The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge
MEMORANDUM-DECISION AND ORDER
The matter before the court is a civil rights action, filed pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. §1983, in which plaintiffs JWJ Industries, Inc. ("JWJ") and Jeffrey Holbrook ("Holbrook"), an officer and shareholder and of JWJ Industries, Inc. (collectively, "plaintiffs") complain of an unconstitutional taking of their property without just compensation. Currently before the court is plaintiffs' motion for injunctive relief consisting of a temporary restraining order ("TRO") and preliminary injunction (Doc. No. 4). For the reasons set forth below, the TRO (which entered via the court's Memorandum Decision and Order ("MDO") issued on June 30, 2009 (Doc. No. 8) and which was continued at the hearing held before the court on July 10, 2009) will be lifted, and the plaintiffs' motion for preliminary injunction will be denied.
I. FACTS AND PROCEDURAL HISTORY
JWJ Industries, Inc. is a domestic corporation organized and existing under the laws of the state of New York. Holbrook is a shareholder and officer of JWJ Industries, Inc. Holbrook holds a permit from the New York State Department of Environmental Conservation ("DEC") which allows him to operate a transfer station*fn2 at 436 County Route 51, in the Town of New Haven, Oswego County, known as the JWJ Transfer Station ("Transfer Station"). The current DEC permit*fn3 authorizes the Transfer Station to accept up to a daily maximum total of sixty-five tons of both construction and demolition ("C & D") debris, and municipal solid waste ("MSW"). Plaintiffs aver that since issuance of the DEC permit, they have spent a significant sum of money to construct the Transfer Station (the only privately owned C&D transfer station in Oswego County), and to improve the County Route 51 property for compliance with DEC requirements. Plaintiffs assert that almost all of the income derived from JWJ Industries, Inc. is in some way associated with the DEC permit for the Transfer Station. The Transfer Station accepts waste that is generated both in and out of Oswego County. Doc.1, pp. 2-4.
Plaintiffs state that on October 13, 2008, the Oswego County legislature enacted the Oswego County Recycling & Solid Waste Local Law. The Flow Control provisions of the Local Law, set forth at Section 4, Flow Control, 8(a)(ii)) and which became effective on July 1, 2009, are the subject of this action. Plaintiffs argue that enforcement of the Flow Control Law will result in plaintiff Holbrook being "deprived of all economically beneficial use" of the JWJ Transfer Station permit previously issued by the DEC, which is the standard for a per se taking under federal law. Specifically, plaintiffs complain that "[u]nder the Flow Control Law, once any waste is delivered to the JWJ Transfer Station, all non-recyclable residue will be required to be disposed of at the Oswego County Solid Waste Management Facility, even if the waste originated outside of Oswego County." Doc. No. 1, ¶ 30.
On June 30, 2009, this court issued a temporary restraining order ("TRO"), maintaining the status quo and enjoining Oswego County from enforcing the Flow Control Law against the plaintiffs until such time as the court could hear the plaintiffs' argument for preliminary injunction. On July 10, 2009, a motion hearing was held, allowing the parties to argue their positions regarding whether the TRO should be replaced by a preliminary injunction. As stated on the record at the motion hearing, the purpose of that hearing was to give plaintiffs the opportunity to demonstrate the deprivation of a constitutional right as well as the likelihood of success, or in the alternative, "sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief," as the court set forth in its earlier ruling, citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). The court reserved decision on that date, and hereby issues its written decision. For the reasons set forth below, the TRO will be lifted, and plaintiffs' motion for preliminary injunction will be denied.
"Government has broad power to regulate the use of property; but this power is constrained by constitutional limits." Garelick v. Sullivan, 987 F.2d 913, 915-16 (2d Cir. 1993) (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413-15 (1922). "It is well established that the Takings Clause of the Fifth Amendment applies to so-called 'regulatory takings'... A property owner must be legally compelled to engage in price-regulated activity for regulations to give rise to a taking." Id.
As a threshold matter, the county raised the issue of standing, stating that it had significant doubt as to the standing of the named plaintiffs to make the claims described in the verified complaint. "To establish Article III standing, a plaintiff must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged action; and redressable by a favorable ruling." Horne v. Flores, 129 S.Ct. 2579 (June 25,2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130 (1992). This court heard testimony on the issue of standing from the parties, and as stated on the hearing record, the court found the County's argument to be unavailing. The court finds that the alleged injury resulting from the County's Flow Control law, if any, would be suffered by the named parties in this action. The court reiterates here that based on legal precedent, it has determined that the named plaintiffs are the proper parties to bring this legal action.
The County argues that plaintiffs' claims are unripe and insufficient as a matter of law because plaintiffs have failed to exhaust their state law remedies. "Ripeness is a justiciability doctrine designed 'to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.' " Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 807-08 (2003). A two-prong test exists to determine ripeness for a takings claims under Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 (1985). "The first prong requires the government entity charged with enforcing the regulation to have rendered a 'final decision.' The second prong requires the plaintiff to have sought compensation from the state if the state provides a 'reasonable, certain and adequate provision for obtaining compensation.' " Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 95 (2d Cir.1992) (quoting Williamson County. However, "[t]here is no requirement that a plaintiff make a futile application for an issue to be ripe for adjudication." Williams v. Lambert, 46 F.3d 1275, 1280 (2d Cir.1995).
The court will first address the County's claim that plaintiffs did not exhaust their state law remedies. Specifically, the County asserts that plaintiffs did not take advantage of an available New York State procedure which provides just compensation when a local regulation deprives a property owner of the value of his property. In addition, the County makes a jurisdictional argument that any suit against a municipality that could be pleaded under the state constitution must be preceded by a Notice of Claim pursuant to General Municipal Law § 50-i.
In response to the County's argument that plaintiffs failed to file a written notice of claim pursuant to § 50-i before commencing the present action, plaintiffs argue that the United States Supreme Court has clearly held that state notice of claims statutes are inapplicable in § 1983 cases, i.e., state notice of claims statutes are ...