Rapf v. Suffolk County of New York, 376
| Citation | 755 F.2d 282 |
| Decision Date | 15 February 1985 |
| Docket Number | No. 376,D,376 |
| Parties | Maurice RAPF and Carl Hansen, Plaintiffs-Appellants, v. SUFFOLK COUNTY OF NEW YORK, Defendant-Appellee. ocket 84-7659. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
John J. O'Connell, New York City (Adam C. Barker, Webster & Shefield, New York City, Richard D. Friedman, New York City, of counsel), for plaintiffs-appellants.
Michael V. Corrigan, Simpson Thacher & Bartlett, New York City, for defendant-appellee.
Before TIMBERS, VAN GRAAFEILAND, and PIERCE, Circuit Judges.
Appeal from a judgment of the United States District Court for the Eastern District of New York, John R. Bartels, Judge We agree with the district court that the limitations period herein should be measured, pursuant to N.Y.Gen.Mun. Law Sec. 50-e, from the date of the event upon which the claim is based. We conclude, however, that because a material issue of fact is in dispute and because appellee's motion should be treated as one for summary judgment, at this juncture in this case, the district court erred in granting appellee's motion to dismiss.
entered July 10, 1984, granting appellee Suffolk County's motion to dismiss appellants' complaint, pursuant to Fed.R.Civ.P. 12(b), as being barred by the applicable statute of limitations and by laches. Appellants allege that Suffolk County "constructed or caused to be constructed" groins along Barrier Beach in Southampton, Long Island, and that the County's failure to maintain the groins constitutes a continuing nuisance that threatens to destroy their homes and those of their neighbors. Appellee alleges that appellants' action is untimely according to N.Y.Gen.Mun. Law Secs. 50-e and 50-i, governing tort claims against a municipality. Arguing that the cause of action for a continuing tort accrues anew each day, appellants contend that their action is not barred by the statute of limitations. Moreover, appellants contend that since no prejudice has resulted, their action is also not barred by laches.
For the reasons stated below, we reverse and remand for further proceedings consistent with this opinion.
This action is part of an ongoing dispute between the parties which began in 1960 with a project designed to control beach erosion on the south shore of Long Island. Appellants, Maurice Rapf and Carl Hansen, individual homeowners of oceanfront property on "Barrier Beach" in Southampton, 1 bring this action on behalf of themselves and on behalf of a putative class of over 200 of their neighbors, to enjoin Suffolk County from continuing to maintain what appellants allege is a nuisance that threatens to destroy their homes and those of their neighbors.
In 1955, the United States Congress authorized a survey of hurricanes and hurricane damage in the eastern and southern United States, including the area involved in this action, and an examination of methods for minimizing the damage caused by erosion and storms. Pub.L. No. 84-71, 69 Stat. 132 (1955). As a result of this legislation, in 1960, the United States Army Corps of Engineers (the "Corps") submitted to Congress a report and general plan which concluded that one of the primary ill-effects of such storms has been the destruction of beaches and dunes. 2 The Corps recommended that a project be undertaken jointly by the United States, New York State, and Suffolk County to attempt to ameliorate some of these destructive consequences. The proposed project recommended providing beach and dune fill, raising the level of the sand dunes, planting dune grass, and building drainage structures.
To interrupt the flow of sand and inhibit erosion even further, the Corps also suggested the possibility of constructing a series of protective jetties along the beach, technically known as "groins." 3 The function of a groin is to trap sand deposited by Although the precise construction method to be employed and the number of groins to be erected was to be left within the discretion of the Army Corps of Engineers, to be determined based on experience, H.Doc. No. 425 at 9, 10, 63, 777, according to appellants, the Corps clearly recognized the dangers inherent in the proposed project and therefore advised that, if groins were used, one of two alternative methods of construction should be followed. H.Doc. No. 425 at 61. Proceeding on the basis that the current, on the south shore of Long Island, flows from east to west, the first method consisted of constructing the initial groin at the west end of the Barrier Beach and then constructing the other groins in an easterly direction. This method of construction could not cause any erosion west of the last groin because there is no beach at that point. The second recommended method, to be used if construction of groins began at the east end, consisted of placing beach fill between the groins as they were erected. This method would prevent erosion in that the groin would trap very little sand as it flowed from east to west because the area in between the groins already was filled with sand. Contrary to appellants' argument, appellee Suffolk County contends that the report of the Corps sets forth no precise recommendations relating to the construction of, or number of, groins, although the County does admit that the report recognized that "some limited groin construction might be found warranted initially in the most vulnerable locations." H.Doc. No. 425 at 59.
