Hart v. Town of Guilderland

THOMAS HART, LISA HART, KEVIN MCDONALD,SARAH MCDONALD, 1667 WESTERN AVENUE, LLC,RED-KAP SALES, INC., Plaintiffs, v. TOWN OF GUILDERLAND,PLANNING BOARD OF GUILDERLAND,ZONING BOARD OF APPEALS OF GUILDERLAND,PYRAMID MANAGEMENT GROUP, LLC,RAPP ROAD DEVELOPMENT, LLC,CROSSGATES RELEASECO, LLC, Defendants.

1:20-CV-475 (MAD/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 5, 2020

APPEARANCES:

JAMES BACON, ESQ.

P.O. Box 575

New Paltz, New York 12561

Attorneys for Plaintiff

MELITA LAW FIRM

2390 Western Avenue

Suite 107

Guilderland, New York 12084

Attorneys for the Municipal Defendants

WHITEMAN, OSTERMANN LAW

FIRM - ALBANY OFFICE

One Commerce Plaza

Suite 1900

Albany, New York 12260

Attorneys for the Corporate Defendants

OF COUNSEL:

JAMES BRYAN BACON, I, ESQ.

JAMES P. MELITA, JR., ESQ.

GABRIELLA LEVINE, ESQ.

ROBERT S. ROSBOROUGH, IV, ESQ.

ROBERT L. SWEENEY, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs commenced this action alleging various violations of state and federal environmental laws and their constitutional rights against Defendants Crossgates Releaseco, LLC, Pyramid Management Group, LLC, Rapp Road Development, LLC, ("Corporate Defendants") and Defendants Town of Guilderland, Planning Board of Guilderland, and Zoning Board of Appeals of Guilderland ("Municipal Defendants"). See Dkt. No. 1. The complaint alleges violations of the Clean Water Act ("CWA"), the Endangered Species Act ("ESA"), the New York State Environmental Quality Review Act ("SEQRA"), and Plaintiffs' substantive due process rights. See id. at ¶¶ 1, 117-202. On April 25, 2020, Plaintiffs filed a motion for a preliminary injunction seeking an order enjoining any further tree cutting or site excavation on the sites at issue, enjoining the lead agency from further SEQRA review, and requiring the re-establishment of a lead agency. See Dkt. No. 2-1 at 8. The Court denied Plaintiffs' motion for a preliminary injunction. See Dkt. No. 30. On May 25, 2020, Defendants filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. See Dkt. No. 29. For the following reasons, Defendants' motion to dismiss is granted.

II. BACKGROUND

Plaintiffs' claims stem from the Corporate Defendants' cutting of trees in a large parcel of land near Plaintiffs' homes and businesses in the Town of Guilderland. See Dkt. No. 1 at ¶ 107. The same plot of land, in addition to two others in the nearby area, have been the subject of a contested process through which the Corporate Defendants hope to develop the properties into various commercial and residential spaces. See id. at ¶¶ 18-106.

The Corporate Defendants are seeking permits from the Municipal Defendants to develop parcels of land known as Site One, Site Two, and Site Three, which together comprise aboutforty-nine acres in the area surrounding Crossgates Mall. See id. at ¶ 69. The Corporate Defendants have completed plans to develop the sites at issue into large scale residential and commercial projects. See id. at ¶ 46. In December 2018, the Corporate Defendants filed land use plans for Site One, which it proposed would be used primarily as a residential project. See id. at ¶¶ 54-55. A SEQRA Environmental Assessment Form ("EAF") was filed for the proposed project listing the purpose as a residential development. See id. at ¶ 59. On February 12, 2019, the Planning Board circulated its intent to be the lead agency conducting the SEQRA review. See id. at ¶ 61. On July 10, 2019, the Planning Board established itself as the lead agency for the SEQRA review. See id. at ¶ 64.

