Citizens of Chappaqua v. U.S. Dept. of Transp.
| Decision Date | 12 September 2008 |
| Docket Number | No. 08 Civ. 7325(SCR).,08 Civ. 7325(SCR). |
| Citation | 579 F.Supp.2d 427 |
| Parties | CONCERNED CITIZENS OF CHAPAQUA, Charles Napoli, and Gina GORE, Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION (Federal Highway Administration), and the New York State Department of Transportation, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Delight Dorothea Balducci, James Joseph Periconi, Periconi, LLC, New York, NY, for Plaintiffs.
Jean-David Barnea, U.S. Attorney's Office, Janice Barbara Taylor, New York State Dept. of Law, New York, NY, for Defendants.
ORDER DENYING MOTION FOR A TEMPORARY RESTRAINING ODER AND PRELIMINARY IJUNCTION
Plaintiffs Concerned Citizens of Chappaqua, Charles Napoli, and Gina Gore (collectively, "the Citizens") seek a temporary restraining order and a preliminary injunction to prevent the defendants from felling any trees during a planned demolition and reconstruction of the historic Route 120 bridge in the Hamlet of Chappaqua, New York. The Citizens allege that defendants failed to comply with various statutory and regulatory procedures in approving the bridge construction project. For the reasons set forth in this Order, the Citizens' requests for a temporary restraining order and a preliminary injunction are denied.
Given the scope of the administrative record in this case—the quality and adequacy of which this Court is required to assess—it is necessary to briefly summarize the relevant facts.1 The bridge at Route 120 (a.k.a. Quaker Street), spanning the Metro-North Railroad and the Saw Mill River Parkway, was constructed in 1930. In 1994, the bridge was designated as "eligible" to be listed in the National Register of Historic Places, a designation confirmed by the New York State Historic Preservation Office (SHPO) in 2005.2
In 1994, defendant New York State Department of Transportation (NYSDOT) identified several structural flaws in the bridge attributable to deterioration and wear over time. FAR 6:5; SAR 706. Further deterioration was noted in subsequent inspections by NYSDOT in 1996 and 1999. Id. Another inspection in 2004 revealed even more structural problems, and NYSDOT placed the bridge "on top of the list of the most structurally deficient buildings in NYSDOT's Region 8 (which encompasses the Lower Hudson Valley)." Federal Highway Administration Opp. Mem. at 3-4; SAR 100-01. The structural problems identified by NYSDOT included cracks, leaks, rusting, and significant loss of structural steel. At that time, NYDOT concluded that the bridge required immediate attention and began planning to repair or replace the bridge. FAR 6:2.3
NYSDOT evaluated three general proposals for the bridge: (1) take no action, (2) repair and rehabilitate the bridge, and (3) replace the bridge. Proposals for the new or repaired bridge included an additional, third lane to accommodate two-way traffic during construction and to ease traffic congestion after completion. FAR 6:7. Consequently, the bridge design project required NYSDOT to replace and expand the bridge's retaining wall on its southeast side to support the bridge's third lane. In 2005, the retaining wall was projected to extend 25 feet. FAR 6:3. NYDOT first expanded this projection to 144 feet in 2006 and eventually to 298 feet in 2007 due to subsequent design modifications discussed below (FAR 24:48, 114; FAR 33:1).4
On December 2, 2005, NYSDOT issued a "Finding Documentation" that identified three historic structures potentially affected by the removal and replacement of the bridge—the Route 120 bridge itself and the nearby Chappaqua Train Station and Depot Plaza. FAR 6:3-4. Unsurprisingly, the report confirmed that the bridge would be adversely affected by the proposed plan to remove and replace it; yet, the NYSDOT determined that the train station and depot plaza would not be affected by the construction. The report included specific mitigation measures to minimize the harm to the historic properties, and concluded that replacement of the bridge was the "preferred alternative." FAR 6:7. After reviewing the report and visiting the bridge site on two occasions, an FHWA official concurred with the report's findings and preliminarily concluded that there were no prudent and feasible alternatives to replacing the bridge. FAR 9:1; FAR 12. As required by Section 106 of the National Historic Preservation Act, FHWA notified the Advisory Council on Historic Preservation of its position on January 9, 2006, and invited the Council to actively participate in consultation, which the Council declined to do. FAR 10; FAR 11.
Thereafter, NYSDOT, FHWA, and the New York State Historic Preservation Office negotiated and executed a Memorandum of Agreement in September 2006. With the input from SHPO, the Memorandum of Agreement concluded that retaining the bridge was not a "reasonable alternat[iv]e" and outlined appropriate mitigation measures to preserve the historic property. FAR 16:2-5. FHWA submitted the Memorandum of Agreement, along with evidence of completed mitigation measures, to the Advisory Council on Historic Preservation on July 24, 2008. FAR 27. The Council responded on July 30, 2008, that the submission "completes the requirements of Section 106 of the National Historic Preservation Act and the ACHP's regulations." FAR 28.
