Citizens Accord, Inc. v. the Town of Rochester

Full title: CITIZENS ACCORD, INC., Plaintiff v. THE TOWN OF ROCHESTER, NEW YORK; TOWN…

Court: United States District Court, N.D. New York

Date published: Apr 18, 2000

No. 98-CV-0715 (N.D.N.Y. Apr. 18, 2000)

Opinion

No. 98-CV-0715.

April 18, 2000.

Kelder, Kane Law Firm, Gary T. Kelder, Esq., P.O. Box 403, Manlius N Y 13104, For Plaintiff.

Rice, Amon Law Firm, Terry Rice, Esq., Two Executive Blvd., Suffern N Y 10901, For Municipal Defendants.

Office of Kenneth J. McGuire, Jr., K.J. McGuire, Jr., Esq., 710 Brunswick Road, Troy N Y 12180, For Defendant Twin Track Promotions, Inc.

MEMORANDUM — DECISION ORDER

McAVOY, District Judge:

Plaintiff Citizens Accord, Inc. ("CAI") commenced the instant action against Defendants arising out of the operation of the Accord Speedway (the "Speedway" or "Racetrack") allegedly in violation of Town of Rochester (the "Town") noise regulations applicable to racetracks. CAI alleges a taking of its members' property and violations of its members' procedural due process, substantive due process and equal protection rights arising from the Municipal Defendants'[1] granting of special use and operating permits to Defendant Twin Tracks Promotions, Inc. ("TTP") to operate the Racetrack, Defendants' purported failure to enforce the noise regulations against TTP and/or failure to revoke the permits, and Defendants' enactment of a law amending the prior noise monitoring requirements. CAI further contends that Defendants conspired to deprive them of certain of their constitutionally protected rights. Presently before the Court are: (1) Defendants' motion pursuant to FED. R. CIV. P. 12(b) (6) seeking dismissal of the Complaint in its entirety for failure to state a claim; and (2) CAI's cross-motion for partial-summary judgment pursuant to FED. R. Civ. P. 56 on the Third, Ninth, and Tenth Causes of Action asserted in the Second Amended Complaint (the "Complaint")

I. BACKGROUND

CAI is a not-for-profit corporation, some of whose members reside in close proximity to the Speedway. The Speedway is located within the Town of Rochester, which is located in Ulster County, New York.

From the early 1960s through September 1987, the Speedway held motor vehicle races on its one-quarter mile dirt track. In 1971, the Town Board of the Town of Rochester (hereinafter the "Town Board") passed its first zoning and land use control law. Zoning Law § 3-1.4 (bb) provided that operation of a vehicle racetrack was permissible in the Speedway's zoning district if a special use permit was secured. In 1987, the Town enacted Local Law No. 3 of 1987 ("LL3") to regulate the operation of motor vehicle racetracks.

Aside from the need for a special use permit as required by § 3-1.4 (bb), LL3 requires an operating permit to run the Racetrack. Permit applicants are required to execute an application under oath stating, among other things, that "if the permit applied for is granted, applicant will operate the racetrack pursuant to the regulations hereinafter set forth and a statement that upon failure to comply with such regulations, said permit shall be revoked forthwith." LL3 further provides that:

Upon receipt of a completed permit application the Town Board . . . shall hold a public hearing on the matter. . . . If the Town Board, following its investigation into the fitness of the applicant finds it in the best interest of the Town of [sic] issue said permit, it may do so.

LL3 § 4-2.

Permits are effective from the date of issuance until December 31st of the year of its issuance, see LL3 § 5(a), and, thus, a new permit is required for each calendar year. The Town Board can revoke permits at any time after a public hearing or upon "conviction for any violation of this local law." LL3 § 5(c)-(d).

LL3 also regulates the days and times at which races may be held and limits the total number of races in any one calender year to 40. See LL3 § 6. Among other safety and health requirements, see LL3 §§ 6.3, 6.4, 6.6, LL3 regulates the amount of noise that may be generated at the Speedway. LL3 requires all cars to be fitted with mufflers, see LL3 § 6.5, and provides that "[n]oise limits at the property line shall not exceed 79 db." LL3 § 6.10. The Town Board retains discretion to grant exemptions from the regulations after a public hearing.See LL3 § 7.

In September 1987, the Speedway ceased operations and remained unused until the property was purchased by Defendant TTP. In late 1991 or early 1992, TTP applied for an operating permit pursuant to LL3 and a special use permit pursuant to Town Zoning and Land Use Control Law § 3.1-4 (bb).

After a public hearing, the Town granted TTP an operating and a special use permit to operate the Racetrack for the year 1992. The terms of the special use permit provided that it was to run concurrent with the operating permit granted under LL3 and any renewals thereof. In granting the special use permit, the Town imposed certain restrictions and requirements on TTP. Specifically, the special use permit (which does not set decibel levels for operation of the Racetrack) provides that "[a]ll conditions of this Special Use Permit shall be complied with even if more restrictive than [LL3]" and that "[a]ny deviation from this Decision or site plan shall render this approval null and void."

At a special Town Board meeting in April 1992, the Board issued a negative declaration of environmental significance pursuant to the New York State Environmental Quality Review Act ("SEQRA"),see N.Y. ENVTL. CONSERV. art. 8, in connection with TTP's application to operate the Speedway. With respect to the issue of noise, the negative declaration recognized that there would be some noise associated with the operation of a racetrack, but stated that:

The noise increases are not expected to be particularly objectionable or long-term. The peak noise at the racetrack is expected to last for only approximately 30 to 50 minutes per race night, because of the significant "down time" during racing days and the fact that race cars are not always at full throttle when racing. . . . If it is found that the noise from the actual racing on-site exceeds the 79 db limit prescribed from Local Law No. 3 of 1987, the permit issued . . . can be revoked and the racing can be immediately stopped.

In response to concerns raised by CAI at the SEQRA meeting, various Town officials represented that the Town's Code Enforcement Officer ("CEO"), Defendant Douglas Dymond, would enforce the noise regulations.

CAI challenged the Town's issuance of a negative declaration and the granting of the special use permit in state court. See Citizens Accord, Ind v. Town Board of Town of Rochester, 192 A.D.2d 985 (3d Dep't), leave to appeal denied, 82 N.Y.2d 656 (1993) ("CAI I"). Although the Supreme Court, Ulster County initially agreed with CAI that the Town did not fulfill its obligations under SEQRA, the Appellate Division, Third Department reversed. See id. The Appellate Division held that "rather than treating TTP's application superficially, the Town Board, when adopting its negative declaration, took care in its decision to discuss each area of environmental concern, weighed the evidence presented to it and made its conclusions based upon a thorough examination of the evidence." CAI I, 192 A.D.2d at 988. The court went on to state that:

While Supreme Court pointed to the controversy surrounding the anticipated noise levels at the Speedway as evidence that the Town Board did not take a hard look, our review indicates that nothing was overlooked and in fact the Town Board considered this issue and all the competing factors at length, including the fact that mufflers would be installed on the race vehicles, a barrier wall would surround the racetrack, the noise levels would be of short duration and the special use permit would be revoked immediately if at any time the noise level exceeded the statutory noise limit.

Id. The Appellate Division also upheld the issuance of the special use permit, concluding that the Town's actions were not arbitrary or capricious and were adequately supported by the record. See id.

TTP began operating the Speedway in 1992. During that racing year, Dymond regularly recorded noise level readings. On two occasions, Dymond reported noise level readings in excess of 79 dB. Accordingly, Dymond wrote to TTP warning it that although "most readings [were] within 79DBA required by Local Law 3 . . . some of the readings were noted to be in excess of 79DBA." Dymond continued to advise TTP that "But has been the Code Enforcement Office policy to obtain voluntary compliance for all . . . local code matters. The town expects Local Law #3 shall be adhered." Noise level readings commissioned by CAI, however, indicated continued violations of the 79dB limit.

Despite CAI's opposition, the Town continued to issue permits to TTP to operate the Speedway for the years 1992 through 1998. CAI also requested, to no avail, that the Town revoke the operating and special use permits. According to Dymond, he regularly conducted spot-check noise level tests over these years, but never again recorded a level attributable to the Speedway in excess of 79dB.[2] CAI commissioned several noise level studies that concluded that the Speedway did exceed the noise level limitation in LL3. CAI submitted the results of its noise level tests to the Town. However, the Town never issued any citations for violations of LL3 and never revoked the permits.

In 1993, CAI commenced an action against the Town alleging that the operation of the Speedway was a nuisance. See Citizens Accord, Inc. v. Twin Track Promotions, Inc., No. 93-01637 (Sup. Ct. Ulster County Feb. 24, 1994) ("CAI II"). The crux of CAI's complaint was that operation of the Speedway produced "loud, piercing and offensive noises" that were "of prolonged duration, substantially in excess of acceptable source levels for rural residential areas and generally occurring at times of quiet repose in the evening hours." CAI argued that: (1) the Town condoned the creation and continuation of the alleged nuisance; (2) that the noise levels contained in LL3 were unreasonable; and (3) the law should be struck down as having been adopted by the Town in excess of its police powers. Supreme Court dismissed this action against the Town, mostly on res judicata and collateral estoppel grounds. See id.

