Bettis v. Town of Ontario, NY

• Decision Date: 17 September 1992
• Docket Number: No. 92-CV-6106.,92-CV-6106.
• Citation: 800 F. Supp. 1113
• Parties: Bruce M. BETTIS, Mary Jo Bettis, Richard S. Ferrara and Christine Ferrara, Plaintiffs, v. TOWN OF ONTARIO, NEW YORK, Lillian B. Galvin, as Executrix of the Last Will and Testament of Edward F. Galvin, Robert Mogray, Albert Blythe, Ronald Kreiling, Anthony Malone, Hershey-Malone, n/k/a M.R.B. Group, P.C., Virginia Scully, n/k/a Virginia Scully-Hill, David Allyn and H. John Coleman, Defendants.
• Court: U.S. District Court — Western District of New York

800 F. Supp. 1113

Bruce M. BETTIS, Mary Jo Bettis, Richard S. Ferrara and Christine Ferrara, Plaintiffs, v. TOWN OF ONTARIO, NEW YORK, Lillian B. Galvin, as Executrix of the Last Will and Testament of Edward F. Galvin, Robert Mogray, Albert Blythe, Ronald Kreiling, Anthony Malone, Hershey-Malone, n/k/a M.R.B. Group, P.C., Virginia Scully, n/k/a Virginia Scully-Hill, David Allyn and H. John Coleman, Defendants.

No. 92-CV-6106.

United States District Court, W.D. New York.

September 17, 1992.

Roy W. King, Rochester, N.Y., for plaintiffs.

Matthew J. Roe, Buffalo, N.Y., and Syracuse, N.Y., for defendants Town of Ontario, N.Y., Robert Mogray and Albert Blythe.

David Rothenberg, Geiger & Rothenberg, Rochester, N.Y., for defendant Lillian B. Galvin.

Roger W. Avery, Rochester, N.Y., for defendant Ronald Kreiling.

Theresa Conroy, Harter, Secrest & Emery, Rochester, N.Y., for defendants Anthony Malone and Hershey Malone.

Thomas A. McDermott, Rochester, N.Y., for defendant Virginia Scully.

H. John Coleman, pro se.

DECISION AND ORDER

LARIMER, District Judge.

BACKGROUND

Plaintiffs brought this action under the Federal Water Pollution Control Act, commonly known as the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. § 1251 et seq., to obtain injunctive relief, a declaratory judgment, and money damages. Defendants have moved for summary judgment under Fed.R.Civ.P. 56.¹

Plaintiffs are two married couples who own property in the Scully Subdivision ("the subdivision") in the Town of Ontario, New York ("the town"). Two of the plaintiffs, Bruce and Mary Jo Bettis ("the Bettises") bought their lot in 1986; the other two plaintiffs, Richard and Christine Ferrara ("the Ferraras") bought theirs in 1990. Plaintiffs allege that in 1991 they discovered that the town had diverted a stream into certain pipes and ditches, causing erosion and damage to plaintiffs' property.

Plaintiffs also allege that the town knowingly approved construction of the subdivision within what they believe to be a wetlands area, but that the town did not obtain the necessary authorization for the subdivision from federal or state authorities. Plaintiffs claim that a developer, Edward F. Galvin (now deceased), filled in the area with the town's consent and cooperation but without state or federal permits.

Plaintiffs claim that when they bought lots within the subdivision and built homes there, they did not realize that the property had been a wetland. Plaintiffs contend that the land was not suitable for building and that defendants did not advise them of that fact.

Plaintiffs filed their complaint in federal court on March 12, 1992. Plaintiffs have sued the town and Lillian B. Galvin, Edward Galvin's widow and the executrix of his will. In addition, a corporation and seven other individuals are named as defendants.

MRB Group ("MRB") is an engineering firm that served as the town engineer during the relevant time. Anthony Malone is the president of MRB. Plaintiffs allege that MRB and Malone participated in the design and approval of the subdivision, including the alleged diversion of the stream into channels which discharged onto plaintiffs' property.

Defendant Ronald Kreiling, a civil engineer, was allegedly employed by the town in 1985. Plaintiffs contend that he also took part in the design and approval of the subdivision.

Robert Mogray was the town supervisor and Albert Blythe was the town highway supervisor. Apart from being identified, Mogray is not expressly named in the factual allegations of the complaint, although there are a number of references to the town's "agents and employees." Blythe allegedly knew that Edward Galvin had excavated and filled in wetlands and that the area was unfit for building construction.

Virginia Scully-Hill, with her now-deceased husband William Scully, is a former owner of the subdivision. She and her late husband allegedly sold a part of the subdivision to Edward Galvin.

