, p. 12.)

  It was East Bay's view that the use of the East Bay EAS was a violation of the customary practice and that the Magistrate Judge's understanding as to the completion of the process at the time of denial was flawed. However, East Bay concedes that the Magistrate Judge was correct when he deemed the East Bay application complete in April 1996 by operation of law. See Report & Recommendation, at 52-53.

  In addition, the Magistrate Judge found that there was no basis in the record to conclude that East Bay had been treated differently from others with respect to the process of permit denial. East Bay has criticized footnote 65 in the Report and Recommendation on the grounds that a revised EAS need not be submitted in view of the materials submitted subsequently by East Bay in response to comments by DOS. That error, if it is such, does not affect the conclusion of the Magistrate Judge that DEC was entitled to rely upon the 1996 EAS as a matter of law.

  East Bay has also suggested that once its permit application was deemed complete, DEC had no legal authority to compel additions or changes to the application and therefore DEC relied on the subterfuge of improperly claiming that East Bay's EAS was flawed in order to deny the application. However, the State has pointed out that New York's Uniform Procedures Act defines a "complete application" as an application which is in an appropriate form and which DEC determines is "complete for the purpose of commencing review" but which may need to be "supplemented" during the course of review in order to enable DEC to make the findings and determinations required by law. See N.Y. Env't. Cons. L. § 70-0105(2). Because DEC is specifically permitted to require additional information from an applicant even after an application has been "deemed complete," there was no need for DEC to rely on an "outdated EAS" as a subterfuge to obtain information to which it was otherwise not entitled.

  East Bay's objections to the Magistrate Judge's dismissal of the First and Eighth Claims are "expressly limited to whether the Magistrate correctly resolved two disputed facts" upon which the Plaintiff's First and Eighth Claims are based. See Pl.'s Objections at 2. The disputed fact in the Eighth Claim is whether DEC ignored East Bay's supplemental materials that allegedly corrected errors in the outdated Environmental Assessment Statement and thus irrationally refused to adopt DOS's negative declaration based on deficiencies in a document that had already in fact been corrected. Id.

  The Magistrate Judge recommended dismissing the Eighth Claim because "there is absolutely no basis in the record to support an inference" that East Bay was selectively treated in this regard. Report & Recommendation at 54. He also noted that there is "certainly a rational basis" for DEC to have made its decision on the basis of the EAS that East Bay provided. Id.

  In objecting to the Magistrate Judge's recommendation, East Bay contended for the first time that DEC ignored supplementary information that East Bay provided after its EAS was prepared and that it was irrational for DEC to base its refusal to sign DOS's Negative Declaration on problems in the "outdated" EAS. To support this argument, East Bay submitted exhibits constituting the supplemental information that DEC allegedly ignored.

  However, these exhibits do not establish that the Magistrate Judge's determination was in error when he concluded that there is no basis in the record to support an inference that similarly situated permit applicants were treated differently in this regard.

  In addition, East Bay's supplemental submissions do not address any of the DEC's concerns expressed in DEC's letter to East Bay dated July 2, 1999. (See Rabkin Declaration in Support of Summary Judgment ("Rabkin Dec."), Exhibit G (relating to the size of the facility's loading bays preventing the total enclosure as the EAS asserts).)

  The EAS states that the nearest residences to the facility are one-half mile away while the New York City Department of Environmental Protection ("DEP") estimated the closest residence as only 600 feet away. (See id. at 3.) None of East Bay's supplementary material addressed this factual conflict or reanalyzed the facility's noxious environmental impacts in light of the closer residences.

  Although the EAS states that truck queuing may be necessary, DEC concluded that it substantially underestimated the number of diesel trucks that will be lined up on the street with their engines idling as they inch forward to enter the facility. The EAS does not discuss how incoming and outgoing truck traffic will be managed to minimize the air pollution caused by diesel exhaust emitted by the queuing trucks, and does not assess the effects of such queuing on air quality and neighborhood health. (See id. at 4-7.) The only "supplemental" document that touches on the truck queuing problems is a revised facility site plan showing a truck staging area on the street with two trucks on it. (See Goldberg Declaration in Support of Pl.'s Objections at Ex. 6.) This document does not address DEC's concerns about the management of substantial truck queuing and the attendant health concerns.

  Based on the foregoing, it is determined that the Eighth Claim based on a denial of the EAS dated August 1996 as without a rational basis was correctly dismissed.

  The Right Of DEC To Review

  The Magistrate Judge reviewed with care the governing document, the Stipulation and Order (the "Stipulation") filed April 20, 1992 in the Superior Court of the State of New York, which provided for the procedure and allocution of responsibilities of DOS and DEC in the conduct of a State Environmental Quality Review Act ("SEQRA") review.

  The "disputed fact" related to the First Claim is "over the meaning and practice of a `coordinated review'" under the SEQRA and under a stipulation in which DOS and DEC agreed to act as SEQRA co-lead agencies to analyze the environmental impacts of proposed solid waste management facilities. (Pl.'s Objections at 2.)

  Magistrate Judge Eaton rejected East Bay's argument that DEC was required as a matter of state law to adopt DOS's negative declaration. Although the Magistrate Judge acknowledged that the correctness of DEC's interpretation of SEQRA and that the stipulation is irrelevant to East Bay's equal protection claim, he, nevertheless, resolved the issue raised because of "Plaintiff's repeated and strenuous reliance" on it. Report & Recommendation at 26. The language of the 1992 stipulation and SEQRA structure and purpose support the Magistrate Judge's conclusion.