In 1995, CAI commenced an Article 78 proceeding in state court challenging: (1) the Town's decision to grant an operating permit to TTP for the 1995 racing season; (2) the Town's refusal to rescind the special use permit on the grounds that there was evidence that the Speedway consistently exceeded the 79dB limit; (3) the Town's interpretation and application of the 79dB limit in LL3; (4) the Planning Board's failure to monitor TTP's compliance with the terms of the special use permit; and (5) the Planning Board's renewal of the special use permit without first conducting a public hearing. See Citizens Accord, Inc. v. Town of Rochester, No. 95-2249 (Sup.Ct. Ulster County June 24, 1996) ("CAI III")

Supreme Court, Ulster County, dismissed the first cause of action as moot (by the time of decision, the 1995 permit had expired), and the fourth cause of action on res judicata grounds. The court found that CAI's claims arose out of the same wrong as the nuisance action and that such claims could have been raised during the course of that action. The fifth cause of action was dismissed based on the plain language of the special use permit itself and the zoning board's interpretation thereof, which the court did not find to be arbitrary and capricious. The court rejected CAI's argument that a new special use permit had to be issued every year.

The third cause of action in the Article 78 proceeding was based upon the Town's interpretation as of June 1995 that the 79dB limitation in LL3 should be determined based on an A-weighted (dBA) scale using readings averaged over a one-half hour period. The court found this interpretation to be arbitrary and capricious because it was inconsistent with the definition of "decibel" contained in LL3 and the manner in which the Town had previously interpreted the statute.[3] The court found that:

the real reason for averaging noise readings over a one-half hour period is to explain away readings in excess of the 79 db limitation contained in Local Law #3. For example, [TTP's] own readings at Observation Site A, along the property line closest to the raceway, indicate maximum sound pressure (Lmax) readings at 86 dBA under racing conditions and as high as 94 dBA when a car impacted against a wall. Thus, while the methodology adopted by the Town may justify the continued operation of the Speedway, it is hardly consistent with the concern for noise control that prompted the Town to include the 79 dB limitation in the first instance.

CAI III, at 14. The court, therefore, concluded that the Town acted arbitrarily and capriciously in "belatedly interpreting the noise limitation in Local Law #3 as calling for half-hour averaging." Id. The court further noted that "[i]f the Town Board wishes to amend the local law to allow for half-hour averaging or to set a higher noise limit or to eliminate noise limits altogether, it should comply with the established procedures for doing so." Id. Ultimately, the court remanded the matter to the Town Planning Board for the development of an adequate factual record on the noise issue and, thus, "remitted [the matter] to the Planning Board . . . for a hearing on the issue of whether TTP has violated the 79 decibel sound limit and whether TTP's special use permit should therefore be revoked." Id., at 18. The parties took an appeal of the above described decision, which, pursuant to N.Y.C.P.L.R. § 5519(a)(1), had the effect of staying enforcement of that decision. Neither party perfected the appeal and, thus, it was deemed abandoned and dismissed in May 1997.

In October 1997, the Town held the hearing ordered by Supreme Court, Ulster County. Over CAI's protest, the Town limited the parties to submitting evidence of alleged noise violations prior to August 3, 1995 — the date upon which CAI commenced the Article 78 proceeding. After the hearing, two Town Board members felt that violations had occurred only during the initial operation of the Racetrack, three members felt that there had been no violations at all, and the remaining two members felt that there had been repeated violations of the noise limit.

On June 14, 1998, the Planning Board issued its decision. By a six to one vote, the Planning Board voted not to revoke the special use permit on the grounds that: (1) TTP did not have any notice of violation to which it could respond; (2) CAI's expert witness was not credible; (3) there was insufficient factual evidence to substantiate a violation of the 79 dB limit; (4) CAI withdrew from participation in the hearing; (5) source sound levels were not isolated from ambient sound levels; and (5) "[a]ny violations which may have occurred were not perceived as violation of an" important respect "with regard to the permitted operation as a whole." CAI did not seek judicial review of the Planning Board's decision.

On July 2, 1998, the Town enacted Local Law No. 2 of 1998 ("LL2"), which, among other things, adopted the sound averaging methodology of taking readings over a one-half hour period. LL2 also eliminated the requirement of a public hearing prior to renewal of an operating permit and permitted the CEO, in his discretion, to hire an independent sound expert to measure sound levels at the Speedway.

CAI then commenced the instant litigation and now asserts six causes of action[4]: (1) the First Cause of Action alleging a conspiracy to deny CAI and its members the equal protection of the laws in violation of 42 U.S.C. § 1985 (3); (2) the Third Cause of Action brought pursuant to 42 U.S.C. § 1983 alleging violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (3) the Seventh Cause of Action brought pursuant to 42 U.S.C. § 1983 alleging a violation of the Fifth Amendment's Takings Clause; (4) the Eighth Cause of Action brought pursuant to 42 U.S.C. § 1986 alleging that Defendants failed to prevent or aid in the prevention of a conspiracy to deprive CAI and its members of the equal protection of the laws; (5) the Ninth Cause of Action alleging that Defendants adopted LL2 in contravention of their Due Process and Equal Protection rights as guaranteed by the Fourteenth Amendment; and (6) the Tenth Cause of Action alleging that LL2 was enacted in excess of the Town's power under applicable state law and in violation of the SEQRA and New York State constitution.

Presently before the Court are: (1) Defendants' motion pursuant to FED. R. CIV. P. 12(b)(6) seeking dismissal of the Complaint in its entirety on the ground that it fails to state a claim upon which relief may be granted; and (2) Plaintiff's cross-motion for partial summary judgment pursuant to FED. R. Civ. P. 56, seeking a judgment on liability as a matter of law with respect to the Third, Ninth, and Tenth Causes of Action.

II. DISCUSSION

A. Standing

Questions of standing arise when, as here, constitutional claims are raised by an organization and there are no individual plaintiffs. Although the parties have not argued the issue, the Court has an independent obligation to address standing. See Pashaian v. Eccelston Properties, Ltd., 88 F.3d 77, 82 (2d Cir. 1996)

An organization has standing to either: (1) seek judicial relief from injury to itself as an association; and/or (2) assert the rights of its members under the doctrine of associational standing. See Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998). The first form of standing is not implicated here. CAI does not identify any injury to itself as an organization, but rather seeks to protect the rights of its members.

To proceed under the second form of standing, CAI must demonstrate that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Adver. Comm'n, 97 S.Ct. 2434, 2441-42 (1977)

It is evident that the first two prongs of the Hunt test are readily satisfied. "With regard to the third prong of the Hunt test, the Supreme Court has explained that an organization lacks standing to sue for money damages on behalf of its members if `the damage claims [of the members] are not common to the entire membership, nor shared by all in equal degree,' so that `both the fact and extent of injury would require individualized proof.'" Sun City Taxpayers' Ass'n v. Citizens Utilities Co., 45 F.3d 58, 61 (2d Cir.) (quoting Warth v. Seldin, 95 S.Ct. 2197, 2214 (1975)) (brackets in original), cert denied, 115 S.Ct. 1693 (1995). For the following reasons, the Court finds that CAI does not have standing to seek monetary damages because the participation of individual members would be required.

According to CAI's president, Kim Massie, "CAI is comprised of 223 individuals, consisting of business owners and homeowners with children, many of whom reside within two miles of the Speedway." June 17, 1999 Massie Aff. at ¶ 5. CAI's members live at varying distances from the Speedway and some do not reside within two miles of the Speedway.[5] See Compl. Ex. A. Accordingly, any harm caused by the allegedly excessive noise caused at the Speedway will vary depending on the location of the residence of each particular CAI member. For example, a CAI member living three miles away from the Speedway will experience little noise as compared to a CAI member whose property abuts the Speedway. See, e.g., Irish Lesbian and Gay Org., 45 F.3d at 61. Moreover, some CAI members apparently claim injury to their children from the loud noises. Presumably, not all CAI members have children and, thus, these members will experience different amounts of damages. Similarly, the value of CAI's members' property undoubtedly varies. Thus, as the Supreme Court stated inWarth:

[In] [t]he present case . . . an association seeks relief in damages for alleged injuries to its members. [The association] alleges no monetary injury to itself, nor any assignment of the damages claims of its members. No award therefore can be made to the association as such. Moreover, in the circumstances of this case, the damages claims are not common to the entire membership, nor shared by all in equal degree. To the contrary, whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof. Thus, to obtain relief in damages, each member of [the association] who claims injury as a result of respondents' practices must be a party to the suit, and [the association] has no standing to claim damages on [their] behalf.

95 S.Ct. at 2213; see also Irish Lesbian and Gay Org., 143 F.3d at 649, 650 n. 5; Sun City Taxpayers' Ass'n v. Citizens Utilities Co., 45 F.3d at 61; Rent Stabilization Ass'n of City of New York v. Dinkins, 5 F.3d 591, 596 (2d Cir. 1993). For these reasons, the Court finds that any alleged damages will require individualized proof and, therefore, CAI does not have standing to seek monetary damages.

The third element of the Hunt test is more readily satisfied, however, when a party seeks injunctive or declaratory relief. See International Union, United Auto., Aerospace and Apr. Implement Workers of America v. Brock, 106 S.Ct. 2523, 2531 (1986); New York State Nat. Org. for Women v. Terry, 886 F.2d 1339, 1348-49 (2d Cir. 1989); but see Rent Stabilization Ass'n of City of New York, 5 F.3d at 596. This is because it "can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured." Hunt, 97 S.Ct. at 2441 (quoting Warth, 95 S.Ct. at 2213). The Court finds that any relief obtained here (an Order enjoining Defendants to annul all permits and to refrain from issuing further operating permits and an Order declaring LL2 to be null and void) would inure to the benefit of all CAI members regardless of any actual damages that may have been suffered. See International Union, 106 5. Ct. at 2531-32. Accordingly, with the one exception that will be discussed infra at section II (F)(1)(e)(2), CAI does have standing to seek declaratory and/or injunctive relief.

