Petition for Writ of Certiorari — George v. NEW YORK CITY DEPARTMENT OF CITY PLANNING

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| Supreme Court, U.S.

ao Pree oo

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

~~ i << -

RICHARD GEORGE,

Petitioner,

—-V.—-

NYC DEPARTMENT OF CITY PLANNING,

NYC DEPARTMENT OF BUILDINGS, and SHACAF ANKOR,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RICHARD GEORGE

170A Beach 24th Street

Far Rockaway, New York 11691

(718) 868-3123

Petitioner Pro Se

Questions Presented

Does the mandate of the Coastal Zone Management Act

(CZMA) of 1972 16 U.S.C. §1451 et. seq. and financial

awards contracted to New York City to implement the

CZMaA through its Waterfront Revitalization Program and

mandatory rules and regulations promulgated by the

Secretary of Commerce provide for a private right of

action.

Did the Second Circuit Court of Appeals draw al

reasonable references in favor of the plaintiff, pro se

litigant material set of facts in support of his claim which

entitle him to relief to maintain access to the waterfront

over his 24 ‘ wide open way expressly granted. The

Second Circuit Court of appeals does not favor forfeiture of

easement by express grant or under the CZMA id. This

standard is applied with particular strictness when the

plaintiff complains of a civil rights protection with his valid

property right under 42 U.S.C. Section 1983 and

Constitutional provisions under the First, Fifth and

Fourteenth Amendments. Civil Rights protection that is

also is of national public importance in maintaining federal

uniformity and for the general Welfare of this Nation.

TABLE OF CONTENTS

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

PRAYER 1

OPINION BELOW 1

STATEMENT OF JURISDICTION 2

PETITIONER INVOKES THIS COURTS

JURISDICTION 2

(1) Petitioner invokes the Jurisdiction of the Coastal

Zone Management Act (“CZMA”) of 1972 P.L. 92-583,

16 U.S.C. §1451 et. seq., 2

Eminent Domain a

Tax Policy +

NYC WRP Policy 8 5

NYC WRP Policy 10 6

Coastal Zone Jurisdiction 6

(2) The Petitioner’s Civil Rights claims for violations

under Title 42 U.S.C. Section 1983 and basic rights

established under the U.S Constitution 5™ and 14"

Amendments 7

iil

RELEVANT STATUTORY PROVISIONS

STATEMENT OF CASE

(1) The CZMA Created A Private Right Of Action

Essential material facts

Relevant Federal laws and regulatious

Eminent Domain and Tax Policy

The Second Circuit Court of Appeals erred with

their decision

(2) The Petitioner’s Civil Rights and Constitutional

Claims

REASONS FOR GRANTING THE WRIT

CONCLUSION

o 6b Oo @

TABLE OF AUTHORITIES

Cases Page

National Association of Homebuilders of the

U.S. and New Jersey Builders Assn. v.

State of New Jersey Department of

Environmental Protection et. al.,

64 F. Supp. 2d. 354;

1999 U.S. Dist. LEXUS 14678 11

Gibbons v. Ogden 22 U.S. (9 Wheat) 1 14

(1824)

South Dakota v. Dole 483 U.S. 203 14

(1987)

Martin v. Wadell, 41 U.S. (16 Pet) 14

367, 10 L. Ed. 997 (1842)

State of N.Y. v. DeLyser 759 F. Supp. 982, 15

989 (W.D.N.Y. 1991)

Glass v. Goeckel No.126409, 15

473 Mich.L. 67; 703 NW2d. 158

Raleigh Avenue Beach Assn.v. 15

Atlantis Beach Club., et al

SUPREME COURT OF NEW JERSEY

NO A-40 September Term

Decided July 26, 2005

Town of N. Hemp. v. Village of N. Hills 15

482 F. Supp 900, 903 ( E.D.N.Y. 1979)

Proetta v. Dent, 484 F.2d. 1146, 1148

(2d. Cir.1973)

Silva v. Romey, 473 F.2d. 287, 289-290

( 1Cir 1973)

Stutchin v. Town of Huntington

71 F. Supp.2d 76 ( E.D.N.Y.1999)

Paulsen v. Lehman_839 F. Supp.147,160

-161, 170,(E.D.N.Y. 1993)

Naturalists Society v Fillyaw

958 F2d. 1515, 1522 ( 11" Cir.)

Leydon v. Town of Greenwich ( SC 16356)

(SC 16357)

RKO Stanley v. Mellon National Bank

436 F. 2d.1297, 1303 (1970)

Lynch v. U.S.,292 U.S. 571, 579.

Rodriguez v. Barcelo,358 F. Supp. 43

( D. Puerto Rico, May 15, 1973)

Gwaltney of Smithfield Ltd. v.

Chesapeake Bay Foundation, Inc.

et al. 484 U.S. 49

Hofferber v First National Bank

437 F. Supp 788

KELO v. City of New London Ct.

et al 268 Conn. 1, 843 A.2d. 500

Alexander v. Scandoval,

532 U.S. 275, 286

Gerosa v. Savasta & Co.,

329 F 3d 317 ( 2d Cir. 2003)

Dep’t of Envtl. Prot.& Energy v.

Long Island Power 30 F. 3d 403,

423 ( 3d Circuit 1994)

Calif ex rel Brown v Watt

683 F. 2d 1253, 1270 (9™ Cir. 1982

Commonwealth of Mass. v. Andrus,

594 F. 2d. 872, 880, 1 Cir 1979

Sheppard v. Beerman 18 F. 3d.

147, 150 (3d Cir. 1994)

Hofferber v. First National Bank

of Gymon, OK 437 F.Supp.788 (1977).

Penn Central Transp. Co. v.

Pirate Canoe Club Inc. 463 F.2d 127

Page

Vii

Page

Holloway v. Southmayd 25

130 NY Reports 309, 390 Fed. 825 (1893)

Sutera v. Go Jokir Inc. 27

86 F.3d 289 (2™ Cir. 1996)

Columbia Gas Trans. v. Bishop 27

809 F. Supp. 220, 222 (W.D. N. Y. 1992)

Bachmen v. Hecht 659 F. Supp. 308, 309 = 27

( D. Virgin Islands 1986)

Gisondi v. Nyack Mews Condominium 27

673 N.Y.S.2D 743

Statutes

Coastal Zone Management Act of 1972 2

P.L. 92-583, 16 U.S.C. §1451 et. seq.

The National Environmental Policy Act 3

of 1969 P.L. 91-190 and E.O. 11514

Clean Air Act 2 U.S.C. §7401 3

Clean Water Act OF 1977 33 U.S.C. 3

1251-1387 P.L. 95-217

National Historic Preservation Act 3

of 1966 16 U.S.C. 470, P.L. 102-575

Civil Rights Act of 1964 P.L.88-352. 3

Vill

Demonstrations Cities and Metropolitan

Development Act of 1966 P.L. 89-754

Title IV of the Intergovernmental

Cooperation Act of 1968 P.L. 90-577

Submerged Lands Act

Other Authorities

Council on Environmental Quality’s

First Annual Report together with

the President’s Message to Congress

Eminent Domain

Tax Policy

Relevant Constitutional Provisions

U.S. Treasury Congressional

Appropriations under the Constitution,

Article I, Section 9, Clause 7

Article I Section 8 of the U.S

Constitution or Commerce Clause

The Supremacy Clause

First Amendment

Fifth Amendment

Fourteenth Amendment

Page

7-14

Other Authority

New York City’s Waterfront

Revitalization Program (NYC WRP)

Council on Environmental Quality’s

First Annual Report together

With the President’s Message to

Transmitted to Congress, August 1970

NYC WRP Policy 8

NYC WRP Policy 8.1

NYC WRP Policy 10

The Public Trust Doctrine

Regulation

15 C.F.R.PART 923

15 C.F.R. §923.43 (i)

15 C.F.R. §923.132(e)

Page

Prayer

Richard George respectfully petitions this Court

for a writ of certiorari to review the judgment and order

of the Court of Appeals for the Second Circuit in the

opinion below.

Opinion Below

The approval by New York City Department of

City Planning and New York City Department of

Buildings to Defendant Shacaf for construction of

homes that will permanently obstruct the 24 foot right

of way expressly granted in his deed that is also a

public access to the waterfront. The plaintiff's

pleadings that he has standing (1) under the Coastal

Zone Management Act, 16 U.S.C. § 1451 et. seq. and,

(2) Civil Rights Violations in the depravation of his

valid property nights, with an injury of fact and

irreparable harm had stated a claim upon which relief

can be granted with a permanent injunction < 1

removal of obstructions that is in viclation of 42 U.S.C.

Section 1983, the Fifth , Fourteenth and First

Constitutional Amendment. Appeal from a Judgment of

the United States District Court for the Eastern District

of New York (Feuerstein J.) dismissing complaint in its

entirety.

United States Court of Appeals for the Second

Circuit. We affirm. Summary judgment order that (1)

The Coastal Zone Management Act (CZMA) affords no

private right of action by a citizen against city agencies

and non-federal entities and, (2) The plaintiff’s Civil

Rights claims for violations under Title 42 U.S.C.

Section 1983 and Constitutional claims under the 1*, 5

and 14 Amendments are without merit.

Statement of Jurisdiction

The Court of Appeals for the Second Circuit

entered its judgment on January 25, 2006 Docket No,

05-0886-cv. This petition if filed within 90 days with

extension of time granted up to and including October

2, 2006

Petitioner invokes this Courts Jurisdiction:

(1) Petitioner invokes the Jurisdiction of the

Coastal Zone Management Act (“CZMA”) of 1972

P.L. 92-583, 16 U.S.C. $1451 et. seq., and many

Federal statutes are the authorities of New York City’s

Waterfront Revitalization Program’s land and water use

regulation in the Federal coastal zone boundary that

include the Petitioner’s property. The purpose intended

by Congress was to provide financial incentives to

states and local, governments to undertake the

responsibilities for setting up management programs in

the coastal zone. New York City developed its

Waterfront Revitalization Program that was approved

and adopted for its coastal zone in accordance with

rules and regulations promulgated by the Secretary

CZMA Section 306 Administrative Awards §1455(d)

(1).

The mandatory rules and __ regulations

promulgated by the Secretary 15 C.F.R. §923.43 (i) the

management program authorities provide for a citizen

who is the intended beneficiary in taking action to

ensure compliance of networked agencies with the

program. The legal instrument of the financial award

contract that binds New York City as an entity and

recipient of awards to adhere to the authorities to

implement the CZMA through its Waterfront

Revitalization Program: (“WRP”) and defined in 15

C.F.R §923.132 (e) in order to accomplish a public

purpose authorized by Federal statute.

A large number of Federal statutes and

regulations promulgated by the Secretary are the

authorities that play a key role for waterfront

revitalization of New York City and is its principal

coastal zone management tool. The authorities include

compliance with environmenta standards under the

requirements of: The National Environmental Policy

Act of 1969 P.L. 91-190 and E.O. 11514, assurances of

project consistency with the approved State

management program developed under the CZMA,

conformance with the Clean Air Act 2 U.S.C. §7401

and Clean Water Act OF 1977 33 U.S.C. 1251-1387

P.L. 95-217, National Historic Preservation Act of

1966 16 U.S.C. 470, P.L. 102-575, all Federal statutes

relating to discrimination not limited to the Civil Rights

Act of 1964 P.L.88-352. Projects and activities are

consistent with the approved management programs

under CZMA P.L. 92-583 subsection 314 that requires

that program coverage procedures provided for and

regulations issued under the Demonstrations Cities and

Metropolitan Development Act of 1966 P.L. 89-754

and Title IV of the Intergovernmental Cooperation Act

of 1968 P.L. 90-577 shall be applied.

In order to accomplish a public purpose the

CZMA incorporated the recommendations of the

Council on Environmental Quality’s First Annual

Report together with the President's Message to

Congress, Transmitted to Congress August 1970 that

include Eminent Domain and Tax Policy:

Eminent Domain government the right to acquire

lands and is also available for public benefits such as

preserving easements for access to the public beach

§1452 (1) (2) (E) and NYC WRP Policy 8 supra, and

preserving historic buildings and districts §1452 (1) (2)

(F) assistance in the redevelopment of deteriorating

urban waterfronts and ports, and sensitive preservation

and restoration of historic, cultural, and esthetic coastal

features; giving full consideration to ecological,

cultural, historic, and esthetic values as well as the

needs for compatible economic development, which

programs should at least provide for— § 1452 (2)

Tax Policy where tax policy is a vital cog in deciding

income and profit for land investors, suburban

developers, urban developers, and landlords—the big

influences of land use. Taxation is an essential tool in

shaping the manmade environment and preserving the

natural environment.

Where the U.S Treasury funds the public

purpose of the relevant statutes and authorities

consistent with the text and substance of the CZMA §

1452 (1) and (2) (A) — (K) id., is applicable to this

petition.

Federal Policy applies to NYC WRP which is a

product of Federal financial awards and controls.

NYCWRP is funded with U. S. Treasury Congressional

Appropriations under the Constitution, Article I,

Section 9, Clause 7 and its WRP policies have their

basis in Article I Section 8 of the U.S Constitution or

Commerce Clause. Under the Supremacy Clause New

York City with the receipt of Federal financial award

must oe to this supreme ACT of the CZMA.

——

. Congress intent is all telling in the text and

substance of this Act:

§ 1452 (1) to preserve, protect, develop, and where

possible, to restore or enhance, the resources of the

Nation’s coastal zone for this and succeeding

generations;

(2) to exercise effectively their responsibilities in the

coastal zone through the development and

implementation of management programs to achieve

wise use of the land and water resources of the coastal

zone, giving full consideration to ecological, cultural,

historic, and esthetic values as well as the needs for

compatible economic development, which programs

should at least provide for—

(E) public access to the coasts for recreation purposes,

(F) assistance in the redevelopment of deteriorating

urban waterfronts and ports, and sensitive preservation

and restoration of historic, cultural, and esthetic coastal

features,

And where New York City’s Waterfront Revitalization

Program Policies were approved for concurrence with

the Act under §1455 (d) (1) consistent with section

1452 id. which are part of the legal and enforceable

authorities of the CZMA for land and water use

regulation part of the legal instrument of the CZMA

contract award 15 C.F.R. §923.132 (e) includes Section

303 (&) and (F), Section 309 Public Access

Requirements and ALL relevant State and Local WRP

Policies.

