Full Case Name: The Cetecean Community, Plaintiff, vs. President of the United States, George W. Bush and United States Secretary of Defense Donald H. Rumsfeld, Defendants.
Summary: Plaintiff, a community of whales, dolphins, and porpoises, sued Defendants, the President of the United States and the United States Secretary of Defense, alleging violations of the (NEPA), the (APA), the (ESA), and the (MMPA). The Plaintffs were concerned with the United States Navy's development and use of a low frequency active sonar (LFAS) system. The community alleged a failure to comply with statutory requirements with respect to LFAS use during threat and warfare conditions.
Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing. After reviewing Defendants' motion and the supporting and opposing memoranda, the court GRANTS Defendants' Motion to Dismiss.
The instant action involves the United States Navy's development and utilization of low frequency active sonar ("LFAS"). Defendants claim that LFAS is "the only system capable of providing sufficient detection ability" at this time. Defendants' Motion to Dismiss ("Motion"), filed Jan. 9, 2003, at 7. One LFAS system is the Surveillance Towed Array Sensor System Low Frequency Active sonar ("SURTASS LFAS"), which the United States developed to detect foreign submarines. The Navy proposed the use of SURTASS LFAS "during routine training and testing as well as the use of the system during military operations" in a regulatory process. Motion at 8 (quoting EIS at p. ES-5). The Endangered Species Act ("ESA"), Marine Mammal Protection Act ("MMPA"), and the National Environmental Policy Act ("NEPA") set the parameters for the regulatory process.
Pursuant to NEPA and Executive Order 12114, the Navy prepared an Overseas Environmental Impact Statement/Environmental Impact Statement ("EIS"). The EIS applied to the use of SURTASS LFAS during routine training and testing. It did not address the use of the system in armed conflict or direct combat support operations, nor during periods of heightened threat conditions, as determined by the National Command Authorities. The Final EIS was published in January 2001, and the Record of Decision ("ROD") was signed by the Navy on July 16, 2002.
The MMPA requires that National Marine Fisheries Service ("NMFS") conduct a notice and comment process when processing a small take request, which allows the taking of marine mammals incidental to a specified activity. See 16 U.S.C § 1371(a)(5)(A) (2002). In August 1999, the Navy submitted an application to the NMFS for a five-year small take authorization under the MMPA for each SURTASS LFAS that would allow the taking of marine mammals incidental to the employment of SURTASS LFAS during training, testing, and routine military operations. On July 16, 2002, the Final Rule governing the incidental taking of marine mammals and providing for issuance of one-year letters of authorization ("LOA") for SURTASS LFAS operations was published.
The Navy consulted with NMFS under Section 7 of the ESA concerning the possible incidental taking of listed species, including marine mammals, sea turtles, and fish. In a Biological Opinion, dated May 30, 2002, NMFS indicated that employment of SURTASS LFAS as implemented by the ROD may adversely affect, but is not likely to jeopardize the continued existence of, endangered and threatened species. On August 16, 2002, NMFS issued its Supplemental Biological Opinion, which constituted its opinion on the effects of the LOA.
(3) Failure to Seek Consultation under the ESA Regarding the Use of LFAS During Threat and Warfare Conditions in Violation of the ESA and APA.
Plaintiff limits its Complaint to the "deployment of low frequency active sonar" "during threat and warfare conditions." Complaint at P 62.
FN1 "The Cetacean Community is perceived by the Human as consisting of Whales, Dolphins, Porpoises and containing approximately 80 species." Complaint at P 59.
On January 9, 2003, Defendants President of the United States, George W. Bush and United States Secretary of Defense, Donald H. Rumsfeld (collectively, "Defendants") filed a Motion to Dismiss ("Motion"). Plaintiff opposed the Motion on February 20, 2003. See Plaintiff's Response to Defendants' Motion to Dismiss, filed Feb. 20, 2003 ("Opposition"). Defendants replied in support of their Motion on February 27, 2003. See Defendants' Reply in Support of Motion to Dismiss, filed Feb. 27, 2003 ("Reply").
In a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), the plaintiff's allegations are not presumed to be truthful, and the plaintiff has the burden of proof that jurisdiction exists. Thornhill Publishing Company, Inc. v. General Telephone & Electronics Corporation, 594 F.2d 730 (9th Cir. 1979).
A motion to dismiss pursuant to Rule 12(b)(6) will be granted where the plaintiff fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). For the purposes of a 12(b)(6) motion, "review is limited to the contents of the complaint." Clegg v. Cult Awareness Network, 18 F.3d 752, 755 (9th Cir. 1994).
A complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992) (quoting Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989) (further citations omitted). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. See id. Conclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim. Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994).
Defendants argue that Plaintiff's complaint should be dismissed "on a variety of grounds, including lack of standing, ripeness, failure to state a claim for which relief can be granted, lack of subject matter jurisdiction, and improper venue." Motion at 2.
It is well-established that a court may not craft its own interpretation of a statute if the statute is "plain and unambiguous on its face." See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 n. 29, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978). The Ninth Circuit explained that the "plain meaning" rule: stands for the notion that if the language of a statute is clear and there is no ambiguity, then there is no need to "interpret" the language by resorting to the legislative history or other extrinsic aids. Secondly, and more importantly, the rule stands for the proposition that in the vast majority of its legislation Congress does mean what it says and thus the statutory language is normally the best evidence of congressional intent.
Church of Scientology v. United States Dep't of Justice, 612 F.2d 417, 421 (9th Cir. 1979).
Defendants argue that the plain language of the respective statutes evidence Congress's intent to deny standing to marine mammals attempting to sue under MMPA, NEPA, APA, and ESA. For the reasons stated below, the court agrees and GRANTS Defendants' Motion to Dismiss.
Under the citizens' suit provision of the Endangered Species Act ("ESA"), "any person may commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof ...." 16 U.S.C. § 1540(g) (2002) (emphasis added). ESA defines "person" as "an individual, corporation, partnership, trust, association, or any other private entity ...." 16 U.S.C. § 1532(13) (2002). ESA separately defines "fish and wildlife" as meaning, "any member of the animal kingdom, including without limitation any mammal, fish, bird ... amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof." 16 U.S.C. § 1532(8) (2002).
In Hawaiian Crow ('Alala) v. Lujan, 906 F. Supp. 549, 552 (D. Haw. 1991), this court examined whether a bird has standing to sue under ESA. This court considered the plain language of ESA and concluded that it does not authorize a bird to sue because a bird is clearly not a "person" as defined in 16 U.S.C. § 1532(13). Id. See also Coho Salmon v. Pacific Lumber Co., 30 F. Supp. 2d 1231, 1239 n. 2 (N.D. Cal. 1988) (observing that, "without delving into the vagaries of the term 'entity,' the court notes that, to swim its way into federal court in this action, the coho salmon would have to battle a strong current and leap barriers greater than a waterfall or the occasional fallen tree"). For these same reasons, the court finds that the plain language of 16 U.S.C. § 1540(g) does not authorize a whale, dolphin, or porpoise to sue under ESA. The statutory language of ESA plainly evidences Congress's intent that those animals are not "persons" as defined under 16 U.S.C. § 1532(13) and therefore do not have standing to sue pursuant to 16 U.S.C. § 1540(g).
The court acknowledges two cases in which courts conferred ESA standing upon an animal plaintiff. See Marbled Murrelet v. Pacific Lumber Co., 880 F. Supp. 1343 (N.D. Cal. 1995); Loggerhead Turtle v. County Council of Volusia County, Florida, 896 F. Supp. 1170 (M.D. Fla. 1995). However, both cases relied upon Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 1107 (9th Cir. 1988), in which the Ninth Circuit stated, "As an endangered species under the Endangered Species Act, ... the bird (Loxioides bailleui), a member of the Hawaiian honeycreeper family, also has legal status and wings its way into federal court as a plaintiff in its own right." As other courts have recognized, however, this statement is dicta and does not constitute precedent binding upon this court. See Hawksbill Sea Turtle v. Federal Emergency Management Agency, 37 V.I. 526, 126 F.3d 461, 466 n. 2 (3d Cir. 1997); Coho Salmon, 30 F. Supp. 2d at 1239 n. 2. Thus, Marbled Murrelet and Loggerhead are not convincing authority. Instead the court re-affirms its 'Alala decision and holds that animals are not "persons" with standing to sue under ESA.
For the reasons stated in this order, the court finds that, under the plain language of ESA, Plaintiff does not have standing to sue under the citizens' suit provision of ESA.