B. Conversion to Summary Judgment

Pursuant to FED. R. Civ. P. 12(c) "[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." In the present matter, Defendants, the original moving party, submitted materials outside of the pleadings. In addition, Plaintiff cross-moved for summary judgment which, of course, put Defendants on notice that the Court would be entertaining a motion for summary judgment and, thus, would be considering materials submitted outside the pleadings. Because both parties have had a full and fair opportunity to present and, in fact, have presented, materials pertinent to a Rule 56 motion, the Court will treat both pending motions as if made pursuant to Rule 56. See M.J.M. Exhibitors, Inc. v. Stern, 770 F.2d 288, 295 (2d Cir. 1985)

C. Summary Judgment Standard

This Court has set forth the applicable standard for summary judgment in numerous reported decisions, see, e.g., Hoffman v. County of Delaware, 41 F. Supp.2d 195 (N.D.N.Y. 1995), aff'd, ___ F.3d ___ (2d Cir. 2000), and need not restate it here. The Court will apply the standards set out in those decisions to the pending motions.

D. Claims Pursuant to 42 U.S.C. § 1985 (3) and § 1986

"Section 1985(3) prohibits conspiracies that are intended to deprive `either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.'" Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1993). Because section 1985 was not intended to create general federal tort law, "[t]o recover under section 1985(3), a plaintiff must allege `some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Id. (quoting Griffin v. Breckenridge, 91 S.Ct. 1790, 1798 (1971));see also Jews for Jesus, Inc. v. Jewish Community Relations Council, 968 F.2d 286, 290-91 (2d Cir. 1992)

In attempting to fall within the purview of § 1985(3), CAI relies on the Second Circuit decision in Keating v. Carey, 706 F.2d 377 (2d Cir. 1983), claiming that Defendants conspired against CAI as an organization for illegitimate, political reasons. This argument, however, must fail.

First, the continued validity of Keating is open to question. In Keating, the Second Circuit held that political parties are protected groups under § 1985(3). See id.; Gleason v. McBride, 869 F.2d 688, 695 (2d Cir. 1989). Specifically,Keating found that a conspiracy against the plaintiff because he was a Republican satisfied section 1985(3)'s requirement of class-based discriminatory animus. See Keating, 706 F.2d at 388. The Supreme Court, however, has since indicated that, absent racial animus, § 1985 may not extend to discrimination solely on the basis of political affiliation. See United Brotherhood of Carpenters Joiners of America, Local 610 v. Scott, 103 S.Ct. 3352, 3360-61 (1983); Gleason, 869 F.2d at 695. Moreover, other circuits have refused to recognize political parties as protected classes for purposes of § 1985(3). See Grimes v. Smith, 776 F.2d 1359 (7^th Cir. 1985); Harrison v. KVAT Food Mgt. Inc., 766 F.2d 155 (4^th Cir. 1985) Despite this, Keating has not been overruled and, thus, is the law of this Circuit to which this Court is bound.

Second, it is doubtful that CAI is an organization that falls within Keating's ambit. "[T]he courts have held that [§ 1985] covers conspiracies involving animus other than racial bias such as animus based on ethnic origin, sex, religion or political loyalty. However, the courts have warned that many identifiable groups do not fall within the scope of section 1985(3) because the provision is not a writ by which the judiciary can offer comfort and succor to all groups experiencing social disapproval." Munson v. Friske, 754 F.2d 683, 695 (7^th Cir. 1985) (citing Murphy v. Mount Carmel High Sch., 543 F.2d 1189, 1192 n. 1 (7^th Cir. 1976)). "[T]he mere fact that" individuals . . . share a desire to engage in conduct does not render them a `class' under § 1985(3)." LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 426 (2d Cir. 1995) (quoting Bray v. Alexandria Women's Health Clinic, 113 S.Ct. 753, 759 (1993)). Accordingly, several courts have limited § 1985(3)'s protection to: "(1) classes having common characteristics of an inherent nature-i.e., those kinds of classes offered special protection under the equal protection clause, and (2) classes that Congress was trying to protect when it enacted the Ku Klux Klan Act." Childree v. UAP/GA Chem, Inc., 92 F.3d 1140, 1147 (11<sup>th</sup> Cir. 1996), cert. denied, 117 S. Ct. 1080 (1997) (citingKimble v. D.J. McDuffy, Inc., 648 F.2d 340, 347 (5<sup>th</sup> Cir. 1981) (en banc), cert. denied, 102 S.Ct. 687 (1981)). The fact that a group bands together to voice opposition to conduct of another does not, in and of itself, place this group within a class protected by § 1985(3). See Gleason, 869 F.2d at 695 (quoting Rodgers v. Tolson, 582 F.2d 315, 317 (4<sup>th</sup> Cir. 1978)) ("`[T]hose who are in political and philosophical opposition to [Defendants], and who are, in addition, outspoken in their criticism of the [Defendants'] political and governmental attitudes and activities do not constitute a cognizable class under section 1985.'".).

Here, unlike Keating, CAI (and its members) does not, and cannot, contend that it is being discriminated against on account of race, ethnic origin, sex, religion or political loyalty. CAI, which is described by its president as "a not-for-profit corporation . . . to promote environmentally safe and socially responsible land use control and development in and around the hamlet of Accord and the Towns of Rochester and Marbleton," is not a political organization and, thus, does not fall within the preview of Keating. The same applies to CAI's members. Thus, neither membership in CAI nor those residents of the nearby Town of Marbleton who feel disenfranchised relative to the Defendants are the type of class protected by § 1985(3). See Gagliardi, 18 F.3d at 194. Because CAI fails to point to participation in, or affiliation with, any other type of suspect class traditionally protected by § 1985(3), the Court finds that neither CAI nor its members fall within a protected class under § 1985. See Jews for Jesus, 968 F.2d at 290-91; see also Childree, 92 F.3d at 1147.

Third, assuming CAI to be a class protected by § 1985(3), there is no evidence of any actions taken by Defendants because of membership in or affiliation with a particular class. See Gleason, 869 F.2d at 695. "`[T]he intended victims [of discrimination] must be victims not because of any personal malice the conspirators have toward them, but because of their membership in or affiliation with a particular class.'" Gleason, 869 F.2d at 695 (quoting Scott, 103 S.Ct. at 3367) (Blackmun, J., dissenting). The undisputed evidence before the Court demonstrates that Defendants took evenhanded action that applied across the board to all persons who resided near the Speedway regardless of their affiliation with CAI. There is no evidence of actions directed solely at CAI or its members on account of their affiliation with CAI.

For these reasons, the Court dismisses CAI's First Cause of Action. Because "a § 1986 claim must be predicated on a valid § 1985 claim," the Court also dismisses CAI's Eighth Cause of Action. See Brown v. City of Oneonta, 195 F.3d 111, 123 (2d Cir. 1999)

E. Takings Claim

CAI contends that the Town has effectuated a taking of its property in violation of the Fifth Amendment by failing to prevent TTP from exceeding the noise limits in LL3.[6] Defendants move to dismiss on the ground that CAI has failed to first seek compensation through established state procedures. CAI opposes this argument on the grounds that the ripeness requirement does not apply to either: (1) a physical taking; or (2) a claimed taking that is alleged to result from local government action that constitutes a violation of substantive due process.

The first argument proffered by CAI is disingenuous at best and has been directly rejected by the Second Circuit in Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 380 (2d Cir. 1995),cert. denied, 519 U.S. 808 (1996). In fact, the. plaintiff inVillager Pond made the exact same argument as CAI and relied upon the exact same Ninth Circuit case, Hall v. City of Santa Barbara, 833 F.2d 1270 (9^th Cir. 1986), cert. denied, 108 S.Ct. 1120 (1988), as does CAI. In Villager Pond, the Second Circuit expressly noted that the Ninth Circuit had since clarified Hall in Sinaloa Lake Owners Ass' n v. City of Simi Valley, 882 F.2d 1398, 1402 (9^th Cir. 1989), cert. denied, 110 S.Ct. 1317 (1990), and held that compensation must first be sought from the state even in physical taking cases. The Second Circuit agreed with theSinaloa case and held that regardless of whether [the] claim alleged a physical or regulatory taking, the claim in not yet ripe for review [until the property owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the state]." Villager Pond, 56 F.3d at 380.

The second basis asserted by CAI also has also been rejected by the Second Circuit in Southview Assocs. Ltd. v. Bongartz, 980 F.2d 84, 96 (2d Cir. 1992), cert. denied, 113 S.Ct. 1586 (1993). In Southview, the Second Circuit reaffirmed that the ripeness requirement fully applies to all takings claims. However,Southview also addressed the issue of ripeness as applied to the plaintiff's two substantive due process claims — one premised on the theory that the regulation at issue in that case had gone "too far" and the other premised on arbitrary and capricious government conduct. See id. at 95. The Second Circuit held that "a substantive due process claim premised on the theory that a regulation has gone too far is subject to both prongs of the . . . ripeness test," but that a plaintiff claiming a violation of substantive due process because of arbitrary and capricious conduct need not first seek redress through an available state remedy. See Id. at 97.

