Bellocchio v. N.J. Dep't of Envtl. Prot.

• Decision Date: 15 April 2014
• Docket Number: Civil Action No. 13–6244 JBS/JS.
• Citation: 16 F.Supp.3d 367
• Parties: Arthur BELLOCCHIO and Carmelita Bellocchio, Plaintiffs, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

16 F.Supp.3d 367

Arthur BELLOCCHIO and Carmelita Bellocchio, Plaintiffs

v.NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., Defendants.

Civil Action No. 13–6244 JBS/JS.

United States District Court, D. New Jersey.

Signed April 15, 2014.

Arthur Bellocchio, Carmelita Bellocchio, Mount Laurel, NJ, pro se.

Alison Melani Reynolds, DAG, State of New Jersey, Office of the Attorney General, Trenton, NJ, for Defendant New Jersey Department of Environmental Protection.

Bruce D. Ettman, Esq., Gage Andretta, Esq., Wolff & Samson, PC, West Orange, NJ, for Defendant New Jersey Turnpike.

Jonathan P. Rardin, Esq., Archer & Greiner PC, Philadelphia, PA, for Defendant Philadelphia Airport.

David Vincent Bober, AUSA, Office of the U.S. Attorney, Trenton, NJ, for Defendant Federal Aviation Administration.

Timothy M. Prime, Esq., Mount Laurel, NJ, for Defendant Township of Mount Laurel.

Anthony T. Drollas, Jr., Esq., Capehart & Scatchard, P.A., Trenton, NJ, and Gerald Kaplan, Esq., Methfessel & Werbel, Esqs., Edison, NJ, for Defendant Mount Laurel Municipal Utility Authority.¹

Thomas J. Coleman, Esq., Raymond Coleman & Heinold, LLP, Moorestown, NJ, for Defendant Delaware Valley Regional Planning Commission.

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter comes before the Court on seven motions to dismiss.² Plaintiffs, Arthur and Carmelita Bellocchio, are proceeding pro se and bring this action against various federal, state, and local entities for damages arising primarily from noise and air pollution associated with the New Jersey Turnpike and the Philadelphia International Airport.

Because each defendant raises unique grounds for dismissal, the Court will address each separately. The Court is not unsympathetic to Plaintiffs' complaints of noise and air pollution, nor does the Court doubt the alleged impact on their lives, but there is no legal basis on which these defendants may be held liable based on the allegations in Plaintiffs' Complaint. For the reasons discussed below, the Court will grant the FAA's motion to dismiss with prejudice and the remaining Defendants' motions to dismiss without prejudice.

II. BACKGROUND

A. Factual Background

The Court accepts the following facts alleged in Plaintiffs' 80–page Complaint as true for the purpose of the instant motions to dismiss. Plaintiffs have resided at 225 Ramblewood Parkway, Mount Laurel, New Jersey, for more than 26 years. (Compl. [Docket Item 1–2] at 55.)³ Their home is located approximately 300 feet from the New Jersey Turnpike (“the Turnpike”) and 16 miles from the Philadelphia International Airport (“PHL”). (Id. at 59, 67.) Plaintiffs complain of noise emanating from vehicles on the Turnpike and planes arriving to and departing from PHL. Plaintiffs' Complaint contains repeated allegations that noise levels around their home have diminished their quality of life, adversely affected their health, and reduced the value of their home. Although Plaintiffs' alleged damages result from the cumulative impact of various actions by defendants, Plaintiffs' Complaint contains specific allegations as to each, which the Court interprets as follows.

1. Federal Aviation Administration

Plaintiffs allege that the Federal Aviation Administration (“FAA”) violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”) through its role in approving projects at PHL, including the Philadelphia International Airport Runway 17–35 Improvements Project (“Runway 17–35 Project”), the New York/New Jersey/Philadelphia Airspace Redesign (“Airspace Redesign Project”), and the Philadelphia Airport Capacity Enhancement Program (“Capacity Enhancement Program”). (Id. at 66–76.) Plaintiffs also allege that the Philadelphia International Airport Noise Exposure Map failed to include their home and “there was no mention that Mt. Laurel was going to be affected by these projects.” (Id. at 76–77.) Because Plaintiffs' Complaint provides little detail about these projects and because they are matters of public record, the Court has considered the FAA's environmental impact statements and records of decision related to the projects.