Id. (emphasis added). Thus, only "persons" may bring an action under NEPA and MMPA, via APA. For purposes of APA, "'person' includes an individual, partnership, corporation, association, or public or private organization other than an agency." 5 U.S.C. § 551(2) (2003).
In Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F. Supp. 45 (D. Mass. 1993), the court examined whether it could entertain an MMPA suit brought by a dolphin. The court relied upon this court's ruling in 'Alala, and held that "MMPA expressly authorizes suits brought by persons, not animals." Id. at 49. The court explained, "If Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly." Id. Accordingly, the court refused to "impute to Congress or the President the intention to provide standing to a marine mammal without a clear statement in the statute." Id. The court noted that, "as in 'Alala, citizen groups, if they satisfy the standing requirements, could seek to obtain the relief the amended complaint requests for [the dolphin]." Id. The court therefore granted the defendant's motion to remove the dolphin's name from the caption. Id. at 50.
The court finds Citizens to End Animal Suffering persuasive. The plain language of APA limits standing to "persons," and the court finds that Congress did not intend to extend APA to confer standing upon animals. The APA provides an explicit definition for "person," and the court therefore refuses to impute to Congress or the President the intention to provide standing to whales, dolphins, or porpoises. Thus, like this court's analysis with respect to the ESA, Plaintiff does not have standing under APA, MMPA, or NEPA.
(c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Central Delta Water Agency v. United States, 306 F.3d 938, 951 (9th Cir. 2002). Here, the court concludes that Plaintiff's individual members, which consists of non-humans, do not have standing to sue in their own right. Accordingly, Plaintiff is unable to satisfy the first prong of the test for associational standing, and is therefore unable to sue on behalf of its members.
Plaintiff argues, "Should the court not find that Plaintiffs to have standing based on a statute, the inquiry is then whether Plaintiffs meet traditional Article III tests for standing." Opposition at 20. Plaintiff fails to recognize, however, that it must meet both Article III and statutory standing requirements in order to pursue its case. See Warth v. Seldin, 422 U.S. 490, 498, 518, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); Public Citizen v. Dep't of Transp., 316 F.3d 1002, 1019 (9th Cir. 2003) ("In addition to constitutional standing, a petitioner who brings a statutory enforcement action under the [APA] must meet its statutory requirements for standing").
Plaintiff seeks relief based upon ESA, NEPA, MMPA, and APA. As explained in detail above, Plaintiff is unable to meet these statutes' standing requirements since Plaintiff is not a "person." Thus, even if Plaintiff were able to meet its constitutional standing requirements, Plaintiff may not pursue its claim. Accordingly, the court need not determine whether Plaintiff is able to demonstrate Article III standing, and therefore DISMISSES Plaintiff's Complaint.
In addition to standing, Defendants argue that Plaintiff's claims regarding the use of SURTASS LFAS should be dismissed because they are unripe. Motion at 21-24. "The basic purpose of the ripeness doctrine 'is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Assoc. of Am. Medical Colleges v. United States, 217 F.3d 770, 779 (9th Cir. 2000). In determining whether a case is ripe for adjudication, courts assess "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 779-80.
First, the action must mark the "consummation" of the agency's decisionmaking process--it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.
Bennett v. Spear, 520 U.S. 154, 177-78, 137 L. Ed. 2d 281, 117 S. Ct. 1154 (1997) (internal quotations omitted).
Plaintiff recognizes that it must invoke the judicial review provisions of APA in order to challenge agency action. See Complaint at pp. 22, 24, 26; 5 U.S.C. § 702. Plaintiff alleges that Defendants violated NEPA, MMPA, and ESA because they failed to prepare an EIS, seek LOAs, and seek formal consultation. Id. Defendants argue, however, that Plaintiff's claims are not ripe for review under APA since "the Navy has not proposed to use the SURTASS LFA sonar system 'in armed conflict or direct combat support operations, nor during periods of heightened threat conditions, as determined by the National Command Authorities .... '" n2 Motion at 11; See Declaration of Joseph Johnson, attached to Notice of Filing Exhibit 1 to Defendants' Reply in Support of Motion to Dismiss, filed Mar. 3, 2003 ("Johnson Declaration"). Since the Navy has not even proposed to use SURTASS LFAS during threat and warfare conditions, the court finds that no final agency action under any statutory provision occurred. Thus, Plaintiff's claims are not fit for judicial review.
FN2 Plaintiff's argument that Defendants violated NEPA would be more viable if the Government proposed to use the system during threat and warfare conditions.
Under the second prong in evaluating ripeness, courts consider "the hardship to the parties of withholding court consideration." Assoc. of Am. Medical Colleges, 217 F.3d at 780. Under the hardship prong, the Ninth Circuit recognizes that "a pre-enforcement challenge to a regulation may be ripe where the impact of the regulation is 'sufficiently direct and immediate.'" Assoc. of Am. Medical Colleges, 217 F.3d at 783 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977)). "Courts typically read the Abbott Laboratories rule to apply where regulations require changes in present conduct on threat of future sanctions." Id.
Here, the court finds that the second prong of the ripeness consideration does not provide Plaintiff with a justiciable claim. Here, no agency has promulgated regulations dealing with Defendants' use of SURTASS LFAS during threat and warfare conditions. Accordingly, no regulations require Plaintiff to change its present conduct on threat of future sanctions, and thus, Plaintiff may not benefit from the hardship prong.
The court finds that Plaintiff's claims regarding SURTASS LFAS is unripe at this juncture. First, there has been no final agency action for Plaintiff to challenge since Defendants have not even proposed the use of SURTASS LFAS in threat and warfare situations. Second, Plaintiff suffered no hardship from an agency regulation, since no agency has promulgated regulations dealing with Defendants' use of SURTASS LFAS during threat and warfare conditions. Moreover, Plaintiff's argument that its case is ripe because Defendants will likely avoid "compliance with the three statutes until an emergency situation arises that precludes judicial review of the failure to comply" is pure speculation, especially in light of Defendants' declaration that they do not plan to use SURTASS LFAS in "armed conflict or direct combat support operations" or "during periods of heightened threat conditions, as determined by the National Command Authorities." See Johnson Declaration.
Thus, in an effort to avoid premature adjudication and entanglement in abstract disagreements over administrative policies, and in an effort to protect federal agencies from judicial interference until the agencies issue formal decisions and until the challenging parties feel the effects of those decisions, the court finds that Plaintiff's claims regarding the use of SURTASS LFAS are not ripe for adjudication at this time. See Assoc. of Am. Medical Colleges, 217 F.3d at 779.
In its Complaint, Plaintiff alleged that Defendants violated NEPA, MMPA, and ESA because they refused to follow proper procedures with respect to both the use of SURTAS LFAS systems specifically, as well as "other forms of LFAS." Defendants, in their Motion, do not address the ripeness of Plaintiff's claims regarding "other forms of LFAS." The court, therefore, will not rule on the ripeness of Plaintiff's claims regarding Defendants' use of other LFAS systems.
Defendants argue that, with regards to Plaintiff's MMPA and NEPA claims, "Plaintiffs' claims against President Bush should be dismissed under Fed. R. Civ. P 12(b)(6) for failure to state a claim for which relief can be granted by the Court." Motion at 25.
Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion.
Franklin v. Massachusetts, 505 U.S. 788, 800-01, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992).
Here, Plaintiff brings its MMPA and NEPA claims pursuant to APA, and names President Bush as a defendant "in his capacity as a member of the National Command Authorities because the National Command Authorities will determine when a threat or warfare condition exists." Complaint at P 64. However, since the President is not an "agency" within the meaning of APA, Plaintiff cannot obtain judicial review under APA of its claims that the President violated, or will violate, MMPA or NEPA.
ESA provides, "No action may be commenced [under its civil suit provision]-(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation ...." 16 U.S.C. § 1540(g)(2)(A) (2002). The sixty-day notice requirement is jurisdictional, and "failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA." Southwest Ctr. for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998). The notice provision puts agencies on notice of a perceived violation, and provides them an opportunity to take corrective measures without litigation if warranted. Id.
Plaintiff concedes that it did not file a notice, as required by ESA. Opposition at 33. Instead, Plaintiff requests the court "to make an exception to the strict compliance rule to permit Plaintiffs to file a notice while holding litigation of Plaintiffs' ESA claim in abeyance until the expiration of the sixty days." Id. Plaintiff's request, however, would contradict the purpose of ESA's notice provision, which "is to give the federal government and any alleged violators an opportunity to comply, and thus render a citizen suit unnecessary." Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir. 1996). Thus, the court finds that Plaintiff is jurisdictionally barred from pursuing its ESA claims because it failed to comply with ESA's sixty-day notice provision.