Thus, CAI's complaint of a violation of substantive due process based on arbitrary and capricious governmental conduct rights is just that — a claim for a violation of substantive due process and not a taking claim. This claim is ripe. However, because New York provides a mechanism for awarding compensation,see Sag Harbor Port Assocs. v. Village of Sag Harbor, 21 F. Supp.2d 179, 186 (E.D.N.Y. 1998), aff'd, 182 F.3d 901 (2nd Cir. 1999); Frooks v. Town of Cortland, 997 F. Supp. 438, 452 (S.D.N.Y. 1998), aff'd, 182 F.3d 899 (2d Cir. 1999), and CAI failed to seek compensation through this mechanism, CAI's takings claim (the Seventh Cause of Action) must be dismissed as unripe.

Assuming, arguendo, that the taking issue is ripe, the Court finds that there has been no taking. Although CAI's members undoubtedly are forced to endure noise emanating from the Speedway, there is no evidence that there has been a sufficient physical invasion of the property of CAI or its members or that they have been deprived of economically viable use of their land.See Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886, 2893 (1992); Citizen's Ass'n of Portland v. International Raceways, Inc., 833 F.2d 760, 762 (9^th Cir. 1987) (granting of noise variance to permit operation of racetrack not an unconstitutional taking)

The Supreme Court has distinguished "between . . . cases involving permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner's property that causes consequential damages within, on the other. A taking has been found only in the former situation." Loretto v. Teleprompter Manhattan CATV Corp., 102 S.Ct. 3164, 3172 (1982). "[T]t is at least necessary that the [damage to property] be the direct result of the [government's conduct], and constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property." Sanguinetti v. United States, 44 S.Ct. 264, 265 (1924). There is insufficient proof of permanence here to constitute a taking; rather, there is, at most, injury to land during those periods of time when the Speedway is in use.

The situation herein is readily distinguished from United States v. Causby, 66 S.Ct. 1062 (1946), where plaintiffs were forced to discontinue their chicken raising business because of continuing, low flying military aircraft landing at a nearby airport. In Causby, the Supreme Court noted that because of the frequency and altitude of the flights, "[t]he superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself." Causby, 66 S.Ct. at 1066-68; see also Griggs v. County of Allegheny, Penn., 82 S.Ct. 531 (1962). In the present case, by contrast, no physical objects come onto or over CAI's land (or that of its members) and the operation of the racetrack is relatively infrequent — approximately 2% of the total number of hours in a year.[7] See Alleghany Airlines v. Village of Cedarhurst, 238 F.2d 812, 816 (2d Cir. 1956); see also Kirk v. United States, 451 F.2d 690, 694 (10^th Cir. 1971) In other words, any physical intrusion (to the extent that it has even been caused by the municipal defendants) has not reached such an "extreme form of physical occupation" to constitute an unconstitutional taking. Loretto, 102 S.Ct. at 3171. This is supported by the facts that, as noted, there is a limited time during which Defendants' conduct affects CAI's property,[8] the nature of the interference with CAI's (and its members') use and enjoyment of their property is limited,[9] and there is no actual physical invasion of property. See Samaad v. City of Dallas, 940 F.2d 925, 938 (5^th Cir. 1991)

For these reasons, CAI's Seventh Cause of Action alleging an unconstitutional taking must be dismissed. The First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action having been either withdrawn or dismissed, the Court is left to address the Third, Ninth and Tenth Causes of Action.

F. Due Process

1. Whether CAI or its Members Have a Constitutionally Protected Property Interest

CAI contends that it has a property interest in the enforcement of LL3 (which includes monitoring of noise levels and revocation of the operating and/or special use permits if violations of the noise levels are found), and arising from the state-created danger and special relationship doctrines. The Court will address these arguments seriatim.

The following excerpt from Gagliardi is instructive as to the applicable law:

It is well settled in this Circuit that a constitutionally protected property interest in land use regulation arises only if there is an entitlement to the relief sought by the property owner. A plaintiff has a "legitimate claim of entitlement" to a particular benefit if, absent the alleged denial of due process, there is a certainty or a very strong likelihood that the benefit would have been granted. Where a local regulator has discretion with regard to the benefit at issue, there normally is no entitlement to that benefit. An entitlement to a benefit arises only when the discretion of the issuing agency is so narrowly circumscribed as to virtually assure conferral of the benefit. The issue of whether an individual has such a property interest is a question of law since the entitlement analysis focuses on the degree of official discretion and not on the probability of its favorable exercise.

Gagliardi, 18 F.3d at 192 (internal citations, quotations, and alterations omitted)

As in Gagliardi, CAI first contends that Defendants failed to enforce LL3's noise restriction. CAI argues that any discretion Defendants may normally have in enforcing its laws was circumscribed by: (1) the language of LL3; (2) Defendants' alleged promises and assurances that the noise limit would be enforced; (3) the decision of Supreme Court, Ulster County that remanded the Article 78 proceeding to the Town for a determination of whether the noise limit had been violation and whether the permit should therefore be revoked; (4) New York State law; and (5) the state-created danger and special relationship doctrines.

As a general rule, "[g]overnment officials . . . are given broad discretion in their decisions whether to undertake enforcement actions." Gagliardi, 18 F.3d at 192. Pertinent to the instant matter, New York courts have held that "the decision to enforce . . . [town building and zoning] codes rests in the discretion of the public officials charged with enforcement."Young v. Town of Huntington, 121 A.D.2d 641, 642 (2d Dep't 1986);see also Dyno v. Village of Johnson City, 261 A.D.2d 783, 784 (3d Dep't 1999), appeal dismissed, 94 N.Y.2d 1033 (1999), leave denied, 94 N.Y.2d 818 (1999); Manuli v. Hildenbrandt, 144 A.D.2d 789, 790 (3d Dep't 1988) ("[T]he law is by now quite well settled that the decisions of local municipal officials on whether to enforce zoning codes are discretionary and not subject to judicial oversight in a civil suit or by way of mandamus. . . . Plaintiffs . . . cannot allege that official enforcement of the zoning ordinance . . . is a mandatory, rather than a discretionary, act."); Fried v. Fox, 49 A.D.2d 877, 878 (2d Dep't 1975) ("The decision by city officials to enforce any of the myriad zoning violations existing in a given municipality must, of necessity, be left to the discretion of these officials."); Perazzo v. Lindsay, 30 A.D.2d 179 (1st Dep't), aff'd, 23 N.Y.2d 764 (1968).

a. Whether LL3 Restricted Defendants' Discretion

The New York courts have already resolved the question of whether LL3 restricted Defendants' discretion against CAI. In CAI II, a case in which Defendants were parties, CAI sought an order enjoining the Town from permitting the alleged nuisance caused by the operation of the race track. The court held that "[a] municipality cannot be enjoined to enforce any violations of law."

Moreover, the Court finds nothing in the language of LL3 that alters the general rule that public officers retain discretion whether to enforce violations thereof. Notwithstanding that LL3 requires the permit applicant to submit an application stating, under oath, that "upon failure to comply with [LL3] . . . said permit shall be revoked forthwith," this provision places no affirmative or mandatory obligation upon the Town or its CEO to enforce LL3 and does not in any manner circumscribe their discretion with respect to the enforcement, or non-enforcement, of LL3. An examination of LL3 in its entirety makes it clear that Defendants retained substantial discretion over the regulation of racetracks.

For example, even upon satisfaction of the requirements of a permit application, the Town Board retained discretion to grant or refuse the permit based upon their determination of the best interests of the Town. See LL3 § 4-2. At LL3 § 7, the Town Board, after public hearing, retained the power to "grant exemptions from the specific performance standards set forth [in LL3]." Similarly, the Town Board retained discretion to revoke the permit at any time after a public hearing. See LL3 § 5(c). At LL3 § 8.3, the Town Board is given discretion (using the permissive language "may") "to maintain an action or proceeding in the name of the Town in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation of [LL3]." Importantly, there is nothing in LL3 itself that obligates Defendants or the CEO to undertake noise monitoring or to issue violations upon a finding of a violation. To the contrary, the evidence before the Court demonstrates that it was Town policy to advise persons who violate Town laws of the non-compliance and afford them an opportunity to voluntarily come into compliance without issuing a citation. See July 18, 1992 Dymond letter annexed to June 17, 1999 Massie Aff. at Ex. M. This would tend to support a conclusion that Defendants retained substantial discretion over whether to enforce LL3. CAI points to nothing else in the Town's laws that would otherwise limit Defendants' discretion. Thus, the Court finds that nothing in LL3 or the other laws of the Town alter the general rule that government official have broad discretion whether to undertake enforcement actions.

b. Whether Defendants' Discretion Was Limited by (1) promises, (2) prior precedents, or (3) judicial estoppel

For the following reasons, the Court similarly finds unavailing CAI's contention that Defendants' discretion was limited by their promises and assurances that LL3 would be enforced, that they have acted in contravention to prior precedent, and that Defendants are judicially estopped from claiming that they are not required to enforce the law.

(1) Promises

CAI's reliance on Ezeckwo v. New York City Health Hosps. Corp., 940 F.2d 775 (2d Cir.), cert. denied, 112 S.Ct. 657 (1991), for the notion that property interests are created by an agency's verbal promises and practices is misplaced. In Ezeckwo, the Second Circuit reaffirmed the general principle that "`[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it . . . He must, instead, have a legitimate claim of entitlement to it.'" 940 F.2d at 782 (quoting Board of Regents v. Roth, 92 S.Ct. 2701, 2709 (1972)). Because of well-established procedures affording third year medical residents the opportunity to become chief resident on a rotating basis, the Second Circuit found that the plaintiff had a legitimate claim of entitlement to the position of chief resident. Here, however, there is neither an established procedure that Defendants have now changed nor a contractual relationship between the parties. CAI points to no history of enforcement or any actions by Defendants upon which they may have relied to their detriment resulting in a loss of a benefit.

