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McCormick v. Town of Clifton Park

May 23, 2006

ROBERT A. MCCORMICK; ROBERT J. MCCORMICK; AND ELEVEN AND CO., LLC, PLAINTIFFS,
v.
TOWN OF CLIFTON PARK; TOWN OF CLIFTON PARK PLANNING BOARD; TOWN OF CLIFTON PARK HISTORIC PRESERVATION COMMISSION; AND STEVEN BULGER, JASON KEMPER, PHILLIP BARRETT, RAINEY LITTMAN, KEVIN BOWMAN, JOHN L. SCHERER, JAY RUSSELL, TONY KARAM, AND RAY D'AMICO, EACH IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM DECISION and ORDER

I. INTRODUCTION

Plaintiffs Robert A. McCormick, Robert J. McCormick, and Eleven and Co., LLC (collectively "plaintiffs"), own a proposed subdivision called Curnyn Meadows in the Town of Clifton Park in Saratoga County, New York. The defendants, the Town of Clifton Park (the "Town"), its Planning Board the ("Board"), its Historic Preservation Commission (the "Preservation Commission") and various members of those entities, (collectively "defendants") were involved in events related to the denial of plaintiffs' subdivision application.

Pursuant to 42 U.S.C. § 1983 ("§ 1983"), plaintiffs' amended complaint alleges violations of the Equal Protection Clause of the Fourteenth Amendment. Defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the amended complaint. Plaintiffs oppose. Oral argument was heard on April 28, 2006 via video-conference between the Utica and Albany federal courthouses. Decision was reserved.

II. FACTS

As this is the second motion to dismiss filed in this action, the facts as alleged in the amended complaint have been related previously and will simply be repeated here with some modification to reflect the amendment of the complaint.

Four years before the events of this case, in June of 1998, plaintiffs purchased 168 acres of rural farmland in the Town. (Docket No. 14, Amended Complaint ¶ 15.) The Town was also interested in the property but was outbid by the plaintiffs. Id. Defendant Phillip Barrett ("Barrett"), the Town Supervisor, has stated his desire "to turn the land in the western part of Clifton Park, including plaintiffs' property, into park land." Id. at ¶ 58.

On November 20, 2002, plaintiffs filed an application for a subdivision permit to create Curnyn Meadows. The plan would establish 20 large residential lots over 120 acres of the property. Id. at ¶ 16. At the time of plaintiffs' application this type of subdivision was a permitted use under the Town's zoning ordinances. Id.

While the application was pending plaintiffs found it necessary to demolish an old barn on the property and accordingly applied for and received a permit to remove the barn. Some local citizens objected to the demolition and plaintiffs responded to community concern about the possible loss of a historical structure. They offered to contribute $10,000 to relocate the barn but the Town declined the offer. Id. at ¶ 21. Instead, plaintiffs and the Preservation Commission agreed that plaintiffs would document the barn through photographs. Plaintiffs paid $2,000 for more than ninety photographs which they provided to the Town. Id.

In May of 2003, as plans for the development seemed to be progressing, a local real estate agent defendant Rainey Littman ("Littman") approached plaintiffs and expressed her interest in listing the Curnyn Meadows project. Id. at ¶ 19. She followed up with phone calls but the plaintiffs declined her repeated offers. Id. Littman was also a member of the Preservation Commission. From this time forward, she actively opposed the plans for Curnyn Meadows.

On or around May 22, 2003, engineers hired by the Town issued comments and recommendations regarding the subdivision project. One of the concerns included the plans for the water system. As the Town was in the process of developing a new water district in the area it was recommended that Curnyn Meadows join that water district. Id. at ¶ 45. However, the Town's plans were in the preliminary stages. Thus, when plaintiffs submitted a map, plan, and report to the planning Board regarding the project on May 25, 2003, they were not able to address the water system concerns. Id.

When the barn was demolished on June 3, 2003 there was a media flurry which painted plaintiffs in a bad light. Plaintiffs claim defamatory statements were made by defendants Littman, Barrett, John Scherer ("Scherer"), the Town's Historian, Jason Kemper, Director of Planning for the Board, and Steven Bulger, Chairman of the Board. Id. at ¶ 22. There was also a conflict between plaintiff Robert A. McCormick and defendant Scherer at Curnyn Meadows regarding the barn. Scherer filed a report on June 15, 2003 about the incident and plaintiffs allege that the statement was false and defamatory. Id. at ¶ 23.

The tension triggered by the barn razing lingered through the summer and fall. On August 20, 2003, plaintiffs filed a Notice of Claim against the Town alleging defamation and harassment relating to the events surrounding the barn razing. Id. at ¶ 25. In September, defendant Barrett attempted to have Scherer's previous complaint pursued by the New York State police. In early October, defendants hired a private investigator to visit, and allegedly intimidate, plaintiff Robert A. McCormick and his attorney in an attempt to persuade them to drop the Notice of Claim. Id. at ¶¶ 26, 27.

There was also growing community concern regarding other aspects of the proposed subdivision. The Town and the surrounding areas were once Native American trade routes and hunting grounds. Upon request, New York State Historic Preservation Office ("SHPO") advises local communities on local preservation environmental reviews, under the provisions of the State Environmental Quality Review Act ("SEQRA"). Defendant Littman claimed that she had received a phone call from a local citizen who had seen artifacts on the plaintiffs' property as a child when her uncle owned the land. Despite the fact that the Historic Commission had reliable information refuting this claim, the Town involved the state and an archeological survey was required. Id. at ...


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