Allocco Recycling, Ltd. v. Doherty, 03 Civ 3571 (RCC)(GWG).
| Citation | 378 F.Supp.2d 348 |
| Decision Date | 15 July 2005 |
| Docket Number | No. 03 Civ 3571 (RCC)(GWG).,03 Civ 3571 (RCC)(GWG). |
| Parties | ALLOCCO RECYCLING, LTD., Plaintiff, v. John DOHERTY, individually and as the Commissioner of the New York City Department of Sanitation, and the City of New York, Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
Lawrence B. Goldberg, New York, NY, for Plaintiff.
Janet Valerie Siegel, NYC Law Dept., Office of Corp., New York, NY, for Defendant.
Allocco Recycling, Ltd. ("Plaintiff"), which operates a fill-material transfer station in Brooklyn, New York, brought this suit under 42 U.S.C. § 1983 and state law against John Doherty, individually and as Commissioner of the New York City Department of Sanitation ("DSNY"), and New York City ("Defendants"). Plaintiff alleges deprivations of its rights under the Commerce Clause, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Fifth Amendment Takings Clause, and New York law. These constitutional and state-law violations allegedly occurred when Defendants denied Plaintiff's application to expand the capacity of its transfer station and issued a moratorium on new or modified permits for transfer stations. Defendants have moved to dismiss the Second Amended Complaint ("SAC") for failure to state a claim and on jurisdictional grounds. For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.
The Court assumes the truth of the allegations in the SAC for the purposes of this motion. Since 1995, Plaintiff has had a permit from DSNY to operate a fill-material transfer station at which it processes non-putrescible (that is, inorganic) solid-waste materials such as dirt, rock, stone, and concrete, which may be recycled and reused rather than disposed of at a landfill. (SAC ¶ 12.) According to Plaintiff's permit, the maximum allowable volume of waste that may be "bonded" at Plaintiff's site is 19,500 cubic yards. (Id. ¶ 17.) Plaintiff's permit originally allowed it to bond up to 6,666 cubic yards; its permit was renewed annually from 1995 to 2000. (Id. ¶ 18.) In 2000, DSNY granted Plaintiff's application for an increase in bonding volume to 10,666 cubic yards. (Id. ¶ 20.) Plaintiff then applied to increase the volume to the maximum capacity of 19,500 cubic yards. (Id. ¶ 21.)
DSNY informed Plaintiff that it would need to submit an environmental-impact statement pursuant to the City Environmental Quality Review Act before the application could be approved. (Id. ¶ 23.) Plaintiff submitted the impact statement, but DSNY informed Plaintiff by letter dated September 24, 2002 that it was terminating the environmental review and denying the application based on a report that suggested the City did not need any additional transfer-station capacity. The letter stated:
This is to inform you that the New York City Department of Sanitation (DSNY) has completed the Preliminary Report of the New York City Comprehensive Commercial Waste Management Study. Based on the findings in this Report, the DSNY has determined, at this time, New York City has sufficient private transfer station capacity. In accordance with this determination, the DSNY will not issue any new permits to non-operating transfer stations, or any permit modifications for expansions of transfer station capacity. To effect this determination, the DSNY is terminating its City Environmental Quality Review ... of the permit application for the above referenced transfer station.
(Id. ¶ 34.) DSNY sent similar letters to approximately 20 other transfer-station applicants; 4 applicants did not receive such a denial letter, and some or all of these applications were approved. (Id. ¶¶ 37-38.) In December 2003, DSNY adopted Interim Siting Regulations that placed a moratorium on new non-putrescible transfer-station permits and on modifications to existing permits for such transfer stations. (Id. ¶ 41.) According to the SAC, which was filed on May 14, 2004, the moratorium was to last through July 2004. (See id. ¶ 41.)