NYC WRP Policy 8: Provides public access to and

along New York’s coastal waters. “This policy presents

standards for public lands...and lands under water

(public trust lands) id. These standards are intended to

preserve existing access to the shoreline provided by

facilities such as...easements on privately-owned land”

NYC WRP Policy 8.1 A: Preserve, protect and

maintain existing physical, visual and recreational

access to the waterfront, and Policy 8.1 B Maintain in

good repair existing public access areas to ensure public

safety and enhance enjoyment.

NYC WRP Policy 10: to protect and preserve and

enhance _—sresources Significant to historical,

archaeological and cultural legacy.’

The CZMA _ implementation of Congressional

Appropriations Article I §8, for the general Welfare of

the United States, shall be uniform through out the

United States, §1451(b) “to the present and future well

being of the Nation” (e) essential to the well being of

all citizens”. The Federal subject matter jurisdiction that

provide standing for this private right of action against

the municipality.

Coastal Zone Jurisdiction:

Congress intended the coastal zone to be two

regimes land and water. The exclusive jurisdiction of

the Federal Government is the outer limit of the

coastal zone is the outer limit of the territorial seas and

. Policy 8 was approved being consistent with §1452 (303) (1) (2) (EB);

Policy 10 was approved by the U.S Department of Commerce for

concurrence with applicable Federal law that include the CZMA §1452

(303) (1) (2)(F), NEPA and the National Historic Preservation Act, Civil

Rights Act that is also part of compliance with the CZMA contracts award

as defined in 15 CFR 923.132 (e) that NYC through its WRP is legally

_ required to implement. The plaintiff's bungalow development which is an

historic resource listed on the National Register of Historic Places

approved by the Secretary of Commerce for concurrence with CTMA

§1452 (1) (2) (F), NEPA and NHPA as included and defined in the

contract award 15 C.F.R.923.132 (e). Where the plaintiff as a citizen can

take action is explicit in the rules and regulations promulgated by the

Secretary of Commerce 15 C.F.R 923.43 (i) as per the Mandatory

requirements for approval and receipt of CZMA Administrative Awards

§1455 (d) (1) (2) (3) through (16).

Outer Continental Shelf the where the States have no

clear authority to act.

State and local governmental jurisdiction

include non-Federal coastal waters, non-Federal land

beneath the coastal waters and the adjacent non-Federal

shore lands including the waters therein and there

under. The coastal zone extends inland necessary to

allow the management program control oi shore lands

whose use has a direct and significant impact upon

coastal waters CZMA Section 304 P.L. 92-583

Defintions Section 304. Where the authorities under the

CZMA and regulations provide for a citizen to act to

ensure compliance of networked agencies with the

management program 15 C.F.R. §923 (i). Where the

petitioner’s property is in the coastal zone and he has

presented two causes of action and stated a claim upon

which relief can be granted to protect his valid property

rights under the CZMA and;

(2) The Petitioner’s Civil Rights claims for

violations under Title 42 U.S.C. Section 1983 and

basic rights established under the U.S Constitution

5™ and 14 Amendments to the beneficial use of his

24 foot wide open way as an express contractual grant

recorded in his deed. More recent judicial decisions

provide protection for his rights to the use of the subject

24 foot wide open way as a public forum under the First

Amendment U.S Constitution. This open way spans

proximate public lands extending southerly from

Seagirt Avenue to the public beach and Atlantic Ocean

has been open to the pubic for over 80 years. There is

no just compensation for the taking of a public access

under the14 Const. Amend.

The nexus of the plaintiff's property is within the zone

of interest of the Constitutional provisions CZMA and

Civil Rights violations either separate or combined

provide standing under Federal Subject matter

jurisdiction.

Relevant Statutory Provisions

Coastal Zone Management Act (“CZMA”) of 1972 P.L.

92- 583, 16 U.S.C. §1451 et. seq.,

National Environmental Policy Act of 1969 P.L. 91-190

and E.O. 11514,

Clean Air Act 2 U.S.C. §7401,

Clean Water Act OF 1977 33 U.S.C. 1251-1387 P.L.

95-217,

National Historic Preservation Act of 1966 16 U.S.C.

470, P.L. 102-575,

Civil Rights Act of 1964 P.L.88-352,

Demonstrations Cities and Metropolitan Development

Act of 1966 P.L. 89-754

Title IV of the Intergovernmental Cooperation Act of

1968 P.L. 90-577

Submerged Lands Act

U.S Treasury and General Governmental

Appropriations Act Section 515 P.L.106-554

Relevant Constitutional Provisions

U. S. Treasury Congressional Appropriations under the

Constitution, Article I, Section 9, Clause 7,

Article I Section 8 of the U.S Constitution or

Commerce Clause,

The Supremacy Clause

First Constitutional Amendment

Fifth Constitutional Amendment

Fourteenth Constitutional Amendment

Other Authority

The Public Trust Doctrine

New York City’s Waterfront Revitalization Program

and enforceable Policies 8 and 10

Statement of Case

(1) The CZMA Created A Private Right Of Action

Essential material facts:

On March 17, 2003 Richard George, pro se

litigant (“Mr. George” or “petitioner’’) filed compliant

United States District Court for violation of his property

of an existing 24 foot wide open way ( “ 24’ open

way’) that was expressly granted by the estate owner

Edward N. Dickerson. The language in the deed

expresses the intention of the estate owner who

expressly granted free an uninterrupted passage

assigned forever over the entire center of the 24 foot

wide open strip extended and extending southerly from

Sea Girt Avenue along his property to the Atlantic

Ocean to its successors and assigns, and to the owner or

owners lessees or tenants of all or any part of the

premises lying between the southerly side of Sea Girt

Avenue and the Atlantic Ocean.

Mr. George provided the Court with deeds with

the recording of the 24’ open way annexed in exhibits B

of the Defendant and C of his property and other

property owners.

He also provided the Court with copies of the

original deeds recorded October 19, 1891 Edward N.

Dickerson and maps that that show the boundaries of

the estate which was sold and subdivided into smaller

parcels that is part Mr. George’s property as recorded

formerly the Edward N. Dickerson estate. He also

annexed exhibits that show the Dickerson estate was

100% public trust lands of Far Rockaway Bay of Inlet

and Outer Beach with the high water mark of the

Atlantic Ocean extending north to Norton’s Creek;

exhibits annexed in Plaintiff's Affirmation maps A-1

through A-6 and original deed A-20, filed August 26,

2003 E.D.N.Y.

Mr. George provided the Court with the U.S.

Department of Commerce Coastal Programs Division

publication Sustaining America’s Coastal Communities

and Resources a strategic framework for the coastal

zone. This publication provides the essential material

facts that the Coastal Zone Management Act provides

the framework and necessary tools for implementing

this plan. The CZMA relies upon a unique partnership

among federal, state and local governments page 12.

Local government roles in coastal management range

from development and implementation of coastal

programs to receipt of CZM support for local projects

page 13, which the map shows the land of petitioner is

under Federal Government Jurisdiction page 10; as

annexed in original complaint exhibit I, and Plaintiff's

Affirmation A-7a through 7-c.

Public Access is specifically identified as one of

the key priorities of the Coastal Zone Management Act

(CZMA) of 1972 in its Declaration of Policy $1452

Section 303 (2)(E). Under CZMA § 1455 (b) (B) (v) to

provide financial support to coastal states for use for

investigating and applying the public trust doctrine to

implement State management programs approved under

section 1445 of this title which is applicable to

NYCWRP Public Access Policy 8.

The right of the public to access the coast or

waterfront is largely based upon the public trust

doctrine incorporated into the American legal system so

that tidelands are held in public trust. The public trust

doctrine was incorporated into NYC WRP Public

Access 8. See Steve Resler’s Supervisor Consistency

Review Analysis Coastal Management Program Pre

filed Testimony on public access policies annexed in

original complaint exhibit D.

The public’s right in publicly owned foreshore

and underwater are paramount to any private rights.

Therefore there should be no unnecessary obstruction

and encroachment by a littoral owner or approvals by

New York City Defendants to the detriment of the

public’s right of access to, in and over the 24 ‘ open

way extending southerly from Seagirt Avenue over the

public trust lands of the Atlantic Ocean to access the

Atlantic Ocean and public beach that were artificially

filled and part of petitioner’s property today. See A

discussion paper Public Trust Doctrine and Public

Access in New Jersey prepared by the Urban Harbor’s

Institute of the University of Mass. Boston under

contract with the New Jersey Coastal Zone

Management Program. Annexed in _ Plaintiff's

Affirmation exhibit A-14.

The constitutionality of New Jersey’s CZMA

public access rules and regulations where upheld See;

National Association of Homebuilders of the U.S. and

New Jersey Builders Assn. v. State of New Jersey

Department of Environmental Protection et. al., 64 F.

Supp. 2d. 354; 1999 U.S. Dist. LEXUS 14678; Federal

District Judge Garret E. Brown Jr. ruled almost 90

percent of the land on the walkway was filled land and

below the mean high water line of the Hudson River.

Therefore, the land was public trust land and the state

was within it’s police powers to require the walkway

construction and maintenance is applicable with this

case at bar and Writ of Cert.

Where the text and substance of Congress in the

CZMA requires concurring enforcement provisions

under the rules and regulations promulgated by the

Secretary 15 C.F.R. §923.43 (i) The management

program authorities provide grounds for taking action

to ensure compliance of networked agencies with the

program. It will be sufficient if any of the following can

act to ensure compliance: The State agency designated

pursuant to subsection 306(d)(6) of the Act, the State’s

Attomey General, another State agency, a local

government, or a citizen. Richard George as citizen has

standing to take action and ensure compliance of NYC

with its WRP Public Access Policy and all WRP

policies that include Policy 10. See Statement of

Jurisdiction id.

NYC WRP was approved by the Secretary of

Commerce on September 30, 1982 for concurrence with

applicable Federal laws and regulations. NYC’s

Waterfront Revitalization Program applies to all

projects in the coastal zone; See CEQR MANUEL P. 4-

17 annexed in Plaintiff's Affirmation exhibit A-18 and,

Public Access to the Waterfront: Any area of publicly

accessible open space on a waterfront property, as well

as pedestrian way that provides a route from a

waterfront public access area to a public street, public

park, public place, or public access area; See CEQR

MANUEL P 4-12 annexed in Plaintiff's Affirmation

exhibit A-18; And is applicable with the petitioner’s

24’ open way spanning proximate public lands Seagirt

Avenue to the pubic beach and ocean which has been

open to the public since 1920 to the present day both as

a easement by express grant and as a public access to

the waterfront protected under the CZMA and Civil

Rights 42 U.S.C.§ 1983, and under the Constitution and

Ist, 5” and 14 Amendments, U. S. Treasury

Congressional Appropriations, Article I, Section 9,

Clause 7 and its WRP policies have their basis in

Article I Section 8 of the U.S Constitution or

Commerce Clause. Also under the Supremacy Clause

and the Submerged Lands Act with New York City

with the receipt of Federal financial award must yield to

this supreme ACT of the CZMA.

Ankor Shacaf sold his properly to Second Stage

the complaint remains against the New York City

Respondents/Defendants.

Relevant Federal laws and regulations:

NYC’s WRP management program has its basis

in Article I Section 8 of the Commerce Clause funded

through the U.S House of Representatives Committee

on Appropriations “ No Money shall be drawn from the

Treasury in Consequence of Appropriations made by

Law “ U.S. Constitution, Article I, Section 9, Clause 7”.

Where the CZMA Administrative Awards §1455 (d)

Section 306 Appropriations mandatory rules and

regulations of the Secretary explicitly provide judicial

action 15 C.F.R. §923. 43 (i), id. The State, local

governments have not taken action to ensure

compliance the plaintiff as citizen has standing to take

action to ensure compliance of networked municipal

agencies to implement Policy 8 and 10 as required

under the CZMA and contract award contract.

Article I, §8 states that “ Congress shall have

Power TO lay and collect Taxes, Duties, Imposts and

Excises, tp pay the Debts and provide for the common

Defence and general Welfare of the United States; but

all Duties, Imposts, and Excises shall be uniform

throughout the United States.”

Congress has broad power to spend for the

general welfare and has done so through the Coastal

Zone Management Act of 1972 legislation CZMA

Administrative Awards §1455 (d) Section 306

Congressional Appropriations and mandatory rules and

regulations 15 C.F.R. PART 923. New York must yield

to this supremacy under the Supremacy Clause.

Gibbons v. Ogden 22 U.S. (9 Wheat) 1 (1824). Chief

Justice Rehnquist, approved conditions imposed by

Congress directly related to the main purpose behind

federal highway money: creating safe interstate travel.

award South Dakota v. Dole 483 U.S. 203 (1987). The

petitioner with this writ request that the U.S Supreme

Court have the New York City municipality identified

as a recipient of federal money to implement the

CZMA §1452 (1) (2) (E) and provide, protect, preserve

and maintain existing public access to the waterfront

for the public and (F) assistance in the redevelopment

of deteriorating urban waterfronts and ports, and

sensitive preservation and restoration of historic,

cultural, and esthetic coastal features under their

federally approved management program. Municipal

corporations are political subdivisions of the State. As

such, municipal corporations may exercise only such

powers expressly granted to them, subject only to those

powers delegated to the Federal Government in the

Constitution Article I §8; §9 id., See Martin v. Wadell,

41 U.S. (16 Pet) 367, 10 L. Ed. 997 (1842); Also see

Lands Under Water Part 13 Local Regulation §77.68

Warren’s Weed New York Real Property.