Furthermore, it is settled under New York law that a town official or member of the town board cannot by his or her lone statements bind the municipality as a whole. See Zimmer v. Town of Brookhaven, 247 A.D.2d 109, 114 (2d Dep't 1998); Goldberg v. Penny, 163 A.D.2d 352, 353 (2d Dep't 1990) ("[T]it is doubtful that a Town could validly contract away its authority to make future zoning determinations."). Thus, any statements made by Defendants at public meetings were not promises upon which CAI or its members could have relied; rather, it appears that any such statements were made to allay the public's concerns regarding the continued operation of the Speedway and were illusory in nature. Further, even if Defendants did make such promises, CAI could not reasonably have expected to derive any benefit from them because of the broad discretion usually afforded government officials in enforcing the laws and the language of LL3 that gave Defendants such discretion (or, at least, did not limit such discretion). Moreover, CAI has no legitimate claim of entitlement because any such promises were made to the public at large and not solely to CAI and/or its members. Thus, at most, CAI had an abstract desire that Defendants enforce LL3 and no legitimate claim of entitlement to it and any promises made by Town Board members promising to enforce the laws does not alter this result.

(2) Prior Precedent

With respect to CAI's argument that Defendants have acted contrary to prior precedent, there is no evidence tending to support this allegation. Although at one point Defendants changed their "understanding" of the noise limit on LL3 to be the average noise limit over a one-half hour period (which the New York State Supreme Court, Ulster County found to be arbitrary and capricious), the undisputed evidence before the Court demonstrates that the Town's CEO always took spot check readings (not average readings)[10] and, thus, never acted contrary to any prior precedent. There is no other evidence of any deviation from prior precedent.

(3) Judicial Estoppel

CAI's argument that they have a legitimate expectation of entitlement because Defendants are judicially estopped from claiming that they have discretion to enforce the noise limit is similarly unavailing. CAI relies on Defendants' purported representation to the state courts that they would immediately revoke TTP's operating permit if at any time the noise level exceeded the statutory noise limit. According to CAI, that statement is contrary to Defendants' position herein that they have discretion to enforce the noise limit.

Judicial estoppel "prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously taken by [the party] in a prior legal proceeding."Bates v. Long Island R.R., 997 F.2d 1028, 1037 (2d Cir. 1993),cert. denied, 114 S.Ct. 550 (1993). Judicial estoppel applies where the party subject to estoppel has taken a contradictory position in an earlier proceeding and that position was adopted by the tribunal in the earlier proceeding. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 335 n. 3 (2d Cir. 2000). The Second Circuit has described the necessary inconsistency as "`clear inconsistency between [the party's] present and former positions.'" Bridgeway Corp. v. Citibank, 201 F.3d 134, 141 (2d Cir. 2000) (quoting Maharaj v. Bankamerica Corp., 128 F.3d 94, 98 (2d Cir. 1997)). "When any of these elements are missing, judicial estoppel does not apply." Maharaj, 128 F.3d at 98.

The Court finds that judicial estoppel does not apply here because CAI has failed to point to a clear factual inconsistency between Defendants' present and former positions. In support of their argument, CAI relies upon the decision of the Appellate Division, Third Department in CAI I, 192 A.D.2d at 988, a case wherein CAI challenged the Town's issuance of a negative declaration. In upholding the Town's actions, the Appellate Division wrote that:

While Supreme Court pointed to the controversy surrounding the anticipated noise levels at the Speedway as evidence that the Town Board did not take a hard look, our review indicates that nothing was overlooked and in fact the Town Board considered this issue and all the competing factors at length, including the fact that mufflers would be installed on the race vehicles, a barrier wall would surround the racetrack, the noise levels would be of short duration and the special use permit would be revoked immediately if at any time the noise level exceeded the statutory noise limit.

Id. (emphasis supplied). However, the Appellate Division's use of the word "would" in its decision does not necessarily mean that Defendants actually represented that they would revoke the permit if a violation was found.

CAI proffers nothing demonstrating that Defendants actually represented that they would ( as opposed to could) immediately revoke the permit if the noise levels were exceeded. In CAI's request for admissions at ¶ 90, CAI asked Defendants to admit that they "represented to Supreme Court, Appellate Division, that if noise from the Speedway racing is found to exceed the L.L.3 noise limit, the permit issued pursuant to that local law can be revoked and the racing immediately stopped,"to which Defendants admitted. (emphasis supplied). Significantly, the negative declaration before the Appellate Division specifically stated that "the permit issued . . . can be revoked and the racing can be immediately stopped." (emphasis supplied). Without evidence of an unequivocal, contrary factual representation to the Appellate Division, the Court finds that judicial estoppel does not apply here. Further, the contention at issue here is more of a legal, rather than factual, nature (that is, whether Defendants are legally obligated to enforce the noise ordinance), thereby removing it from the application of judicial estoppel. See Bates, 997 F.2d at 1037; see also Curiale v. Tiber Hodling Corp., 1997 WL 597944, at *8 (E.D. Pa. 1997); In re Arbitration between Excelsior 57th Corp. v. Kern, 218 A.D.2d 528, 529-30, 630 N.Y.S.2d 492, 494 (1^st Dep't 1995).

c. Whether the Decision of Supreme Court, Ulster County Restricted Defendants's Discretion

CAI next contends that Justice Carpinello's June 24, 1996 decision in CAI ITT is the source of a constitutionally protected property interest. CAI maintains that Justice Carpinello's decision left Defendants with no discretion other than to consider the evidence of TTP's alleged violations of LL3 and determine whether TTP's special use permit should therefore be revoked. As previously discussed, CAI sued Defendants in state court alleging, among other things, that its interpretation of the 79dB limit using an average of readings taken over a one-half period was arbitrary and capricious because it was contrary to the plain language of the law and contrary to prior practice by the CEO. The Supreme Court, Ulster County agreed with CAI and held that:

Although CPLR 7804(b) authorizes a trial of factual issues, this Court finds that the interests of justice would be better served by remitting this matter to the Planning Board for the development of an adequate factual record on the noise issue. Thus, in light of these conflicts in the evidence regarding TTP's alleged non-compliance with the 79 decibel limit and the absence of a factual record, this matter is hereby remitted to the Planning Board of the Town of Rochester for a hearing on the issue of whether TTP has violated the 79 decibel sound limit contained in Local Law #3 of 1987 and whether TTP's special use license should therefore be revoked.

CAI III, at pp. 17-18.

While decisional law may be the source of a protected property interest, see Furlong v. Shalala, 156 F.3d 384, 395 (2d Cir. 1998), Justice Carpinello's decision did not create a property interest in the revocation of TTP's special use permit. As this Court reads it, Justice Carpinello's decision merely required the Planning Board to hold a hearing to adduce facts regarding whether TTP had violated LL3. In so doing, the court instructed the Planning Board not to rely on average readings taken over a one-half hour period, but to rely on spot readings. After a hearing, the Planning Board was to determine whether TTP's special use permit should be revoked. That was the extent of Justice Carpinello's decision.

The undisputed facts before the Court are that Defendants did conduct a hearing on the issue.¹¹ After the hearing, two board members felt that violations of LL3 occurred during the initial operation of the Speedway in 1992, three members felt there had been no violations at all, and two members felt that there had been repeated violations throughout the Speedway's operation. See Massie Aff. Ex. R. Thus, a majority of the Town Board members concluded that the Speedway did not violate LL3 after 1992 and, accordingly, voted six to one not to revoke TTP's special use permit.¹² Thus, CAI was afforded all rights to which it was entitled as a result of Justice Carpinello's decision.

d. Whether New York State Law Restricted Defendants' Discretion

Next, CAI argues that principles of New York state law pertaining to the award and revocation of permits supports its claim of a protected property interest. According to CAI, local government officials may not award permits that confer rights in contravention of the zoning laws, have no discretion to issue permits that fail to comply with the zoning laws or fail to revoke permits issued in violation of law, and planning boards have no authority to waive or vary conditions set forth in zoning ordinances in making determinations regarding special use permits.

CAI is correct that, under New York law, government officials may not award permits that confer rights in contravention of the zoning laws, B. G. Const. Corp. v. Board of Appeals of Village of Amityville, 309 N.Y. 730, 732 (1955), have no discretion to issue [or revoke] a . . . permit which fails to conform with applicable provisions of law," Parkview Assocs. v. City of New York, 71 N.Y.2d 274, 282, cert. denied, 109 5. Ct. 30 (1988), and may not waive or modify any conditions set forth in the zoning ordinance. See Dost v. Chamberlain-Hellman, 236 A.D.2d 471, 472 (3d Dep't 1997). However, CAI has presented no evidence that Defendants have done any of the above.

The evidence before the Court demonstrates that, in 1971, the Town Board passed a zoning law that provided that automobile racing was a permitted use in the Speedway's zoning district provided the operator first obtained a special use permit. SeeCAI I, 192 A.D.2d at 986; CAI III, at p. 2. As is relevant hereto, TTP applied for a special use permit in 1992. Because TTP proposed to race vehicles other than stock cars, TTP also sought an expansion of the existing use in its special use permit application, which the Town's zoning law apparently permitted. Pursuant to the Town's zoning law, the Town Planning Board granted the special use permit, which ran concurrent with [the] Permit issued under Local Law #3 of 1987 and any renewals. If for any reason said racing Permit is terminated, this Special Use Permit shall be terminated."