Plaintiff contends that the denial of modification to its permit was unlawful and also discouraged it from applying for a permit for a new facility that it had purchased in 2001. (Id. ¶ 46.) Plaintiff purchased a property adjacent to its transfer-station site with the purpose of applying to DSNY for a permit to operate a transfer station for construction and demolition debris (the "construction-debris transfer station"), also non-putrescible waste. (Id. ¶¶ 14-15.) Plaintiff contends that a fill-material transfer station and the proposed construction-debris transfer station together would allow it:
to better compete in the marketplace and provide more cost efficient services and contribute to the region-wide and City-wide waste transfer and disposal industry. In addition, [Plaintiff] would be a more effective participant in the recycling industry in NYC, if it were able to fully utilize its entire permitted capacity at the fill material transfer station and if it were able to apply for a construction and demolition debris transfer station alongside.
(Id. ¶ 16.) Although Plaintiff alleges that it "began the preparation of the necessary application papers for a construction and demolition debris transfer station" (id. ¶ 24), it concedes that it did not submit an application.
With regard to its Commerce Clause challenge, Plaintiff alleges that the solid-waste industry is a multi-billion-dollar industry and employs more than 350,000 workers. (Id. ¶ 8.) In 2002, 35 million tons of municipal solid waste was shipped interstate, and 49 out of 50 states import or export solid waste. (Id.) Plaintiff "utilizes interstate channels of commerce, including truck and waterways," and its fill-material transfer site, as well as the proposed construction-debris transfer site, has access to a waterway to move materials. (Id. at 13.) By denying modification of Plaintiff's permit and by issuing the moratorium, Defendants have allegedly established New York City as a zone apart from the nation. (Id. ¶ 47.)
Plaintiffs contend that Defendants are motivated by the interests of New York City alone and are therefore discriminating against interstate commerce. (Id. ¶ 53.) Denial of the permit and the regulations imposing a moratorium have impeded Plaintiff's (Id. ¶ 56.) Defendants' actions also allegedly place an undue burden on interstate commerce.
Aside from Plaintiff's two theories of Commerce Clause violations, it also pleads deprivations of its rights to procedural due process, substantive due process, and equal protection.1 Plaintiff further claims that its property has been taken without just compensation and that Defendants have tortiously interfered with its prospective business advantage under state law. Plaintiff seeks damages, attorney's fees and costs, and a declaratory judgment.
Defendants have moved to dismiss Plaintiff's Commerce Clause, equal protection, due process, takings, and state-law claims on the merits; have moved to dismiss the takings claim as not ripe; and have moved to dismiss all claims related to Plaintiff's proposed construction-debris transfer station on standing and ripeness grounds. The Court, as it must, first addresses Defendants' jurisdictional challenges.
Defendants argue that Plaintiff's takings claims and all claims arising out of the moratorium on new permits are not ripe and that Plaintiff lacks standing to challenge the moratorium as it relates to new permits. In addition, the Court raises sua sponte the issue of whether Plaintiff has standing to challenge Defendants' actions under the Commerce Clause. See Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir.1994) (). The Court concludes that Plaintiff has sufficiently alleged standing on the Commerce Clause claims, although the Court has concerns about the ultimate resolution of the issue, and has standing to challenge the moratorium on new permits. The Court also concludes that the takings claims are not ripe and must be dismissed, but that the claims relating to the moratorium on new permits are ripe for adjudication.
Defendants maintain that Plaintiff has no standing to challenge the moratorium on new permits, and the Court has concerns about Plaintiff's standing to raise its Commerce Clause claims. The requirement of standing embraces both a constitutional limitation on federal courts' subject-matter jurisdiction and prudential limitations on the exercise of that jurisdiction. Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). Thus, a plaintiff must meet both the constitutional requirements for standing under Article III and the judicially created prudential requirements. See Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 184 (2d Cir.2001) .
To meet the case-or-controversy requirement of Article III, a plaintiff must show three things. The plaintiff must have suffered an injury in fact — an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Next, the injury must be...
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