BELLOCCHIO et al v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION et al
Filing
48
OPINION. Signed by Chief Judge Jerome B. Simandle on 4/15/2014. (drw)n.m.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ARTHUR BELLOCCHIO and
CARMELITA BELLOCCHIO,
Plaintiffs,
HONORABLE JEROME B. SIMANDLE
Civil Action
No. 13-6244 (JBS/JS)
v.
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION, et
al.,
OPINION
Defendants.
APPEARANCES:
Arthur Bellocchio, Pro Se
Carmelita Bellocchio, Pro Se
225 Ramblewood Parkway
Mount Laurel, NJ 08054
Alison Melani Reynolds, DAG
State of New Jersey
Office of the Attorney General
25 Market Street
Trenton, NJ 08625
Attorney for Defendant New Jersey Department of
Environmental Protection
Bruce D. Ettman, Esq.
Gage Andretta, Esq.
WOLFF & SAMSON, PC
One Boland Drive
West Orange, NJ 07052
Attorneys for Defendant New Jersey Turnpike
Jonathan P. Rardin, Esq.
ARCHER & GREINER PC
One Liberty Place
32nd Floor
1650 Market Street
Philadelphia, PA 19103
Attorney for Defendant Philadelphia Airport
David Vincent Bober, AUSA
Office of the U.S. Attorney
District of New Jersey
402 East State Street
Room 430
Trenton, NJ 08608
Attorney for Defendant Federal Aviation Administration
Timothy M. Prime, Esq.
307 Fellowship Road
Suite 207
Mount Laurel, NJ 08054
Attorney for Defendant Township of Mount Laurel
Anthony T. Drollas, Jr., Esq.
CAPEHART & SCATCHARD, P.A.
142 West State Street
Trenton, NJ 08608
-andGerald Kaplan, Esq.
METHFESSEL & WERBEL, ESQS.
3 Ethel Road
Suite 300
P.O. Box 3012
Edison, NJ 08818
Attorneys for Defendant Mount Laurel Municipal Utility
Authority1
Thomas J. Coleman, Esq.
RAYMOND COLEMAN & HEINOLD, LLP
325 New Albany Road
Moorestown, NJ 08057
Attorney for Defendant Delaware Valley Regional Planning
Commission
SIMANDLE, Chief Judge:
1
After briefing on Defendant Mount Laurel Municipal Utility’s
motion to dismiss was complete, Gerald Kaplan, Esq. was
substituted as defense counsel.
2
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
2
Defendant Township of Mount Laurel filed a motion to dismiss on
October 28, 2013. [Docket Item 11.] Relying on Fed. R. Civ. P.
15(a)(1)(A), Defendant filed an “amended” motion to dismiss on
November 18, 2013. [Docket Item 28.] Because Rule 15(a)(1)(A)
regarding amendment of pleadings is inapplicable, Plaintiffs
have not filed an amended complaint, and the Court did not grant
Defendant leave to file an “amended” motion, the Court will only
consider Defendant Township of Mount Laurel’s first motion to
dismiss. [Docket Item 11.]
3
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
3
Citations to Plaintiffs’ Complaint refer to the page number
assigned by the electronic docketing system because Plaintiffs
failed to include page numbers or separately number the
paragraphs in their Complaint.
4
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,
5
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
6
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.)
4
In their Complaint, Plaintiffs repeatedly allege:
The DVRPC has neglected to provide accurate and up to date
information on their website that is used for major project
[sic]. The DVRPC has neglected to provide accurate
information during planning projects that would impact
residents and residential communities. The DVRPC has
neglected to bring together participation from the nine
metropolitan areas to ensure future transportation is not
7
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
affecting the environment or communities affected by
transportation. Neglected to ensure environmental justice
to the residents that are affected by noise and air
pollution. The DVRPC has neglected to review airport
projects to ensure that environment and communities are not
affected by transportation. The DVRPC neglected to realize
the affected [sic] this situation has on our health, our
hearing, our jobs, our sleep, our quality of life and the
value of our homes. The DVRPC contributed to violating our
civil rights to live in peace and in a healthy environment
and the freedom to move freely in and around our home as we
wish to choose.
(Id. at 52.)
8
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 “NJ DEP 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
5
In their Complaint, Plaintiffs repeatedly allege:
9
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 and a
half years to address these issues” with the NJTA and over eight
months with the Philadelphia Airport and FAA. (Id. at 53.)
Plaintiffs seek punitive damages of $341,000, as well as
compensatory damages exceeding $300,000. Plaintiffs also request
that Ms. Bellocchio’s salary be paid in full if she becomes
unemployed due to illness.
B. Procedural Background
The Mt. Laurel Township has neglected to follow good land
use. The Mt. Laurel Township has neglected to take the
necessary steps to ensure that the value of the home in our
area would be protected from growth around a major highway
and ensuring the necessary steps are taken to protect any
environmental impact on our lives, our health, our hearing,
our quality of life and the value of our homes and
investments. The Township has neglected to ensure our
zoning regulations were followed that were put in place to
protect the residents and our community. The Mt. Laurel
[sic] has contributed to violating our civil rights to live
in peace and in a healthy environment and the freedom to
move freely in and around our home as we wish to choose.
Id. at 22.
10
Plaintiffs filed a civil action in the Superior Court of
New Jersey, Law Division, Burlington County, Docket No. L-223413, on September 12, 2013, against seven named defendants: the
New Jersey Department of Environmental Protection, the New
Jersey Turnpike, the Philadelphia Airport, the Federal Aviation
Administration, the Township of Mount Laurel, the Mount Laurel
Municipal Utility Authority, and the Delaware Valley Regional
Planning Commission.6 The case was removed by Defendant
Philadelphia Airport pursuant to 28 U.S.C. § 1441(b) on October
21, 2013. [Docket Item 1.] Defendant FAA also filed a notice of
removal on November 4, 2013 pursuant to 28 U.S.C. § 1442(a)(1).7
Defendants then filed the seven motions to dismiss pending
before the Court.
III. STANDARD OF REVIEW
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may be
granted only if, accepting all well-pleaded allegations in the
complaint as true and viewing them in the light most favorable
to the plaintiff, a court concludes that plaintiff failed to set
6
Plaintiffs also named three fictitious defendants.