2. Philadelphia Airport

Plaintiffs' allegations against the Philadelphia Airport substantially overlap with those against the FAA. Plaintiffs complain of noise related to flights arriving to and departing from PHL following implementation of the Runway 17–35 Project, the Airspace Redesign Project, and the Capacity Enhancement Program. (Id. at 23–52.) Plaintiffs allege that the Philadelphia Airport neglected to comply with NEPA and failed to assess the impact the projects would have on their home. (Id. at 23.) Further, Plaintiffs allege that the Philadelphia Airport failed to assess the correct decibel levels for their area during the planning process, neglected to follow noise mitigation policies, neglected to inform Plaintiffs that they would be impacted by the projects, and neglected to perform environmental studies in their area during the planning process. (Id. )

3. New Jersey Turnpike Authority

Plaintiffs allege that the New Jersey Turnpike Authority (“NJTA”) engaged in “deforestation” along the “south bound side of Gathers Drive and the north bound side along Ramblewood Parkway” in violation of the New Jersey No Net Loss Act.” (Id. at 8.) “The removal of trees that were used as the natural barrier between the residents and the highway escalated the noise pollution and affected [Plaintiffs'] air quality.” (Id. at 8.) Plaintiffs allege that the NJTA removed the trees without notice or opportunity to comment and without environmental studies being performed to evaluate the impact on the community. (Id. at 9.) As a result, “lights from the warehouses now shine in the windows of the homes across the highway” and “trucks and vehicles travelling this highway can be seen 24 hours a day.” (Id. at 10.) Plaintiffs allege that “NJ Turnpike documents show that in 1992 the decibel levels in Ramblewood were 70 decibels when a dense forest did exist. In May 2012 and November 2012 the Burlington County Board of Health performed two unofficial sound readings in our area showing decibel levels ... between the ranges of 68–75 under minimum conditions.” (Id. ) Next, Plaintiffs allege that Mount Laurel was on the “priority list in line for a wall barrier” in 1992, but the wall was never erected. (Id. ) Further, Plaintiffs allege that in the spring of 2013, without an opportunity to comment or consideration of community impact, “a large sign was erected on the southbound side along Gathers Drive where the deforestation occurred,” which is visible from Plaintiffs' home in the early spring, fall, and winter. (Id. ) As a result of the noise and light from the Turnpike, Plaintiffs are unable to open the windows in their home and suffer from sleep deprivation, stress, tinnitus, hearing loss. (Id. at 13–14.)

4. Delaware Valley Regional Planning Commission

The Court is unable to identify any specific allegations against the Delaware Valley Regional Planning Commission (“DVRPC”). Plaintiffs' Complaint states generally that “[a]ll of these issues were address [sic] at two of the Delaware Valley Regional Planning Commissioners Monthly meetings and one aviation meeting,” and “[t]he DVRPC has neglected to provide accurate information during the planning projects that would impact residents and residential communities.”⁴ (Id. at 81, 52.) Further, Plaintiffs allege that “Mr. Roger Moog, Manager, Office of Aviation Planning at the Delaware Valley Regional Planning Commission participated as a member of the Philadelphia International Airport Master Plan Technical Advisory Committee during the planning Process of the Air Capacity Enhancement Program.” (Id. )

5. Mount Laurel Municipal Utilities Authority

Plaintiffs allege that in February 2010 the Mount Laurel Municipal Utilities Authority (“MUA”) constructed “a solar farm at 200 1/2 Ramblewood Parkway.” (Id. at 60.) Not all residents received notice of the project, although “[i]ndividual meetings were held with the residents that reside along the solar farm area.” (Id. at 61.) As part of the project, “two acres of trees were removed along turnpike property, surrounding MUA property and within Turnpike property,” including “19 very large trees” that “contributed to the natural tree line that protected the residents.” (Id. ) No environmental studies were performed prior to the tree removal. (Id. )

6. New Jersey Department of Environmental Protection

Plaintiffs allege that the New Jersey Department of Environmental Protection (“NJDEP”) “reviewed the Mt. Laurel Solar Farm Project in accordance with the NJAC 7:22–10 based on planning information submitted” and approved funding for the solar project without consideration of community and environmental impact. (Id. at 63.) 94 trees “were removed for the solar farm project” and “NJDEP Forestry was never notified of this tree removal.” (Id. ) Further, the NJDEP “visited the site and confirmed that the trees planted were the incorrect size” and many that had died were not replanted until 2012. (Id. at 64.)

7. Township of Mount Laurel

Plaintiffs' allegations against the Township of Mount Laurel (“the Township”) include generalized complaints of noise and air pollution from the Turnpike and PHL. Additionally, Plaintiffs state that “Mt. Laurel Township has been aware of the conditions in our area and our Township has not practiced good land use and has approved projects knowing that our area would be impacted by these project [sic].”⁵ (Id. at 22.) Plaintiffs note that a petition signed by 87 residents was submitted to address concerns regarding the Turnpike, but no update has been provided. Further, Plaintiffs allege that Ramblewood Parkway has not been repaved in over 25 years, contributing to “escalated ambient noise levels in [the] area,” and Mount Laurel did not follow zoning regulations in the construction of the solar farm on Ramblewood Parkway. (Id. at 23.)

8. Damages

Plaintiffs note that they have “tried for over one...