A suit to enforce a property night one time

governed by Federal law arises under Federal law if it

continues to govern that right State of N.Y. v. DeLyser

759 F. Supp. 982, 989 (W.D.N.Y. 1991) provides

standing to the plaintiff Richard George and his

property over artificial fill of public trust lands Federal

Question Jurisdiction under the Public Trust Doctrine

and the CZMA. Also see Opinion Michigan Supreme

Court, Lansing, Michigan, Glass v. Goeckel

No.126409, 473 Mich.L. 67; 703 NW2d. 158; and

Raleigh Avenue Beach Assn.V. Atlantis Beach Club., et

al SUPREME COURT OF NEW JERSEY NO A-~40

September Term Decided July 26, 2005. Cases relevant

to petitioner’s property and tights of access over the

bungalow development and the 24 ‘ open way in and

over of 100% public trust lands of the Atlantic Ocean;

also See See; National Association of Homebuilders of

the U.S. and New Jersey Builders Assn. v. State of New

Jersey Department of Environmental Protection et. al.

The Federal Question of standing has also been

provided with a decision from the Eastern District of

New York Town of N. Hemp. v. Village of N. Hills 482

F. Supp 900, 903 ( E.D.N.Y. 1979), the city acting as

partners with the Federal Government with the receipt

of federal aid or any federal involvement provide

grounds for the plaintiff to take action against the

municipality and developers for various violations of

Federal law. New York City’s agencies required to

implement the authorities of the CZMA through its

Waterfront Revitalization Program and the financial

award contract as defined in 15 C.F.R. §923.132 (e);

See Proetta v. Dent, 484 F.2d. 1146, 1148 (2d.

Cir.1973); Silva v. Romey, 473 F.2d. 287, 289-290 (

1Cir 1973); Stutchin v. Town of Huntington 71 F.

Supp.2d 76 ( E.D.N.Y.1999), where the Eastern District

of New York determined that Federal Policy applies

once the Local Waterfront Revitalization Program

(LWRP) has been approved by the Secretary of

Commerce, the LWRP passes constitutional muster.

Federal District Judge Garret E. Brown Jr. also

upheld the constitutionality of the CZMA Public

Access Rules and Regulations National Association of

Homebuilders of the U.S. and New Jersey Builders

Assn. id.

There can be no just compensation to the

petitioner as there can be no taking of a public access to

the waterfront protected under the CZMA Public

Access Policy and the 5" Const. Amend. More recent

decisions of the Eastern District of New York provide

protection under the First Amendment as a public

forum. See Paulsen v. Lehman 839 F. Supp.147,160-

161, 170,7E.D.N.Y. 1993), the right of passage over

existing public access areas belongs only to members of

the public as a public forum, and the Eleventh Circuit

in Naturalists Society v Fillyaw 958 F2d. 1515, 1522 (

11" Cir.); also Leydon v. Town of Greenwich ( SC

16356) (SC 16357).

The Third Circuit U.S. Court of Appeals

determined that a public easement must be specifically

authorized by the municipality through legislative grant

RKO Stanley v. Mellon National Bank 436 F. 2d.1297,

1303 (1970) and is applicable with the CZMA id. The

public policy guaranteed under the WRP CZMA Article

I §8, and funded under Article I, §9, id., and expanded

scope of protection public access to the waterfront §

1452 (1) (2) (B) id., prevents the acquisition of these

public access rights for private use against the

municipality, the public and petitioner, to protect,

preserve and maintain existing public access to the

waterfront Policy 8 id.

The CZMA _ funded with Congressional

Appropriations Article I §8 for the general Welfare of

the United States , shall be uniform through out the .

United States. To “preserve, protect, develop and

whenever possible to restore or enhance the resources

of the nation’s Coastal Zone” §1452; the future well

being of the Nation” §1451 (b), of “the well-being of all

citizens;” §1451 (e). “ These phrases do not suggest an

intent to benefit any particular class, but to promote the

interest of all” New York State v. DeLyser, 759 F. Supp.

982, 988 (W.D.N.Y. 1991).

The CZMA was designed to include “broad

participation” in developing coastal zone management

tools and in implementing the CZMA through approved

local waterfront revitalization programs. The receipt of

§1455 (d) Section 306. Administrative Awards requires

mandatory “full participation by relevant Federal

agencies, State agencies, local governments, regional

organizations, port authorities, and other interested

parties and individuals, public and private, which is

adequate to carry out the purposes of this title

consistent with 16 U.S.C. §1452 Section 303”. See also

regulation §923.43 (c) (1) (2) (i) a citizen can take

action id.

The regulation 15 C.F.R. §923. 43 (i)

promulgated by the Secretary explicitly provide judicial

action by a citizen; The award contract is defined in 15

C.F.R. §923.132 creates a relationship between the

Federal government and another entity (recipient). The

principal purpose of the award is the transfer of money

or services in order to accomplish a public purpose

authorized by Federal statute.

The authorities within the award contract

explicitly proved for citizens suits. The Demonstrations

Cities and Metropolitan Development Act of 1966 P.L.

89-754, Rodriguez v. Barcelo,358 F. Supp. 43 ( D.

Puerto Rico, May 15, 1973); the Intergovernmental

Cooperation Act of 1968 P.L. 90-577, 82 Stat. 1098;

the Council on Environmental Quality’s Mandate 40

C.F.R. §§ 1500.3 National Environmental policy Act of

1969 P.L. 91-190, 42 U.S.C. 4321 et. seq., the

Environmental Quality Improvement Act of 1970, as

amended 42 U.S.C. 4371 et. seq., Section 309 of the

Clean Air Act 42 U.S.C. 7401 et. seq., as amended 42

U.S.C. 7609, Clean Water Act 33 U.S.C. 1251 et. seq.,

and Executive Order 11514, Protection and

Enhancement of Environmental Quality Executive

Order 11991 with the filing of an environmental impact

statement that will result in affecting the environment

with irreparable injury to the public and petitioners [40

C.F.R. §1500-1508 regardless of what agency Federal,

non-Federal or person undertakes such action] also

under Civil Rights violations under 42 U.S.C. §1983.

Town of N. Hempstead v. Village of N. Hills, id. and in

the receipt of federal financial awards Gwaltney of

Smithfield Ltd. V. Chesapeake Bay Foundation, Inc. et

al. 484 U.S. 49; Civil Rights violations Hofferber v

First National Bank 437 F, Supp 788 injunctive relief

was brought on the theory that defendants conspired to

deprive plaintiff of her constitutional rights and in

violation of Civil Rights Act and is applicable where

the respondents have deprived the petitioners of their

constitutional rights, Civil Rights Act, First, Fifth and

Fourteenth Amendments.

Eminent Domain and Tax Policy:

Where U.S Congressional Appropriations

Article I §8; §9 that fund a public purpose that preserve,

protect, enhance and _ revitalization of coastal

communities and neighborhoods, and important

ecological, cultural, historic and esthetic values 15

U.S.C. §1451; §1452, § 1455 (d) id. The CZMA legally

requires under the contract award 15 C.F.R §923.132

(e) a heightened standard of review when the public

purpose authorized by the statute does not justify the

use of eminent domain as cited in writ of certiorari to

the U. S. Supreme Court KELO v. City of New London

Ct. et al 268 Conn. 1, 843 A.2d. 500 and is relevant and

applicable with this writ of certiorari. To protect,

preserve, maintain, enhance and revitalize what

Congress Declared under the CZMA §1452 (1) (2) (A )

through (K) that New York City and all coastal States

and municipalities must adhere to under the contract

award. The federal funds of the contract award protect

against any takings through eminent domain for

economic development. See South Dakota v. Dole id.

with NYC WRP identified as a recipient of federal

money to implement the CZMA. The petitioner with

this writ of certiorari request that the U.S Supreme

Court have the New York City municipality comply

with, and adherer to the CZMA contract award as

defined in 15 C.F.R. §923.132 (e). There can be no

taking of public or private property protected under the

CZMA and authorities funded through U.S Treasury id.

The CZMA_ implementation of Congressional

Appropriations Article I §8, for the general Welfare of

the United States, shall be uniform through out the

United States, §1451(b) “to the present and future well

being of the Nation” (e) essential to the well being of

all citizens” .

See; Eminent Domain, Tax Policy, NYCWRP Policies

8 and 10 id.

Pursuant to federal statute, regulations,

standards and coordination among all Federal, State,

City and individuals conducting activities the approvals

by an agency for permits, licenses, certificates, or other

entitlement or to otherwise authorize a proposed project

or activity in the coastal zone as outlined in the original

pleadings and this petition. The Federal Supremacy of -

these authorities that New York City respondents must

yield to and federal courts will take jurisdiction because

it turns on a federal question.

The Second Circuit Court of Appeals erred

with their decision that the CZMA does not create a

private right of action. Like substantive Federal Law to

discover whether Congress intended the CZMA to be

enforceable by a private right of action the Court should

look to the “text and structure” of the Coastal Zone

Management Act? (CZMA) 16 U.S.C. §1451 et. seq.

There is nothing in the text that contemplates “ public

enforcement only” in the Appeal discussion of Circuit

Judge Dennis Jacobs citing Alexander v. Scandoval,

532 U.S. 275, 286; Gerosa v. Savasta & Co., 329 F 3d

317 ( 2d Cir. 2003). The Act is all telling in providing

financial awards Section 306 §1455 (d) with the

opportunity of full participation by State agencies,

local governments, regional organizations, port

authorities, and other interested parties and

* The Appeal Panel should not be looking at the text and structure of other

statutes such as ERISA which is irrelevant to the CZMA cited by Circuit

Judge Dennis Jacobs who has decided to be a judicial activist by assuming

and contemplating what Congress intended of the CZMA from the text of

ERISA in Gerosa v. Savasta 329 F. 3d.317 and other unrelated educational

statutes Alexander v. Sandovail,532 U.S. 275 are irrelevant and inapplicable

to this case at bar.

individuals, public and private, which is adequate to

carry out the purposes of this chapter and is consistent

with the policy declared in section 1452 of this title. In

Gerosa v. Savasta & Co. ,at 328, the principal goal is to

“ protect... the interest of participants in employee

benefit plans and their beneficiaries.” 29 U.S.C.

1001(b). The U.S Court of Appeals for the Ninth

Circuit found that ERISA carefully enumerates the

parties entitled to seek relief under §502... participants,

beneficiaries, or fiduciaries with an express cause of —

action. The U. S. Court of Appeals for the Second

Circuit in looking at the text and structure of the CTMA

would find that §1451 (a) “ there is a national interest in

effective management, beneficial use, protection and

development of the coastal zone’’...(b) “to the present

and future well being of the Nation .” (e) essential to

the well being of all citizens” (g) “being damaged by ill

planned development” § 1452 (1) “ to preserve, protect,

develop, and where possible to restore and enhance, the

resources of the Nation’s coastal zone for this and

succeeding generations;” §1455 (d) “ with the

opportunity for full participation by... other interested

parties and individuals, public and private... consistent

with ...section 1452” and the mandatory rules and

regulations promulgated by the Secretary 15 C.F.R.

§923. 43 (i) provide for a citizen the take action. The

petitioner’s is entitled to the relief sought with his

cause of action to ensure compliance of networked

respondent city agencies with the management

program’s public access and historic preservation

requirements Policy 8 and 10 that concurs with Federal

law CZMA §1452 (1) (2) (E) (F). The CZMA created

private right of action and standing in which federal

courts will take jurisdiction because it turns on a federal

question.

To the extent that the municipality is found

acting in partnership with the Federal Government with

the receipt of federal aid or any federal involvement

provide grounds for the plaintiff to take action against

the municipality and developers for various violations

of Federal law: See Town of N. Hemp. v. Village of N.

Hills id.; Proetta v. Dent id; Silva v. Romey id.; Stutchin

v. Town of Huntington id. This relevant case should

have been applied by the Appeal Panel against the

municipality.

The “text and structure” of the Act is all telling.

The Mandatory Requirements for Administrative

Awards under CZMA § 1455 (d) that include

applications for Federal Assistance under other Federal

programs 16 U.S.C. §1456 (d); 16 U.S.C. §1456 (b);

are approved only if the Secretary finds that the

management program and application for other federal

aid meets all applicable requirements of the Act

consistent with the policy declared in section 1452 of

this title and the mandatory rules and regulations

promulgated by the Secretary 15 C.F.R. §923. 43 (i)

id.

The interpretation favored by other circuits

and by district courts in this circuit namely that the

Coastal Zone Management Act the general intent to

enhance state authority creates no implied right of

action by a State against a private individual with a

Federal permit in the exclusive jurisdiction o the

Federal Government; Dep’t of Envtl. Prot.& Energy v.

Long Island Power 30 F. 3d 403, 423 ( 3d Circuit

1994); also Calif ex rel Brown v Watt 683 F. 2d 1253,

1270 ( 9" Cir. 1982); Also See Coastal Zone

Jurisdiction, petition id. This case law cannot be used

by the Second Circuit to “assume” or “contemplate”

that the plaintiff's private nght of action against the

municipality nor can it be construed as a State implied

right of action against an individual with a Federal

permit. The Appeal Panel 05-1784 has also used this

misinterpretation against plaintiff a pro se litigant for

purposes of collateral estoppel or res judicata which

amounts to judicial activism by legislating from the

bench. To prevent any more misinterpretation of the

“text” and “substance” .of the CZMA substantive

Federal law with this, all other circuits and district

courts the petitioner prays for the grant of a writ of

certiorari by U. S Supreme Court.

The Town of N. Hemp v. Village of N. Hills id.

citing Commonwealth of Mass. v. Andrus, 594 F. 2d.

