Cotz v. Gutierrez-Scaccetti
| Decision Date | 18 March 2020 |
| Docket Number | Civil Action No. 19-22075 (MAS) (ZNQ) |
| Parties | LYDIA COTZ, Plaintiff, v. DIANE GUTIERREZ-SCACCETTI, in her official capacity as Commissioner of the New Jersey Department of Transportation, Defendant. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before the Court upon Plaintiff Lydia Cotz's ("Plaintiff") Motion for a Temporary Restraining Order ("TRO") pursuant to Rule 65 of the Federal Rules of Civil Procedure. (ECF No. 2.) Defendant Diane Gutierrez-Scaccetti ("Defendant"), in her official capacity as Commissioner of the New Jersey Department of Transportation ("NJDOT"), opposed (ECF No. 7), and Plaintiff replied (ECF No. 8). The Court held a telephone conference on January 10, 2020 and set a deadline of January 17, 2020 for additional briefing. (ECF No. 9.) Plaintiff submitted correspondence on January 15, 2020 (ECF No. 12) requesting an extension of the briefing deadline to January 23, 2020, which Defendant opposed (ECF No. 13). On January 17, 2020, the Court granted Plaintiff's request. (ECF No. 14.) On January 24, 2020, Plaintiff submitted correspondence requesting a further extension to January 30, 2020. (ECF No. 15.) On February 2, 2020, ten days after the deadline passed, Plaintiff submitted a letter brief. (ECF No. 16.) Plaintiff submitted further correspondence on February 26, 2020. (ECF No. 18.)1 The Court has carefully considered the parties' submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth below, Plaintiff's Motion for a Temporary Restraining Order is denied, and Plaintiff's Complaint is dismissed without prejudice.
In or around July 2013, Plaintiff became the owner of real property located at 306 Route 173 in Stewartsville, New Jersey (the "Property"). (Compl. *2, ECF No. 1.)2 Since 1996, the Property has been on the National Register of Historic Places (the "National Register"). (Id.) The Property is an "irregularly shaped parcel of nearly [eight] acres, bordered to the north by State Route 173 and to the south and east by the Pohatcong Creek." (Id.) Towards the eastern terminus of the Property, the "parcel tapers to a point where State Route 173 crosses the Pohatcong Creek" on a bridge that was originally built in 1915. (Id.) The bridge was constructed on land acquired by Warren County, New Jersey, pursuant to a grant (the "Grant") from one of Plaintiff's predecessors in title. (Id. at *3.)
In or around 2010, NJDOT determined that the bridge was structurally deficient and no longer complied with modern safety standards, thus necessitating its replacement (the "Project"). .) The Project would involve the extension of a guiderail3 to comport with modern safety standards, specifically the 2015 NJDOT Roadway Design Manual. (Compl. *5; Patel Cert. ¶ 4.) The extension of the guiderail would also require the removal of "at least one majestic black walnut tree" which is approximately 100 years old. (Compl. *6.) Because of the Grant, as Plaintiff concedes, the Project would not require a taking by NJDOT. (Id. at *5.)
The initial design work on the Project was federally funded by the Federal Highway Administration ("FHWA"). (Patel Cert. ¶ 8.) NJDOT consulted with the New Jersey State Historic Preservation Office ("SHPO") "to determine [the Project's] area of potential effect" and to identify and assess the impact of the Project on any properties listed on the National Register. (Id. ¶ 9.) The FHWA concluded that the Project would "adversely affect" the Property and "considered alternatives to avoid or minimize the adverse effects [but] found they were not feasible." (Id. ¶¶ 11-12.) The FHWA, SHPO, and NJDOT subsequently developed a plan to attempt to mitigate the adverse effects of the Project. (Id. ¶ 13.)
Plaintiff first learned of the Project in or around 2014 when NJDOT representatives began staking out the boundaries of the Grant. (Compl. *6.) Thereafter, Plaintiff and her husband objected to the Project and held a series of meetings with an NJDOT project manager and other NJDOT representatives. (Id. at *6-7.)