Contrary to CAI's argument, the special use permit was not issued in contravention of the zoning law. Rather, the special use permit was issued in conformance with, and pursuant to, the zoning law. At the time of its issuance, there were no violations of any applicable zoning laws. Although CAI contends that there were repeated violations of LL3 and, thus, the special use permit should have been revoked, CAI's argument misses the mark. Under New York law, a municipality is obligated to revoke an improperly issued permit (i.e. a permit issued in error because of non-conformity with applicable law) See Parkview Assocs., 71 N.Y.2d at 281. Here, however, as noted, the special use permit was not improperly issued. It was issued under the express authority of the Town's zoning law. New York law does not obligate a municipality to revoke a special use permit merely because the permittee has later violated some part of the Town code. Rather, as discussed supra, it is within the municipality's discretion whether to enforce such violations.

Moreover, there is no evidence of violations of the Town's zoning law. The evidence in the record demonstrates that LL3 is not a zoning law, see N.Y. Town LAW § 261, but, rather, a law enacted pursuant to the Town's broad police powers to regulate and/or license businesses. See N.Y. CONST. ART. IX, § 2[c]; N Y MUN. HOME RULE LAW § 10(1) (ii) (a) (12); Metropolitan Funeral Directors Ass'n, Inc. v. City of New York, 702 N.Y.S.2d 526, 530; see also Hoffay v. Tifft, 164 A.D.2d 94, 98 (3d Dep't 1990). By its very terms, LL3 was adopted "in the interests of the health safety and welfare of the residents of the Town to regulate the operation of motor vehicle racetracks,"and, thus, pursuant to the broad police powers granted towns. Alleged violations of LL3 are not zoning violations and, thus, do not serve as a basis for revocation of the special use permit.

Finally, these principles of law did not obligate Defendants to revoke, or refuse to renew, the operating permits. As discussed, LL3 leaves it to the Town's discretion whether to enforce and/or enjoin violations of that law and whether to renew the permit each year. Because TTP was never convicted of a violation of LL3, the permit was not automatically forfeited.

e. State-Created Danger and Special Relationship Doctrines

CAI next contends that it has a constitutionally protected property interest by virtue of the state-created danger and special relationship doctrines. According to CAI, it and its members are suffering physical injury because of the noise emanating from the Speedway and this injury deprives them of life, liberty, and/or property. Moreover, the argument goes, because Defendants have permitted this noise via its continual granting of operating permits, its refusal to revoke the operating and/or special use permits, and its refusal to enforce the noise limits in LL3, Defendants have created or otherwise participated in the creation of this danger thereby rendering CAI and its members more vulnerable to the danger.

As the Supreme Court stated in DeShaney v. Winnebago County Dep't. of Soc. Servs., 109 5. Ct. 998 (1989):

[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. . . Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing [its] power, or employing it as an instrument of oppression.". . . Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. . . . Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.

DeShaney, 109 S. Ct. 1002-03. The Court continued to note that a state may not be liable where it "may have been aware of the dangers . . ., [but neither] played [a] part in their creation, nor . . . [did] anything to render [plaintiffs] any more vulnerable to them."Id., at 1006. From this decision, two theories of liability have arisen: (1) the special-relationship, and (2) the state-created danger doctrines.

(1) Special-Relationship

The special-relationship theory arises out of the DeShaney Court's statement that "in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." Id., at 1006. What is evident from the special relationship cases is that the duty must arise from affirmative duties of care and protection by state actors with respect to particular individuals and not the public at large. See, e.q., Monfils v. Taylor, 165 F.3d 511 (7^th Cir. 1998) ("The basis of a special relationship is that the state has some sort of control or custody over the individual, as in the case of prisoners, involuntarily committed mentally ill persons, or foster children.") (emphasis supplied),cert. denied, 120 S. Ct. 43 (1999). In the ordinary case, such a special relationship arises where a state actor has restrained an individuals personal liberty. Thus, "[s]pecial relationships that have been recognized to give rise to a governmental duty to protect against third-person attacks have included custodial relationships such as a prison and inmate or a mental institution and involuntarily committed patient, and the relationship between a social service agency and foster child." Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993). In these cases, the state actor has affirmatively acted to restrain an individual's liberty by actually holding them in custody, as in the cases of imprisonment or involuntary commitment, or by affirmatively placing them with a foster family. In these situations, the individual is dependent upon the state actors (in the case of a foster child, through the foster family, see D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1372 (3d Cir. 1992)) to meet their basic needs. Because of their custodial situation, the state has cut-off their ability to protect themselves. See Monfils, 165 F.3d at 517;Morse v. Lower Merian Sch. Dist., 132 F.3d 902, 914 (3d Cir. 1997).

Here, there is no evidence that Defendants entered into a special relationship with CAI or its members. First, merely because the Town adopted laws in an effort to protect the community from noise (LL3) does not mean that they thereby undertook an affirmative obligation to each and every resident of that Town and the nearby Town of Marbleton to protect them from any such excessive noise. The same holds for the Town's approval of a permit to operate the Speedway. Second, Defendants in no way have affirmatively restricted CAI or its members from protecting themselves from third parties. CAI was, and is, free to seek legal recourse to enjoin any alleged nuisance or to recover damages for any alleged harm to property and Defendants have done nothing to interfere with these rights. See, e.q., D.R., 972 F.2d 1364, 1372 (compulsory school attendance laws and laws authorizing school officials to discipline students did not create special relationship between school and students).

New York law also discusses those situations in which a municipality may be liable for its actions, albeit in the tort-law context. Although the applicability of such tort-law principles to the instant context is unclear and runs dangerously close to turning § 1983 into federal tort law, for the benefit of CAI, the Court will discuss whether such a special relationship can be found to exist here under these principles.

"When a claim is made that a municipality has negligently exercised a governmental function, liability turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public." Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253, 261 (1983). Similarly, "`liability may not be imposed on a municipality for failure to enforce a statute or regulation in the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals.'" Green v. Irwin, 174 A.D.2d 879, 881 (3d Dep't 1991) (quoting Goudreau v. City of Rensselaer, 134 A.D.2d 709, 709-710 (3d Dep't 1987)).

Such a duty is found when a special relationship exists between the municipality and an individual or class of persons, warranting the imposition of a duty to use reasonable care for those persons' benefit. This principle operates to impose liability where the municipality has violated a duty commanded by a statute enacted for the special benefit of particular persons; where the municipality has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefitted thereby; or where it assumes positive direction and control under circumstances in which a known, blatant and dangerous safety violation exists.

Garrett, 58 N.Y.2d at 263. The facts of this case reveal that none of these factors are satisfied.

First, there is no evidence that Defendants violated a statute enacted for the special benefit of CAI's members. Although LL3 was intended to protect citizens from noise, it was not intended to particularly benefit CAI's members alone as opposed to the general public. Importantly, Defendants did not violate that statute and it imposed no duty upon Defendants. The mere failure to enforce a statute or ordinance alone is insufficient to impose liability. See Sanchez v. Village of Liberty, 42 N.Y.2d 876, 877 (1977).

Second, there similarly is no evidence that Defendants voluntarily assumed a duty the proper exercise of which was justifiably relied upon by persons benefitted thereby. Defendants did not voluntarily assume any duty toward CAI or its members. Again, Defendants actions (or inactions) were directed toward the general public. Further, CAI has consistently claimed that Defendants have failed to record blatant noise violations and, thus, cannot claim to have reasonably or justifiably relied on Defendants' actions.

Third, Defendants did not assume positive direction and control under circumstances in which a known, blatant and dangerous safety violation existed. Here, Defendants issued the operating permits upon TTP's certification that it would operate the Racetrack in accordance with LL3. Unlike Garrett, Defendants never represented that the noise levels emanating from the racetrack were safe. See Green, 174 A.D.2d 879, 881. Defendants were under no obligation to, and did not, certify the safety of the Racetrack.

There are simply no facts before the Court from which a fair-minded jury could reasonably conclude that a special relationship had been created and, as a matter of law, the Court finds that any relationship between CAI and Defendants did not give rise to a duty to protect them from noise created by the operation by TTP of the Speedway. See Brooks v. Giuliani, 84 F.3d 1454, 1466 (2d Cir. 1996); Ying Jing Gan, 996 F.2d at 534.

(2) State-Created Danger

The second theory (the state-created danger theory) comes into play where a state actor creates the danger or increases the victim's vulnerability to the danger. See DeShaney, 109 S. Ct. at 1006; Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993). In the context of duties imposed upon police officers, the Second Circuit has stated that "[w]e read the DeShaney Court's analysis to imply that, though an allegation simply that police officers had failed to act upon reports of past violence would not implicate the victim's rights under the Due Process Clause, an allegation that the officers in some way had assisted in creating or increasing the danger to the victim would indeed implicate those rights." Dwares, 985 F.2d at 98-99. The Second Circuit held that where the state actors actually contributed to the vulnerability of the plaintiff, or where the state actors aided and abetted a private party in the deprivation of a plaintiff's civil rights, a violation of the Due Process Clause occurs. See Dwares, 985 F.2d at 99.