872, 880, 1 Cir 1979) “ [The Act] is neither a

jurisdictional grant, nor basis for stating a claim upon

which relief can be granted by a State of Massachusetts

against a private individual Andrus. The plaintiff is not

a State. The municipality is not an individual with a

Federal permit. The misinterpretations of case law as

cited by Circuit Judge Dennis Jacobs are irrelevant to

Mr. George’s actions and should not have been used by

the Second Circuit Appeals in both 05-0886 and 05-

1784 to dispose of this case at bar.

A suit to enforce a property right one time

governed by Federal law arises under Federal law if it

continues to govern that right State of N.Y. v. DeLyser

759 F. Supp. 982, 989 (W.D.N.Y. 1991). The case law

presented with this petition is applicable to the plaintiff

and his property over artificial fill of public trust lands

Federal Question Jurisdiction under the Public Trust

Doctrine and the CZMA.

The CZMA has created a private right of action.

The close nexus of his Civil Rights and Constitutional

Claims to his property rights of access to the waterfront

provide standing under both claims. The petitioner,

Richard George, respectfully requests and prays for a

writ of certiorari.

(2) The Petitioner’s Civil Rights and Constitutional

Claims

Petitioner has established standing with a valid

claim under Title 42 U.S.C.A. Section 1983 for

violations of Fifth, Fourteenth Amendments

acknowledged by Magistrate Judge Bloom and

Honorable Robert Sack which is part of the legal

record. A final decision was made by New York City

Department of Buildings and Department of City

Planning approval of permits for new construction that

obstruct plaintiff's easement in violation of his property

rights and rights to Due Process. There were no public

hearings on vacating this easement which is also

defined in relevant case law as a public access to the

waterfront. There is no just compensation for vacating a

public easement for a private use. The plaintiff is also

entitled to injunctive relief against defendant based on

depravation of his First Amendment rights to the use of

this easement as a public forum. Relevant case law of

the Eastern District provides plaintiff relief on this

claim was overlooked by the Appeal Panel; see Paulsen

v. Lehman 839 F. Supp.147 (E.D.N.Y. 1993)

defendants permanently enjoined, along with agents,

employees and successors, and all persons subject to

their discretion and control, from imposing any

unlawful restraint on plaintiff's mght to engage in other

First Amendment activities within the pedestrian

walkways, thoroughfares and boardwalk area which

apply to the plaintiff and 24 foot wide open way.

When the plaintiff complains of a civil rights

violation a court must accept the allegations contained

in the compliant as true, and draw al reasonable

references in favor of the plaintiff, pro se litigant. The

plaintiff has proven beyond doubt the set of facts in

support of his claim which entitle him to relief Conley

v. Gibson, 355 U.S. 41, 45-46. This standard is applied

with particular strictness when the plaintiff complains

of a civil rights violation, Sheppard v. Beerman 18 F.

3d. 147, 150 (3d Cir. 1994). The claim is sufficient to

confer jurisdiction upon federal court, when action is

brought on the theory that defendant’s conspired with

developers to deprive plaintiff of his constitutional

rights in violation of Civil Rights Act, Hofferber v.

First National Bank of Gymon, OK 437 F.Supp.788

(1977).

The plaintiff's papers and exhibits attached

thereto support his claim to his property right of an

easement by express grant. The United States Court of

Appeals Second Circuit does not favor forfeiture of

easements by express grant Penn Centra! Transp. Co. v.

Pirate Canoe Club Inc. 463 F.2d 127. .When the intent

of the owner is to maintain a perpetual open way.

Holloway v. Southmayd 130 NY Reports 309, 390 Fed.

825 (1893) “ Private easements are independent of the

public easement, and are in nature as indestructible by

acts of the public authorities, or of the grantor in such a

deed

The Third Circuit Court of Appeals prevented

the city from vacating sidewalk and issuing building

permit for new construction in and above sidewalk to

which was in private hands, RKO-Stanley Warner

Theatres v. Mellon Nat. Bank 436 F. 2d.1297,1298,

1300-1303. A case of First Impression for the Court of

Appeals Second Circuit with the petitioner’s case at bar

to enjoin the city from vacating this 24’ easement for

new construction that has been open to the public for

over 85 years. (emphasis added).

The set of material facts that were overlooked

and further support of petitioner’s claim, the subject

parcel of property was predominantly 100% public trust

lands of the Atlantic Ocean, its outer beach and high

water line of the Bay of Far Rockaway extending north

the Norton’s Creek. These public trust lands were

artificially filled and subdivided into smaller parcels for

the construction of the subject bungalow development

and its infrastructure of pedestrian walks. The set of

facts pleaded by plaintiff are supported with

documented evidence of 1910 maps of estate and

assessment of property showing high water line 1910 -

21 show the southern boundary of the Dickerson estate

as the Atlantic Ocean with its high water line extending

into Bay of Far Rockaway into Norton’s Creek estuary

at the northern boundary recent tax maps, surveys and

deeds filed at the Queens City Register. The Dickerson

estate expressly granted several easements ensuring not

only the property owner’s nghts for “free and

uninterrupted” access over these lands but also the

public’s dominate right of access in and over these

public trust lands of the outer beach, Bay of Far

Rockaway and Norton’s Creek.

The original deed states:

“TOGETHER with all the right, title, and interest of the

party of the first part of, in and to the lands under the

Atlantic Ocean in front of and adjoining said premises,

together will all riparian rights appurtenant to said

premises. TOGETHER with a Right of Way to the party

of the second part, their heirs and assigns forever, for

free and uninterrupted passage over...said strip twenty

four feet in width running at right angles to Sea Girt

Avenue (formerly Bay Avenue) extended, and extending

form Sea Girt Avenue southerly to the Atlantic Ocean,”

recorded in Liber 2395 page 98, recorded January 24,

1922 by Dickerson Estates. (emphasis added).

The public is entitled to the “free and

uninterrupted passage” said strip of land in and over

these navigable waters and submerged lands of the

estate. The grid of pedestrian walks infrastructure is

constructive notice of access over these public trust

lands connect to the Atlantic Ocean; See National

Association of Homebuilders of the U.S. and New

Jersey Builders Assn. id. The plaintiff referenced

original deed of 1921 id. as annexed in Exhibits B and

C; and in Appeal Brief Exhibit # 16 and on page 4

Complaint 03-CV-1295.

The Second Circuit Court of Appeals granted

summary judgment de novo in favor of plaintiff giving

no deference to district court’s determination of state

law., Sutera v. Go Jokir Inc. 86 F.3d 289 (2 Cir. 1996)

applicable to Mr. George’s claims.;301 Jd. the Second

Circuit Court of Appeals favors injunction against

obstructions of easements. Appeal Panel should have

ordered summary judgment in favor of plaintiff with

this case at bar. See Columbia Gas Trans. v. Bishop 809

F. Supp. 220, 222 (W.D. N. Y. 1992). Also Bachmen v.

Hecht 659 F. Supp. 308, 309 ( D. Virgin Islands

1986) also see, Gisondi v. Nyack Mews Condominium

673 N.Y.S.2D 743.

The District Court and Court of Appeals Second

Circuit as well as other circuits favor injunction and

removal of obstructions off of easements which is

petitioner intention with this writ of certiorari to

facilitate a proper decision on the merits and with no

issue of material fact to be decided the plaintiff is

entitled to judgment in has favor of his beneficial use to

the subject 24 ‘open way under F. Rule Civ. P. 56.

Reasons for Granting the Writ

vise The United States Court of Appeals Second

Circuit has entered a decision in conflict with other

circuit decisions and various state court decisions so far

and departed from the accepted and usual course of

judicial proceedings.

The Congressional Appropriations Article 1

Section 8 for the general Welfare of the United States,

shall be uniform throughout the United States for the

future well being of the Nation, the well being of all

citizens. Where a heightened standard of review shall

be applied through the CZMA, Civil Rights,

Constitution, Eminent Domain and Tax Policy to

protect the public purposes that are of national

importance. To preserve, protect, develop, restore and

enhance the coastal zone, giving full consideration to

ecological, cultural, historic, and esthetic values as well

as the needs for compatible economic development that

should be reviewed and settled by the United States

Supreme Court.

Conclusion

WHEREFORE, Petitioner Richard George

respectfully prays that this Honorable Court grant this

petition and issue and writ of certiorari to vacate or

review the judgment of the Second Circuit, or remand

for further consideration, or both, along with any other

appropriate relief.

Dated: October 2, 2006

Respectfully submitted.

Richard George, pro se

170A Beach 24th Street

Far Rockaway, New York 11691

(718) 868-3123

APPENDIX

Opinions, orders, findings of fact, and conclusions of

law entered with the judgment sought to be reviewed

(i) UNITED STATES OF APPEALS FOR THE

SECOND CIRCUIT

August Term 2005

(Argued: October 21,2005 Decided: January 25, 2006)

Docket No. 05-0886-cv

RICHARD GEORGE,

Plaintiff-Appellant,

dns canes

NYC DEPARTMENT OF CITY PLANNING,

NYC DEPARTMENT OF BUILDINGS, and SHACAF

ANKOR,

Defendants-Appellees.

Before:

OAKES, JACOBS,AND SACK,

Circuit Judges.

Appeal from a Judgment of the United States District

Court for the Eastern District of New York (Feuerstein,

J.) dismissing the complaint on the ground that there is

no private right of action granted by the Coastal Zone

Management Act, 16 U.S.C § 1451 et seq. (2004).

Affirmed.

809

720- 1-30-2005:‘USCA-80004 FY90

RECORD PRESS, INC., 157 Chambers St., N.Y. 10007 (212) 619-4949

RICHARD GEORGE, Plaintiff- Appellant, pro se.

SCOTT SHORR, Corporation Counsel of the City of

New York, New York, NY representing Defendants-

Appellees NYC Department of City Planning and NYC

Department of buildings.

DENNIS JACOBS, Circuit Judge:

The complaint alleges that the New York City

Department of Buildings granted various building

permits for a fence that obstructed a public right of

access to a beach on the Atlantic Ocean, and that the

City approved the fence without reviewing its

environmental impact, violating public and private

rights guaranteed by the Coastal Zone Management

Act, 16 U.S.C. § 1451 et seg. (2004)

Magistrate Judge Lois Bloom filed a Report and

Recommendation in October recommending that the

complaint be dismissed on the pleadings pursuant to

Rule 12 © of the Federal Rules of Civil Procedure, on

the ground that the Act does not afford a private right of

action against city agencies. The United States District

Court for the Eastern District of New York (Feuerstein,

J.), adopted the Report and Recommendation in its

entirety. We affirm.

DISCUSSION

A grant of judgment on the pleadings is reviewed de

novo; we affirm only if plaintiff would not be entitled

to relief under any set of alleged facts. Sheppard v.

Beerman, 18 F.3d 147, 150 (2d Cir.1994),

“Like substantive federal law itself, private rights of

action to enforce federal law must be created by

Congress.” Alexander v. Sandoval, 532 U.S. 275,286

(2001). Plaintiff challenges the City’s compliance with

the following chapter of the Act:

State and local governments submitting applications

for Federal programs, in or outside of the coastal

zone...shall indicate the views of the appropriate state

or local agency as to the relationship of such activities

to the approved management program, except upon a

finding by the Secretary that such project is consistent

with the purpose of this chapter or necessary in the

interest of national security.

16 U.S.C. § 1456 (d) (2000) (emphasis added).

To discover whether Congress intended that the Act

be enforceable by a private right of action, we look to

the “text and structure” of the statute. Sandoval, 532

U.S.at 288. Where the text explicitly contemplates

public enforcement only, courts will assume Congress

intended to preclude private right of action. The Act

specifies a remedy against state or city agencies that

811

Proceeds without consistency review: the denial of

“applications for Federal assistance under other Federal

programs.” 16 U.S.C. § 1456 (d); see also, 16 U.S.C §

1455 (b) (2000) (“The Secretary may make a grant to a

coastal state under... this section only if the Secretary

finds that the management program of the coastal sate

meets all applicable requirements of this chapter....”).

It is telling that the Act specifies a mechanism for

enforcing the consistency requirement against sate and

city agencies without mention of any private right of

action.

As the Third Circuit conclude the Act’s “general

statement of intent to enhance state authority, given

effect through explicit measures in the statute itself,

cannot be taken to indicate an intent also to create rights

of actions that the statue fails to mention.” Dep’t of

Envil. Prot. & Energy v. Long Island Power Auth., 30

F.3d 403, 423 (3d) Cir. 1994); see also California ex re.

Brown v. Watt, 683 F.2d 1253, 1270 (9™ Cir. 1982),

rev'd on other grounds, 464 U.S. 312 (1984)

(assuming, though not deciding, that no private right of

action is available under the Act. District Courts within

the Second Circuit have likewise declined to find a

private right of action in the Act. See Town of N.

Hempstead v. Vill. of N. Hills, 482 F. Supp. 900, 905

(E.D.N.Y. 1979) (“[The Act} is neither a jurisdictional

grant, nor a basis for stating a claim upon which relief

can be granted.”’):see also New York v. DeLyser, 759 F.

Supp. 982, 987 (W.D.N.Y. 1991) (suggesting that only

possible private right of action under the Act would be

against the federal government through the

Administrative Procedure Act).

We adopt the interpretation favored by other circuits

and by district courts in this Circuit, namely, that the

Coastal Zone Management Act creates no private right

or action against city agencies.

We have considered all of plaintiff's other claims

and consider them to be without merit. The decision of

the district court is affirmed.

(ii) Mandate

MANDATE

United States Court of Appeals

FOR THE

SECOND CIRCUIT

JUDGEMENT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, Foley Square, in

the City of New York, on the 25" day of January, two

thousand and six.

Before Hon. James J. Oakes.

Hon. Dennis Jacobs

Hon. Robert Sack

Circuit Judges

Docket No. 05-0885-cv

RICHARD GEORGE,

Plaintiff-Appellant,

Vv.

