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

June 1, 2020

APPEARANCES:

JAMES BACON, ESQ.

PO 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 Town 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 environment 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 at 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. Based on the following reasons, the Court finds that Plaintiffs has failed to establish likelihood of success on the merits. Accordingly, Plaintiffs' motion is denied.

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 about forty-nine acres in the area surrounding Crossgates Mall. See Dkt. No. 1 at ¶ 69. The CorporateDefendants 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. See id. at ¶¶ 107, 109. Defendants claim that the CorporateDefendants consulted with the Municipal Defendants to determine that no permit was required before they cut the trees on Site Two. See Dkt. No. 27 at 13. Following the clear cutting, the Town issued a cease and desist order. See id. 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 Dkt. No. 1 at ¶ 27. The Corporate Defendants claim to have cut down the trees to "ensure there was going to be no impact" on the potential bat habitat. See Transcript of Pre-Motion Telephone Conference ("Tr.") at 8-9. They claim that "they were taking the best course to protect any potential habitat or endangered or threatened species" by cutting down the trees. See id. at 9.

III. DISCUSSION

A. Standard of Review

A preliminary injunction "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Moore v. Consol. Edison Co., 409 F.3d 506, 510 (2d Cir. 2005) (citation omitted). "A decision to grant or deny a preliminary injunction is committed to the discretion of the district court." Polymer Tech. Corp. v. Mimran, 37 F.3d 74, 78 (2d Cir. 1994) (citation omitted).

A party seeking a preliminary injunction must establish "'a threat of irreparable injury and either (1) a probability of success on the merits or (2) sufficiently serious questions going to the merits of the claims to make them a fair ground of litigation, and a balance of hardships tipping decidedly in favor of the moving party.'" Allied Office Supplies, Inc. v. Lewandowski, 261 F. Supp. 2d 107, 108 (D. Conn. 2003) (quoting Motorola Credit Corp. v. Uzan, 322 F.3d 130, 135 (2d Cir. 2003)).

The Supreme Court has observed that the decision of whether to award preliminary injunctive relief is often based on "procedures that are less formal and evidence that is less complete than in a trial on the merits." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Consonant with this view, the Second Circuit has held that a district court may consider hearsay evidence when deciding whether to grant preliminary injunctive relief. See Mullins v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010). Therefore, the strict standards for affidavits under the Federal Rules of Evidence and in support of summary judgment under Rule 56(c)(4) of the Federal Rules of Civil Procedure requiring that an affidavit be made on personal knowledge are not expressly applicable to affidavits in support of preliminary injunctions. See Mullins v. City of New York, 634 F. Supp. 2d 373, 384 (S.D.N.Y. 2009) (citations omitted). Nevertheless, courts have wide discretion to assess the affidavit's credibility and generally consider affidavits made on information and belief to be insufficient for a preliminary injunction. See 11A Charles Alan Wright et al., Federal Practice and Procedure § 2949 (2d ed. 1995); Mullins, 634 F. Supp. 2d at 373, 385, 390 n.115 (declining to fully credit the "defendants' hearsay affidavit" and noting that while the court "may consider hearsay evidence in a preliminary injunction hearing . . . , a court may weigh evidence based on whether such evidence would be admissible under the Federal Rules of Evidence").

Even if the plaintiff demonstrates irreparable harm and a likelihood of success on the merits the remedy of preliminary injunctive relief may still be withheld if equity so requires. "An award of an injunction is not something a plaintiff is entitled to as a matter of right, but rather it is an equitable remedy issued by a trial court, within the broad bounds of its discretion, after it weighs the potential benefits and harm to be incurred by the parties from the granting or denying of such relief." Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 68 (2d Cir. 1999) (citation omitted).

B. Likelihood of Success on the Merits

As mentioned above, Plaintiffs' complaint includes causes of action stemming from Defendants' alleged violation of the Clean Waters Act, the Endangered Species Act, and Plaintiffs' Due Process rights. See Dkt. No. 1 at 18-23. Initially, the Court notes, and Plaintiffs admit, that they do not have viable claims under the CWA and the ESA because they have failed to comply with procedural pre-requisites.¹ See Tr. at 3. Instead, Plaintiffs argue that Defendants' alleged violation of these statutes constitutes fundamental procedural irregularities that are actionable violations of Plaintiffs' due process rights which may be brought as a Section 1983 action. See id. However, Plaintiffs' due process claim cannot be based on alleged violations of the CWA and the ESA. Elliot v. City of New York, No. 06-CV-296, 2008 WL 4178187, *14 (S.D.N.Y. Sept. 8, 2008) (quoting Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 20 (1981) (other citations omitted) ("Therefore, as is the case with the CWA, the remedial devices provided for by the ESA are sufficiently comprehensive 'to demonstrate congressional intent to preclude the remedy of suits under [Section] 1983'"). Thus, Plaintiffs' only remaining federal claim is...