In October 2006, NYSDOT issued a 148page "Final Design Report" concluding that the bridge should be replaced rather than repaired. See FAR 18. The agency's conclusion was based on the deteriorated condition of the bridge, the desire to maintain traffic flow during construction, the likelihood of preserving the "historic character" of the bridge, and the relative cost of each alternative. NYSDOT also concluded that there were "no feasible and prudent alternatives to the use of the historic bridge." FAR 18:66.
Finally, NYSDOT examined the necessity of performing an environmental impact statement or assessment, and found that the project would not significantly impact the nearby environmental or ecological resources. See FAR 18:56-62. The Final Design Report acknowledged the project's impact on historical sites, but concluded that the measures articulated in the Memorandum of Agreement between NYSDOT, FHWA, and SHPO were sufficient to mitigate the adverse impact. With respect to trees, the Final Design Report found that the environmental and visual effects of any tree removal "will be mitigated by final landscaping, re-vegetation and tree planting activities." FAR 18:49, 60. Upon these findings, NYSDOT concluded that the bridge project qualifies as a "Class II" "categorical exclusion" under regulations of the National Environmental Protection Act, 23 C.F.R. § 771.117(a) and (d). FAR 18:53.
On July 11, 2007, the Town of New Castle (which contains the Hamlet of Chappaqua) sent a letter requesting that NYSDOT expand the bridge project to include construction of a nearby intersection to ease congestion. See FAR 23:1-2. In October 2007, the NYSDOT redesigned the project for this purpose, and prepared a modified construction plan. FAR 24. The modified construction plan expanded the retaining wall on the southeast side of the bridge to 298 feet to support a new right-turn lane. FAR 24:48, 114; FAR 33:1.
NYSDOT determined that the proposed changes to the bridge project "did not affect the agency's earlier findings with respect to the [three federal laws at issue in this case]." FAR 23:2. It is undisputed that the defendant agencies did not return to SHPO for a re-consultation following the expansion of the retaining wall to 298 feet.
Returning finally to the gravamen of this motion, the proposed construction, including site preparation, would require the felling of roughly 61 large trees near the bridge. This total includes four to fifteen additional trees threatened by the proposed expansion of the retaining wall to 298 feet.5 According to representations from both parties, the trees are scheduled to be cut down in preparation for construction beginning September 15, 2008.
The Citizens seek a temporary restraining order and a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure. "A district court may enter a preliminary injunction staying government action taken in the public interest pursuant to a statutory or regulatory scheme only when the moving party has demonstrated that he will suffer irreparable injury, and there is a likelihood that he will succeed on the merits of his claim." Alleyne v. New York State Educ. Dep't, 516 F.3d 96, 101 (2d Cir.2008) (internal quotations and citations omitted). Because the government's action is presumed to be in the public's interest, the Citizens must meet the more rigorous likelihood-ofsuccess standard. Beal v. Stern, 184 F.3d 117, 122 (2d Cir.1999). The injury must be "actual and imminent" and not capable of remedy by monetary damages. Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999) (per curiam). Finally, when the preliminary injunction implicates public interests, a court should consider the balance of such public interests when evaluating the private injury. Brody v. Village of Port Chester, 261 F.3d 288, 290 (2d Cir.2001).
The same standard applies to the Citizens' application for a temporary restraining order. See, e.g., Andino v. Fischer, 555 F.Supp.2d 418, 419 (S.D.N.Y.2008) (); Spencer Trask Software & Info. Servs., LLC v. RPost Int'l, Ltd., 190 F.Supp.2d 577, 580 (S.D.N.Y.2002) ().
The Citizens allege, and the...
To continue reading
Request your trial
-
Del. Riverkeeper Network v. Pa. Dep't of Transp.
...of an individually eligible Section 4(f) property, not just a contributing resource. See, e.g., Concerned Citizens of Chappaqua v. U.S. Dep't of Transp., 579 F. Supp. 2d 427, 434 (S.D.N.Y. 2008) (finding that plaintiffs had not demonstrated a likelihood of prevailing on their NEPA claim bec......
-
Civil Liberties Union v. City Transit Authority, 09 Civ. 3595(RJS).
...should also consider the "balance of public interests." (See Def.'s Opp'n at 7, 23-24); see also Concerned Citizens of Chappaqua v. U.S. Dep't of Transp., 579 F.Supp.2d 427, 432 (S.D.N.Y. 2008) ("[W]hen the preliminary injunction implicates public interests, a court should consider the bala......
-
Nat'l Post Office Collaborative v. Donahoe
...harm the community in terms of its essential character, as well as its health and safety."); Concerned Citizens of Chappaqua v. U.S. Dep't of Transp., 579 F. Supp. 2d 427, 432 (S.D.N.Y. 2008) ("The Court agrees that the imminent felling of 61 trees constitutes irreparable harm."); United St......