NYC DEPARTMENT OF CITY PLANNING,

NYC DEPARTMENT OF BUILDINGS AND

SHACAF ANKOR

Defendants-Appellees,

Appeal form the United States Court for the

Easter District of New York,

This cause came on the be heard on the

transcript of record from the United States Court for the

Eastern District of New York and was argued by

counsel.

On considerations whereof, it is herby

ORDERED, ADJUDICATED AND DECREED that

the judgment of said District Court be and id hereby

ARFFIRMED in accordance with the opinion of this

Court.

FOR THE COURT:

ROSANNE B. MACKEHCHNIE, Clerk

s( )

Arthur M. Heller

Motions Staff Attorney

A TRUE COPY

Roseanne B. MacKechnie, Clerk

by s( Deborah Holmes _)

DEPUTY CLERK

(iii)

Supreme Court of the United States

Office of the Clerk

Mr. Richard George

170A Beach 24" Street

Far Rockaway, NY 11691

Re: Richard George

v. NYC Department of City Planning et.

al.

Application No. 05A1164

Dear Mr. George,

The application for an extension of time within

to filed a petition for a writ of certiorari in the above-

entitled case has been presented to Justice Ginsberg,

who on June 15, 2006 extended the time to an including

October 2, 2006.

This letter has been sent to those designated on

the attached notification list.

Sincerely,

William K. Sutter, Clerk

By s¢' )

Clayton Higgins

Case Analyst

NOTIFICATION LIST

Mr. Richard George

170A Beach 24" Street

Far Rockaway, NY 11691

Clerk

United States Court of Appeals for the Second Circuit

1702 US Courthouse, Foley Sq.

New York, NY 10007

(iv) REPORT AND RECOMMENDATION

03 CV 1295(SJF)(LB)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

RICHARD GEORGE

Plaintiff,

-against-

ANKOR SHACAF, NEW YORK CITY

DEPARTMENT OF CITY PLANNING,

QUEENS OFFICE, NEW YORK CITY

DEPARTMENT OF BUILDNGS, QUEENS

OFFICE

Defendants.

BLOOM, United States Magistrate Judge:

Plaintiff brings the instant action pro se alleging

defendants violated his rights under the Due Process

Clause of the Fourteenth Amendment and under the

Coastal Zone Management Act, (““CZMA”) 16 U.S.C §

1451.'The New York City Department of City Planning

and Department of Buildings (“defendants”)’ move to

dismiss the complaint pursuant to Rule 12 (c )

Of the Federal Rules of Civil Procedure. The Honorable

Sandra J. Feuerstein referred defendants’ motion to the

' Plaintiff filed another case against the New York City

Department of Buildings claiming violations under the CZMA,

George v. Impressive Home, Inc., et al, 03 CV 40 (DGT)(LB)o,

which likewise has a pending motion to dismiss.

? The remaining defendant, Ankor Shacaf, was served with a

summons and complaint to which he never filed an answer.

However, Shacaf conveyed the property at issue to Second Stage,

Inc., before this action was commenced. An attorney representing

Second Stage wrote to plaintiff on May 9, 2003, informing him of

this change in ownership. Plaintiff forwarded a copy of this letter

to the Court along with his own letter stating that he had sent a

copy of the summons and complaint to Second Stage. By Order

dated May 30, 2003, the Court informed plaintiff that mailing

copies of the summons and complaint to persons not named as

parties was insufficient to effect service of process, and that

plaintiff should seek to amend the complaint if he desired to add

parties. In plaintiff's Affirmation in Opposition to Defendant’s

Motion dated August 25, 2003, plaintiff acknowledges that the

property formerly owned by Shacaf was conveyed to Second Stage

prior to commencement of this action. (Pi’s Affirm. in Op. to

Def.’s Mot. at 2.) Plaintiff also states that the fence which had

obstructed a portion of the easement had been removed, and that

his complaint was never amended to include Second Stage. Id.

Therefore, plaintiff's complaint against defendant Shacaf should be

dismissed as moot.

10a

undersigned for a Report and Recommendation in

accordance with 28 U.S.C. § 626(b). It is respectfully

recommended that defendants’ motion to dismiss

should be granted.

BACKGROUND

The following facts are taken from plaintiff's

complaint and the exhibits attached thereto. Plaintiff

resides in a beachfront bungalow in Far Rockaway

Queens. Pursuant to a New York City Department of

Buildings permit, plaintiff's neighbor Ankor Shacaf

erected a fence that obstructs “one-half of a 24 foot

wide right-of way.” This 24-foot right-of way is record

in plaintiff's, Shacaf’s and other property owners’

deeds. The fence encloses a construction site for four

new homes.

Plaintiff alleges the New York City Department of

Buildings granted the permit to defendant Shacaf in

violation of the CZMA and environmental programs

created pursuant thereto. Defendants move to dismiss

plaintiff's action for (1) lack of subject matter

jurisdiction, (2) failure to state a claim upon which

relief may be granted, and (3) because review of the

administrative determination must be brought in state

court.

DISCUSSION

. Standard of Review

Under Rule 12 (c ) of the Federal Rules of Civil

Procedure, a court must determine whether “ the

moving party is entitled to judgment as a matter of

law.” Burns Int’! Sec. Serv., Inc.

v. Int'l Union, United Plant Guard Workers of Am. 47

F.3d 14,16 (2d Cir 1995)). A court should only dismiss

a complaint pursuant to Rule 12 (c ) if the complaint

cannot state any set of facts that would entitle plaintiff

to relief. Miller _v Wolpoff & Abramsom, L.L-P., 321

lla

F.3d 292, 300 (2d Cir. 2003). In deciding a Rule 12 (c)

motion, the court applies the same standard as that

applicable to a motion under Rule 12 (b)(6). DeMurna

v. Hawkes, 328 F.3d 704, 706 jn.1 (2d Cir. 2003).

The Court must accept all factual allegations in the

complaint as true and draw all reasonable inferences in

favor of the plaintiff. See, e.g., Koppel v. 4987 Corp..

167 F.3d 125, 130 (2d Cir. 1999); Jaghory v. New York

State Dep’t_of Educ., 131 F.3d 326, 329 (2d Cir. 1997).

This issue is not whether a plaintiff will ultimately

prevail but whether the plaintiff is entitled to offer

evidence to support his or her claims. See, e.g., Villager

Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.

1995), cert denied, 519 U.S. 808 (1996). The Court

must “confine its consideration *to facts stated on the

face of the complaint, in documents appended to the

complaint or incorporated in the complaint by

reference, and to matters of which judicial notice may

be taken,”’ Leonard F. v. Israel Disc. Bank of New

York, 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v.

Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.

191)); Hayden vy. County of Nassau 180 F.3d 42, 54 (2d

Cir. 1999). Where, as here, a party is proceeding pro se,

the Court is obliged to “read his supporting papers

liberally, and will interpret them to raise the strongest

arguments that they suggest.” Burgos v. Hopkins, 14

F.3d 787, 790 (2d Cir. 1994)

fl. CEMA

The CZMA codifies “ a national policy to protect the

coastal zone, to encourage states to develop coastal

zone management programs, to promote cooperation

between federal

-®

and state agencies engaged in programs affecting the

coastal zone, and to encourage broad participation in

12a

the development of coastal zone management

programs.” Secretary of the Interior v. California, 464

U.S. 312, 315 (1984). “ Through a system of grants and

other incentives” states are encouraged to develop

coastal management plans, which are then submitted for

approval by the Secretary of Commerce. Id. Once the

state plan has been approved, “ CZMA 307 (c )(1)

requires federal activities ‘conducting or supporting

activities directly affecting the coastal zone’ to be

‘consistent’ with the state plan to the maximum extent

practicable.” Secretary of the Interior, 464 U.S. at 316.

See State of New York v. United States Gen. Servs.

Admin., 823F. Supp. 82 (N.D.N.Y. 1993) (“the CZMA

and its implementing regulations require ‘federal

agencies’ undertaking ‘federal activities’ to determine

whether these activities directly affect the ‘coastal

zone.”’).

Plaintiff alleges that defendants did not comply with

“the CZMA and its regulation for shorefront access and

protection required as part o the New Waterfront

Revitalization Program Policy 8.” (Complaint at 5)

Under 16 U.S.C. § 1456(d):

State and local governments submitting applications for

Federal assistance under Federal programs, in or

outside of the coastal zone...shal! indicate the views of

the appropriate state or local agency as to the

relationship of such activities to the approved

management program for the coastal zone. Such

application shall be submitted and coordinated in

accordance with the provisions of section 6506 of Title

31. Federal agencies shall not approve proposed

projects that are not consistent with the enforceable

policies of a coastal state’s management program,

except upon a finding by the Secretary that such project

is consistent with the purpose of this chapter or

necessary in the interest of national security.

13a

Plaintiff's complaint, construed liberally, asserts that

consistency review under the CZMA should have been

required by the New York City Department of

Buildings and Department of Planning prior to Shacaf

being granted a permit for the fence. (Id. at 6, 7,11)

within

The CZMA, however, applies to “Federal Agency

activity” that directly affects a coastal zone. 16 U.S.C. §

1456 (c )(1)(A). See Secretary of the Interior, 464 U.S.

at 330 (“phrase ‘directly affecting’ was aimed at

activities conducted or supported by federal agencies”)

A “Federal agency” under the CZMA is “any

department, agency, board, commission, council,

independent office, or similar entity within the

executive branch of the Federal Government, or any

wholly owned Federal Government corporation.” 15

C.F.R. § 930.17. The New York City Department of

Buildings and the New York City Department of

Planning are neither entities “within the executive

branch of the Federal government” nor “wholly owned

Federal Government’ corporation[s].” Therefore,

plaintiff's claims against defendants under the CZMA

should be dismissed. Brooklyn Bridge Park Coalition v.

Port. Auth. Of New York and New Jersey, 951 F.

Supp. 383 (E.D.N.Y. 1997) (dismissing claims that Port

Authority actions were inconsistent with New York

State’s Waterfront Revitalization Plan because the Port

Authority is noi a federal agency under the CZMA.

Even if, as plaintiff suggests, the City is acting in

partnership with the Federal government (Plaintiff's

Affirmation in Opposition to Defendant’s Motion 411),

plaintiff's complaint fails to state a claim upon which

relief can be granted. Plaintiff alleges that the fence and

proposed new homes interfere with “public access and

l4a

sensitive preservation of deteriorating waterfronts.”

(Complaint at 4). Specifically, plaintiff alleges Section

1452 of the CZMA preserves “public access to the

beach for recreational purpose” (Complaint at 4), the

public trust doctrine provides that “there should be no

unnecessary obstruction...of the public’s right of access

over, and use of the foreshore” (id.), and defendants

violated the New Waterfront Revitalization Program

Policy 8 entitled “Provide public access to and along

~ New York City’s coastal waters” (id. at 5, Exhibit E).

However, the deeds attached to plaintiff complaint

-5-

demonstrate that the right of way at issue is a privately-

owned easement, recorded as an easement in common

with other neighbors, rather than a public right of way.

(Deeds*® annexed as Exhibit B and C to Complaint;

Letter from City Planning Commission to Plaintiff,

dated August 19, 2002, annexed as Exhibit H*).

* Shacaf’s deed includes the following proviso: “TOGETHER

also with a right of way for free and uninterrupted passage over

two strips of land one of which is 40 feet in width and the other 24

feet in width...The said 40 feet of way being known ad Beach 26"

Street and to be used for Street purposes.” (Exhibit B to

Complaint).

Plaintiff's deed includes the following proviso: "TOGETHER

also with a right of way for free and uninterrupted passage over

two strips of land one of which is 40 feet in width and the other 24

feet in width...Subject however to the rights over easterly 12 feet,

and the westerly 20 feet of the premises above described.” (Exhibit

C to Complaint).

Plaintiff's Reply to Defendant’s Answer alleges that “ the

operative deeds in the defendant’s and adjoining bungalow owners

convey the same ocean easement used exclusively to access to

Atlantic Ocean.” (Reply at 5).

* This letter states that” these easement were created by private

owners on private property. ..Therefore neither City nor the City

15a

Therefore, any diminution in the privately owned

easement does not diminish public to the beach.

Finally, to the extent that plaintiff alleges private

individuals failed to comply with the CZMA, the

CZMA provides no private cause of action against a

private party who allegedly should have submitted

consistency certifications. See State of New York v.

DeLyser, 759 F.Supp. 982,987 (W.D.N.Y. 1991)

(“Although case law suggests that an injured party may

bring an action to force the federal government to fulfill

its statutory obligations under CZMA, there is simply

no basis on which to infer a right of action on behalf of

the State against a private party who conducts activity

without a federal permit..”); see also State of New

Jersey v. Long Island Power Auth., 30 F.3d 403, 421

(3 Cir. 1994) (there is no private cause of action under

the CZMA against a private party for failure to submit

consistency certifications). Therefore, plaintiff's claims

under the CZMA should be dismiss for failure to state a

Claim upon which relief may be granted.”

If Failure to State a Claim

Plaintiff also claims he was deprived of property

without due process of law, in violation of the

Fourteenth Amendment’s Due Process Clause. The

Planning Commission has jurisdiction over these private easements

and cannot ensure that they remain.”

* Although defendants seek dismissal for lack of subject matter

jurisdiction, plaintiff's claims “are not so insubstantial as to fail to

provide an occasion for exercise of subject matter jurisdiction” and

are more properly dismissed for failure to state a claim. Fusco v.

State of Connecticut, 815 F.2d 201, 204 n.4 (2d Cir. 1987)

l6a

only allegation in the complaint regarding due process

is the following:

Finally, I would request a (sic) discovery of the record

that required reviews and public hearings as part of the

due process were conducted why were the adjoining

property owners notified by City Planning or the

Community Board as to the time and place of the

hearings to eliminate and obstruct part of this 24 foot

public access right of way.