The FAA’s notice of removal resulted in an identically
captioned case in this district docketed as Civil Number 13-6714
and assigned to the undersigned. The FAA and MUA are the only
defendants to enter appearances in that action. The FAA and MUA
filed identical motions to dismiss in both actions. Because the
Philadelphia Airport had already filed a notice of removal, the
opening of a separate civil action on the Court’s docket was
error. Therefore, the Court will enter an order administratively
terminating the action docketed as Civil Number 13-6714.
7
11
forth fair notice of what the claim is and the grounds upon
which it rests that make such a claim plausible on its face.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although a
court must accept as true all factual allegations in a
complaint, that tenet is “inapplicable to legal conclusions,”
and “[a] pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will
not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Generally, in ruling on a motion to dismiss, a district court
relies [only] on the complaint, attached exhibits, and matters
of public record.” Sands v. McCormick, 502 F.3d 263, 268 (3d
Cir. 2007) (citation omitted).8
When evaluating a motion to dismiss under Rule 12(b)(6),
“[w]here the plaintiff is a pro se litigant, the court has an
obligation to construe the complaint liberally.” Giles v.
Kearney, 571 F.3d 318, 322 (3d Cir. 2009) (citing Haines v.
Kerner, 404 U.S. 519, 520–521 (1972)). The Court will,
therefore, construe facts alleged, wherever possible, in a
manner favorable to Plaintiffs, but even so, the Complaint must
8
The Court will not consider the more than 400 pages of
documents attached to Plaintiffs’ Complaint because Plaintiffs
have not provided specific citation to any of these documents.
Therefore, the Court is unable to determine which, if any, of
these documents are “integral to or explicitly relied upon in
the complaint[.]” In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997) (citation omitted) (emphasis in
original).
12
allege sufficient facts from which a plausible claim to relief
can be shown.
A motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1) which is filed prior to
answering the complaint is considered a “facial challenge” to
the court’s subject matter jurisdiction. Cardio–Med. Assocs. v.
Crozer–Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). This
is distinct from a factual attack on the court’s subject matter
jurisdiction which can only occur after the answer has been
served. Mortensen v. First Federal Sav. and Loan Ass’n, 549 F.2d
884, 891 (3d Cir. 1977). In deciding a Rule 12(b)(1) motion to
dismiss which is filed prior to an answer, the court must
“review only whether the allegations on the face of the
complaint, taken as true, allege facts sufficient to invoke the
jurisdiction of the district court.” Licata v. U.S. Postal
Serv., 33 F.3d 259, 260 (3d Cir. 1994).
This Court is mindful, however, that the sufficiency of
this pro se pleading must be construed liberally in favor of
plaintiff, even after Twombly. See Erickson v. Pardus, 551 U.S.
89, 94 (2007). Moreover, a court should not dismiss a complaint
with prejudice for failure to state a claim without granting
leave to amend, unless it finds bad faith, undue delay,
prejudice or futility. See Grayson v. Mayview State Hosp., 293
13
F.3d 103, 110–111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113,
117 (3d Cir. 2000).
IV.
DISCUSSION
A. Federal Aviation Administration’s Motion to Dismiss
The FAA filed a motion to dismiss pursuant to Rule 12(b)(1)
and 12(b)(6). [Docket Item 38.] The FAA argues that the Court
lacks subject matter jurisdiction over Plaintiffs’ claims
because the courts of appeal have exclusive jurisdiction to
review final orders of the FAA and, even if this Court had
subject matter jurisdiction, Plaintiffs’ claims would be timebarred. Further, the FAA contends that Plaintiffs are not
entitled to the damages they seek because there is no private
right of action for monetary relief under NEPA.9 Finally, the FAA
argues that the Court lacks subject matter jurisdiction over any
takings claim Plaintiffs might assert. Plaintiffs oppose the
FAA’s motion, but fail to address the legal arguments therein.10
9
There is no private right of action for monetary damages under
NEPA, so Plaintiffs must proceed under the Administrative
Procedure Act. See Cnty. of Monmouth v. Fed. Emergency Mgmt.
Agency, Civ. 09-769 (JAP), 2009 WL 3151331, at *7 (D.N.J. Sept.
24, 2009) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
882 (1990)).
10
The authority cited by Plaintiffs is inapposite. Plaintiffs
refer to: Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167 (2000) (discussing citizen-suit
provisions of the Clean Water Act); Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658 (1978) (discussing
challenge to policies of city department of social services and
board of education under 42 U.S.C. § 1983); Fitzpatrick v.
Bitzer, 427 U.S. 445 (1976) (considering claim that the
14
For the reasons discussed below, the Court will grant the
FAA’s motion to dismiss with prejudice.
Plaintiffs allege that the FAA violated NEPA in approving
projects at PHL, including the Runway 17-35 Project, the
Airspace Redesign Project, and the Capacity Enhancement Program.
49 U.S.C. § 46110(a) provides that persons may challenge
final orders of the FAA “in the United States Court of Appeals
for the District of Columbia Circuit or in the court of appeals
of the United States for the circuit in which the person
resides.”11 49 U.S.C. § 46110(a). Courts have interpreted 49
Connecticut State Employees Retirement Act discriminated against
petitioners on the basis of sex in violation of Title VII);
Hernandez v. Texas, 347 U.S. 475, 482 (1954) (reversing murder
conviction on grounds that systematic exclusion of persons of
Mexican descent from jury violated the Fourteenth Amendment);
Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (holding that Fifth
Amendment prohibits racial segregation in public schools of the
District of Columbia); Chem. Waste Mgmt., Inc. v. U.S.E.P.A.,
869 F.2d 1526 (D.C. Cir. 1989) (considering challenge to
regulatory provisions established by the Environmental
Protection Agency under the Administrative Procedure Act);
Rylands v. Fletcher, 1868 WL 9885 (H.L. 1868) (discussing
doctrine of abnormally dangerous activities); N.J. Stat. Ann. §§
59:4-2, 4-3 (establishing liability of public entity for injury
caused by dangerous conditions on its property). Without an
accurate citation, the Court is unable to consider “Brown v
Settlement School District” and “Hallowich v Range Resource.”