The proposed development continued to be referred to as "a 222 unit apartment/townhome development on 19.68 acres" until the Planning Board issued its notice of a positive declaration. See id. at ¶ 68. At that point, the project included the development of Sites Two and Three, which would include a "retail and fueling facility" on Site Two and other development on Site Three. See id. The Planning Board then posted an environmental impact statement concept plan on its website and extended the comment period until October 2019. See id. at ¶ 72. On November 15, 2019, the Corporate Defendants filed an application with the Zoning Board of Appeals for a special use permit for the development of a Costco on Site Two. See id. at ¶ 79. On October 23, 2019, the Planning Board accepted the final scope for the draft environmental impact statement. See id. at ¶ 72. The Town determined that the draft environmental impact statement was complete on February 7, 2020, and set a public hearing for March 11, 2020. See id. at ¶ 92. However, in light of the COVID-19 pandemic, the hearing was postponed until May 2020 and the comment period was extended until May 26, 2020. See id. at ¶ 93.

On the morning of March 26, 2020, the Corporate Defendants clear cut more than two acres of forest on Site Two.¹ See id. at ¶¶ 107, 109. Plaintiffs now allege that Kenneth Kovalchik, the Town Planner for the Town of the Guilderland, acted beyond the scope of his authority when he permitted the Corporate Defendants to clear cut on Site Two. See Dkt. No. 32 at 8-9. Specifically, Plaintiffs allege that the Corporate Defendants made Mr. Kovalchik aware of their plans to cut the trees and that they submitted a tree cutting study at the Town's request. See id. at 9. According to Plaintiffs, Mr. Kovalchik then reviewed the study, reviewed the Town Code, spoke with the Town's Stormwater Officer, and authorized the action without consulting the Planning Board. See id. Contrastingly, Defendants claim that the Corporate Defendants consulted with the Municipal Defendants, but that Mr. Koalchik determined that no permit was required before the clear cutting could begin. See Dkt. No. 35 at 14. Following the clear cutting, the Town issued a cease and desist order. See Dkt. No. 1 at ¶ 112. Plaintiffs allege that the site which was clear cut could support a number of federal and state-listed endangered, threatened, and rare species. See id. at ¶ 27.

III. DISCUSSION

A. Standard of Review

1. Rule 12(b)(1)

"If a Rule 12(b)(1) motion simply challenges the court's subject matter jurisdiction based on the sufficiency of the pleading's allegations - that is, the movant presents a 'facial' attack on the pleading - then those allegations are taken as true and construed in a light most favorable to the complainant." Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (quotationand other citation omitted). "If the Rule 12(b)(1) motion denies or controverts the pleader's allegations of jurisdiction, however, the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Id. (citations omitted). "In such a case, the allegations in the complaint are not controlling, and only uncontroverted factual allegations are accepted as true for the purposes of the motion." Id. (internal citations omitted); see also Linzer Prods. Corp. v. Sekar, 499 F. Supp. 2d 540, 546 (2d Cir. 2007) (citations omitted). "All other facts underlying the controverted jurisdictional allegations are in dispute and are subject to factfinding by the court." See Watkins, 11 F.3d at 1583 (citations omitted).

Both parties are permitted to use affidavits and other pleading materials to support and oppose the motion to dismiss for lack of subject matter jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citation omitted). "Furthermore, 'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Gunst v. Seaga, No. 05 Civ. 2626, 2007 WL 1032265, *2 (S.D.N.Y. Mar. 30, 2007) (quoting Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)); see also State Emp. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007) (holding that, in a motion to dismiss for lack of subject matter jurisdiction, a court "may resolve disputed factual issues by reference to evidence outside the pleadings, including affidavits"). Since ripeness is a jurisdictional requirement, a motion pursuant to Rule 12(b)(1) is the proper mechanism for a defendant seeking to dismiss a declaratory judgment action on the grounds that the claims therein are not yet ripe. See Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 261 F. Supp. 2d 293, 294 (S.D.N.Y. 2003) (citations omitted).

2. Rule 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are "integral" to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the speculative level," see id. at 555 (citation omitted),...