(Complaint at 8)

Although the complaint is not clear, it appears

plaintiff is alleging his due process rights were violated

when adjoining property owners were (or more

logically, were not) notified of the time and place of the

required reviews and public hearings, which are part of

the CZMA process. However, as noted above, the

review process plaintiff seeks under the CZMA does

not apply to the City’s granting of a permit to Shacaf to

erect the fence. Accordingly, plaintiff's allegation

regarding the denial of due process fails to state a

claim.

The Court liberally construes plaintiff's complaint to

allege a procedural due process claim and assumes that

plaintiff intended to assert that he was not notified of

any hearing regarding Shacaf’s fence, which obstructs

half of the common easement. Defendants seek to

dismiss this claim for failure to state a claim because

the City agencies are not a party to the easement and

not responsible for enforcing the easement. Defendants

also allege that any Taking claims or claims seeking

environmental review are premature and plaintiff's

proper vehicle to challenge any acts alleged herein is

through an Article 78 proceeding.

In order for a person “ to establish that the state has

deprived him of property without due process, he must

17a

first identify a property right, second show th. the state

has deprived him of that right, and third show that the

deprivations was effected without due process.” Mehta

v. Surles 905 F.2d 595, 598 (2d Cir. 1990) (emphasis in

original). Plaintiff could be claiming a property interest

in his easement and that his property’s vajue will] be

diminished by the construction of the four new homes.

However, the City’s act of granting a permit for a

fence or the construction could not have deprived

plaintiff of his property. First, with regard to plaintiff's

interest in his property’s market value,” governmental

action allegedly causing a decline in property value has

never been held to ‘deprive’ a person of property within

the meaning of the Fourteenth Amendment.” Fusco v.

State of Connecticut, 815 F.2d 201,206 (2d Cir. 1987).

Second, the City’s act in granting plaintiff's neighbor a

permit to build a fence had no legal impact on the

plaintiff's substantive real property rights, no did it

adjudicate plaintiff's property rights. See Mehta, 905

F.2dat 598j-99 (group home permit granted to

plaintiffs’ neighbors that would allegedly overburden a

common easement had no legal impact on plaintiff's

right to the common easement).

The New York City Charter does not empower the

City Department of Buildings as examining or

approving plans for construction, requiring construction

or alteration, issuing certificate of occupancy). As in

Mehta, plaintiff does not allege that the City exercised

its eminent domain powers in allowing Shacaf to build

the fence. Indeed, plaintiff may enforce his ht to the

easement by instituting a trespass or quiet title® action

® At least one court has held that common law quiet title and

trespass actions could constitute an adequate post-deprivation

remedy for a neighbor’s claim of rights over property. See

Longmoor_v. Nilsen, 285 F. Supp,. 2d 132 (D. Conn. 2003)

18a

against the property owner directly. See id at 599

(plaintiffs properly instituted a trespass action to assert

defendant’s action overburdened the easement). Where

the City’s action has no legal impact on plaintiff's nght

to an easement, there can be no deprivation of the

property right. Id. at 598. Since, on the facts alleged,

the City has not “deprived” plaintiff of any right to the

easement, plaintiff fails to allege a constitutional claim

upon which relief may be granted. See generally

Demuria_ 328 F.3d at 706 (affirming dismissal for

failure to state a claim where plaintiffs failed to identify

any deprivation of a constitutionally protected liberty or

property interest.’

IV. Miscellaneous Claims

Plaintiff's opposition to defendants’ motion argues

that federal jurisdiction arises under (1) the Public Trust

Doctrine, (2) Administrative Procedure Act (“APA”)

and (3) National Environmental Protection Act

(“NEPA”). Even if these claims were properly added to

plaintiff's complaint by amendment pursuant to Rule 15

of the Federal Rules of Civil Procedure, the complaint

would still be dismissed. Claims involving the public

trust doctrine do not arise under federal law, New_York

v_Delyser, 759 F. Supp. 982 (W.D.N.Y 1991)(“New

York may have an obligation under its own law to hold

lands in trust for its public, but that does not give rise to

federal question jurisdiction’); accord Vaizburg_v.

(police ordered plaintiff to remove chain link fence over road to

allegedly facilitate a neighbor’s trespass).

? To the extent plaintiff alleges a takings claim, his claim would

not be ripe as plaintiff must allege that he has sought just

compensation by means of an available state procedure. Villager

Pond, Inc. v. Town of Darien, 56 F.3d 375 (2d Cir 1995). The

Court need not reach defendants’s supplemental state law

environmental claims should be dismissed without prejudice

19a

United States, 99~-CV-3536,2000 WL 356404, at * 2

(E.D.N.Y. Feb. 18, 2000). See also Romeo v. Sherry,

308 F.Supp. 2d 128 (E.D.N.Y.2004) (New York state

courts have found “under the public trust doctrine, that

large grants of land to private individuals are ultra vires

and void.”).

The Administrative Procedure Act which establishes

standards governing judicial review

of findings made by federal administrative agencies,

only applies to federal agencies, which are defined as

“each authority of the Government of the United States,

whether or not it is within or subject to review by

another agency...”” Dickinson v. Zurko 527 U.S 150

(1999); 5 U.S.C § 701. Similarly, NEPA only applies to

“agencies of the Federal Government.” Brooklyn

Bridge Park Coalition, 951 F.Supp. at 393 (NEPA does

not apply to the Port Authority). Since the New York

City Department of City Planning and the Department

of Buildings are not agencies of the Federal

government, plaintiff fails to state a claim against these

defendants under these statutes.

Finally, since all of plaintiff federal law claims

should be dismissed, the Court should decline to

exercise supplemental jurisdiction over any state law

claims alleged. Valencia v. Lee, 316 F.3d 299, 305 (2d

Cir.2003) (citing 28 U.S.C.§ 1367 (c)(3)). Thus, any

claims brought pursuant to state law should be

dismissed without prejudice.

CONCLUSION

The Court should grant defendants’ motion as the

CZMA does not apply to the defendants herein and

plaintiff's complaint alleging defendants violated his

rights to due process

20a

of law fails to state a claim upon which relief may be

granted. Accordingly, plaintiff's complaint should be

dismissed in its entirety.

FILING OF OBJECTIONS TO THIS REPORT

AND RECOMMENDATIONS

Pursuant to 28 U.S.C § 636 (b)(1) and Rule 72 (b) of

the Federal Rule of Civil Procedure, bthe parties shall

have ten (10) days from service of this Report to file

written objections. See also. Fed. R. Civ. P. 6. Such

objections (and any responses to objections) shall be

filed with the Clerk of the Court. Any request for an

extension of time to file objections must be made to the

District Judge within the ten day period. Failure to file

a timely objection to this Report generally waives any

further judicial review. Marcella _v. Capital Dist.

Physician’s Health Plan, Inc., 293 F.3d 42 (2d Cir.

2002); Small v. Secretary of Health and Human

Services, 892F.2d 15 (2d Cir.1989); see Thomas v. Arm,

474 U.S. 140 (1985).

SO ORDERED:

s_/ )

Lois Bloom

United States Magistrate Judge

Dated: October 13, 2004

Brooklyn, New York

2la

Copies to

HON SANDRA J. FEUERSTEIN U.S.D.J.

RICHARD GEORGE, Pro Se Plaintiff

170 A Beach 24" Street

Far Rockaway NY 11691

LOUIS LIPPIN, Esq

Office of the Corporation Counsel

100 Church Street.

New York, NY 10007

22a

(v) ORDER AND DECISION

SANDRA J. FEUERSTEIN

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

RICHARD GEORGE

Plaintiff,

OPINION & ORDER

CV-03-1295 (SJF)(LB)

-against-

ANKOR SHACAF, NEW YORK CITY

DEPARTMENT OF CITY PLANNING,

QUEENS OFFICE, NEW YORK CITY

DEPARTMENT OF BUILDNGS, QUEENS

OFFICE

Defendants.

FEUERSTEIN, J.

Before the Court are objections by plaintiff Richard

George (plaintiff) to a Report and

Recommendation of United States Magistrate Judge

Lois Bloom dated October 13, 2004 (the Report)

recommending that the motion of defendants New York

City Department of City Planning and New York

Department of Buildings (collectively, the City

defendants) for dismissal be granted and that the

complaint be dismissed in its entirety. The Report

23a

further recommends that the Court should decline to

exercise supplemental jurisdiction over any state

Laws claims, and that such state law claims should be

dismissed without prejudice. For the reasons stated

herein, the Court overrules plaintiff's objections and

accepts Magistrate Judge Bloom’ Report in its entirety.

Rule 72 of the Federal Rules of Civil Procedure

permits magistrate judges to conduct

proceedings on dispositive pretrial matters without

the consent of the parties. Fed.R.Civ.P. 72(b). Any

portion of a report and recommendation on dispositive

matters, to which a timely objection has been made, is

reviewed de novo. 28 U.S.C.§ 636(b)(1); Fed.R.Civ.P.

72(b). The court, however, is not required to review,

under a de novo or any other standard, the factual

findings or legal conclusions of the magistrate judge as

to which no proper objections are interposed. See,

Thomas v. Arm 474U.S. 140, 150,106, S.CT. 466, 88

L.ED.2d 435 (1985). Whether or not proper objections

have been filed, the district judge may, after review,

accept, reject, or modify any of the magistrate judge’s

findings or recommendations. 28 U.S.C.§ 636(b)(1);

Fed.R.Civ.P. 72(b).

Plaintiff alleges, in essence, inter alia, (1) that he

has a viable claim against the City defendants under the

Coastal Zone Management Act, 16 U.S.C. § 1451, et

seg., since they acted in partnership with the federal

government in certain respects; (2) that Magistrate

Judge Bloom erred in finding that the right-of-way at

issue is a private easement, since it is for the benefit of

the public; (3) that Magistrate Judge Bloom ignored 15

C.F.R. § 923 and instead erroneously relied on 15

C.F.R. § 930; (4) that he has a property interest in the

24a

right-of-way; and (6) that his due process claims are

ripe for review, since the City defendants rendered a

final determination when they approved the permits for

the fence and construction. Plaintiff further asks that his

objections be considered as a motion for summary

judgment. .

Upon de novo review of the Report, and upon

careful consideration of plaintiff's objections, the Court

overtules plaintiff's objections, and accepts and adopts

Magistrate Judge Bloom’s Report in its entirety as an

Order of the Court. The City defendants’ motion to

dismiss is granted and the complaint is dismissed in its

entirety. The Clerk of the Court is directed to close the

case.

SO ORDERED.

s( )

SANDRA J. FEUERSTEIN

United States District Judge

Dated: January 25, 2005

Central Islip, New York

Copies to:

RICHARD GEORGE

170A Beach 24" Street

Far Rockaway, New York 11691

OFFICE OF THE CORPORATION COUNSEL

OF THE CITY OF NEW YORK

100 Church Street, Room 5-194

New York, New York 10007

25a

SENT TO:

Honorable Lois Bloom

United States Magistrage Judge

Richard George

170A Beach 24" Street

Far Rockaway NY 11691

Louis Lippin

Office of the Corporation Counsel

100 Church St.

New York, NY 10007

26a

(vi) UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 05-0886-cv

Richard George

Plaintiff-Appellant,

NYC Department of City Planning, NYC Department

of Buildings,

Shacaf Ankor,

Defendants- Appellees,

PETITION EN BANC REVIEW

Richard George

170A Beach 24"

Street

Far Rockaway,

NY 11691

1-718-868-3123

Petition for Rehearing En Banc Review

27a

(I) Civil Rights Violations Title 42 U.S.C.

Section 1983

Petitioner has established standing

with a valid claim under Title 42 U.S.C.A. Section

1983 for violations of Fifth, Fourteenth Amendments

acknowledged by Magistrate Judge Bloom and

Honorable Robert Sack which is part of the legal

record. A final decision was made by New York City

Department of Buildings and Department of City

Planning approval of permits for new construction that

obstruct plaintiff's easement in violation of his property

rights and rights to Due Process. There were no public

hearings on vacating this easement which is also

defined in relevant case law as a public access to the

waterfront. There is no just compensation for vacating a

public easement for a private use. The plaintiff is also

entitled to injunctive relief against defendant based on

depravation of his First Amendment rights to the use of

this easement as a public forum. Relevant case law of

the Eastern District provides plaintiff relief on this

ng was overlooked by the Appeal Panel; see Paulsen

Lehman 839 F. Supp.147 (E.D.N.Y. 1993)

pet permanently enjoined, along with agents,

employees and successors, and all persons subject to

their discretion and control, from imposing any

unlawful restraint on plaintiff's right to engage in other

First Amendment activities within the pedestrian

walkways, thoroughfares and boardwalk area which

apply to the plaintiff and 24 foot wide open way.

When the plaintiff complains of a

civil rights violation a court must accept the allegations

contained in the compliant as true, and draw al

reasonable references in favor of the plaintiff, pro se

litigant. The plaintiff has proven beyond doubt the set

of facts in support of his claim which entitle him to

relief Conley _v. Gibson, 355 U.S. 41, 45-46. This

standard is applied with particular strictness when the

28a

plaintiff complains of a civil rights violation, Sheppard

v. Beerman 18 F. 3d. 147, 150 (3d Cir. 1994). The

claim is sufficient to confer jurisdiction upon federal

court, when action is brought on the theory that

defendant’s conspired with developers to deprive

plaintiff of his constitutional rights in violation of Civil

Rights Act, Hofferber v. First National Bank of Gymon,

OK 437 F.Supp.788 (1977).

The plaintiff's papers and exhibits

attached thereto support his claim to his property right

of an easement by express grant of an estate owner

protected under New York law that is indestructible by

the municipality. The United States Court of Appeals

Second Circuit does not favor forfeiture of easements

by express grant Penn Central Transp. Co. v. Pirate

Canoe Club Inc. 463 F.2d 127. Especially when the

intent of the owner 1s to maintain a perpetual open way.