Defendants argue that all of Plaintiff's claims should be dismissed because venue is improper, even if the court finds that Plaintiff has standing to pursue this claim and that Plaintiff's claims are ripe. Motion at 28. The court, however, finds it unnecessary to examine Defendants' argument since the court finds that Plaintiff does not have standing to pursue its claim.
For the reasons stated above, the court GRANTS Defendants' Motion to Dismiss and therefore DISMISSES Plaintiff's Complaint in its entirety.


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New Jersey Dep't of Envtl. Protection v. Exxon Mobil Corp.
W.R. Grace & Co. v. Weja, Inc.
New Jersey v. Gloucester Envtl. Management Servs., Inc.
New Jersey Turnpike Auth. v. PPG Indus., Inc.
White Consol. Indus., Inc. v. Westinghouse Elec. Corp.
Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co.
Present BECKER, STAPLETON, MANSMANN, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN, Circuit Judges.

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Rosen, Marvin. Welcome to Juniors. Remembering Brooklyn with Recipes and Memories from Its Favorite Restaurant. Photo available. New York. William Morrow. 1999. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Rosenbaum, Eli. Betrayal. The Untold Story of the Kurt Waldheim Investigation and Cover-Up. New York. St. Martin's Press. 1993. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Rosenberg, Barnard. The Real Tinsel. An Insider's History of Hollywood... London. Macmillan. 1970. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Rosenberg, David. Chosen Days. Celebrating Jewish Festivals in Poetry and Art. Garden City. Doubleday and Co. 1980. 212 pps. Octavo. Hardcover. First edition. Illustrated by Leonard Baskin. Fine copy in near fine dust jacket (in mylar).
Rosenberg, Stuart E. Great Religions of the Holy Land. An Historical Guide to Sacred Places and Sites. South Brunswick. A.S. Barnes Publishing. 1971. 191 pps. 4to. Hardcover. First edition. Illustrated. Very good copy in very good dust jacket (in mylar).
Rosenblatt, Stanley. Murder of Mercy. Euthanasia on Trial. Buffalo. Prometheus. 1992. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Rosenblum, Mort. A Goose in Toulouse and Other Culinary Adventures in France. Photo available. New York. Hyperion. 2000. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Rosenthal, Jakob. With Flowers from Israel. An Intimate History of Zionism. New York. Philosophical Library. 1978. 307 pps. Octavo. Hardcover. First edition. Fine copy in near fine dust jacket (in mylar).
Rosing, Jens. Things and Wonders - The Norsemen in Greenland and America. Photo available. Humleback. GAVIA 2000. Octavo. Hardcover. First edition thus. Illustrated. Important reference work. Fine copy.
Roskies, Diane K. The Shtetl Book. An Introduction to East European Jewish Life and Lore. Photo available. np. Ktav Publishing. 1979. 327 pps. Octavo. Soft cover. Second, revised edition. Illustrated. Important reference work. Near fine copy (very light shelf wear).
Ross, Anne. The Life and Death of a Druid Prince. How the Discovery of Lindow Man Revealed the Secrets of a Lost Civilization. New York. Summit. 1989. Octavo. Soft cover. First edition. Illustrated. Fine copy.
Ross, Charles. Richard III. English Monarchs. Berkeley. University of California Press. 1981. Octavo. Hard cover. First edition. Illustrated. Fine copy (owner blind stamp on end paper).
Ross, Charles. Richard III. English Monarchs. Berkeley. University of California Press. 1981. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Ross, Diana. Secrets of a Sparrow. Memoirs. New York. Villard. 1993. 299 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine dust jacket (in mylar).
Ross, John Simpson II. A Pioneer Lumberman's Story. Autobiography of John Simpson Ross II. Ukiah. Mendocino County Historical Society. 1972. 42 pps. 4to. Soft cover. First edition. Illustrated. Ex-libris. Usual marks, otherwise very good copy.
Ross, Joseph B. Tabular Analysis of the Records of the U.S. Colored Troops and Their Predecessor Units in the National Archives of the United States. Special List No. 33. Washington. National Archives. 1985. 27 pps. Octavo. Soft cover. First edition. Fine copy.
Ross, Nicholas. The Policeman's Bible or The Art of Taking a Bribe. Photo available. Chicago. Henry Regnery Company. 1976. 187 pps. Octavo. Hardcover. First edition. Fine copy (book review taped to end paper).
Ross, Richard. Imperial Glass. Imperial Jewels, Free Hand and Pressed Glass. With Price List. Des Moines. WH. 1971. Octavo. Spiral bound. First edition. Illustrated in color and black & white. With price list. Near fine copy (two spiral rings broken).
Rossiter, Evelyn. The Book of the Dead. Papyri of Ani, Hunefer, Anhai. Geneve. Productions Liber. 1979. Octavo. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Rosten, Leo (ed). Religions in America. New York. Simon & Schuster. 1963. 414 pps. Octavo. Soft cover. Reprint. Fine copy.
Rotenberg, Mordechai. Dialogue with Deviance: The Hasidic Ethic and the Theory of Social Contraction. Philadelphia. ISHI. 1983. 214 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Roth, Cecil. Gleanings. Essays in Jewish History, Letters and Art. New York. Hermon Press. 1967. 319 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine dust jacket (in mylar).
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JUSTICE E. AINOOSON vs. DEPARTMENT OF CORRECTION.
Justice E. Ainooson appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.
In 2013, Ainooson commenced an action in the Superior Court against a number of individual defendants. After receiving additional time to effect service, Ainooson filed a motion to waive service or to deem the defendants served. That motion was allowed. However, the judge vacated her allowance of the motion after the defendants filed a motion for reconsideration. A different Superior Court judge subsequently ordered Ainooson to make service by regular mail at his own expense, with no further extensions to be allowed. Ainooson's G. L. c. 211, § 3, petition challenged these rulings. After Ainooson filed his petition, but before the single justice ruled on it, a judgment entered in the Superior Court dismissing the complaint. Ainooson timely filed a notice of appeal in the Superior Court.
Ainooson's petition sought relief from one or more interlocutory rulings of the trial court. When he filed his petition, his case in the Superior Court was still pending. As noted above, however, the case thereafter went to final judgment. Passing the question whether Ainooson was obligated in these circumstances to file a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), it is clear on the record before us that he had adequate alternative remedies, namely, a petition to a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., at the time of the Superior Court rulings, see Greco v. Plymouth Sav. Bank, 423 Mass. 1019 , 1019-1020 (1996), and a direct appeal to the Appeals Court from the final judgment of the Superior Court. Indeed, the record indicates that he is pursuing one of those remedies. [Note 1] Accordingly, the single justice neither erred nor abused his discretion by denying extraordinary relief. "Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course." E.g., Fennick v. Kittredge, 460 Mass. 1012 (2011), quoting Votta v. Police Dep't of Billerica, 444 Mass. 1001 , 1001 (2005).
Justice E. Ainooson, pro se.
[Note 1] The Superior Court docket indicates that a notice of appeal was filed in November, 2014, about two weeks after the complaint was dismissed. However, it does not appear that the appeal has entered in the Appeals Court or that the record has been assembled, and there is no explanation for this in the record. Assuming Ainooson has fulfilled his obligations as an appellant, we expect that the record will be assembled forthwith and that the appeal will proceed in the ordinary course.


DERRICK CUNNINGHAM, D.T. MARSHALL, WANDA J. ROBINSON, BARBARA PALMER, KEVIN J. MURPHY, MELVIN TURNER, QCHC, INC., JOHNNY BATES, DONALD KERN, JERRY GURLEY, DR. WHITE, DIONNE BAKER, SHARON SMITH, TERESA VARDEN, DAFFANY ABBINGTON, TIFFANY CLARK, DEBORAH MUSE, KIM PATTERSON, and MICHELLE BEASLEY, Defendants.
These are a few of the well-pleaded factual allegations contained in Mr. Hutchinson's Amended Complaint, in which he brings claims under 42 U.S.C. § 1983 against the jail staff responsible for his placement, the company- QCHC, Inc.-that contracted with the County to provide medical services to inmates, and the individual QCHC nurses and physicians responsible for medical treatment at the jail. All defendants move to dismiss. Before the court is the Magistrate Judge's Report and Recommendation (Doc. # 116), to which Mr. Hutchinson has timely filed objections (Doc. # 117). Upon an independent review of the record and a de novo determination of those issues to which Mr. Hutchinson objects, the court finds that the Magistrate Judge's Recommendation is due to be adopted.