Among the circuits that have recognized the state-created danger theory, many have recognized that:

"[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). However, because many state activities have the potential to increase an individual's risk of harm, we require plaintiffs alleging a constitutional tort under § 1983 to show "special danger" in the absence of a special relationship between the state and either the victim or the private tortfeasor. The victim faces "special danger" where the state's actions place the victim specifically at risk, as distinguished from a risk that affects the public at large. . . . The state must have known or clearly should have known that its actions specifically endangered an individual.

Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6^th Cir. 1998). Although various tests have been identified by the circuit courts, they all share some common traits. The Tenth Circuit, for example, has stated that:

The key to the state-created danger cases . . . lies in the state actors' culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid. Thus the environment created by the state actors must be dangerous; they must know it is dangerous; and, to be liable, they must have used their authority to create an opportunity that would not otherwise have existed for the third party's [acts] to occur.

Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253, 1263 (lO^th Cir. 1998) (alterations in original). More recently, the Tenth Circuit has noted that:

it is not enough to show that the state increased the danger of harm from third persons; the § 1983 plaintiff must also show that the state acted with the requisite degree of culpability in failing to protect the plaintiff. That is, plaintiff-appellant's claim must be predicated on reckless or intentionally injury-causing state action which "shocks the conscience" of federal judges. Further, this "danger creation" doctrine necessarily involves affirmative conduct on the part of the state in placing the plaintiff in danger.

Sutton v. Utah State School for Deaf and Blind, 173 F.3d 1226, 138. The Third Circuit has adopted a four~part test that looks at the following factors: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's injurious actions to occur. See Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996).

All of the circuit courts recognizing the state-created danger doctrine recognize that there must be some sort of relationship between the state actors and the § 1983 plaintiff. This is because state actors do not owe a general duty to the public at large. Thus, a § 1983 plaintiff must demonstrate conduct by the state actors directed towards a discrete victim or discrete class of victims. See Kallstrom, 136 F.3d at 1066 ("[B]ecause many state activities have the potential to increase an individual's risk of harm, we require plaintiffs alleging a constitutional tort under § 1983 to show `special danger' in the absence of a special relationship between the state and either the victim or the private tortfeasor. The victim faces `special danger' where the state's actions place the victim specifically at risk, as distinguished from a risk that affects the public at large.); Morse, 132 F.3d at 913 (State-created danger doctrine inapplicable to those instances where the state actor creates only a threat to the general population.); Mitchell v. Duval County Sch. Bd., 107 F.3d 837, 839 (11^th Cir. 1997) ("In order for a plaintiff to hold the state liable under the `special danger' analysis, he must show that the state affirmatively placed him in a position of danger which was distinguishable from that of the general public."); Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 (3d Cir.) ("When the alleged unlawful act is a policy directed at the public at large — namely a failure to protect the public by failing adequately to screen applicants for membership in a volunteer fire company — the rationale behind the rule disappears — there can be no specific knowledge by the defendant of the particular plaintiff's condition, and there is no relationship between the defendant and the plaintiff."), cert. denied, 116 S. Ct. 165 (1995); Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (In order for the state created danger theory to be available, the state [must] affirmatively place a particular individual in a position of danger the individual would not otherwise have faced."), cert. denied, 113 S. Ct. 1265 (1993); see also Morse, 132 F.3d at 913 (Characterizing this requirement as a "foreseeable plaintiff" and stating that "the relationship element of the state-created danger theory `contemplates some contact such that the plaintiff was a foreseeable victim of a defendant's acts in a tort sense.'") (quoting Kneipp, 95 F.3d at 1209 n. 22.); Mark, 51 F.3d at 1153. Thus, actions towards the general public will not suffice. See id.

The circuit courts also require a showing of a sufficiently high degree of fault. In Dwares, 985 F.2d at 99, for example, the police officers' conduct in sanctioning privately inflicted injury upon third persons evinced conduct far above negligence and bordering on intentional conduct. Most courts require a minimal showing of deliberate indifference before' 1983 liability will attach. See Morse, 132 F.3d at 908; L.W. v. Grubbs, 92 F.3d 894, 896 (9^th Cir. 1996) ("We have not deviated from the principle that deliberate indifference on the part of the responsible official, to the safety of employees in the presence of known danger, created by official conduct, is sufficient to establish a due process violation under Section 1983 for injury caused in part by a state created danger."); Uhlrig v. Harder, 64 F.3d 567, 574 (10^th Cir. 1995) (stating that defendants must have acted recklessly in conscious disregard of a known risk and that such conduct, when viewed in total, is conscience shocking.),cert. denied, 116 S. Ct. 924 (1996); Leffall v. Dallas Independent School Dist., 28 F.3d 521, 530 (5^th Cir. 1994) ("[T]he § 1983 plaintiff must also show that the state acted with the requisite culpability in failing to protect the plaintiff from that danger to make out a constitutional violation. . . . [T]he cases consistently require a § 1983 plaintiff relying on substantive due process to show that the state actors are guilty of `deliberate indifference' towards the victim of the deprivation.")

Initially, the Court notes that the situation alleged in the instant matter is not the type of situation contemplated by the state-created danger doctrine. In all of the cases discussing the doctrine, a state actor affirmatively placed an individual, or discrete class of individuals, in a dangerous situation or exposed them to a substantially increased degree of danger. An important key in those cases seems to be vulnerability to the victim(s) created by the state's actions. See Kneipp, 95 F.3d at 1208. For example, in Dwares, 985 F.2d at 98-99, the Second Circuit endorsed the doctrine in a situation where police officers had given "skinheads" the okay to beat certain protestors without fear of arrest, leaving the victim vulnerable to an imminent beating. In Kallstrom, 136 F.3d 1055, the state actors caused an undercover police officer to become vulnerable to harm by releasing personal information from their personnel files to counsel for alleged drug conspirators whom they had investigated. Similarly, in Kneipp, 95 F.3d at 1199, police officers left the victim vulnerable to harm when, knowing that the victim was obviously inebriated and unable to walk without the assistance of her husband, they sent the victim home alone after her husband had already left the scene, after which she fell down an embankment and suffered several injuries.

Here, Defendants' purported acts did not put CAI or its members in immediate danger or leave them in a situation of vulnerability such as that ordinarily encountered in the state-created danger cases. CAI was well aware that operating permits were issued to TTP and had ample time to seek available remedies, through legislative or judicial means, to protect themselves from the purported danger.¹³ In fact, on many prior occasions CAI has attempted to avail themselves of such remedies, albeit with little success.

The Court also finds that there was an insufficient relationship between Defendants and CAI's members."The relationship requirement under the state-created danger theory contemplates some contact such that the plaintiff was a foreseeable victim of a defendant's acts in a tort sense." Kneipp, 95 F.3d at 1209 n. 22. At the very least, there must be evidence of actions directed towards CAI's members specifically, as opposed to the public at large. See Armijo, 159 F.3d at 1263;Kallstrom, 136 F.3d at 1066; Morse, 132 F.3d at 913; Mark, 51 F.3d at 1153.

The relationship alleged here arises out of Defendants' alleged failure to revoke TTP's permits and their continued issuance of new permits, despite the alleged continuing violations of the noise ordinance. The evidence reveals, however, that Defendants undertook no specific actions with respect to CAI or its members. As discussed, supra, regarding the existence of a special relationship, Defendants did nothing to create a sufficient nexus between their actions and any injury to, or vulnerability of, CAI's members. To the contrary, Defendants' actions were taken specifically with respect to TTP in issuing the permits and affected the general public as a whole. At most, Defendants can be said to have failed to revoke permits or imprudently issued them. However, while certain persons may have been affected more by the operation of the Speedway than others (namely, those who live in close proximity), Defendants actions were the result of a policy directed at the public at large. Accordingly, the Court finds that Defendants' actions were more akin to the adoption of a policy of general applicability than the type of conduct directed at a discrete class of plaintiffs necessary to impose liability under the state-created danger theory. See Morse, 132 F.3d at 913 ("Where the state actor has allegedly created a danger towards the public generally, rather than an individual or group of individuals, holding a state actor liable for the injuries of foreseeable plaintiffs would expand the scope of the state~created danger theory beyond its useful and intended limits."); Mark, 51 F.3d at 1153. If the Court were to adopt CAI's reasoning on this point, Defendants would essentially become guarantors of TTP's actions to the public at large. Section 1983 was not, however, intended to create federal tort law. See Uhlrig, 64 F.3d at 573. The Court, therefore, finds that the mere regulation of racetracks and the issuance of licenses or permits, or the failure to revoke suck permits, under the circumstances of this case does not create a sufficient relationship between Defendants and CAI to impose municipal liability under theories of tort or under the state-created danger doctrine. See Southworth v. State, 47 N.Y.2d 874, 876 (1979) ("[W]hen State officials negligently issue a license or fail to revoke it, the State action is generally held not to be the proximate cause of the injury inflicted by the licensee."); see also Barnes v. Anderson, 202 F.3d 150, 158 (2d Cir. 1999) ("Although proximate causation in the § 1983 context is a question of federal law, in determining the meaning of the concept we look to those state tort analogs, because the Supreme Court has made it crystal clear that principles of causation borrowed from tort law are relevant to civil rights actions brought under section 1983.") (internal quotations and citations omitted).