Holloway v. Southmayd 130 NY Reports 309, 390 Fed.

825 (1893) “ Private easements are independent of the

public casement, and are in nature as indestructible by

acts of the public authorities, or of the grantor in such a

deed”. “premises granted should ‘perpetually exit as an

open way’, and in ‘legal effect granted’ such usual and

necessary easements as would be comprehended in the

‘free flow of light and air over open way’, and in free

use thereof ”’.

The Third Circuit Court of Appeals

prevented the city from vacating sidewalk and issuing

building permit for new construction in and above

sidewalk to which was in private hands, RKO-Stanley

Warner Theatres _v. Mellon Nat. Bank 436 F.

2d.1297,1298, 1300-1303. A case of First Impression

for the Court of Appeals Second Circuit with the

petitioner’s case at bar to enjoin city from vacating

easement sidewalk for new construction of housing.

More recently by Metroplex on the Atlantics new

construction. Plaintiff in this petition seeks relief upon

29a

his claim to enjoin New York City from vacating

easement issuing permits for a use outside the scope of

a public easement used by the public of over 85 years

and removal of all construction, fencing and

obstructions off of said easement (emphasis added).

The set of material facts that were

overlooked and further support of petitioner’s claim, the

subject parcel of property was predominantly 100%

public trust lands of the Atlantic Ocean, its outer beach

and high water line of the Bay of Far Rockaway

extending north the Norton’s Creek. These public trust

lands were artificially filled and subdivided into smaller

parcels for the construction of the subject bungalow

development and its infrastructure of pedestrian walks.

The set of facts pleaded by plaintiff are supported with

documented evidence of 1910 maps of estate and

assessment of property showing high water line 1910 -

21 show the southern boundary of the Dickerson estate

as the Atlantic Ocean with its high water line extending

into Bay of Far Rockaway into Norton’s Creek estuary

at the northern boundary recent tax maps, surveys and

deeds filed at the Queens City Register. The Dickerson

estate expressly granted several easements ensuring not

cnly the property owner’s rights for “free and

uninterrupted” access over these lands but also the

public’s dominate right of access in and over these

public trust lands of the outer beach, Bay of Far

Rockaway and Norton’s Creek.

The original deed states:

“TOGETHER with all the right, title,

and interest of the party of the first part of, in and to the

rp under ome Atlantic _~ in front of and adjoining

|__ripari ight

enn non to ‘call premises. "TOGETHER with a Right

of Way to the party of the second part, their heirs and

assigns forever, for free and uninterrupted passage

30a

ver. ..Sai ip twenty fi t in wi

right t Girt Avenue formerl

Avenue) exten d_extendi

Avenue southerly to the Atlantic Ocean,” recorded in

Liber 2395 page 98, recorded January 24, 1922 by

Dickerson Estates. (emphasis added).

The public is entitled to the “free

and uninterrupted passage” said strip of land in and

over these navigable waters and submerged lands of the

estate. The grid of pedestrian walks infrastructure is

constructive notice of access over these public trust

lands connect to the Atlantic Ocean; See RKO-Stanley

Warner Theatres v. Mellon Nat. Bank /d., plaintiff can

enjoin city municipal agencies Paulsen v. Lehman Jd.,

from obstructing a public forum. Holloway v.

Southmayd Jd. the estate owner“ assigns forever” to

plaintiff and defendants as successors to the deed “ free

and uninterrupted passage” over the open way to access

the Atlantic Ocean. The plaintiff referenced original

deed of 1921 id. as annexed in Exhibits B and C; and in

Appeal Brief Exhibit # 16 and on page 4 Complaint 03-

CV-1295. Covenants, conditions and easements and

like restrictions on property comprise a special set of

land use devices recording controls that run with the

land. They are legal and binding to successors in title

and deed. These controls limit the use of land, are well

established in law, and continue in their effect if the

property is soid and is applicable with petitioner’s

property and the set of facts he desires to be included

with his claim.

The Second Circuit Court of Appeals

granted summary judgment de novo in favor of plaintiff

giving no deference to district court’s determination of

state law. Instead, it is our task to ascertain and apply

New York law, Sutera v. Go Jokir Inc. 86 F.3d 289 (2°

Cir. 1996), easements under New York law are defined

3la

by rights and obligations they create. More than a

personal privilege to use another’s land, it is an actual

interest in that land, Sutera v. Go Jokir Inc., 289, 301

Id. the Second Circuit Court of Appeals favors

injunction against obstructions of easements. Appeal

Panel should have ordered summary judgment in favor

of plaintiff with this case at bar as petitioner is entitled

to the removal of all obstructions and injunction to

prevent any more obstructions by NYC with this En

Banc review; also see Columbia Gas Trans. v. Bishop

809 F. Supp. 220, 222 (W.D. N. Y. 1992), plaintiff's

motion for summary judgment granted, defendant

enjoined to remove at his own expense ary structures or

encroachments on easement. Defendant cannot obstruct

interfere with plaintiff's easement with his planned

condominium project Bachmen v. Hecht 659 F. Supp.

308, 309 ( D. Virgin Islands 1986) also see, Gisondi v.

Nyack Mews Condominium 673 N.Y.S.2D 743. The

District Court and Court of Appeals Second Circuit as

well as other circuits favor injunction and removal of

obstructions off of easements which is petitioner

intention with this En Banc review to facilitate a proper

decision on the merits and with no issue of material fact

to be decided the plaintiff is entitled to summary

judgment in has favor F. Rule Civ. P. 56.

II. The Coastal Zone Management

Act 16 U.S.C. §1451 et seg. financial awards applies

to New York City and confer subject matter

jurisdiction to plaintiff's action

The plaintiff has brought an action

against New York City municipal agencies and non-

Federal entities to enjoin construction of residential

developmental projects which confer federal subject

matter jurisdiction to the extent that New York City is

acting in partnership with the Federal government with

the receipt of federal financial awards and involvement

32a

that warrant the imposition of the Costal Zone

Management Act of 1972,[{CZMA or Act], its

implementing regulations 15 C.F.R. Part 923, the

National Environmental Policy Act, the National

Historic Preservation Act, Endangered Species Act,

Civil Rights Act, National Flood Insurance Act. New

York City has seized the opportunity provided by the

Coastal Zone Management Act through its Waterfront

Revitalization Program approved September 30, 1982

by the Department of Commerce, see FEIS Appeal

Exhibits #5, 6, and 7.

A. CZMA financial awards to

New York City that provide standing for plaintiff

were overlooked by Appeal Panel: Plaintiff provided

ample evidence attached to his Appeal Brief that

include essential set of material facts overlooked by

the Panel of Judges and remain undisputed by

defendants:

New York City Waterfront Revitalization

Program was approved September 30, 1982 by the U.S.

Department of Commerce in 1982; see FEIS annexed in

Appeal Exhibits #’s 5,6,7,8, and 9. The work required

to be done by New York City in the Contract Award for

Local Coastal Management is to advance its Waterfront

Revitalization Program particularly water quality

improvements, wetlands restoration, public access, and

park development in implementing the authorities in the

award contract. The authorities for Waterfront

Revitalization of New York’s coasts have their basis in

Article I Section 8 of the U.S. Constitution under the

Commerce Clause, the many statutes, National Policies

§ 1452 (1) & (2) (303) (A) through ( K), (3) (1) to (6)

and enforceable coastal policies §1453 (6a) and

mandatory adoption of with the rules and regulations

promulgated by the Secretary of Commerce under

33a

Administrative Grants §1455 (c) and (d) that require

“full participation by relevant Federal agencies, State

agencies, local governments, regional organizations,

port authorities, and other interested parties and

individuals, public and private, which is adequate to

carry out the purposes of this chapter and is consistent

with the policy declared in section 1452 if this chapter.”

These authorities bind each party which exercises

statutory authority that is part of the management

program to conformance with relevant enforceable

policies and management techniques 15 C.F.R. §923.43

provide grounds for a citizen in taking action to ensure

compliance of networked agencies with the program

§923.43 (c) (1) (2) (i). (emphasis added).

These essential set of material

facts confer standing and federal subject matter

jurisdiction with plaintiff's action in which he seeks to

redress a wrong for violations of Federal law and

pong 1 Am, Jur 2d. §4, Nassif v. Municipal Court

4” Dist) 214 Cal App. 3 1294, with by NYC acting in

vite a with the Federal government through the

CZMA contract award. His case include Appeal

Exhibit #S ORGANIZATION and

IMPLEMENTATION long term management and

maintenance of waterfront development and activities

pursuant to New York City’s Waterfront Revitalization

Program is the city’s principal coastal zone

management tool and establishes the responsibilities of

the Department of City Planning acting as the City

Coastal Commission and the authorities that play a key

role in the decision making and management of the

coastal area of New York. Appeal Panel in their

decision.

Public access to the waterfront is_a priority and

primary importance especially in urban waterfront

34a

redevelopment in advancing national and regional goals

and objectives in carrying out the purposes of CZMA

consistent with Title 16 U.S.C. §1452 (303) (E) and (H)

through the programmatic funding to New York City.

See the legal instrument financial award contract Work

Program Local Coastal Management, Work to be done,

and Task Implementation Appeal Exhibit #7 pgs. 5 & 6

as defined in 15 C.F.R. §923.132 (e) and required by

Section 306 Administrative Grants §1455 (c) and (d),

id., and Section 314 Interagency coordination and

cooperation, Title IV of the Intergovernmental

Cooperation Act of 1968 id.

Public Access to the waterfront is defined by

New_York City Department of City Planning who was

part of the Management Team contributing to the

CEQR Technical Manuel page 4-12. City Planning has

defined Public Access as:

“Any area of publicly accessible open space on a

waterfront property, as well as any pedestrian way that

provides a route for a waterfront public access area to a

public street, public park, public space, or public access

area”

City Planning’s Public Access to the waterfront

includes the plaintiff's property and express perpetual

grant of a 24 foot open way and pedestrian walk that

provides “ free and uninterrupted access” from “ Sea

Girt Avenue” a public street as defined id. in and over

the “ public trust lands” of the artificial fill of the

Atlantic Ocean Bay of Far Rockaway to access the

“Atlantic Ocean” a waterfront public access area as

defined id. This easement was “assigned forever” by

the estate owner Edward Dickerson and is

indestructible by the municipality under the CZMA

Public Access Requirements Policy 8 and State Policy

35a

19 and 20. See also, Holloway v. Southmayd Jd., RKO-

Stanley Warner Theatres v. Mellon Nat. Bank /d., also

Paulsen v. Lehman /Jd., in Part I Civil Rights violations

§1983.

to the waterfront as defi in

CEOR id is also enforced by New York City’s

Department of City Planning and Department of

Buildings through its Waterfront Revitalization

Program. New York City Waterfront Revitalization

Program clearly has the authority to review projects

inland and include the coastal boundary of the

Rockaway Peninsula page 5 of NYC New WRP Appeal

Exhibit #9, and enforce the public access requirements,

walkway construction and maintenance prior to issuing

permits as annexed in plaintiff's Appeal Exhibit #12

the U.S. De f Co rce evaluation findings

November 1984 to June 1987 on page 13, #4; the

community has the opportunity to implement a

management program for the best use and development

of those resources. (emphasis added)

See Nat. Assn. of Homebuilders of U.S & NJ. v.State

of N.J.. 64 F. Supp. 2d. 354; 1999 U.S. Dist. Lexis

14678, ordered summary judgment in favor of State’s

enforcement CZMA Public Access Rules to require

walkway construction and maintenance over public

trust lands prior to issuing permits to developers. New

York was delegated this responsibility to enforce the

CZMA Public Access Rules provides for this private

right of action and standing by plaintiff with the city

acting in partnership with the Federal Government as

outlined in this petition.

New York City is legally required to review

proposed projects, plans and activities proposed by

individuals and local, state and federal discretionary

actions for consistency with the Waterfront

36a

Revitalization Program prior to issuing a permit,

certificate, license, or other entitlement or to other wise

authorize a proposed project or activity applies to all

projects in the designated coastal zone defined in the

City Environmental Quality Review Technical Manuel

Appendices page 4 of 37 $617.2 Definitions and page

3-17 Waterfront Revitalization Program which

concurs with applicable Federal law and rules and

regulations promulgated by the U.S. Department of

Commerce under Coastal Zone Management Act of

1972 it regulations and NEPA that applies to this case

at bar overlooked by the Panel with their decision.

(emphasis added)

New York City is required to ensure compliance

of activities through the legal instrument of the federal

financial awards as defined in 15 C.F.R.§923.132 (e) to

implement of authorities in award contract through its

WRP and “advance public access” to the waterfront on

plaintiff's property. See Lynch v. U.S.,292 U.S. 571,

579.

The contract award specifically requires that

municipalities have demonstrated a high level of

commitment or made significant progress to advance

[L]WRP’s public access requirements especially in

populated urban waterfront redevelopment that include

the Rockaway Peninsula NYC WRP_ Policy 8

implementation include standards to “preserve existing

access to the shoreline’ that include the plaintiff's

“existing easements on privately-owned property” over

the’ lands under water (public trust lands)” of the

Atlantic Ocean and to encourage public access

improvements aS a component public access projects.

New York City Policy 8.1 is legally required to “

Preserve protect and maintain existing physical, visual

and recreational access to the waterfront” and “

Maintain if good repair existing public access areas to

37a

ensure public safety and enhance enjoyment” and

Policy 8.2 “ Encourage the development and

maintenance of high quality public spaces in

appropriate locations, particularly those that would

SAeIAAER SOREN - 90 SEEDS RARE OEE

shore” [ NYC WRP 8.2] (emphasis added).

