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Acquest Wehrle LLC v. United States

March 30, 2009


The opinion of the court was delivered by: John T. Curtin United States District Judge

Plaintiff Acquest Wehrle LLC brought this action against the United States of America, the United States Environmental Protection Agency ("EPA"), and the United States Army Corps of Engineers (the "Army Corps") (collectively, the "Federal Defendants"), pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06, seeking a determination that its real property located at 2190 and 2220 Wehrle Drive in the Town of Amherst, New York, is exempt from the wetlands regulation provisions of the Clean Water Act ("CWA"), 42 U.S.C. § 1344, et seq. Plaintiff also sued the Town of Amherst, New York, seeking a judgment declaring that a 50-year sewer moratorium agreement entered in 1983 between the Town and the EPA (the "1983 Moratorium Agreement") has resulted in an unconstitutional taking of property without just compensation.*fn1

On June 20, 2008, this court issued a decision and order (Item 43) dismissing the complaint against the Federal Defendants for lack of subject matter jurisdiction, finding that the EPA's wetlands designation and the Army Corps' rescission of plaintiff's provisional work permit did not constitute final agency action within the meaning of the APA, and that jurisdiction over plaintiff's "takings" claims lies exclusively with the United States Court of Federal Claims pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1). Subsequently, upon plaintiff's unopposed request, the court issued an order pursuant to Rule 54(b) of the Federal Rules of Civil Procedure directing entry of a separate, final, and appealable judgment on plaintiff's takings claims against the Federal Defendants (Item 67).

Meanwhile, the Town of Amherst filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure seeking dismissal of the complaint against it on the grounds that the claim for declaratory relief with respect to the 1983 Moratorium Agreement is barred by the applicable statute of limitations, and fails to state a claim upon which relief can be granted. The court scheduled oral argument of this motion for November 21, 2008, at which time the parties appeared in court and agreed to a referral of the matter to United States Magistrate Judge H. Kenneth Schroeder, Jr. for a settlement conference. The court has now been advised that the parties have been unable to reach a settlement, and the case has been referred back to this court for determination of the Town's motion for judgment on the pleadings (see 2/13/09 Minute Entry, Item 80).

For the reasons that follow, the Town's motion is granted, and this action is dismissed.


The factual background of this action is set forth at some length in the court's prior decision and order, and will not be reiterated in great detail here. As previously noted, the facts are largely a matter of historical public record, and as such are not substantially in dispute.

Central to the claims remaining in this case, the 1983 Moratorium Agreement was executed in connection with the EPA's approval of a $5.8 million grant to the Town for construction of the Southeast Amherst Interceptor and Collector Sewer Project (the "Sewer Project"). The Moratorium Agreement provided that for a fifty-year period (until 2033), the Town would not allow any developments on property located wholly or partially within stateor federally designated wetlands to hook up to the sewer project funded by the grant, without the EPA's written approval (Item 1, ¶ 17 & Ex. 2). The Town "reserve[d] the right to appeal this moratorium with respect to actual wetland boundaries on an individual parcel basis" (id., Ex. 1).

The property at issue encompasses two contiguous parcels of land totaling approximately twenty-five acres, which were purchased by Acquest Wehrle in connection with the development of an office building park. The proposed development dates back to the early 1990s, and has been the subject of extensive negotiations, investigations, site plan revisions, Town Board resolutions, prior federal and state court litigation, and other proceedings involving local, state, and federal agencies.

When Acquest Wehrle purchased the larger parcel at 2220 Wehrle Drive in 1998, the property had already been the subject of at least three wetlands delineations and had been rezoned by the Town Board from R-3 (residential) to OB (office building). In 2000, in connection with its purchase of the smaller parcel at 2190 Wehrle Drive, Acquest Wehrle petitioned the Town Board to rezone that parcel from R-3 to OB, and requested that the Town seek a waiver of the sewer tap-in moratorium from the EPA. The Town Board eventually granted the petition and approved Acquest Wehrle's site plan for the office park subject to certain conditions, including EPA approval of the sewer tap-in and the Army Corps' approval of a permit under section 404 of the CWA to place fill in delineated wetland areas of the site. The Town Board also adopted a "Negative Declaration Notice of Determination and Non-Significance" pursuant to the New York State Environmental Quality Review Act ("SEQR"), declaring that the proposed rezoning and development "will not have a significant adverse effect on the environment." (Item 1, Ex. 6.)

On November 21, 2002, the EPA issued a "Jurisdictional Determination and Special Case Designation for Wetlands and Aquatic Areas at 2220 Wehrle Drive, Amherst, New York" which contained the following statement:

Field investigations done by the . . . Corps and [EPA] in July 2002 showed that a large wetland of approximately 9.5 acres exists on the project site. EPA Region 2 believes that this wetland delineation is accurate. Additionally, EPA Region 2 has determined that this wetland is subject to jurisdiction under the CWA because it has a surface hydrological connection through a watercourse originating in the wetland, through ditches and culvert and into Ellicott Creek, to a traditional navigable water. Further, the wetland can be considered to be adjacent to Town Ditch 18 and subject to CWA jurisdiction on this basis as well.

Based on these conclusions, EPA Region 2 has determined that there are approximately 9.5 acres of CWA jurisdictional wetlands on the parcel at 2220 Wehrle Drive. (Item 1, Ex. 11, p. 2). Subsequently, by letter dated December 21, 2004, the EPA notified the Town that its request for a tap-in waiver had been denied (Item 59, Ex. H). According to this letter, when the EPA funded the Sewer Project construction grant in 1983, the wetlands on the 2220 Wehrle Drive parcel covered approximately 8.8 acres, but the more recent jurisdictional determination indicated that wetlands cover 9.5 acres of the parcel. As stated in the letter:

During the intervening years, [Acquest Wehrle] has submitted numerous site plans for EPA's review, ranging from no wetlands impact to substantial impact. It is important to note that the proposed site plan that would have resulted in no fill was subsequently withdrawn by [Acquest Wehrle]. Under the most recent site plan presented by Acquest . . . , over 4.75 acres of this wetland would be lost, with 1.75 acres of onsite mitigation, resulting in a net loss of 3.00 acres of wetlands onsite.

[T]he greater portion of the acreage of . . . the 2190 and 2220 Wehrle Drive parcels, which together total 25 acres, are non-wetlands and could be developed without any direct impact to the wetlands. In fact, as noted above, [Acquest Wehrle] has submitted at ...

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