11
49 U.S.C. § 46110(a) provides in pertinent part:
[A] person disclosing a substantial interest in an order
issued by the Secretary of Transportation (or the Under
Secretary of Transportation for Security with respect to
security duties and powers designated to be carried out by
the Under Secretary or the Administrator of the Federal
Aviation Administration with respect to aviation duties and
powers designated to be carried out by the Administrator)
in whole or in part under this part, part B, . . . may
15
U.S.C. § 46110 as granting the courts of appeals exclusive
jurisdiction to affirm, amend, modify, or set aside orders of
the FAA. See Jones v. United States, 625 F.3d 827, 829 (5th Cir.
2010) (“Section 46110(a) of the Federal Aviation Act vests the
exclusive jurisdiction over challenges to FAA orders in certain
United States Courts of Appeals.”); Friends of Richards-Gebaur
Airport v. F.A.A., 251 F.3d 1178, 1184 (8th Cir. 2001) (“A court
of appeals reviewing a petition for judicial review of an order
of the FAA has exclusive jurisdiction to affirm, amend, modify,
or set aside any part of the order.”) (internal citation and
quotations omitted). See also Fleming v. U.S. Dep’t of Transp.,
348 F. App’x 736, 737 (3d Cir. 2009) (“[W]hen the resolution of
a plaintiff’s claims in federal court requires an examination of
the underlying FAA proceedings, the district courts lack subject
matter jurisdiction over any such claims.”).
Having reviewed the records of decision related to the
projects, the Court finds that the decisions Plaintiffs
challenge are final orders of the FAA subject to 49 U.S.C. §
46110(a)’s grant of exclusive jurisdiction to the courts of
apply for review of the order by filing a petition for
review in the United States Court of Appeals for the
District of Columbia Circuit or in the court of appeals of
the United States for the circuit in which the person
resides or has its principal place of business.
49 U.S.C. § 46110(a).
16
appeals.12 Further, the challenged projects pertain to capacity
enhancement, runway lengthening, and airspace redesign which may
be considered “aviation duties and powers designated to be
carried out by the [FAA] Administrator.”13 49 U.S.C. § 46110(a).
Additionally, at least one court in this District has held that
the courts of appeals have exclusive jurisdiction over a
challenge to the Airspace Redesign Project. See City of
12
The record of decision approving the Runway 17-35 Project was
issued on April 29, 2005 and states that the decision
“constitutes a final order of the [FAA] Administrator subject to
review by the Courts of Appeals of the United States in
accordance with provisions of 49 U.S.C. Section 46110.” Runway
17-35 Project Record of Decision, at 45 (Apr. 2005), available
at
http://www.faa.gov/airports/environmental/records_decision/media
/rod_philadelphia.pdf. The record of decision approving the
Airspace Redesign Project was issued on September 5, 2007 and
states that the decision “constitutes an order of the [FAA]
Administrator which is subject to review by the Courts of Appeal
of the United States in accordance with the provisions of 49
U.S.C. § 46110.” Airspace Redesign Project Record of Decision,
at 58 (Sept. 5, 2007), available at
http://www.faa.gov/air_traffic/nas_redesign/regional_guidance/ea
stern_reg/nynjphl_redesign/documentation/media/rod_090507.pdf.
The record of decision approving the Capacity Enhancement
Program was issued on December 30, 2010 and states that the
decision “constitutes a final order of the [FAA] Administrator
subject to review the Courts of Appeals of the United States in
accordance with provisions of 49 U.S.C. Section 46110.” Capacity
Enhancement Program Record of Decision, at 66 (Dec. 30, 2010),
available at
http://www.faa.gov/airports/environmental/records_decision/media
/rod_phl_201012.pdf.
13
Courts of appeals have upheld the FAA’s decisions regarding
the Airspace Redesign Project and Capacity Enhancement Program.
See Cnty. of Rockland, N.Y. v. F.A.A., 335 F. App’x 52, 55 (D.C.
Cir. 2009) (rejecting NEPA challenge to the Airspace Redesign
Project); Tinicum Twp., Pa. v. U.S. Dep’t of Transp., 685 F.3d
288, 298 (3d Cir. 2012) (rejecting NEPA challenge to the
Capacity Enhancement Program).
17
Elizabeth v. Blakey, Civ. 07-4240 (SDW), 2007 WL 4415054, at *3
(D.N.J. Dec. 14, 2007) (granting motion to dismiss for lack of
subject matter jurisdiction because courts of appeals have
exclusive jurisdiction to hear challenge to the Airspace
Redesign Project). Because Plaintiffs provide no basis to find
the exclusive review provision in 49 U.S.C. § 46110
inapplicable, the Court will grant Defendant FAA’s motion to
dismiss for lack of subject matter jurisdiction to the extent
Plaintiffs’ allege that the FAA violated NEPA in approving the
projects discussed above.
Plaintiffs also allege that the Philadelphia International
Airport Noise Exposure Map failed to include their home. Even if
the FAA’s determination that certain noise exposure maps
complied with applicable federal requirements is a reviewable
“order” within the meaning of 49 U.S.C. § 46110, the
determination would be subject to the exclusive-review provision
of 49 U.S.C. § 46110(a).14 See 49 U.S.C. § 46110(a) (providing
that provision applies to action taken “in whole or in part
under this part, part B, or subsection (II) or (s) of section
114”).
The Court also notes that, even if the Court had
jurisdiction over Plaintiffs’ claims, those claims would be
14
Noise exposure maps are governed by 49 U.S.C. § 47501 et seq.,
which is within Part B of Subtitle VII.
18
time-barred because a petition to review a final order of the
FAA must be filed with the court of appeals “not later than 60
days after the order is issued.” 49 U.S.C. § 46110(a). “The
court may allow the petition to be filed after the 60th day only
if there are reasonable grounds for not filing by the 60th day.”
Id. Here, Plaintiffs filed their Complaint on September 12,
2013, well beyond the 60-day period expired for the challenged
projects and Plaintiffs have not provided any explanation for
delay.
