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Village of Dunes v. State

United States District Court, E.D. New York

March 2, 2015

THE STATE OF NEW YORK, HON. ANDREW M. CUOMO, as Governor of the State of New York, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION OF THE STATE OF NEW YORK, JOSEPH J. MARTENS, as Commissioner of the Department of Environmental Conservation of the State of New York, ALAN A. FUCHS, P.E., as Director of the Bureau of Flood Protection and Dam Safety of the Department of Environmental Conservation of the State of New York, Defendants

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For the Plaintiff: Joseph W. Prokop PLLC, Central Islip, NY.

For the Plaintiff: Jonathan Halsby Sinnreich, Esq., Lisa Angela Perillo, Esq., Of Counsel, Sinnreich Kosakoff & Messina, LLP, Central Islip, NY.

For the Defendants: Laura Elizabeth Heslin, Assistant Attorney General, Norman Spiegel, Assistant Attorney General, Monica Blong Wagner, Deputy Bureau Chief, Environmental Protection Bureau of the Office of the New York State Attorney General, New York, NY.

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ARTHUR D. SPATT, United States District Judge.

This case arises from the decision of the New York State Department of Environmental Conservation (the " NYDEC" ) not to renew a general permit issued to the Village of West Hampton Dunes (the " Village" or the " Plaintiff" ) for the building, rebuilding, and repair of structures on a barrier island located in the Village.

Pursuant to a stipulation of settlement and consent judgment in a class action (the " Consent Judgment" ), Rapf v. Suffolk County, 84-cv-1478 (the " Rapf Action" ), approved by United States District Court Judge Eugene Nickerson on December 5, 1994, the NYDEC was required, among other things, to issue a general permit to the Village " allowing for the building, rebuilding

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or repair of structures" on the barrier island.

On August 8, 1999, the NYDEC issued a general permit to the Village (the " 1999 General Permit" ) for a ten-year term for building and development in the Village.

Three weeks prior to the expiration of the 1999 General Permit, on July 16, 2009, the Plaintiff requested that the NYDEC renew the 1999 General Permit under the same conditions for a successive ten-year term. On February 5, 2010, the NYDEC refused to do so and instead proposed a permit with a five-year term and allegedly more restrictive conditions on building in the Village than the conditions in the 1999 Permit. The Plaintiff appealed the NYDEC's Decision before an Administrative Law Judge and later the Commissioner of the NYDEC seeking an order requiring the NYDEC to renew the 1999 Permit for a ten-year term under the same conditions. Both appeals were denied.

On May 28, 2014, the Village commenced the present action against the NYDEC, Martens, in his official capacity, and Alan A. Fuchs (" Fuchs" ), the NYDEC's Director of the Bureau of Flood Protection and Dam Safety (collectively, the " NYDEC Defendants" ) seeking injunctive relief and asserting claims for (i) violation of the Consent Judgment; (ii) breach of contract; and (iii) a judgment pursuant to Article 78 of the New York State Civil Practice Laws and Rules (" NYCPLR" ) stating that the decision by the NYDEC not to renew the Plaintiff's 1999 General Permit was arbitrary and capricious.

In addition, the complaint names New York State and Andrew Cuomo, as Governor of New York State (collectively, the " New York State Defendants" ), as indispensable parties but does not make any claims against them.

The Village had initially asserted claims against the United States, Suffolk County, and Carl Hansen (" Hansen" ), one of the named plaintiffs in the Rapf Action. However, the Village voluntary dismissed its claims against these parties by stipulations so ordered by this Court on October 17, 2014, November 3, 2014, and January 14, 2015, respectively.

Presently before the Court is a motion to dismiss the complaint in its entirety by the New York State Defendants and the NYDEC Defendants (collectively, the " Defendants" ) pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Court grants the Defendants' motion.


A. Underlying Facts

Unless otherwise noted, the Court draws the following facts from the Plaintiff's complaint and construes them in the light most favorable to the Plaintiff.

1. The Parties

The Plaintiff is a New York State Village duly formed as a municipal corporation under New York State law. (Compl. at ¶ 1.) It is located in Suffolk County and occupies a barrier island along the south shore of Long Island within the Town of Southhampton (the " Barrier Island" ). (Compl., Ex. A at p. 2-3.) The Barrier Island is located between Moriches Bay to the north and the Atlantic Ocean to the south, and is separated from Fire Island to the west by the Moriches Inlet. (Id.)

The Defendant New York State is a sovereign state of the United States of America with executive offices located in Albany, New York. (Id. at ¶ 4.) As stated

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above, the Plaintiff names New York State as a defendant but does not assert any claims against it.

The Defendant the Honorable Andrew Cuomo (the " Governor" ) is a duly elected Governor of New York State. (Id. at ¶ 5.) The Plaintiff names the Governor as a defendant in his official capacity but does not assert any claims against him.

The Defendant NYDEC is a New York State agency that also maintains an office in Albany, New York. (Id. at ¶ 8.)

The Defendant Martens is the Commissioner of the NYDEC. (Id. at ¶ 9.) The Plaintiff asserts claims against Martens solely in his official capacity. (September 9, 2014 Stipulation and Order, Dkt. No. 38.)

