Kittay v. Giuliani

No. 99 CIV. 5761(BDP) (112 F. Supp. 2d 342) (S.D.N.Y. September 7, 2000)

ELR Digest

The court dismisses a property owner's complaint alleging that a New York City watershed memorandum of agreement (MOA) and its regulations violated the U.S. Constitution, the state constitution, and state statutory and common law. The court first holds that the owner's claims that the MOA and its regulations violate the Constitution as applied are not ripe for review. The owner has failed to obtain a final—or any—decision concerning the applicability of the MOA or the regulations to his property. Further, at least one meaningful application for development must be made in order to evoke the futility exception, and the owner cites no authority that permits a litigant to maintain a lawsuit based on his financial inability to submit an application or on his allegation that such applications are typically denied. The court next holds that the owner's claims that the MOA and its regulations are unconstitutional on their face are not claims on which relief can be granted. Because the owner can petition for relief from the regulations and because the regulations do not deprive the owner of all economic use of his property, the owner cannot prove an unconstitutional facial taking. Similarly, the MOA and its regulations are rationally related to the legitimate government interest of the pursuit of clean water, therefore, the owner's facial substantive due process claim fails. Moreover, the owner's procedural due process rights to notice and hearing were never triggered because the MOA and its regulations resulted from a series of legislative acts. The owner's facial equal protection challenge also fails because he cannot show that the regulations on their face bear no rational relation to a legitimate government interest. Likewise, because the owner did not allege that the MOA or regulations prevented him from communicating any grievance to elected officials, or that his access to the courts is somehow denied by the regulations, the owner's First Amendment claims must also be dismissed. Last, the court holds that because all of the owner's federal claims are dismissed, there remains no independent jurisdiction over the owner's state-law claims.

The full text of this decision is available from ELR (13 pp., ELR Order No. L-269).

Counsel for Plaintiff
Michael Peoples
Kittay, Gold & Gershfeld
81 Main St., White Plains NY 10601
(914) 686-1900

Counsel for Defendants
Rachel Zaffran
Attorney General's Office
120 Broadway, 25th FL., New York NY 10271
(212) 416-8050

[31 ELR 20094]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]