To the extent Plaintiffs assert a “takings” claim under the
Fifth Amendment because noise from the PHL has diminished the
value of their home, the Court lacks subject matter jurisdiction
because exclusive jurisdiction over a takings claim against the
United States for monetary damages lies with the Court of
Federal Claims. See 28 U.S.C. § 1491(a)(1); Carteret Sav. Bank,
F.A. v. Office of Thrift Supervision, 963 F.2d 567, 582-84 (3d
Cir. 1992); see also Morgan v. United States, 101 Fed. Cl. 145,
158 (Fed. Cl. 2011) (“Pursuant to the Tucker Act, this court has
exclusive subject matter jurisdiction over takings claims
against the United States seeking more than $10,000 in
compensation.”).
For the reasons discussed above, the Court will grant
Defendant FAA’s motion to dismiss for lack of subject matter
jurisdiction and failure to state a claim, with prejudice.
19
B. Philadelphia Airport
The Philadelphia Airport filed a motion to dismiss for
failure to state a claim under Rule 12(b)(6). [Docket Item 27.]
First, the Philadelphia Airport argues that it is not an entity
that can be sued and the City of Philadelphia should be
substituted in its place. Next, the Philadelphia Airport argues
that Plaintiffs’ claims for violating NEPA must fail, and
Plaintiffs have failed to properly plead a violation of
procedural or substantive due process. Further, the City of
Philadelphia is immune from tort liability under Pennsylvania
Political Subdivision Tort Claims Act (“PSTCA”).
Plaintiffs filed opposition to Defendant’s motion to
dismiss, but mostly reiterate the allegations in their
Complaint.15 Principally, Plaintiffs contend that the FAA
projects discussed above violate NEPA and Plaintiffs contacted
various city officials regarding their noise complaints, but
were denied assistance.
15
The authority cited by Plaintiffs is inapposite. Plaintiffs
rely on the same cases discussed supra in n.10, as well as the
following New Jersey statutes: N.J. Stat. Ann. §§ 59:4-2, 4-3
(establishing liability of public entity for injury caused by
dangerous conditions on its property); N.J. Stat. Ann. § 59:9-4
(discussing contributory negligence under the TCA); N.J. Stat.
Ann. § 59:9-2 (discussing interest on judgments against public
entities and employees under the TCA); N.J. Stat. Ann. § 59:3-14
(explaining that nothing in the TCA will exonerate a public
employee from liability if conduct was outside the scope of
employment).
20
The Philadelphia Home Rule Charter states that “the
Department [of Commerce] shall itself, or by contract, maintain,
improve, repair, and operate City airport facilities and
equipment and when authorized by the Council acquire, design and
construct additional such facilities.” 351 Pa. Code § 4.4-500.
Because the Philadelphia Airport is not a legal entity distinct
from the City of Philadelphia, the Court will dismiss claims
against the Philadelphia Airport as a matter of law and construe
Plaintiffs’ claims as against the City of Philadelphia.16
To the extent Plaintiffs’ Complaint alleges that the FAA
projects discussed above violate NEPA, the City of Philadelphia
is an improper defendant. The City of Philadelphia is not an
entity regulated by NEPA, 42 U.S.C. § 4332, and as discussed
above, the projects about which Plaintiffs complain were
reviewed and approved by the FAA and subject to the exclusivereview provision of 49 U.S.C. § 46110(a). Therefore, the Court
will grant Defendant’s motion to dismiss for lack of subject
16
53 Pa. Stat. Ann. § 16257 provides:
[N]o such department shall be taken to have had, since the
passage of the act to which this is a supplement, a
separate corporate existence, and hereafter all suits
growing out of their transactions, and all claims to be
filed for removing nuisances, together with all bonds,
contracts and obligations, hereafter to be entered into or
received by the said departments, shall be in the name of
the city of Philadelphia.
53 Pa. Stat. Ann. § 16257.
21
matter jurisdiction as to Plaintiffs’ claims against the City of
Philadelphia under NEPA with prejudice.
Moreover, the Court finds that Plaintiffs’ Complaint fails
to state a claim under either substantive or procedural due
process. The Fourteenth Amendment protects against state
deprivations “of life, liberty or property, without due process
of law[.]” U.S. Const. amend. XIV § 1. “To state a claim under §
1983 for deprivation of procedural due process rights, a
plaintiff must allege that (1) he was deprived of an individual
interest that is encompassed within the Fourteenth Amendment’s
protection of ‘life, liberty, or property,” and (2) the
procedures available to him did not provide ‘due process of
law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d
Cir. 2006). See also Gikas v. Wash. Sch. Dist., 328 F.3d 731,
737 (3d Cir. 2003) (citing Robb v. City of Philadelphia, 733
F.2d 286, 292 (3d Cir. 1984)). To have a protected property
interest, “a person clearly must have more than an abstract need
or desire for it” or “a unilateral expectation of it,” but
rather must have “a legitimate claim of entitlement to it.”
Robb, 733 F.2d at 292. Courts look to state law to determine
whether an asserted property interest exists. Dee v. Borough of
Dunmore, 549 F.3d 225, 229–30 (3d Cir. 2008).
Plaintiffs fail to state a claim for procedural due
process. Plaintiffs’ complaint repeatedly states that the
22
Philadelphia Airport and the FAA neglected to follow appropriate
procedures and failed to consider the impact of the various
projects on Plaintiffs’ home and the surrounding area.
Plaintiffs allege that “[t]he Phl Airport and FAA have violated
our civil rights to live in peace and in a healthy environment
and the freedom to move freely in and around our home as we wish
to choose.” (Compl. at 23.) However, Plaintiffs’ Complaint
contains no references to “procedure” or to “due process,” and
states only sweeping complaints regarding lack of notice or an
opportunity to challenge decisions through adequate channels.