The Defendant Fuchs is the Director of the Bureau of Flood Protection and Dam Safety, which is a division of the NYDEC. (Compl. at ¶ 10.) The Plaintiff also asserts claims against Fuchs solely in his official capacity. (September 9, 2014 Stipulation and Order, Dkt. No. 38.)

2. The Rapf Litigation

In the 1960s, the U.S. Army Corps of Engineers, Suffolk County, and the NYDEC undertook a project to construct " groins" on the beaches located on the Barrier Island to prevent shore erosion. (Compl. at ¶ 14.) " Groins are 'strong, low sea walls built at a right angle to the coast[line]' in order to reduce shore erosion." Ireland v. Suffolk Cnty. of New York, 242 F.Supp.2d 178, 181 (E.D.N.Y. 2003). However, the project was allegedly never completed and some of the groins that were constructed ended up exacerbating the dilatory effects of storms on the Barrier Island's beach and dune systems. (Id. at ¶ ¶ 14?15.) Allegedly as a result of the improper construction of the groins, the Barrier Island was breached by ocean water, which caused property damage and the destruction of several hundred homes on the Barrier Island. (Id. at ¶ 15.)

On April 11, 1984, Maurice Rapf (" Rapf" ) and Hansen, two Suffolk County residents who owned beach front property on the Barrier Island, commenced a class action before Judge Nickerson on behalf of themselves, other individuals who owned property on the Barrier Island, and future owners of property on the Barrier Island. (Compl., Ex. A, at pp. 2?3.) The proposed class sought damages resulting from shore erosion and an order requiring Suffolk County to fix the problem caused by the faulty groins. (Compl. at ¶ 17.)

On May 20, 1985, Suffolk County filed a third-party complaint against the United States; the State of New York; Mario Cuomo, the then-Governor of the State of New York; NYDEC; and James F. Kelly, the then-Chief of the Flood Protection Bureau of the NYDEC. (See Compl. Ex. A, at pp. 3?4.)

On October 31, 1994, after extensive settlement negotiations, the parties in the Rapf Action entered into a Consent Judgment settling the case. (Id.) Pursuant to the Consent Judgment, the Plaintiff was permitted to intervene in the action. (Compl. at ¶ 19.)

Although they did not admit to the allegations in the class action complaint, Suffolk County, New York State, the NYDEC, and the United States (collectively, the " Rapf Defendants" ) were required under the Consent Judgment to share in the costs of the restoration and maintenance of the dunes and beaches on the Barrier Island for a period of thirty years. (Compl., Ex. A, at § § 1, 13.) In addition, they were required to share the costs associated with establishing seven wooden walkovers allowing for public access to a new public beach on the Barrier Island. (Compl., Ex. A, at § § 1, 13.) Suffolk County was further

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required to pay the settlement class members $2 million in damages and attorneys' fees of up to $2 million. (Id. at § § 3(a), (b).)

In exchange, the settlement class members agreed to release any claims against the Rapf Defendants " arising out of or related to the conduct, transactions or occurrences . . . related to the design, construction, or maintenance of the Groin Field [on the Barrier Island]." (Id. at § 10.) In addition, the class members who owned property on the ocean side of the Barrier Island agreed to restrictions in the development of their lots and public easements to provide for the creation of a public beach on Barrier Island. (Id. at § § 4, 5.)

Significantly, under Section 12(b)(i) of the Consent Judgment, the class members' obligations were conditioned upon:

[The] delivery by [NYDEC] to the Village of a general permit, with appropriate conditions standard to such permits, allowing the building, rebuilding, or repair of structures in the [d]amage [a]rea [of the Barrier Island] substantially within the same footprint as, and with no greater ground area coverage than, existed prior to the damage or loss; and, in the case of a lot on which there never had been a structure, allowing the building of a structure in compliance with the Tidal Wetlands Act and other applicable law and regulations[.]

( Id. at § 12(b)(i).) Although the Plaintiff concedes that Section 12(b)(i) does not explicitly specify the duration of the general permit, it asserts that the NYDEC was " aware" that it was required to issue to the Plaintiff a general permit for a thirty-year period covering the duration of the Rapf Defendants' other obligations under the Consent Judgment. (Compl. at ¶ 28.)

With respect to enforcement, the Consent Judgment provides that: (i) if " any party does not comply with this Stipulation, any other party shall have the right to seek all appropriate remedies from the Court" ; (ii) " [t]he Court will retain jurisdiction over the Parties to enforce this Stipulation of Settlement" ; and (iii) " [t]his Stipulation shall be governed by and interpreted in accordance with the laws of the State of New York and the United States." (Compl., Ex. A, at § § 18, 20.)

On December 5, 1994, Judge Nickerson issued a final judgment and order (the " 1994 Final Order" ) certifying the proposed settlement class, approving the terms of the settlement in accordance with the Fed. R. of Civ. P. 23, and dismissing the class action. (Prokop Decl., Ex. C., at ¶ ¶ 4, 9.) In so doing, the 1994 Final Order provides that " [f]or purposes of this Final Judgment, the Court adopts and incorporates herein the provisions of the Stipulation of Settlement and Consent Judgment, dated October 31, 1994, including its definition and terms." (Id. at ΒΆ 1.) Notably, Paragraph 7 of the 1994 Final Order also provides, " [T]his Court hereby retains continuing jurisdiction: (a) over implementation of this Settlement; (b) over the Action until ...

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