The court reviews objections to the Magistrate Judge's Report and Recommendation de novo, and it “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint against the legal standard set forth in Rule 8: “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2). In ruling on a motion to dismiss, courts “must accept the well pleaded facts as true and resolve them in the light most favorable to the plaintiff.” Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1089 (11th Cir. 2005) (citation omitted). To survive Rule 12(b)(6) scrutiny, however, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). If there are “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim, there are “plausible” grounds for recovery, and a motion to dismiss should be denied. Twombly, 550 U.S. at 556.
The Magistrate Judge provided a thorough recitation of the factual and procedural history of this case, which Mr. Hutchinson does not dispute and which the court need not repeat. (See Doc. # 116, at 4-11.) Mr. Hutchinson objects to two of the Magistrate Judge's recommendations: first, that his § 1983 claim for deliberate indifference to serious medical needs against QCHC be dismissed with prejudice; and second, that his § 1983 deliberate indifference claims against the Sheriff Defendants be dismissed with prejudice. Each objection will be considered in turn.
The Supreme Court has explained that the “final policymaker” theory of municipal liability attaches “only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (emphasis added). In other words, the theory provides a plausible claim for relief “where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Id. at 483.


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The provisions of the Civil Procedure Code are not applicable to Industrial Disputes Act. It does not mean that the principle of res judicata will not be applicable to cases involving industrial dispute. On the principle of res judicata, the Apex Court in the case of Bharat Barrel and Drum Manufcaturing Company Pvt. Ltd. v. Bharat Barrel Employees Union, (1987) 2 SCC 591 has held that a question which is once decided can never be re-agitated and the exceptions are classes of cases like disputes regarding wage structure, service conditions etc. which arise as circumstances change and new situations arise which may not be barred by the rule of res judicata. The principle object of the Labour Legislation is to bring a quietus to the dispute. The question as to whether a person was or was not an employee of the Management on the particular date is one which cannot be re-agitated in a subsequent case, if it has already been decided by the Industrial Tribunal of competent jurisdiction in an earlier case. Rajiv Gandhi ONGC (CON) Workers Welfare Association v. Government of India, 2016 (150) FLR 499.
The law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delionquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”. Acquittal by the Trial Court, therefore, does not ipso facto, absolve the employee from the liability under the disciplinary jurisdiction. Om Prakash Singh v. State Bank of India, 2016 (150) FLR 939.
“The expressions ‘mother’ and ‘stepmother’ have not been defined either in the Criminal Procedure Code or in the General Clauses Act, 1897. These expressions have also not been defined by the Hindu Law or the Hindu Adoptions and Maintenance Act, 1956 or by any other law. All that the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 provides is that the expression ‘parent’ includes a childless stepmother. On a conspectus view of dictionary meaning of the two expressions – ‘mother’ and ‘stepmother’ in various dictionaries, it clearly emerges that there is inherent distinction between the status of a ‘mother’ and ‘stepmother’ and they are two distinct and separate entities and both could not be assigned the same meaning. The expression ‘mother’ clearly means only the natural mother who has given birth to the child and not the one who is the wife of one’s father by another marriage.
A stepmother is one who is taken as a wife by the father of the child other than the one from whom he is born or who has given birth to him. This clearly goes to show that the woman who gives birth to a child and another woman who is taken by the father as his ‘other’ wife are two distinct and separate entities in the eyes of law and who in common parlance are known and recognized as real ‘mother’ and ‘stepmother’. That being so, another woman who is taken as a wife by the father of the child cannot be given the status of a mother to the child born from another woman as there is no blood relation between the two”. Ajay Singh Maurya v. State of Uttarakhand, 2016 (150) FLR 920.
Law of Prescription provides the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription by which a right is acquired, is called an “acquisitive prescription”. A prescription by which a right is extinguished is called “extinctive prescription”. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies that the thing prescribed for is the property is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time. M.P. Daga v. PICUP, 2016 (118) ALR 548.
Such person or persons constituting arbitration are obliged to hear both the parties and decide the dispute in a judicial manner.
Clause (h) of Section 2(1) of the Arbitration and Conciliation Act, 1996 defines the expression “party” to mean ‘a party to an arbitration agreement.’ This clause is also a new one and did not exist in the old Act of 1940. This expression is also not mentioned in UNCITRAL Model Law and is not available under the English Arbitration Act, 1996. The definition makes it clear that a party, which is not a party to an arbitration agreement, is not covered within the definition of term “Party” for the purpose of Arbitration and Conciliation Act, 1996. The definition of ‘party’ will also include the legal representatives of such party. A person who is not a party to an arbitration agreement cannot pray for the enforcement of the agreement or the appointment of an arbitrator. The term ‘party’ in this clause has narrowed down the scope of the word ‘party’ as commonly understood. It has made clear that non-parties to the contract have no right under the Act for seeking Arbitration and consequently an Award. Bharat Catering Corporation v. Indian Railway Catering and Tourism Corporation Ltd., 2016 (118) ALR 666.
Domicile or residence more or less carry the same meaning, in as much as both refer to the permanent home of the person concerned. Domicile is at the international level and the residence is somewhat at a local level. A person is the domicile in the country in which he is considered to have his permanent home. No one can be without a domicile and no one can have two domiciles. The same principle applies at a lower level to the place of residence of a person. Domiciles are broadly domicile of origin and domicile of choice. Domicile of origin prevails until a person acquires domicile of another place. Domicile means a place of permanent home, a place which a person fixes as his habitation for himself and his family with the intention to live there permanently. The place where a person has his home in its ordinary acceptation or a place where he lives is regarded as his place of domicile. Hare Krishna Singh v. State of U.P., 2016 (117) ALR 741.

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§ 105-99 Smoke, dust and other atmospheric pollutants.
§ 105-101 Toxic or noxious matter.
§ 105-104 Fire and explosion hazards.
§ 105-105 Humidity, heat and light.
§ 105-108 Evidence of conformance.
§ 105-110 Minimum plot area.
§ 105-113 Front, side and rear yards.
§ 105-114 Height limitations; cellar area.
§ 105-115 Exemptions from height regulations.
§ 105-117 Landscaping, screening and fencing.
§ 105-118 Streets and drainage.
§ 105-120 Disposition of effluent.
§ 105-127 Certificates of occupancy.
The most appropriate predominant use of land throughout the Village consists of low-density one-family residential development, carefully regulated as to quality.
Limited to a type which may complement the nonresidential uses within or in the vicinity of the Village.
All such nonresidential uses shall be limited in location, size and character to the extent that they will satisfactorily perform their respective functions, as aforesaid, in a manner which will not detract from the predominantly low-density one-family residential character of the Village or hinder further development of like nature and quality.
The ED-A District is intended to provide a means for the establishment of the types of uses outlined in Subsection A(2) and (3) above in a manner in keeping with modern practice as to group design of the buildings in which such uses are conducted, provision of adequate off-street automobile parking space and safe and convenient traffic access and pedestrian circulation, and in harmony with the character of the neighborhood in which such uses are located.
The ED-A District shall be that area within the Village of Lake Success lying south and east of the lands owned by the State of New York, now used for the purpose of the Northern State Parkway and its access road and landscaping, and east of Lakeville Road.
Only such nonresidential uses as are approved by the Village of Lake Success Board of Trustees, upon recommendation of the Planning Board, as being in compliance with the development policy of the Village as hereinabove stated shall be permitted, upon condition, that they shall comply in all respects with the performance standards as hereinafter set forth.
No use shall be established, expanded, maintained or conducted in the ED-A District unless the same shall comply with all of the performance standards set forth in this section.
To reduce to a minimum dissemination of smoke, gas, dust, odor or any other atmospheric pollutant outside the building in which the use is conducted.
To control noise perceptible beyond the boundaries of the immediate site of the use.
To prevent the discharge of any waste material whatever into any watercourse.
To prevent the dissemination of vibration or heat or electromagnetic interference beyond the immediate site of the use.
To eliminate physical hazard by reason of fire, explosion, radiation or any similar cause to property in the same or an adjacent district.
To regulate and control the flow of vehicular traffic on any street, road or highway within the Village so as to prevent overcrowding of streets during established traffic peak periods and to maintain a reasonable and steady flow of traffic in the vicinity of the ED-A District.
To regulate and control intensity and source of exterior lighting so as to minimize the possibility of disturbance to adjacent areas.