The Court also finds that there is no evidence from which a fair-minded jury could reasonably conclude that Defendants were deliberately indifferent to a known risk or that Defendants' conduct was conscience shocking. See Armijo, 159 F.3d at 1262. With respect to the risk, the alleged harm here is exposure to noise. This is a far cry from the type of harm ordinarily at issue in state~created danger cases. Usually, these cases involve harm caused by violent, criminal acts. See Dwares, 985 F.2d at 99; Kallstrom, 136 F.3d 1055; Cornelius v. Town of Highland Lake, 880 F.2d 348 (11^th Cir. 1989), cert. denied, 494 U.S. 1066 (1990); but see Kneipp, 95 F.3d 1199. CAI's reliance on Helling v. McKinney, 113 S. Ct. 2475 (1993) and LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998), is misplaced because these case are inapposite and do not tend to support CAI's claim that Defendants can be held liable for exposure to excessive noise levels. TheHelling line of cases involve situations where persons are in custody, are exposed to conditions that are substantially likely to cause serious harm, and the victims therein are unable to take corrective action or avoid the harm because of their custodial status. Here, as discussed, CAI's members are free to take necessary action to avoid the alleged harm; they are not compelled to endure it.

The Court also finds that CAI has failed to proffer sufficient evidence from which a fair minded jury could reasonably conclude that Defendants' actions were conscience shocking or that they acted deliberate indifference.

In order to discern whether the facts of the instant case "shock the conscience" so as to rise to the level of a substantive due process violation, we must bear in mind three basic principles highlighted by the Supreme Court in evaluating substantive due process claims: (1) the need for restraint in defining their scope, (2) the concern that § 1983 not replace state tort law, and (3) the need for deference to local policymaking bodies in making decisions impacting upon public safety. Consistent with these principles . . . the Due Process Clause's protection against "conscience shocking" conduct traditionally only involved deliberately wrongful government decisions rather than merely negligent government conduct.

Uhlrig, 64 F.3d at 573 (internal citations omitted) Deliberate indifference requires that Defendants "know that [the plaintiffs] face a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 114 S. Ct. 1970, 1984 (1994).

Although CAI often complained that the Speedway exceeded LL3 and presented reports of noise readings to Defendants substantiating their allegations, Defendants' CEO did not find any noise violations. Even assuming that Defendants did know that CAI's members were exposed to excessive noise, there is nothing before the Court demonstrating that Defendants were aware that any particular individuals were likely to suffer serious injury as a result of such exposure.

In this regard, questions of organizational standing return, despite the fact that CAI is seeking declaratory and/or injunctive relief. See Rent Stabilization Ass'n., 5 F.3d at 596. The Supreme Court has made it clear that the nature of the relief requested is not necessarily dispositive. Rather, the Court must look both to "the nature of the claim and of the relief requested." Warth, 95 S. Ct. at 2211; see also Rent Stabilization Ass'n., 5 F.3d at 596 ("[T]he relief sought is only half of the story. . . . Therefore, we also must examine the claims asserted to determine whether they require individual participation."). Here, the Court is not presented with purely legal questions or questions that are identical to all of CAI's members. See Brock, 106 S. Ct. 2523 (1986). Instead, inquiry would need to be made on an individualized basis whether, for example, particular CAI members lived sufficiently close to the Speedway such that they were exposed to harm or whether Defendants knew or had reason to know whether any particular CAI member was likely to suffer serious harm as a result of exposure to particular levels of noise. Whether the state-created danger would apply depends upon factual circumstances unique to each CAI member and would, therefore, necessarily require the involvement of individual CAI members. See Rent Stabilization Ass'n., 5 F.3d at 596.

Furthermore, the Second Circuit has "restricted organizational standing under § 1983 by interpreting the rights it secures to be personal to those purportedly injured." League of Women Voters of Nassau County v. Nassau County Bd. of Supervisors, 737 F.2d 155, 160 (2d Cir. 1984), cert. denied, 105 S. Ct. 783 (1985); see Warth v. Seldin, 495 F.2d 1187, 1194 (2d Cir. 1974), aff'd, 95 S. Ct. 2197 (1975); Albany Welfare Rights Org. v. Wyman, 493 F.2d 1319, 1321 (2d Cir.), cert. denied, 95 S. Ct. 66 (1974); Aguayo v. Richardson, 473 F.2d 1090, 1098-1101 (2d Cir. 1973), cert. denied, 94 S. Ct. 900. Liberty interests, or constitutionally protected property interests, are personal and require an individualized determination. See Cleveland Bd. of Educ. v. LaFleur, 94 S. Ct. 791, 799 (1974); Aleman v. Honorable Judges of Circuit Court of Cook County, 138 F.3d 302, 310 (7^th Cir. 1998) ("[A] due process inquiry . . . should be . . . highly fact-specific."). It seems to this Court that whether a particular CAI member had a sufficient nexus with Defendants to fall within the state-created danger theory thereby giving rise to a constitutionally protected interest requires an individualized inquiry that cannot properly be raised by CAI on their behalf. See Aguayo, 473 F.2d at 1098-1101; see also 13 CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 3531.9, p. 619 (1984). As discussed, the adjudication of civil rights, particularly when attempting to define constitutionally protected property interests, ordinary involves an individualized analysis requiring the participation of the persons actually injured. Accordingly, the Court finds that, while individual CAI members may have standing to assert the state-created danger doctrine, CAI does not.

For all the foregoing reasons, the Court finds that CAI has failed to demonstrate a constitutionally protected property interest. Absent a constitutionally protected property interest, the Court need not examine whether CAI was deprived of any procedural rights. See Gagliardi, 18 F.3d at 193.

G. Equal Protection

CAI next contends that Defendants irrationally and persistently sided with TTP and against CAI in their regular and ongoing dispute over TTP's compliance with the noise limit and entitlement to racing permits in violation of the equal protection of the laws. According to CAI, Defendants' actions were based upon political ill-will and hostility to CAI.

"The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution `is essentially a direction that all persons similarly situated should be treated alike.'" Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 105 S.Ct. 3249, 3254 (1985)). "To state an equal protection claim, a plaintiff must charge a governmental officer not only with deliberately interpreting a statute against the plaintiff, but also with singling him out alone for that misinterpretation." Gagliardi, 18 F.3d at 193 (internal quotations and citation omitted). "To establish such intentional and purposeful discrimination, it is axiomatic that a plaintiff must allege that similarly situated persons have been treated differently." Id.

Here, CAI has failed to proffer any evidence of disparate treatment between persons similarly situated. To the contrary, the results of Defendants' actions have been uniformly borne by all residents who live near the Speedway regardless of race, color, creed, national origin, religious belief, gender, town of residency, participation in any groups (such as CAI), or any other reason, be it based upon a suspect classification or otherwise. As in Gagliardi, CAI has failed to point to any evidence from which a fair-minded jury could reasonably conclude that "the Municipal Defendants would have enforced the [Town] Code at the request of another resident whose situation was similar to [CAI or its members]. In the absence of any such [evidence], the . . . equal protection claim is insufficient as a matter of law." Id.

The cases relied upon by CAI do not mandate a different result. In Myers v. County of Orange, 157 F.3d 66 (2d Cir. 1998), cert. denied, 119 S. Ct. 1042 (1999), the Second Circuit held that a police or prosecutorial policy which favors an initial complainant over a later one without regard to the facts of the complaints violates the Equal Protection Clause. A predicate to that analysis, however, was a finding of unequal treatment of persons similarly situated. In Myers, the police were confronted with two persons complaining of criminal activity — a complainant and a cross-complainant — and, therefore, were faced with similarly situated individuals. Here, by contrast, there is no evidence of such unequal treatment between like-situated persons. TTP, as the operator of the Racetrack and someone who was not complaining about the lack of enforcement of LL3, was not similarly situated with CAI and its members.

In Olech v. Village of Willowbrook, 160 F.3d 386 (7^th Cir. 1998), aff'd, 120 S. Ct. 1073, 1074 (2000), the Seventh Circuit held that an Equal Protection claim may be sustained on proof of wholly vindictive conduct of government officials and evidence that actions taken by the state actor was a spiteful effort to "get" the plaintiff for reasons wholly unrelated to any legitimate state objectives. However, the Seventh Circuit also required proof of differential treatment. See id. at 388 ("But bear in mind that the `vindictive action' class of equal protection cases requires proof that the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant. If the defendant would have taken the complained-of action anyway, even if it didn't have the animus, the animus would not condemn the action; a tincture of ill will does not invalidate governmental action."); see also 120 S. Ct. at 1074 ("Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."). First, as discussed, CAI has failed to demonstrate any differential treatment. Second, assuming differential treatment and accepting that there likely is hostility between CAI and Defendants, it is clear that Defendants were intent on undertaking the same course of conduct regardless of their feelings toward CAI. CAI's objection to Defendants' failure to enforce the laws or to Defendants' granting of the permits in no way played a part of Defendants' decision not to enforce those laws or to issue those permits and no rational jury could reasonably conclude otherwise.

Accordingly, CAI's Equal Protection claim on this ground must be dismissed.

H. Supplemental Jurisdiction

Having dismissed all of CAI's federal causes of action at this stage of the litigation, the Court declines to exercise supplemental jurisdiction over the remaining-state law causes of action claiming that LL2 was enacted in violation of state law. See 28 U.S.C. § d 1367(c); Buckley v. Consolidated Edison Co. of New York, Inc., 155 F.3d 150, 157 (2d Cir. 1998)

III. CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment is GRANTED, CAI's cross-motion for summary judgment is DENTED, and CAI's Complaint is DISMISSED IN ITS ENTIRETY. The Clerk of the Court is directed to close the file in this matter.

IT IS SO ORDERED

DATED: April 18, 2000 Binghamton, New York