Although Plaintiffs allege that noise from the PHL has adversely
affected their health, interfered with the use and enjoyment of
their property, and diminished the value of their home,
Plaintiffs have not identified a protected property interest on
which to base a due process violation. The parties have not
presented, nor has the Court found, any controlling authority
establishing a protected property interest in the use and
enjoyment of one’s land. Also, the Court is doubtful that
diminution of property value based upon a generalized
governmental action is a sufficient basis for a substantive due
process claim. See Tri-Cnty. Concerned Citizens Ass’n v. Carr,
Civ. 98-4184, 2001 WL 1132227, at *3-5 (E.D. Pa. Sept. 18,
2001), aff’d, 47 F. App’x 149 (3d Cir. 2002) (dismissing
procedural and substantive due process claims after failing to
23
find a protected property interest in the right to use and enjoy
land, the right to be free from common nuisances such as odor,
noise, pollution, and the right to not have property value
diminished, among others). Further, Plaintiffs’ disagreement
with the FAA’s decisions “has no bearing on Plaintiff[s]’s due
process rights.” Currier v. Keisler, Civ. 08-3217 (WJM), 2008 WL
2705009, at *3 (D.N.J. July 8, 2008). As such, Plaintiffs have
not pleaded a controlling property right recognized by state
law, and consequently their Complaint fails to state a
procedural due process claim.
“To prevail on a substantive due process claim, a plaintiff
must demonstrate that an arbitrary and capricious act deprived
them of a protected property interest.” Taylor Inv., Ltd. v.
Upper Darby Twp., 983 F.2d 1285, 1292 (3d Cir. 1993). The “core
of the concept” of due process is “the protection against
arbitrary action.” County of Sacramento v. Lewis, 523 U.S. 833,
845 (1998). It is well-settled that “only the most egregious
official conduct can be said to be ‘arbitrary in the
constitutional sense.’” Id. at 846 (citing Collins v. Harker
Heights, 503 U.S. 115, 129 (1992)); DeShaney v. Winnebago County
Dep’t of Social Servs., 489 U.S. 189 (1989). And, substantive
due process is violated by executive action only when it “can be
properly characterized as arbitrary, or conscience shocking, in
a constitutional sense.” Collins, 503 U.S. at 128.
24
Even if the Court were to identify a protected property
interest in Plaintiffs’ Complaint, Plaintiffs fail to allege
facts which can be characterized as arbitrary or conscience
shocking. The records of decision for each of the challenged FAA
projects outline the procedures followed including notice and
opportunities to comment. Generalized allegations that
Plaintiffs’ complaints to city officials and officials at the
Philadelphia Airport were not resolved to their satisfaction are
insufficient to state a claim for a violation of substantive due
process. Therefore, Plaintiffs do not state a claim under either
substantive or procedural due process.17
To the extent Plaintiffs state a tort claim against the
City of Philadelphia, the City of Philadelphia is entitled to
immunity under the PSTCA. Pennsylvania law at 42 Pa. Cons. Stat.
§ 8542 discusses the circumstances under which a local agency
may be liable:
A local agency shall be liable for damages on account of an
injury to a person or property within the limits set forth
in this subchapter if both of the following conditions are
satisfied and the injury occurs as a result of one of the
acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a
statute creating a cause of action if the injury were
caused by a person not having available a defense under
section 8541 (relating to governmental immunity generally)
or section 8546 (relating to defense of official immunity);
and
17
To the extent Plaintiffs assert claims for procedural or
substantive due process violations against other defendants, the
same reasoning applies.
25
(2) The injury was caused by the negligent acts of the
local agency or an employee thereof acting within the scope
of his office or duties with respect to one of the
categories listed in subsection (b). As used in this
paragraph, “negligent acts” shall not include acts or
conduct which constitutes a crime, actual fraud, actual
malice or willful misconduct.
42 Pa. Cons. Stat. § 8542. Subsection B identifies the acts by a
local agency or its employees that may result in liability.
Plaintiffs fail to identify any factual allegations encompassed
by the enumerated acts of Subsection B. Nor do Plaintiffs
identify any acts of negligence by the City of Philadelphia or
its employees. Therefore, to the extent Plaintiffs assert a tort
claim against the City of Philadelphia, it is entitled to
immunity under the PSTCA based on the allegations in Plaintiffs’
Complaint.
In light of the foregoing, the Court will grant the City of
Philadelphia’s motion to dismiss Plaintiffs’ claims for failure
to state a claim without prejudice with the exception of
Plaintiffs’ claim under NEPA which the Court will dismiss with
prejudice.
C. New Jersey Turnpike Authority
Defendant NJTA filed a motion to dismiss pursuant to Rules
12(b)(1) and 12(b)(6). [Docket Item 22.] The NJTA argues that
Plaintiffs lack standing to bring a private cause of action
under the New Jersey No Net Loss Act (“NNLA”). The NJTA also
argues that Plaintiffs’ claims under NEPA must fail because the
26
act is only applicable to federal agencies and Plaintiffs’ tort
claims should be dismissed because the NJTA is immune from suit
under the New Jersey Tort Claims Act (“TCA”).18
Plaintiffs oppose the NJTA’s motion, but fail to address
the NJTA’s legal arguments. Plaintiffs’ chief complaint against
the Turnpike involves an alleged violation of the NNLA for
removing trees that provided a natural barrier between their
home and the highway. Plaintiffs contend that the NJTA removed
the trees without notice or opportunity to comment and without
environmental studies being performed to evaluate the impact on
18
The NJTA also argues that Plaintiffs have failed to comply
with the TCA’s notice requirements. Plaintiffs’ Complaint refers
to a petition signed by 87 residents that was presented to “the
NJ Turnpike along with two decibel readings performed by the
Burlington County Board of Health.” (Compl. at 9.) Further,
Plaintiffs allege that during 2012 and 2013 “[m]y husband and I
attended many meetings with the New Jersey Turnpike including
Landscape Les Hergenrother, Engineer Richard Raczynski,
Assistant Director of Maintenance Robert Matthews and Executive
Director Verionque Hakim. Many telephone calls were made and
many letters and emails were written to the NJ Turnpike, State
officials and State Departments including the NJ Department of
Transportation and the US Federal Highway pleading for help to
get noise abatement to bring our decibel levels to the state
minimum . . . and was informed that I would need to work with
the New Jersey Turnpike to resolve this issue.” (Id. at 58.) The
Court finds that Plaintiffs’ pleadings lack sufficient detail to
establish actual or substantial compliance with the TCA’s notice
requirements for causes of action against public entities. See
N.J. Stat. Ann. § 59:8-1 et seq. It is unclear to whom
Plaintiffs’ letters and emails were addressed and whether this
correspondence stated Plaintiffs’ intent to pursue a claim under
the TCA. See Ingram v. Twp. of Deptford, 911 F. Supp. 2d 289,
296 (D.N.J. 2012) (discussing substantial compliance with TCA
notice requirements). The Court does not decide whether these
efforts satisfy the requirements of substantial compliance with
the pre-suit notice requirements of the TCA.