To preserve the appearance and utility of the adjacent landscaped Northern State Parkway.
Retailing of merchandise and services.
Commercial radio and television transmitting stations.
Theaters, open air or enclosed.
Restaurants serving the general public.
The enumeration of prohibited uses shall not be deemed, in any manner, to imply that any use not included among prohibited uses may be permitted as a matter of right, it being the intention that no use shall be permitted in the ED-A District unless it is approved by the Village of Lake Success Board of Trustees, upon recommendation of the Planning Board, and unless the same shall not only comply with the performance standards but shall be in accord with the development policy of the Village.
A unit of measurement of intensity of sound (the sound-pressure level).
An instrument, standardized by the American Standards Association, used in conjunction with a sound-level meter to take measurements in specific octave bands.
An instrument, standardized by the American Standards Association, used for measurement of the intensity of sound and calibrated in decibels.
Method of measurement. For the purpose of measuring the intensity and frequencies of sound, sound-level meters and octave-band filters shall be employed. Sounds of short duration which cannot be measured accurately with the sound-level meter shall be measured with the impact noise filter as manufactured by the General Radio Company, or its equivalent, in order to determine the peak value of the impact.
In the ED-A District, the decibels resulting from any activity, whether open or enclosed, shall not exceed at any point on or beyond any lot line the maximum decibel levels for the designated octave band as set forth in the table above, and where the ED-A District lies within 200 feet of a district permitting residences, whether within or without the Village, the maximum permitted decibel levels at any point on or beyond the district boundary shall be reduced by six decibels from the maximum permitted level in the table.
The number of oscillations per second of a vibration.
Earthborne oscillations occurring in discrete pulses at or less than 100 per minute.
Continuous earth-borne oscillations. Discrete pulses that occur more than 100 times per minute shall be considered to be "steady-state vibrations."
A device for recording the intensity of any vibration in three mutually perpendicular directions.
Method of measurement. For the purpose of measuring vibration, a three-component measuring system approved by the administrative official shall be employed.
Maximum permitted steady-state and impact vibration displacement.
In the ED-A District, no activity shall cause or create a steady-state or impact vibration on a lot line with a vibration displacement by frequency bands in excess of that indicated in the table above.
Solid particulate matter capable of being air- or gasborne.
Any finely divided liquid or solid matter, including smoke, capable of being air- or gasborne.
A chart for determining the density of smoke and described in Federal Bureau of Mines Information Circular 7718.
Any visible emission into the open air from any source, except emissions of an uncontaminated water vapor.
A measure of the quantity of smoke being discharged and is the number obtained by multiplying the smoke density in a Ringelmann Smoke Chart number by the time of emission in minutes. For example, the emission of Ringelmann Smoke Chart No. 1 for one minute equals one smoke unit.
Method of measurement of smoke. For the purpose of grading the density of the smoke, the Ringelmann Smoke Chart shall be used for the purpose of determining the total smoke units omitted, a reading shall be taken every minute for an hour or, if less than an hour, until the total smoke units emitted exceed the number allowed by this chapter. Each reading shall be multiplied by the number of minutes during which it was observed and the product added.
Maximum permitted emission of smoke. In the ED-A District there shall be no measurable emission of smoke, gas or other atmospheric pollutant. The emission of one smoke unit per hour and smoke with discernible density of No. 1 on the Ringelmann Smoke Chart shall be prohibited.
Maximum permitted emission of dust.
Related to combustion for indirect heating. In the ED-A District, the emission of dust related to combustion for indirect heating from any source shall not exceed 0.30 pounds of dust per 1,000 pounds of flue gas adjusted to 50% excess air for combustion.
Related to processes other than combustion for indirect heating. In the ED-A District, there shall be no measurable emission of dust or other particulate matter not related to combustion for indirect heating.
Prevention of wind-blown air pollution. All storage areas, yards, service roads or untreated open areas within the boundaries of a plot in the ED-A District shall be improved and maintained with appropriate landscaping, screening, paving, oiling or sprinkling or treated by other means, so that there shall be no dust or other types of air pollution.
General control over smoke and other particulate matter. In addition to the performance standards of regulating smoke and other particulate matter, the emission of such matter shall be so controlled in manner and quantity of emission as not to be detrimental to or endanger the public health, safety, comfort or other aspects of the general welfare or cause damage or injury to property.
In the ED-A District, no odor shall be permitted outside the building in which the use is conducted.
Any solid, liquid or gaseous matter, including but not limited to gases, vapors, dusts, fumes and mists containing properties which, by chemical means, are inherently harmful and likely to destroy life or impair health or likely to cause injury to the well-being of persons or damage to property.
No use shall be permitted in the ED-A District which will cause any dissemination whatever of toxic or noxious matter.
In addition to the performance standards set forth in this chapter for regulating and controlling the emission into the open air of smoke, dust, odorous, toxic and noxious matter, no vent (herein defined as an opening in an enclosed structure or other enclosed system for discharging substances to the open air) shall be so located nor matter emitted of such characteristics or in such quantities as to be detrimental or dangerous to the public health, safety, comfort or other aspects of the general welfare or to cause damage or injury to property. No open fire, the combustion air for which is uncontrolled in quantity and direction, and no incineration or burning of waste solids shall be permitted within the ED-A District.
No operation, whether or not licensed by the Atomic Energy Commission, shall be conducted in the ED-A District which exceeds the standards established in Title 10, Chapter 1, Part 20, of the Code of Federal Regulations, Standards for Protection Against Radiation, as amended through July 30, 1958, or as it may thereafter be amended, or which violates any regulations of any other administrative body charged with the responsibility of controlling radiation.
No storage, utilization or manufacture of solid materials or products which burn actively and support combustion easily or which have a low ignition temperature, a high rate of burning or create great heat, and no materials producing flammable or explosive gases or vapors under ordinary temperature conditions, shall be permitted in the ED-A District.
No activity producing humidity in the form of steam or moist air or producing heat shall be conducted in the ED-A District in such a manner that the steam, humidity or heat is perceptible at any lot line of the lot upon which such activity is conducted.
All exterior lighting or other illumination shall be of such design, so shaded and so located that the light sources may not be seen beyond the boundaries of the plot on which located. In approving site development plans, the Planning Board may limit the hours and intensity of lighting so as to minimize the possibility of disturbance to nearby residential areas.
In the ED-A District, no use, activity or process shall be conducted which produces perceptible electromagnetic interference with normal radio or television reception in any area within or without the Village.
No use or activity shall be permitted in the ED-A District which, in the opinion of the Planning Board or the Board of Trustees, shall create undesirable vehicular traffic congestion or prevent the normal flow of traffic on any street or highway within or in the vicinity of the ED-A District, nor shall any use or activity be permitted in the ED-A District which shall materially increase the volume of vehicular traffic on arterial highways within the Village during currently established peak traffic periods.
With respect to any application for a building or use permit or a certificate of occupancy for any use in the ED-A District, the Planning Board or the Building Inspector may require the applicant, at its own expense, to provide the Planning Board with such evidence as they or he may deem necessary to determine whether or not the proposed use will conform to the development policy of the Village and the performance standards set forth above, and in connection therewith, the Planning Board or the Building Inspector may obtain expert advice at the expense of the applicant, and payment in advance of the amount of such expense shall be a condition of further consideration of the application. Where appropriate, the Planning Board may require the installation, maintenance and operation, by the applicant at the applicant's expense, of continuous recording instruments to demonstrate the operation or effect of operations of any machines or devices used to control or lessen noise, vibration, glare, air pollution, water pollution, fire hazards or safety hazards.
Administrative official. The Building Inspector shall administer and enforce this Article. He may be provided with the assistance of such other persons as the Board of Trustees or the Planning Board may direct.
Planning Board approval. No building shall be erected, altered or used, and no lot or premises shall be used unless the Planning Board shall have approved the proposed use, the building plans and site plan as complying with the development policy of the Village and the performance standards hereinabove set forth.
Time limitation. The proposed use, the building plans and site plan, or amendment thereof, shall be approved or disapproved by the Planning Board within 60 days after the completion of the filing thereof, or the filing of an amendment thereof, and the filing of all evidence requested by the Planning Board by delivering the same to the Village Clerk.
Disapproval. Disapproval of the proposed use, the building plans or site plan shall be by written notice mailed by the Village Clerk to the applicant, which notice shall state the reason or reasons for such disapproval. The Building Inspector shall receive copies of such notice of disapproval.