David Allyn is alleged to be a builder who, as an agent for Edward Galvin, entered into an agreement with the Bettises to construct a one-family house on a lot in the subdivision. Plaintiffs contend that Allyn fraudulently represented to them that a house could be built on the site in compliance with applicable laws and regulations and in a good and workmanlike manner.

H. John Coleman was allegedly the prior owner of the lot now owned by the Ferraras. He is alleged to have made fraudulent representations to the Ferraras similar to those attributed to Allyn.

DISCUSSION

The complaint contains five causes of action. The first alleges that defendants jointly and severally have violated the Clean Water Act. The other four causes of action allege the following pendent state law claims: nuisance; fraud in connection with the sale of the Bettises' lot; violation of Article 24 of the New York Environmental Conservation Law; and fraud in connection with the sale of the Ferraras' lot.

The Clean Water Act is the only claim that has a federal court nexus. All of the other claims relate to alleged claims under state law.

Defendants move to dismiss the Clean Water Act cause of action on a number of grounds and also seek dismissal of the pendent state law claims especially if the Clean Water Act cause of action is dismissed.

Because I believe that there is no basis, on several grounds, for a claim under the Clean Water Act, that cause of action is dismissed. There being no other federal connection to this lawsuit, I decline to retain jurisdiction over the other pendent state law claims under 28 U.S.C. § 1367(a) and, therefore, I dismiss all of the state claims as well.

1. Notice Requirement of CWA

Defendants contend that the CWA claim must be dismissed because plaintiffs failed to comply with 33 U.S.C. § 1365(b)(1), which provides that no citizen suit may be commenced unless sixty days' notice of the alleged violation has been given to the Environmental Protection Agency ("EPA"), to the state in which the alleged violation occurs, and to the alleged violator. Failure to comply with this requirement is a fatal jurisdictional defect. National Environmental Found. v. ABC Rail Corp., 926 F.2d 1096, 1097-98 (11th Cir.1991); Proffitt v. Rohm & Haas, 850 F.2d 1007 (3d Cir.1988).

Pursuant to authority conferred by 33 U.S.C. § 1365(b), the EPA has promulgated regulations prescribing the manner in which notice must be given. 40 C.F.R. § 135.2. If the alleged violator is an individual or corporation, service of notice must be made by certified mail or by personal service upon "the owner or managing agent of the building, plant, installation, vessel, facility or activity alleged to be in violation." 40 C.F.R. § 135.2(a)(1). Copies of the notice must be mailed to the Administrator of the EPA, the Regional Administrator of the EPA for the region in which the alleged violation occurred, and the chief administrator of the relevant state water pollution control agency. If the alleged violator is a corporation, notice must also be mailed to the corporation's registered agent, if any, in the state where the violation allegedly occurred. Id.

If the alleged violator is a state or local agency, service of notice must be made by registered mail or personal service upon the head of the agency. Copies must be mailed to the EPA Administrator and Regional Administrator, and to the state water pollution control agency administrator. 40 C.F.R. § 135.2(a)(2).

The regulations also state the required contents of the notice. The notice must "include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice." 40 C.F.R. § 135.3(a). The notice must also identify the legal counsel, if any, representing the person giving the notice. 40 C.F.R. § 135.3(c).

Plaintiffs contend that they have met all the notice requirements of the Clean Water Act, § 1365(b)(1). I agree with defendants, however, that there has not been compliance with the notice requirements and, therefore, there is no private right of action and the complaint must be dismissed.

Plaintiffs rely on notices of claim against the town filed by the Ferraras on June 27, and by the Bettises on July 10, 1991, relative the filing of claims in state court. Bettis Aff. 7/20/92 Ex. A. They also rely on certain correspondence between Mr. Bettis and various federal and state agencies. See Bettis Aff. 5/26/92 Ex. 10-16. In my view, none of these documents comply with the statutory and regulatory notice requirements.

The Ferraras' notice of claim was personally served upon a deputy town clerk of the Town of Ontario. The notice alleged ongoing damage to their property by reason of the diversion of a stream "somewhere between 1968 sic and the present ..." It also alleged that the town had been negligent in approving the subdivision within wetlands and in issuing a building permit to the Ferraras knowing that their lot was not suitable for building purposes. The notice contained the Ferraras' address and the name and address of their then-attorney.

The Bettises' notice of claim was served by mail addressed to the town clerk. The affidavit of service gives no indication that the notice was sent by means other than ordinary first-class mail. The notice alleged continuing property damage since "about October 1986" caused by the diversion of the stream. It also contained the same allegations of negligence as the Ferraras' notice, and similarly identified the Bettises, their address, and their attorney.

Mr. Bettis wrote to the Army Corps of Engineers ("the Corps") in January 1991 by certified mail, apparently after speaking to a Corps official on the telephone. Bettis complained that "the buyers of...