27
the community. Plaintiffs also object to the construction of a
large road sign without an opportunity to comment or
consideration of community impact.
Plaintiffs cannot state a claim for a violation of the NNLA
because the NNLA does not authorize a private cause of action.
Under the NNLA, each State entity “shall develop, and submit to
the Division of Parks and Forestry in the Department of
Environmental Protection, a plan for compensatory reforestation
for all areas at least one-half acre in size that are owned or
maintained by that State entity and are scheduled for
deforestation.” N.J. Stat. Ann. § 13:1L-14.2. Remedies for
violations of the NNLA are statutorily prescribed under N.J.S.A.
§ 13:1L-23 which provides that “the [Department of Environmental
Protection] may institute a civil action in a court of competent
jurisdiction for injunctive relief to prohibit and prevent the
violation.” N.J. Stat. Ann. § 13:1L-23(a). The NNLA does not
authorize a private cause of action for alleged violations of
the Act. See Miller v. Zoby, 595 A.2d 1104, 1108 (N.J. Super.
Ct. App. Div. 1991) (discussing regulatory statutes where the
Legislature “expressly conferred private causes of action when
it wanted members of the public to have access to the civil
28
courts for violations of remedial statutes”). Therefore,
Plaintiffs cannot state a claim for a violation of the NNLA.19
To the extent Plaintiffs assert claims against the NJTA for
violating NEPA, these claims must fail because the NJTA is not a
federal entity regulated by NEPA. See 42 U.S.C. § 4332.
Moreover, the Court will dismiss any tort claims asserted
by Plaintiffs against the NJTA because the NJTA is immune from
suit under the TCA, N.J.S.A. § 59:1-1 et seq. Under the TCA, a
public entity is not liable for injury except as otherwise
provided. N.J. Stat. Ann. § 59:2-1(a). The NJTA is a public
entity within the meaning of N.J.S.A. 59:1-3. Nat’l Amusements,
Inc. v. New Jersey Tpk. Auth., 619 A.2d 262, 268 (N.J. Super.
Ct. Ch. Div. 1992), aff’d, 645 A.2d 1194 (N.J. Super. Ct. App.
Div. 1994). No exception to immunity applies to the allegations
in Plaintiffs’ Complaint. Importantly, a public entity “is not
liable for an injury resulting from the exercise of judgment or
discretion vested in the entity.” N.J. Stat. Ann. § 59:2-3(a).
Further, “[a] public entity is not liable for the exercise of
discretion in determining whether to seek or whether to provide
19
Similarly, any claims Plaintiffs may assert against the NJTA
for violating the New Jersey Noise Control Act (“NJNCA”) must be
dismissed because the accompanying regulations expressly exempt
noise from public roadways from coverage and the NJNCA does not
provide a private cause of action. See N.J.A.C. § 7:29-1.5; N.J.
Stat. Ann. § 13:1G-11 (granting enforcement authority to the
NJDEP).
29
the resources necessary for the purchase of equipment, the
construction or maintenance of facilities, the hiring of
personnel and, in general, the provision of adequate
governmental services” or “the exercise of discretion when, in
the face of competing demands, it determines whether and how to
utilize or apply existing resources, including those allocated
for equipment, facilities and personnel unless a court concludes
that the determination of the public entity was palpably
unreasonable.” N.J. Stat. Ann. § 59:2-3(c)-(d).
These provisions have been applied to public entities
exercising discretion in the maintenance of trees. See Sims v.
City of Newark, 581 A.2d 524, 530 (N.J. Super. Ct. Ch. Div.
1990) (finding city immune under the TCA for maintenance of
trees bordering streets). Further, public entities are immune
from nuisance claims based on actions “approved in advance by
the body exercising discretionary authority to give such
approval.” Birchwood Lakes Colony Club, Inc. v. Borough of
Medford Lakes, 449 A.2d 472, 483 (N.J. 1982) (internal citation
and quotations omitted). See also E. Brunswick Twp. v. Middlesex
Cnty. Bd. of Freeholders, 539 A.2d 756, 758 (N.J. Super. Ct. Ch.
Div. 1987) (finding immunity applicable to actions implicated in
nuisance claim reflecting “basic policymaking decisions which
were made at the ‘planning’ level of the administrative
process”). Also, a public employee is not liable for an injury
30
caused by a misrepresentation. See N.J. Stat. Ann. § 59:3-10.
Because Plaintiffs’ claims are based on the NJTA’s exercise of
discretion in removing trees and constructing a road sign, as
well as the alleged misrepresentation that Plaintiffs were on a
list for consideration of a noise wall barrier, the Court will
grant the NJTA’s motion to dismiss for failure to state a claim
without prejudice. The Court will grant the NJTA’s motion to
dismiss Plaintiffs’ claims for failure to state a claim without
prejudice with the exception of Plaintiffs’ claims under NEPA,
NNLA, and NJNCA which the Court will dismiss with prejudice
because no amendment to the Complaint could cure the latter
deficiencies.
D. Delaware Valley Regional Planning Commission
The DVRPC filed a motion to dismiss pursuant to Rules
12(b)(1) and 12(b)(6). [Docket Item 16.] The DVRPC argues that
Plaintiffs fail to state a claim against the DVRPC because the
DVRPC has no rule making authority. The DVRPC also contends that
this Court lacks subject matter jurisdiction to interpret the
interstate compact creating the DVRPC and it is entitled to
immunity under the TCA.20
20
The DVRPC also argues that Plaintiffs have failed to comply
with the notice requirements of the TCA. Plaintiffs allege that
“I have attended two meetings and contact [sic] the DVRPC
Environmental Justice department and have been denied
assistance.” (Compl. at 81.) The Court finds Plaintiffs’
pleadings insufficient to establish actual or substantial
31
Plaintiffs filed opposition to the DVRPC’s motion that
expands upon the factual allegations in their Complaint without
addressing the DVRPC’s legal arguments.