Approval. Approval of submitted proposed use, building plans and site plan by the Planning Board shall be based on conformity of said use and plans to the provisions of this Article, and such approval shall be by resolution of the Planning Board, copies of which shall be mailed by the Village Clerk to the applicant and to the Building Inspector. At the same time, the Planning Board shall deliver to the Building Inspector duplicate copies of all related building plans and site plan as approved.
No waiver. No approval by the Planning Board of any proposed use, any building plans or site plan shall constitute a waiver of any other pertinent codes, regulations, requirements or ordinances of the Incorporated Village of Lake Success or any other properly constituted jurisdictional authority.
Building permit. No building permit shall be issued by the Building Inspector for any construction or installation within the scope of this Article unless there shall have been filed with the Building Inspector, along with the application for building permit, a certified copy of the Planning Board resolution approving the proposed use, the building plans and site plan.
Discretion in Planning Board. In studying the proposed use, the building plans and site plan, the Planning Board and the Building Inspector shall consider all factors they deem pertinent with specific relationship to the development policy of the Village and the performance standards hereinabove set forth in § 105-95. In considering any proposed use, building plans or site plan hereunder, the Planning Board and the Building Inspector shall endeavor to assure safety and convenience of traffic movement, both within the limits of the site and in relation to access streets, harmonious and beneficial relation among the buildings and uses on the site and satisfactory and harmonious relation between the site and contiguous land and buildings and adjacent neighborhoods, all in furtherance of the purpose of this chapter.
It shall be unlawful to use or occupy or permit the use or occupancy in the ED-A District of any building or premises, or part thereof, hereafter created, erected, changed, converted or wholly or partially altered or enlarged in its use or structure until a certificate of occupancy shall have been issued therefor by the Building Inspector stating that the proposed use of the building or land conforms with the requirements of this Article.
Prior written application for a new use permit shall have been made to the Planning Board.
In compliance with the development policy of the Village.
In conformity with the performance standards set forth in §§ 105-95 and 105-97 through 105-107 of this chapter.
In compliance with restrictions and requirements provided in §§ 105-110 through 105-122 of this chapter.
The Building Inspector shall issue a certificate of occupancy therefor stating that the proposed new use of the building conforms to the requirements of this Article.
Expiration of building permit. If the work described in any building permit has not begun within six months from the date of issuance thereof, the permit shall expire and be cancelled by the Building Inspector. If the work described in any building permit has not been substantially completed within one year of the date of issuance thereof, said permit, unless extended by the Building Inspector and the Planning Board, upon application of the property owner, shall expire and be cancelled by the Building Inspector. In either event written notice thereof shall be given by the Building Inspector to the persons affected and to the Planning Board.
Architectural supervision. With respect to any application for a building or use permit for any building or alteration or extension of any building in the ED-A District, said application shall be accompanied by complete building plans, contour maps and drawings or sketches showing architecturally the exterior elevations of the proposed building and showing the proposed landscape or other treatment of the grounds around such building and such other maps, plans and subdivision plot plans as are required by the Village of Lake Success. Such plans, maps, drawings and sketches and plot plans shall be submitted by the Planning Board to its architect and shall be considered by him and the Planning Board in an endeavor to provide that the architectural design and general appearance of such building and grounds be in keeping with the general architectural styles within the Village and such as not to be detrimental to the orderly and harmonious development of the Village and so as not adversely to affect the desirability of neighboring areas for residential purposes. No building or use permit shall be issued until such plans, maps, drawings and sketches and plot plans have been approved by the Planning Board and its architect.
Minimum plot areas shall be five acres. No more than one building may be constructed on each plot. The Planning Board may approve one or more plots having an area of less than five acres but more than three acres each as part of a subdivision plan, the individual plots of which shall average five acres in area; provided, however, that the maximum number of plots in any area shall be determined by dividing the number of acres comprising the area by five. In exercising discretion with respect to approving a plot of less than five acres in area, the Planning Board may give consideration to the nature of the proposed use, the height of the proposed structure and the location of the plot in relation to other proposed uses.
In the case of a group development consisting of more than one building in harmonious relationship to one another, with access and open space appurtenant to the group, as set forth on the subdivision plans and on building and site plans therefor, the land occupied by the group development shall have an aggregate area of not less than 4.7 acres times each building comprised within the group. In such case, all interior roads shall be subject to approval by the Planning Board with respect to width and location and with respect to access to public highways and control of traffic, and such interior roads shall be constructed in accordance with the standard specifications for Village streets.
Providing that the developer or any successor in interest shall be responsible for maintenance and repair of interior roads, removal of snow and ice and sanding of roads when necessary.
Provisions with respect to group development shall be applicable whether or not the plot is subdivided.
Buildings and structures on any plot in the ED-A District shall not cover more than 25% of the area of the plot. The percentage of coverage of a plot area by buildings and loading and unloading areas and the percentage of plot area to be devoted to landscaping, parking, sidewalks and vehicular access roads and the open space area between buildings shall, in each case, be determined by the Planning Board prior to the issuance of any building or use permit, upon due consideration of the nature of the proposed use, the relationship to neighboring uses and the general aesthetic requirements of the Village. In those cases where the Planning Board can make a positive finding that the 25% coverage of land is not sufficient limitation to satisfy aesthetic, parking and landscaping requirements hereinabove set forth, then additional restrictions may be imposed to the extent determined by such positive finding.
For calculation of areas covered by buildings under Subsection A of this section, the plan dimensions of buildings at grade shall include all projections such as exterior vestibules, canopies, fixed awnings and any other above-grade projections.
Front yard. With respect to all plots having front yards abutting on an arterial highway, other than a parkway, the front yard depth shall not be less than 150 feet. Such requirement of a one-hundred-fifty-foot setback may be reduced to 100 feet on Marcus Avenue upon approval of the Village Board of Trustees, upon recommendation of the Planning Board, if no parking for motor vehicles is provided for in the entire setback area directly in front of the entire length of the building fronting on Marcus Avenue and if there is maintained a densely landscaped and screened fifty-foot buffer strip along Marcus Avenue not lying directly in front of the building. The front yard depth on plots abutting other public streets, including a parkway, shall not be less than 100 feet.
Side yard. Each side yard width shall not be less than 50 feet, except that a side yard abutting a parkway or abutting property in a residentially zoned district, either within or outside the Village, shall not be less than 120 feet.
Rear yard. Rear yard depths shall not be less than 50 feet, except that a rear yard abutting a parkway or abutting property in a residentially zoned district, either within or outside the Village, shall not be less than 150 feet.
Method of measurement. All setback dimensions shall be measured from the property line of the plot to the nearest point of the building measured at grade or any projection above grade.
Buffer strip and building lines on arterial highways. As part of the yard requirements provided in Subsections A, B and C above, a fifty-foot-wide buffer strip shall be maintained, extending the entire length of and adjacent to New Hyde Park Road, in the Economic Development A District, which buffer strip, broken only by access roads and streets, shall be densely screened with trees, both deciduous and evergreen, and shall be planted with such additional trees as the Planning Board may deem necessary effectively to mask from view of adjacent residential areas any buildings to be erected in the Economic Development A District, and the owner of such property shall be charged with the responsibility of protecting and maintaining the existing trees and future plantings within such buffer strip. Such buffer strip shall be in lieu of the fifteen-foot screening and landscaping area required in § 105-117 A and B of this Article. In no event, however, shall the building line of any property abutting New Hyde Park Road be less than 150 feet from the nearest point on New Hyde Park Road, nor shall the building line of any property abutting Marcus Avenue be less than 100 feet from the nearest point on Marcus Avenue.
Modifications in group development. In the case of group development, whether or not the plot is subdivided, the Planning Board may, in its discretion, modify internal front, side and rear yard requirements to the extent necessary to accommodate a more advantageous grouping of structures; provided, however, that distances between buildings shall not be less than 50 feet at any points.
The height of a building shall be the vertical distance between any horizontal line through any point on the topmost surface of the building, including all parapets, apparatus and roof structures not specifically excepted, and the average curb level in front of the building or the average finished exterior grade, whichever is lower. The average finished exterior grade shall be deemed to be the average of the lowest finished surface elevations within an area circumscribed by a line parallel to and 15 feet from all exterior walls of the building at grade, except that the elevations of the bottoms of areaways within 10 feet of the face of the building and of driveways providing access to underbuilding parking not exceeding 25 feet in width shall not be counted. Such height shall not exceed 30 feet, and no building in the ED-A District shall contain more than two stories, as defined under Article II of this Building Zone Ordinance.