the current on the updrift side of the groin, i.e., on the side facing the current. According to appellants, however, as a result of trapping sand on the updrift side of the groin, the stretch of beach on the downdrift side facing away from the flow of the current, since it has a reduced flow of sand, becomes vulnerable to erosion by the current. Appellants contend that if the erosion becomes severe enough, a subsequent groin may be necessary to protect the affected downdrift side, thereby causing further erosion and requiring construction of yet another groin. Construction of the initial groin might therefore conceivably lead to a situation in which the entire coastline must be protected by groins. 4
The project, as set out in H.Doc. No. 425, was authorized by Congress and approved on July 14, 1960. River and Harbor Act of 1960, Pub.L. No. 86-645, 74 Stat. 480 (1960). The project required three-party participation by the federal, state, and county governments. The contemplated role of Suffolk County was limited to contributing a portion of the funding required for the project, obtaining easements from landowners, and maintaining the project after completion. Id. at 484-86; Exec. Resolution No. 365-1963, Aug. 12, 1963. The State of New York was to submit specific assurances of local cooperation and also was obligated to provide funding. Id.
According to appellants, on August 20, 1963, New York State furnished the Corps with Assurance of Local Cooperation for a portion of the project. The plans provided for the construction of thirteen groins starting at the east end of Barrier Beach and extensive sand fill in between the groins. In the Assurance, the State agreed, among other things, to maintain all the works, to undertake periodic beach nourishment, and to adopt laws to preserve and restore beaches and dunes.
The Board of Supervisors of Suffolk County, however, refused to participate in the project as defined by the Assurance, objecting to the placement of the sand fill in between the groins. On February 3, 1964, the Board of Supervisors passed a Because of the subsequent depletion of sand from the western beach, the Corps, in a letter dated June 1, 1967, wrote to the State and urged that the "critically required dune and sand fill" be placed in between the groins. The State in turn, by a letter dated June 16, 1967, wrote to Suffolk County requesting the placement of beach fill in the existing eleven groin fields and the construction of four additional groins. Once again, Suffolk County objected to the placement of sand fill, however, beginning in 1968, a second field of four groins was authorized by the County and the State along the 6,000 feet of beach immediately to the west of the original eleven, with construction completed in 1970. To date, no further construction of groins on the Barrier Beach has taken place.
resolution approving only a limited project which included construction of eleven groins beginning at the east end of Barrier Beach without the placement of sand fill in between the groins. 5 Eventually, the federal and state governments acquiesced in Suffolk County's decision, despite the recommendations contained in the Corps' report, and construction of the first set of groins, beginning at the east, was completed in 1966
Appellants herein allege that, as a result of the improper design, construction, and maintenance of the fifteen groins presently in place and the failure of Suffolk County to complete the beach erosion and hurricane project in this area, Barrier Beach to the west of the fifteen groins, the area owned by appellants and other members of the putative class, has suffered catastrophic damage. It is asserted that, prior to the beginning of groin construction, erosion along the reach of Barrier Beach between Shinnecock and Moriches Inlets was about seven to nine feet per year. According to appellants, within eighteen months of completion of the first eleven groins, the area to their west eroded by approximately eighty feet, and, since completion of the second increment of four groins, further erosion has taken place to their immediate west, in contrast to the easterly side of the last groin, where the beach is three hundred or more feet deep.
Appellants further allege that, as a consequence of this erosion numerous houses have been swept into the ocean, including six or more in the last year alone, approximately fifty homes are on the verge of tumbling into the ocean, other property of putative class...
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