In or around June 2018, NJDOT learned that "the funding mechanism used to fund the design portion of the [P]roject was not allowable by the FHWA." (Patel Cert. ¶ 25.) NJDOT, accordingly, decided to "proceed with the [P]roject as fully State[-]funded."4 (Id.) Upondiscovering that it had utilized an impermissible funding mechanism, NJDOT repaid FHWA the $667,643.83 incurred during the design phase of the Project. (Id.)
In or around November 2018, NJDOT hired a contractor to carry out the Project. (Id. ¶ 27.) In January 2019, NJDOT submitted "an application for [P]roject authorization" to SHPO, which included the installation of an extended guiderail and tree removal. (Id. ¶ 29.) When the NJDOT subcontractor attempted to remove the trees later that month, it was obstructed by Plaintiff, who entered the Project site, "yell[ed] at the contractor and call[ed] the Greenwich police." (Id. ¶ 30.) Following this incident, NJDOT considered an alternative design for the bridge, where the flared end of the guiderail would be replaced by a crash cushion.5 (Id.) In February 2019, SHPO indicated that it preferred the original design with the flared guiderail because it was "less obtrusive within this historic setting" but "did not oppose the use of the crash cushion" if Plaintiff and her husband preferred that option. (Id.)
On or about February 6, 2019, NJDOT held a public forum and invited members of the public to "review exhibits of the [P]roject, ask questions[,] and discuss any concerns with NJDOT representatives and the contractor." (Id. ¶ 32.) On or about April 22, 2019, NJDOT presented the alternative design option to Plaintiff and her husband, but they rejected it. (Id. ¶¶ 33-34.)
On or about August 9, 2019, SHPO determined that "NJDOT's application for [P]roject authorization was technically complete and professionally sufficient." (Id. ¶ 36.) SHPO further stated that the Project "met the Secretary of the Interior's [s]tandards for [r]ehabilitation and . . . did not constitute an encroachment" on the Property. (Id. ¶ 38.)
On or about December 12, 2019, NJDOT engaged a contractor to remove trees from the Project area. (Id. ¶ 40.) Once again, Plaintiff and her husband obstructed the work; Plaintiff's husband physically stood in front of one of the trees to prevent its removal. (Id.)
On December 30, 2019, Plaintiff filed a one-count Complaint alleging that Defendant failed to properly assess the visual impact of the Project, in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq.; the National Historic Preservation Act ("NHPA"), 54 U.S.C. §§ 300101, et seq.; and the analogous New Jersey state law provisions.6 (Compl. *7.) Plaintiff requested the Project "be enjoined pending proper and full completion of the § 106 review process."7 (Id.) On the same day, Plaintiff moved for a Temporary Restraining Order enjoining Defendant from proceeding with the Project. (TRO Motion, ECF No. 2.)
The analysis for a TRO is the same as that for a preliminary injunction. NutraSweet Co. v. Vit-Mar Enters., Inc., 112 F.3d 689, 693 (3d Cir. 1997). Because the grant of injunctive relief is "an extraordinary remedy," a TRO "should be granted only in limited circumstances." Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citation omitted). Plaintiff bears the burden of establishing that (1) it is likely to succeed on the merits; (2) it is likely to suffer immediate, irreparable harm; (3) the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Movants bear the burden of "meet[ing] the threshold for the first two 'most critical' factors: . . . that [they] can win on themerits . . . and that it is more likely than not [they will] suffer irreparable harm in the absence of preliminary relief." Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). "If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief." Id. Failure to establish any element renders the remedy inappropriate. See NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999).
The Court, at the outset, notes that Plaintiff cites to no authority, Third Circuit or otherwise, for the proposition that either the NHPA or NEPA creates a private right of action. (See generally Pl.'s Moving Br.; see generally Pl.'s Reply Br.) Because the Court's jurisdiction over this matter is premised on Plaintiff stating a claim under federal law, the Court begins by analyzing whether Plaintiff has established a reasonable likelihood of success on the merits for either her NHPA or NEPA claim.8
As a threshold matter, the Court analyzes whether either the NHPA or NEPA creates a private right of action. A "private right[] of action to enforce federal law must be created by Congress." Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979)). When analyzing whether an implied private right of action exists, a court must determine whether the federal statute "displays an intent to create not justa private right but also a private remedy." Id. (citing Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979)).
In Sandoval, the Court held that, "[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress." Sandoval, 532 U.S. at 286. Therefore, "[t]he judicial task is...
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