The DVRPC was created in 1965 through an interstate compact
between Pennsylvania and New Jersey to coordinate regional
planning in the area including transportation projects. See N.J.
Stat. Ann. § 32:27-3. The DVRPC is an advisory agency and
implementation authority remains with state and local
governments or agencies. See N.J. Stat. Ann. § 32:27-18 (“The
commission shall serve as an advisory agency, with actual
authority for carrying out planning proposals continuing to rest
in the governing bodies of the States and counties.”).
Plaintiffs allege generally that the DVRPC participated in
the planning of the various FAA projects about which Plaintiffs
complain and failed to provide accurate information during the
planning processes.
Even if the Court could decipher specific conduct on which
Plaintiffs’ claims against the DVRPC rest, Plaintiffs’ claims
fail because the DVRPC is entitled to sovereign immunity based
on the allegations in Plaintiffs’ Complaint. N.J.S.A. § 32:27-25
provides:
compliance with the TCA’s notice requirements for causes of
action against public entities. See N.J. Stat. Ann. § 59:8-1 et
seq.
32
The commission, as an instrumentality of the State of New
Jersey and the Commonwealth of Pennsylvania exercising a
governmental function may not be sued in any court of law
or equity and shall be vested with such attribute of
sovereign
immunity
in
its
transactions
within
the
boundaries of one or the other of the 2 States as shall
apply to the respective highway and/or transportation
departments thereof and no more.
N.J. Stat. Ann. § 32:27-25. The DVRPC is thus entitled to the
same immunity under the TCA as discussed above with regard to
the NJTA. The DVRPC may not be liable for injury resulting from
its participation in project planning and exercise of discretion
in the policymaking decisions identified in Plaintiffs’
Complaint. See N.J. Stat. Ann. § 59:2-3(a); Costa v. Josey, 415
A.2d 337, 340 (N.J. 1980) (“N.J.S.A. 59:2-3(a) refers to actual,
high-level policymaking decisions involving the balancing of
competing considerations . . . . These discretionary
determinations likely include such decisions as whether to
utilize the Department’s resources and expend funds for the
maintenance of (a) road; whether to repair the road by patching
or resurfacing; (and) what roads should be repaired.”) (internal
citations and quotations omitted). Therefore, the Court will
grant the DVRPC’s motion to dismiss for failure to state a claim
without prejudice.
E. Mount Laurel Municipal Utilities Authority
33
The MUA filed a motion to dismiss under Rules 12(b)(1) and
12(b)(6).21 [Docket Item 43.] The MUA argues that Plaintiffs’
NEPA claims must fail because the MUA is not a federal agency.
The MUA also argues that Plaintiffs have failed to state a claim
upon which relief may be granted and failed to comply with the
notice requirements of the TCA.22 In opposition, Plaintiffs
reiterate the factual allegations in their complaint and argue
that the MUA was on notice as to Plaintiffs’ claims because they
attended two meetings of the MUA board to raise their concerns
regarding noise pollution. Plaintiffs also note that they
provided the MUA decibel reading documents confirming their
complaints.23
21
Defendant MUA filed an Answer on November 8, 2013. [Docket
Item 19.] On February 4, 2014, the MUA filed the instant motion
to dismiss. A motion to dismiss made after an answer is filed is
a motion for judgment on the pleadings pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(h)(2).
The differences between Rules 12(b)(6) and 12(c) are purely
procedural and the pleading standards of Rule 12(b)(6) are
applied for both. Turbe v. Gov’t of the Virgin Islands, 938 F.2d
427, 428 (3d Cir. 1991).
22
Plaintiffs allege that “[w]e attended several Board of
Director meetings requesting help to repair our area and were
denied assistance. When this issue was addressed with the Mt.
Laurel Municipality Utility Authority they informed us that it
is not there [sic] noise and therefore would not help to correct
the escalated noise issue that was caused by the removal of
these trees.” (Compl. at 62.) The Court finds that Plaintiffs’
pleadings lack sufficient detail to establish actual or
substantial compliance with the TCA’s notice requirements for
causes of action against public entities. See N.J. Stat. Ann. §
59:8-1 et seq.
23
The authority cited in Plaintiffs’ opposition is inapposite.
In addition to the cases discussed supra in n.10, Plaintiffs
34
Plaintiffs’ allegations against the MUA focus on the
construction of a solar farm at 200 1/2 Ramblewood Parkway in
February 2010. Plaintiffs complain of a lack of notice regarding
the solar farm and the removal of two acres of trees
“surrounding MUA property and within Turnpike property,”
including “19 very large trees” that “contributed to the natural
tree line that protected the residents.” (Compl. at 61.)
Plaintiffs allege that no environmental studies were performed
prior to the tree removal. (Id.) However, Plaintiffs’ Complaint
acknowledges that the 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. (Id. at 63.)
To the extent Plaintiffs assert claims against the MUA for
violating NEPA, these claims must fail because the MUA is not an
entity regulated by NEPA. See 42 U.S.C. § 4332.
Further, the MUA is a public entity entitled to immunity
under the TCA for the discretionary decisions implicated by
Plaintiffs’ Complaint. See McDade v. Siazon, 32 A.3d 1122, 1129
(N.J. 2011) (discussing plaintiffs’ compliance with procedural
requirements of the TCA as to claims against the Egg Harbor
rely on N.J. Stat. Ann. §§ 59:4-2, 4-3 (establishing liability
of public entity for injury caused by dangerous conditions on
its property).
35
Township Municipal Utility Authority). Importantly, a public
entity “is not liable for an injury resulting from the exercise
of judgment or discretion vested in the entity.” N.J. Stat. Ann.
§ 59:2-3(a). Further, public entities are immune from nuisance
claims based on actions “approved in advance by the body
exercising discretionary authority to give such approval.”
Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes,
449 A.2d 472, 483 (N.J. 1982) (internal citation and quotations
omitted). The MUA’s role in constructing the solar farm and
removing trees from the property falls within the discretion
vested in the MUA. Additionally, Plaintiffs acknowledge that the
solar farm project was reviewed and approved by the NJDEP.
Therefore, the MUA is immune from tort liability under the TCA
for the activities alleged in Plaintiffs’ Complaint.
Because Plaintiffs’ Complaint identifies no other grounds
upon which relief may be granted, the Court will grant the MUA’s
motion to dismiss for failure to state a claim without prejudice
with the exception of Plaintiffs’ claims under NEPA which the
Court will dismiss with prejudice.
F. New Jersey Department of Environmental Protection
The NJDEP filed a motion to dismiss for failure to state a
claim under Rule 12(b)(6). [Docket Item 23.] The NJDEP’s sole
argument is that it is entitled to sovereign immunity.
Plaintiffs did not file opposition.
36
Plaintiffs’ allegations against the NJDEP emphasize its
role in reviewing and approving funding for the Mount Laurel
Solar Farm Project without sufficient consideration of community
and environmental impact, as well as the removal of 94 trees as
part of the solar farm project.
The NJDEP, as a public entity of the State of New Jersey,
is entitled to immunity under the Eleventh Amendment and the TCA
for the discretionary decisions implicated by Plaintiffs’
Complaint. See Lawson v. K2 Sports USA, Civ. 08-6330 (GEB), 2009
WL 995180, at *3 (D.N.J. Apr. 13, 2009) (finding NJDEP protected
from suit in federal court pursuant to the Eleventh Amendment);
Cummings v. Jackson, Civ. 07-4046 (MLC), 2008 WL 2625223, at *3
(D.N.J. June 30, 2008). Further, Plaintiffs’ reference to
N.J.A.C. § 7:22-10 is inapposite because these regulations
establish the requirements for environmental assessment that
apply to state assisted environmental infrastructure facilities
under N.J.A.C. §§ 7:22 and 7:22A and N.J.A.C. § 7:22-10.1(a)
does not create a private cause of action. Therefore, the Court
will grant NJDEP’s motion to dismiss for failure to state a
claim without prejudice.
G. Township of Mount Laurel
The Township of Mount Laurel filed a motion to dismiss for
failure to state a claim arguing that the conduct which forms
the basis of Plaintiffs’ Complaint falls within the
37
discretionary functions of the municipality. [Docket Item 11.]
The Township further argues that it does not have jurisdiction
over the NJTA, the Philadelphia Airport, or the FAA and cannot
be liable for their decisions. Finally, the Township contends
that Plaintiffs’ claim for punitive damages should be dismissed
because the Township’s conduct does not rise to the level of
egregious conduct necessary for punitive damages.
Plaintiffs’ opposition to the Township’s motion does not
respond to the Township’s legal arguments for dismissal.24
Plaintiffs’ allegations against the Township include
generalized complaints of noise and air pollution resulting from
the Turnpike and the PHL, as well as complaints that the
Township has not practiced good land use in the area. Plaintiffs
also allege that Ramblewood Parkway has not been repaved in over
25 years and Mount Laurel did not follow zoning regulations in
the construction of the solar farm on Ramblewood Parkway.
Plaintiffs have provided no basis for holding the Township
responsible for the alleged noise and air pollution emanating
from the Turnpike or the PHL. Further, as discussed above,
24
The authority cited by Plaintiffs is inapposite. Plaintiffs
again rely on the cases discussed supra in n.10, as well as the
following New Jersey statutes: N.J. Stat. Ann. §§ 59:4-2, 4-3
(establishing liability of public entity for injury caused by
dangerous conditions on its property); N.J. Stat. Ann. § 59:9-4
(discussing contributory negligence under the TCA); N.J. Stat.
Ann. § 59:9-2 (discussing interest on judgments against public
entities and employees under the TCA).
38
public entities are immune from liability under the TCA for the
exercise of their discretionary authority as implicated by the
allegations in Plaintiffs’ Complaint. See N.J. Stat. Ann. §
59:2-3(a).
As for Plaintiffs’ claim that the Township has not repaved
Ramblewood Parkway in over 25 years, Plaintiffs do not allege
that the Township failed to protect against a dangerous
condition. Plaintiffs only argue that the road surface
contributes to noise levels near their home. As such,
Plaintiffs’ fail to state a claim that would remove the
Township’s conduct from immunity for discretionary acts of
public entities under the TCA. See Costa v. Josey, 388 A.2d
1019, 1024 (N.J. Super. Ct. App. Div. 1978), aff’d, 415 A.2d 337
(N.J. 1980) (“[T]he matters of resurfacing, when, where and how,
were high-level discretionary decisions falling within the
appropriate exclusive jurisdiction of the government to
decide.”).
While the Court acknowledges that a private citizen may use
mandamus to demand performance of a public duty such as
enforcement of zoning ordinances, Plaintiffs have not identified
any zoning laws the Township violated in constructing the solar
farm. See Mullen v. Ippolito Corp., 50 A.3d 673, 684 (N.J.
Super. Ct. App. Div. 2012) (discussing prerequisites to seeking
mandamus relief to enforce zoning ordinance). Generally, the
39
enforcement of municipal zoning is a matter for the Superior
Court of New Jersey, subject to the requirements for seeking
review of the municipality’s final action with respect to the
zoning code. Here, Plaintiffs give no indication of the
provisions of the municipal zoning code that were allegedly
violated.
Therefore, the Court will grant the Township’s motion to
dismiss for failure to state a claim without prejudice.25
V.
CONCLUSION
Consistent with the foregoing, the Court will grant all
pending motions to dismiss. The Court will grant Defendant FAA’s
motion to dismiss for lack of subject matter jurisdiction and
failure to state a claim with prejudice. However, the Court will
grant the remaining defendants’ motions to dismiss without
prejudice with the exception of Plaintiffs’ claims under NEPA,
NNLA, and NJNCA which the Court will dismiss with prejudice. An
accompanying Order will be entered.
April 15, 2014
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
25
Further, as the Township notes, Plaintiffs’ have pleaded no
facts on which a claim for punitive damages may rest.
40
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