That include the subject 24 foot wide easement

and plaintiff's property and this case at bar. The

essential set of material facts and evidence overlooked

by the Appeal Panel Appeal Exhibits #1 through 24

and include:

Appeal Exhibit #5_ORGANIZATION and

IMPLEMENTATION long term management and

maintenance of waterfront development and activities

of New York City’s Waterfront Revitalization Program

and the responsibilities of the Department of City

Planning acting as the City Coastal Commission, and

Lead permitting agencies such as NYC Dept. of

Buildings; Appeal Exhibits # 9 NYC WRP designated

coastal zone includes the entire Rockaway Peninsula

and plaintiff's property; and Appeal Exhibit # 12 U.S.

D.O.C. confirmed that NYC clearly has the authority to

review projects inland and 3 miles for consistency

seaward and provide public access prior to issuing

permits and Appeal Exhibit #13 the deeds, titles and

surveys and maps that show the subject easement and

bungalow development was constructed over public

trust lands of the Atlantic Ocean and plaintiff's Section

1983 pleadings in Part I id; also NYC Waterfront

Revitalization Program defined in CEQR Manuel

applies to all projects in the designated coastal zone, as

annexed Plaintiff's Affirmation Attach. A-18 CEQR

Definition page 4-17.

38a

This is a case of First Impression pleaded by

plaintiff since there are none like it in any district or

circuit court. The many violations environmental

statutes provide standing for this private right of action

against the municipality with NYC is acting in

partnership with the Federal government in the receipt

CZMA Section 305 and Section 306 Administrative

Awards. The essential material facts have remained

undisputed by defendants and Appeal Panel.

The plaintiff's claim is further supported by

New York City Corporation Council Louise Lippin in

her Memorandum of Law 03-CV-1295 on page 5;

“The decision makes it clear that there was no

intention for these environmental statutes to permit a

private right of action against a local government, or a

municipal agency. The Court noted that these federal

statutes by their express language operate only upon

federal agencies and impose no dutics upon

municipalities, unless that municipality is acing in

partnership with the federal government usually in the

receipt of federal aid.” Citing Town of North

Hempstead v. Village of North Hills 482 F. Supp. 900

at 903.

Magistrate Judge Bloom also acknowledges

that:

“ Plaintiff alleges that the fence and proposed new

homes will interfere with “ public access and sensitive

preservation of deteriorating waterfronts (Compliant at

4)y’,...“ and defendants violated the New Waterfront

Revitalization Program Policy 8 entitled Provide access

to and along New York City’s’ coastal waters ( see

Exhibit E Compliant; see all Appeal Exhibits and id.). “

Policy 8 specifically was intended “preserve existing

39a

access to the shoreline provided by facilities such as

existing easements on privately owned property”.

Senior Appeal Attorney Scott Shorr at the Oral

Argument October 21, 2005 basically stating that there

are no cases or any circuit that have decided a private

right of action by a citizen against the municipality

under the CZMA. The Honorable Judge Robert D. Sack

further agreed that plaintiff's action involves any

construction that would interfere with his easement.

The Honorable Robert D. Sack serving on the

Committee on Financial Disclosure Congressional

Appropriations 2004 would be able to ascertain the

essential material facts that support plaintiff pleadings

and exhibits #1 to #24 and Congressional

Appropriations awarded to NYC to implement the

CZMA. The Honorable Dennis Jacobs serving on the

Committee on Judicial Resources 2004 would be able

to find relevant judicial resources that support

plaintiff's pleadings.

B. Appeal Panel decision shorn of

CZMA_ text and substance does not afford

dispositive weight in their decision. The Court of

Appeals cannot “explicitly contemplate” or “assume”

what Congress intended in the CZMA by substituting ~

text from education amendments Alexander _v.

Sandoval, 532 U.S. 275, 286, 288 (Discussion on page

4, lines 1 through 4) or the Employment Retirement

Income Security Act a v. Savasta & Co. 329 F.

3d 317, 322 (2d, Cir. 2003) are irrelevant to the

substantial environmental law created by Congress P.L.

92-583. The Court of Appeals have never accorded

dispositive weight to context shorn of text. Reliance on

isolated fragments of the CZMA §1456 (b) and (d) for

other federal programs [page 3 and 4 of discussion]

without consideration of the overall scheme, purpose,

structure and legal framework of the CZMA, its

40a

Declaration of Policy Section 303, and_ the

Congressional Appropriations and contract award

intended for New York City Waterfront Revitalization

Program as outlined in the plaintiff's papers and

attachments is an exercise fraught with hazards New

England Power Co.455 U.S. 331 at 342, 343. The Court

of Appeals Panel have no authority to rewrite its

legislation based on mere contemplation or assume

what Congress created from text of unrelated statutes in

Alexander vy. Sandoval, and Gerosa v. Savasta & Co.Id.

and in fragments of CZMA as codified_ without

considering the mandatory requirements §1455 (d)

Section 306 rules and regulations 15 C.F.R. §923 that

require full participation by a citizen in carrying out the

purposes of consistent with the Act. The Court of

Appeals must construe the Act as it is written, as

legislative history indicates it was intended New

England Power Co. 455 U.S. 331, 343 and accord

significant weight to the entire text of the Act, the

financial award contract partnership that provide

standing for plaintiff against municipality.

Congress incorporated the recommendations of

the Council on Environmental Quality’s First Annual

Report that required a National land use program with

full participation from local government and American

citizens since it was determined that “land is treated as

a t ed not ] a

commodity to be marketed. While zoning should

implement sound land use plans it does not necessarily

do so and has had less success in preserving open space

and channeling growth in developing areas. Although

zoning is designed to protect the welfare of the general

public, the close relationship between the local agencies

and land developers results in a breach of zoning law by

ting variances or nts once the pressure of

develo nt is on.” (emphasis added).

4la

Congressional Findings Section 302 and

Declaration of Policy Section 303 [and 306 and 313

Id.J16 U.S.C. § 1451, §1452 et. seq. explicitly requires

“full participation” from members of the public, private

individuals and interested parties. The Appeal Panel

cannot “assume” Congress intended to “preclude

private enforcement” through text of unrelated statutes

that contemplate “public enforcement only” in their

discussion page 4 lines 1 to 3 in order to justify the

lower court’s decision and rule contrary to Federal law.

The CZMA text explicitly intends to “ preserve,

protect, develop and whenever possible to restore or

enhance the resources of the nation’s Coastal Zone”

§1452; the future well being of the Nation” §1451 (b),

of “the well-being of all citizens;’ §1451 (e). “ These

phrases do not suggest an intent to benefit any

particular class, but to promote the interest of all” New

York State_v. DeLyser, 759 F. Supp. 982, 988

(W.D.N.Y. 1991). The CZMA was designed to include

“broad participation” in developing coastal zone

management tools and in implementing the CZMA

through approved local waterfront revitalization

programs:

The receipt of §1455 (d) Section 306.

Administrative Awards requires mandatory “full

participation by relevant Federal agencies, State

agencies, local governments, regional organizations,

port authorities, and other interested parties and

individuals, public and private, which is adequate to

carry out the purposes of this title consistent with 16

U.S.C. $1452 Section 303”. See also regulation §923.43

financial awards defined \d.

42a

The Panel overlooked essential material

evidence from the delegated authority the U.S Dept. of

Commerce annexed in Appeal Exhibit #1 (emphasis

added);

The U.S. DOC publication on Coastal Zone

Management on page 13 The Local Role to implement

delegated authorities including permitting, and provide

a forum for citizen icipation and receipt CZM

support for local projects that can include plaintiff's

property and easement to access the waterfront

(emphasis added).

To preclude judicial review must upon its face

give clear and convincing evidence of an intent to

withhold it. “The mere failure to provide specifically by

a statute for judicial review is certainly no evidence of

intent to withhold review” H.R.No.1980, 79" Congress

2™* Session, 41. There is no intent to withhold judicial

review as it is explicit in the statute and regulations

requires full participation from citizens, private and

public and interested parties Id. See 24 Hour Fuel Oil

Corp. v. Long Island 903 F. Supp. 393 (E.D.N. Y.1995)

[Appeal Brief page 20, 22, 23].

C. Appeal Panel misinterpretation

of case law pertaining to a State’s cause of action

does not apply to plaintiff’s private right of action

against the municipality or lower courts decision.

Congressional intent:

“.. the “ Coastal zone” to include non-Federal coastal

waters and non Federal land beneath coastal waters,

shore lands and transitional, and interdial salt marshes,

wetlands and beaches. The States may delegate to local

governments all of the management responsibilities

under the ACT.

43a

The plaintiff provided evidence that the entire

Rockaway Peninsula is in the “Coastal zone” and NYC

has the responsibility for implementing the 10 WRP

Policies and NY States 44 Coastal Policies annexed in

Appeal Exhibit #9 page 3 and 5.

““ The outer limit of the zone is the outer limit of

the territorial sea, beyond which the States have no

clear authority to act” or “diminish any rights reserved

or possessed by the Federal Government under

Submerged Lands Act or Outer Continental Shelf

Lands Act”. The State has no authority over land

subject solely to the discretion of the Federal

Government”, CZMA Legislative History Analysis of

Section 304 Definitions.

The Appeal Panel erred with their decision

adopting the interpretation of district courts, other

circuits and the Second Circuit in cases cited involve

implied causes of action by a State against individuals

conducting activities outside State’s coastal zone

boundary. The interpretations on page 5 and 6 the

discussion do not apply to plaintiff's private right of

action against New York municipality. Dept. of Envtl.

Prot. & Energy v.Long Island Power Auth,. 30 F. 3

403, 423 (3° Cir. 1994) “ As the third Circuit

concluded, the Act’s general statement of intent to

enhance state authority, given effect through explicit

measures in the statute itself, cannot be taken to

indicate an intent also to create rights of actions by a

state that the statute fails to mention”. Dept. of Envtl.

Prot. & Energy, 403 Id.. nor does shipment of reactor

fuel require environmental assessments of NEPA_or

trigger _the CZMA_ consistency reviews; see also

California ex. rel. Brown v. Watt, 683 F.2d 1253, 1254,

the federal defendants did not violate federal statutes of

the CZMA, nor does the State have clear authority to

44a

act in the Other Continental Shelf (OCS) or Federal

territorial Seas [ Section 304 id.]. The State does not

have an implied right of action against an individual

who conducts an activity without a federal permit, State

of New York v. Delyser, 759 F. Supp. 982 (W.D.N.Y.

1991; or conducts an activity for oil exploration with

ral _li Son t ter Continental Shel

Commonwealth of Mass. v. Andrus, 594 F.2d. 872 (1™.

Cir. Court of Appeals 1979). Hon. Dennis Jacobs

misinterpreted this case law that does not support his

decision. (emphasis added).

The ACT explicitly created two regimes land

and water under Section 304. The Federal waters is the

exclusive jurisdictional grant of Federal Government

and its agencies and is neither a jurisdictional grant or

basis for stating a claim by a State, Town of N.

Hempstead vy. Village of N. Hills, 482 F. Supp 900.

987, citing Commonwealth of Mass. v. Andrus Id. The

OCS is exclusive Federal jurisdictional grant where the

state has no authority. The land uses in the coastal zone

are the exclusive jurisdictional grant of States who

delegate authority to local governments and New York

City implements land uses on plaintiff's property the

subject of this case at bar.

A closer examination of the facts distinguish

plaintiff's case from the citizens in the Town of N.

Hempstead v. Village of N. Hills Id., the citizens in

both towns did not plead the CZMA, nor did either

town have an approved waterfront revitalization

program in i979 and up to 2003 that warrant the

imposition of the CZMA or NEPA in their action. The

CZMA Award contract does not list either town with an

approved waterfront revitalization program, see Appeal

Brief Exhibit #7 page 6). The plaintiff provided ample

evidence that New York City is acting in partnership

45a

with the Federal Government with its approved

Waterfront Revitalization Program Appeal Exhibits # 5,

6, 7, 8 & 9 that warrant imposition of the environmental

statutes [Exhibit #7]. Plaintiff has standing to ensure

compliance by New York municipal agencies with the

CZMA Public Access Requirements Section 309, the

National Environmental Policy Act, the National

Historic Preservation Act, Endangered Species Act,

Civil Rights Act, National Flood Insurance Act, All

Relevant State and NYC Coastal Policies on his

property (see award Contract Appeal Exhibit #7 p A-

11, A-12, p.5 &6 ) the statutes, and Local Coastal

Management). The plaintiff set of material facts and

exhibits attached thereto have remained undisputed by

defendants in this Appeal.

Conclusion

The Hon. Dennis Jacobs interpretation as

pleaded in this petition does not apply to plaintiff's

case. The Court of Appeals Second Circuit as well as

other circuits favor injunction and removal of

obstructions off of easements. Plaintiff has standing

under Title 42 U.S.C.A. Section 1983, 5", 14" and 1*

Const. Amend, and under the CZMA, a case of First

Impression which applies to New York City and

Federal CZMA awards. There is no issue of material

fact to be decided the plaintiff is entitled to summary

judgment in has favor F. Rule Civ. P. 56.

Richard George

170A Beach 24" Street

Far Rockaway, NY 11691

46a

(vii) Petition for Rehearing DENIED

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

THURGOOD MARSHALL U.S COURTHOUSE

40 FOLEY SQUARE

NEW YORK, NY 10007

Rosanne B. MacKehnie

CLERK

Date: ~~ §14106

Docket Number. 05-0886-cv

Short Title George v. NYC Department of

City Planning

DC Docket Number 03-cv-1295

DC: EDNY ( BROOKLYN)

Dec Judge: Honorable Sandra Feuerstein

At stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, Foley Square, in

the City of New York, on the 5" day of May two

thousand six.

George v. Department of City Planning

A petition for panel and a petition for rehearing en banc

having been filed herein by the appellant Richard

George. Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for the

rehearing is DENIED.

47a

It is further noted that the petition for rehearing en banc

transmitted to the judges for the court in regular active

service and to any judge that heard the appeal and that

no such judge has requested that a vote be taken

thereon.

For the Court

Roseann B. Mackehnie, Clerk

By: Tracy W. Youngs( _)

Motion staff attorney

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