Any story, any portion of the finished ceiling of which is either below the average curb level in front of the building or below the average finished exterior grade around the perimeter of the building, shall be designated as "cellar area" and may be used for utility purposes only, such as the location of motors, heating equipment, cooling equipment and any and all other mechanical devices necessary for the operation of the buildings or for parking of tenants' automobiles, such cellar area may not be used as an area in which persons may live, sleep, work or congregate, except that the Board of Trustees on the recommendation of the Planning Board may permit cellar areas to be used for limited occupancy purposes, including restaurants not serving the general public, mail rooms and file rooms. All cellar areas used for such limited occupancy purposes shall be sufficiently ventilated and lighted and supplied with sanitary facilities. No cellar area used for limited occupancy purposes shall have an occupancy exceeding three employees per 1,000 square feet of cellar floor area.
Notwithstanding the provisions of § 105-114, chimneys, pipes, access hatches, radio and other electronic antennas, and other equipment, the operation of which is a function of use and occupancy, are excepted from the height limitation, provided that any such equipment is screened as required by the Planning Board, and further provided that the height of same shall not exceed five feet above the overall height limitation, and the setback of any such roof structures shall not be less than 16 feet measured horizontally from the exterior face of any wall of the building.
Nothing contained in this section shall be construed to permit the use of commercial radio and television transmitters prohibited under § 105-96 of this Article or to permit violation of regulations promulgated by the Civil Aeronautics Administration of the United States Government pertaining to the installation of flag poles, radio and other electronic antennas.
No building shall be erected, nor shall any building be structurally altered so as to increase the gross floor area, nor shall any building be converted for a more intensive use in the ED-A District unless there shall be provided not less than one qualified off-street parking space meeting the requirements of Article XXI hereof for each 150 square feet of floor area, or additional fraction thereof, as floor area is defined in § 105-207 hereof.
Under unusual conditions of parking requirements, such additional off-street parking facilities shall be provided as may be required by the Planning Board.
Such parking areas shall not be used for any purpose other than the temporary parking of automobiles and other vehicles. In no event shall any parking of vehicles be permitted in the front yard of any building in this district or on any streets in or adjacent to this district. Parking areas shall not be closer than 14 feet to any rear yard or side yard lot lines, which 14 feet shall be devoted to landscaping and screening as defined in § 105-117 of this Article.
No street in this district shall be used for parking or loading or unloading of vehicles.
Wherever the boundary of the ED-A District directly abuts a parcel of land which is being used for or is zoned for residential purposes or directly abuts an arterial highway or parkway, effective evergreen landscape screening at least 10 feet in height and at least 15 feet in depth shall be provided and maintained throughout the year.
In addition thereto, all interior side and rear property lines shall be delineated by a square trimmed hedge four feet wide and three feet high, placed two feet on each side of the property line, bordered by a grass strip not less than 12 feet in width and bounded by a reinforced concrete curb meeting Village specifications, effectively to divide roads, walks, driveways and parking areas.
All buildings shall be surrounded by a grass strip and by foundation shrubbery, with sidewalks if desired, except at loading and building access areas or entrances.
The front area of all buildings shall be landscaped in accordance with Planning Board requirements.
Along the front line of each plot, deciduous trees at least five inches in diameter at the base of the trunk and spaced approximately 50 feet apart.
Along the side lines of each plot, a line of ornamental flowering trees at least three inches in diameter at the base of the trunk shall be set at twenty-five-foot intervals.
Along all back lines, a line of ten-foot-high evergreen trees shall be set 15 feet apart, alternating with evergreen trees set on back lines of abutting rear properties.
All lawns, hedges, trees and shrubs shall be maintained in healthy, luxuriant condition at all times, winter foliage excepted, according to the highest horticultural standards usual to the nursery trade. In the event that any owner shall fail to maintain the landscaping in a manner satisfactory to the Building Inspector, the Planning Board shall cause such defective maintenance to be corrected at the expense of the owner, which expense shall become a lien on said property.
Dimensions provided for herein shall be determined at time of planting.
Landscaping. The remaining area of the plot not occupied by buildings or loading or unloading areas, parking areas, vehicular access, sidewalks and landscape screening shall be a well-maintained lawn or a landscaped planting design appropriate to the predominantly low-density residential character of the Village.
Fencing. Wherever the boundary of the ED-A District directly abuts a parcel of land which is being used or may be used for residential purposes or the right-of-way of a parkway or arterial highway, a chain link fence at least six feet in height shall be installed; provided, however, that where such boundary is along the front line of a plot, the above mentioned chain link fence shall not be installed. No such fence shall be required on any boundary line on which exists a chain link fence erected and maintained by the Long Island State Park Commission.
All streets within the ED-A District shall be not less than 30 feet in width measured from curb to curb, with a right-of-way not less than 60 feet, and shall be subject to approval by the Planning Board with respect to location and with respect to control of traffic and shall be constructed in accordance with specifications for streets in commercial and industrial areas (Type E pavement) as set forth in Village ordinances and standard specifications. Prior to the issuance of a certificate of occupancy with respect to any building erected on any land abutting such street, the entire street, including the area in front of such building and extending to the intersection with an existing arterial highway, shall be completed by the owner, approved by the Village and conveyed to the Village.
The disposition of stormwater shall be in complete accordance with all pertinent requirements and regulations of the Department of Public Works of the County of Nassau, in the State of New York, and any approval of general building plans and site plan by Planning Board shall be so conditioned. All stormwater drainage structures shall be constructed in the bed of streets or in easements acquired for such purpose.
The owner shall enter into an agreement with the Village in form acceptable to the Village Attorney providing for the construction and dedication of streets and drains in accordance with the Village Planning Board Ordinance, the posting of performance and maintenance bonds and fixing a date acceptable to the Planning Board for the completion of such construction. Such agreement shall also provide that, wherever sanitary sewers are located in the right-of-way of streets, there will be no construction commenced on such streets until said sanitary sewers are completed by the owner and dedicated to and accepted by the County of Nassau.
The disposition of sanitary sewage shall be made through sanitary sewerage facilities and shall be in complete accordance with all pertinent requirements and regulations of the Department of Health of the State of New York and the Department of Public Works of the County of Nassau, and any approval of general building plans and site plan by the Planning Board shall be so conditioned. No certificate of occupancy shall be issued with respect to any building unless the public sanitary sewerage facilities servicing such building shall be completed, approved by the Department of Public Works of the County of Nassau and dedicated to and accepted by the County of Nassau.
The disposition of any and all effluents other than stormwater and sanitary sewage which may arise from use shall be in complete accordance with all pertinent requirements and regulations of both the Interstate Sanitation Commission and the New York State Pollution Control Board; and any approval of the general building plans and site plan by the Planning Board shall be so conditioned.
Buildings and exterior and interior alterations erected or made after the effective date of this chapter shall be constructed in full compliance with the requirements of the Building Construction Code of the State of New York and shall be subject to all requirements imposed by the New York State Building Code Commission and the Fire Marshal of the County of Nassau.
Noncorrosive letters, letters formed or carved in masonry or tile or lettering on vitreous enameled metal not requiring painting or maintenance of brilliance or longevity, or emblems or designs, setting forth the identity, trademark and nature of the business conducted on the premises and no other subject matter. Such sign may be attached to or may be a part of one elevation of the largest building on the site as such elevation may face the public street from which access to the site is obtained. Such letters shall not exceed 24 inches in height.
An identifying sign or signs not over 30 square feet in area may be erected on or near the property line flanking the entrances to the establishment. Such signs may identify the nature of the establishment as well as the identity of the operators thereof. They shall contain no advertising. The top of such sign shall not be more than 14 feet above the ground, and the bottom thereof shall be at least three feet above the ground. No such sign shall, in any event, be located within 100 feet from any residential district either within or outside the Village.
In addition, permits for signs within 500 feet of the border of a parkway shall be obtained from the regional State Park Commission having jurisdiction, as required by law.
Direction signs. Direction signs visible from outside the plot area, such as, but not limited to, "Visitors Parking," "Company Parking," "Shipping Department" and "Receiving Department", may be erected, provided that they are not over two square feet in area. Such signs may contain no legend other than the necessary direction, with an arrow or other directive device. The top of such signs shall not be more than four feet above ground. Signs not over four square feet in area identifying areas for different types of parking, as hereinabove defined, may be erected to facilitate traffic movement.
Lighting restrictions. Any permitted signs hereinabove described may be illuminated in any reasonable manner, provided that no flashing or moving signs shall be permitted, nor shall the source of such illumination be visible from any point outside the plot upon which the sign is located.