  In addition, the Eleventh Amendment to the United States Constitution prohibits a federal court from determining whether a state official has violated state law. See, e.g., Allen v. Cuomo 100 F.3d 253, 260 (2d Cir. 1996) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 117 (1984)).

  The principle of Ex Parte Young, 209 U.S. 123 (1908), that permits a plaintiff to avoid the Eleventh Amendment bar in a suit in federal court against a state official for a violation of federal constitutional or statutory law is wholly inapplicable to lawsuits alleging a state official's violation of state law. See Pennhurst, 465 U.S. 89, 109 n. 17. Therefore, claims against state officials based solely on state law are barred by the Eleventh Amendment. Id.

  The Objections Of The State Are Overruled

  The State in its initial objections to the Report and Recommendation noted that its objections were limited primarily to the following three claims of East Bay, which were upheld by the Magistrate Judge: (1) that part of the Third Claim that alleges that the processing of East Bay's application was selectively delayed without a rational basis; (2) the Sixth Claim, which the Magistrate Judge construed as alleging that East Bay was selectively and without a rational basis required to file a new permit application after its initial permit application was denied; and (3) the Twelfth Claim, which seeks a declaration under state law that the SEQRA Negative Declaration, rejected by DEC in the exercise of its expertise and discretionary authority, is in fact legally sufficient and binding and that the SEQRA process was concluded in a manner favorable to East Bay.*fn1

  Although the Magistrate Judge recommended sustaining the Twelfth Claim, he explicitly concluded that "defendants have established as a matter of law that Plaintiff is not entitled to a declaratory judgment that DOS's East Bay Negative Declaration is binding on DEC." Recommendation & Report at 5. Elsewhere, the report states that East Bay's claim based on differential delay "does not provide a basis for a federal court to decide that DOS's East Bay Negative declaration is binding or to require that DEC co-sign it." Id. at 7. Later in the report, the Magistrate Judge reiterates that "even if plaintiff were to succeed in establishing an equal protection violation" based on the delay in processing its application, "it would not justify a declaration that DOS's East Bay Negative Declaration was legally binding." Id. at 42.*fn2

  However, the Magistrate Judge recommended granting East Bay's cross-motion for a continuance pursuant to Rule 56(f) to obtain discovery on the Twelfth Claim.

  The Magistrate Judge recommended denying summary judgment as to the Third and Sixth Claims described above based upon his reading of the United States Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 1562 (2000). In light of Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2004), that ruling turned out to be prescient.

  In Cobb, the court stated with respect to the assertion of a qualified immunity defense:

First, the law pertaining to "class of one" equal protection claims was clearly established in 1999 (i.e. when the events at issue here took place). As we recently noted in African Trade & Info. Ctr., the Supreme Court did not depart from well settled equal protection principles in Olech. See [African Trade & Information Center, Inc. v. Abromaitis, 294 F.3d 355, 362-63 (2d Cir. 2002)]. Rather, the Olech Court merely "reaffirmed" that "equal protection claims can be brought by a `class of one.'" Id. at 362 (emphasis added). As the Supreme Court underscored in Olech, the Court has long "recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." [Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)] (citing cases stretching back to 1923).
The defendants nonetheless contend that the specific contours of a "class of one" equal protection claim were modified when the Supreme Court decided Olech in 2000 such that the standards for this type of claim could not have been "clearly established" in 1999. However, in African Trade & Info. Ctr., where the plaintiffs brought a "class of one" equal protection claim premised on conduct that had taken place in 1998, we explained that "[i]f plaintiffs had alleged that [the defendant's conduct] . . . was wholly arbitrary, or irrational, they would have alleged a violation of a clearly established constitutional right." Id. at 358, 363 (emphasis added). Because that is the type of "class of one" equal protection claim with which the district court charged the jury at the close of the trial, there can be little doubt in the wake of our decision in African Trade & Info Ctr. that the relevant standards for the particular Olech-based equal protection claim advanced at trial were clearly established even with respect to conduct that pre-dated Olech.
  The same view of Olech has been expressed recently by the Second Circuit. Neilson v. D'Angelis, ___ F.3d ___, 2005 WL 1244795, at *3-4 (2d Cir. 2005). The Neilson Court stated in pertinent part as follows:


While the Equal Protection Clause is most commonly used to bring claims alleging discrimination based on membership in a protected class, where, as here, the plaintiff does not allege membership in such a class, he or she can still prevail in what is known as a "class of one" equal protection claim. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (a valid equal protection claim may be brought by a "class of one" "where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."); see also DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003).
In order to succeed on a "class of one" claim, the level of similarity between plaintiffs and the persons with whom they compare themselves must be extremely high. See Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002) ("In order to succeed, the [plaintiffs] must demonstrate that they were treated differently than someone who is prima facie identical in all relevant respects.").

  As to all three claims, the Magistrate Judge concluded appropriately that a satisfactory Rule 56(f) argument had been made to defeat the State's motion for summary judgment and to permit a continuance for further discovery. That ruling is hereby affirmed without prejudice to the State's ability to renew its motion for summary judgment upon the completion of that discovery.


  For the reasons set forth above, the Report and Recommendation is affirmed and its recommendations are adopted.

  It is so ordered.

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