Regulations under §§ 105-116 through 105-122, inclusive, shall be deemed standard requirements and are intended to assure provision for open space; to provide adequate off-street parking and loading and unloading requirements; to provide effective screening and landscaping; and to assure development in conformity with Village standards; and may, in the discretion of the Planning Board, be modified to meet practical requirements with respect to any particular proposed use, after determining the nature and the design capacity of the proposed use.
An application for approval of a subdivision plat in the Economic Development A District shall be submitted in compliance with the Village Planning Board Ordinance. Such application will not be approved by the Planning Board until satisfactory evidence has been submitted that the owner has entered into an agreement with the Nassau County Department of Public Works and has posted the required bonds for the construction and dedication of a complete system of sanitary sewers to serve all of the proposed plots in the district.
An application for approval by the Planning Board of contemplated general building plans and site plan, or of contemplated alteration of existing general building plans or site plan, or both, must be in writing by the owner of the plot and must be accompanied by the said general building plans and site plan, or by plans showing contemplated alterations of existing general building plans or site plan, or both, prepared by a registered architect or licensed professional engineer in sufficient detail to establish compliance with all matters pertinent to and covered by this Article.
The said applications and related plat plans or general building plans and/or site plan shall be in triplicate, addressed to the Planning Board and filed in the office of the Village Clerk.
With and upon the filing of an application relating to contemplated new construction on a previously undeveloped plot, there shall be paid to the Village a minimum filing fee of $500 covering the first two acres, plus $100 for each additional acre or fraction thereof. The site plan shall show the total acreage.
With and upon the filing of an application relating to any contemplated alteration of either existing general building plans or existing site plan, or both, there shall be paid to the Village a filing fee based in amount on the estimated cost of the contemplated alterations at the same rates as are defined in the applicable portion of the Village Building Code as building permit fee.
The filing fees defined in this section are related solely to the consideration of applications of whatever nature by the Planning Board and have no effect whatsoever on such building permit fee as must later accompany the application for the building permit.
No additional filing fee shall be involved if and when amended plans are filed, unless and to the extent that the amended plans may represent an increase in building area.
Except as hereinabove modified or qualified, all construction in the ED-A District shall conform to the prevailing Building Code of the Incorporated Village of Lake Success. No construction or alteration within the scope of this Article shall be commenced or executed in any part until and unless the Building Inspector shall have issued a building permit which after issue must be prominently posted on site under cover from weather for the cognizance of qualified inspectors under any pertinent jurisdiction.
Certified copy of the resolution of the Planning Board approving the general building plans and the site plan or, in the case of an alteration, such portions of the general building plans or of the site plan, or both, as may be pertinent to the intended alteration.
Evidence, in a form acceptable to the Building Inspector, of compliance or intended compliance with all applicable laws, ordinances, rules, codes, regulations and stipulations of all Village, county, state, federal and other agencies of competent jurisdiction.
An agreement, in a form acceptable to the Village Attorney, providing for the payment to the Village of such sums as may reasonably be required by the Planning Board to reimburse the Village for the cost of building construction, inspection, plumbing inspection, architectural supervision, technical advice required under § 105-108 of this Article, structural engineering advice, civil engineering advice with respect to paving and drainage, landscape architectural advice and such other administrative fees and charges as may be deemed applicable and necessary to assure complete compliance with all performance standards, applicable Building Code and regulations and requirements of this chapter. The Planning Board may, in its discretion, demand a surety bond issued by an approved bonding company doing business in the State of New York in a form approved by the Village Attorney to assure payment of the above fees and charges. In the event that a building permit shall be denied, the Planning Board may, in its discretion, direct the refund of a portion of the unexpended fees and charges.
The Building Inspector shall have critically examined all of the submitted documents and evidence and shall have satisfied himself of the complete compliance thereby with all aforesaid applicable laws, ordinances, rules, codes, regulations and stipulations.
The Building Inspector shall not issue any certificate of occupancy unless and until the construction of the buildings and facilities shall have been in full compliance with all applicable laws, ordinances, rules, codes, regulations and stipulations.
If, at any time after the issuance of such certificate of occupancy, it shall be determined in the findings of the Building Inspector that the occupancy related to any plot or lot in the ED-A District shall deviate from the occupancy for which approval was initially given, the Building Inspector shall give notice in writing to the owner of the property in question, such notice shall set forth the nature and extent of such deviations. Such notice shall be sent to the owner of the property by registered mail. If the objectionable deviations shall not be remedied by the owner within 30 days of such notice, unless extended by the Board of Trustees, the certificate of occupancy for the premises shall become void, without further or additional notice.
General. The provisions described in this Article and in any other ordinance of the Village applicable to the development of any areas pursuant to this Article shall be enforced by the Building Inspector of the Incorporated Village of Lake Success, or his authorized deputy as designated by the Village Board of Trustees, in accordance with the provisions of §§ 105-1 through 105-5 of the Building Zone Ordinance of the Incorporated Village of Lake Success, and failure of the Village to enforce any or all of said regulations and provisions shall, in no event, be deemed a waiver of the right to do so thereafter.
If the Building Inspector finds that there is any violation of performance standards relating to emission of smoke, fire and explosive hazards, humidity, heat, light or electromagnetic interference, he shall take or cause to be taken lawful action as provided in Subsection B(2) hereof to eliminate such violation, and failure to obey lawful orders concerning cessation of violation within five working days from the date of the issuance of such order shall be punishable as provided in Subsection F hereof.
The Building Inspector shall give written notice by registered or certified mail to the owner and tenants of the property upon which the alleged violation occurs. Such notice shall describe the particulars of the alleged violation and the reasons why the Building Inspector believes there is a violation in fact and shall require an answer or correction of the alleged violation to the satisfaction of the Building Inspector within a reasonable time limit set by the Building Inspector. The notice shall state, and it is hereby declared, that failure to reply or to correct the alleged violation to the satisfaction of the Building Inspector within the time limit constitutes admission of violation of the provisions of this Article. The notice shall further state that, upon request of those to whom it is directed, technical determinations of the nature and extent of the violation as alleged will be made, and that if violation as alleged is found, costs of the determinations will be charged against those responsible, in addition to such other penalties as may be appropriate, and that if it is determined that no violation exists, costs of determination will be paid by the Village.
If, within the time limit set, there is no reply but the alleged violation is corrected to the satisfaction of the Building Inspector, he shall note "violation corrected" on his copy of the notice and shall retain it among his records.
If there is no reply within the time limit set [thus establishing admission of violation as provided in Subsection B(2)(a) above] and the alleged violation is not corrected to the satisfaction of the Building Inspector within the time limit set, he shall proceed to take or cause to be taken such action as warranted by continuance of an admitted violation after notice to cease.
If a reply is received within the time limit set indicating that the alleged violation will be corrected to the satisfaction of the Building Inspector, but that more time is required than was granted by the original notice, the Building Inspector may grant an extension of time if he deems such extension warranted in the circumstances of the case and if such extension will not, in his opinion, cause imminent peril to life, health or property. In acting on such requests for extension of time, the Building Inspector shall, in writing, state his reasons for granting or refusing to grant such extension.
If a reply is received within the time limit set requesting technical determinations as set forth in Subsection B(2)(a) above and if the alleged violation continues, the Building Inspector may call in properly qualified experts to make the determinations. If expert findings indicate violation of the performance standards, the costs of the determinations shall be assessed against the properties or persons responsible for the violation, in addition to such other penalties as may be appropriate under the terms of Subsection F hereof. If no violation is found, costs of the determinations shall be paid by the Village without assessment against the properties or persons involved.
Complaint. Whenever a violation of this Article occurs or is alleged to have occurred, any person may file a written complaint with the Village Clerk. Such complaint shall state fully the causes and basis thereof. The Village Clerk shall record the complaint properly and refer the same promptly to the Building Inspector, who shall take action thereon as provided by this Article.
Remedies. In case any building is erected, constructed, reconstructed, altered, maintained or used in violation of this Article, the Building Inspector, the Board of Trustees, the Planning Board or any person aggrieved may, in addition to other remedies provided by law, institute injunction, abatement or any other appropriate action or proceeding to prevent, enjoin, abate or remove such unlawful erection, construction, reconstruction, alteration, maintenance or use.
Editor's Note: Original Sections 16.4, Misdemeanor, and 16.5, Penalties, which immediately followed this subsection, were deleted at time of adoption of Code; see Ch. 1, General Provisions, Art, I.
Article XIX of this chapter, as amended, is herewith further amended to conform to this Article.