Yorkshire Towers Company L.P. et al v. United States Department of Transportation et al
Filing
66
OPINION re: 23 MOTION to Dismiss filed by Michael Horodniceanu, Jay H. Walder, The Metropolitan Transportation Authority, Thomas F Prendergast, Jr., The Metropolitan Transportation Authority Capital Construction Company, The New York City Transit A uthority, 44 MOTION for Preliminary Injunction to Preserve Status Quo by Staying so Much of SAS Project in Furtherance of the Implementation of the Residential Midblock Alternative filed by Yorkshire Towers Company L.P., Yorkshire Towers Ten ants Association. Defendants move to dismiss plaintiffs complaint. Plaintiffs have moved for a preliminary injunction. Defendants motion to dismiss is granted. The court already denied plaintiffs motion for a preliminary injunction at a hearing on N ovember 2, 2011, but this opinion will demonstrate more fully the reason for such denial. For the foregoing reasons, the complaint is dismissed without leave to amend. Plaintiffs' motion for preliminary injunction is denied. (Signed by Judge Thomas P. Griesa on 12/1/2011) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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YORKSHIRE TOWERS COMPANY, L.P.,
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ET AL.,
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Plaintiffs,
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– against –
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UNITED STATES DEPARTMENT OF
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TRANSPORTATION, ET AL.,
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Defendants.
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11 Civ. 1058 (TPG)
OPINION
Plaintiffs Yorkshire Towers Company, L.P. and Yorkshire Towers
Tenants Corporation bring this suit challenging the proposed location of
the 86th Street entrance of the Second Avenue Subway. The current
proposal is to place the main part of the entrance in front of the
Yorkshire Towers apartment building, known in these proceedings as
Alternative 7.
In this litigation, plaintiffs urge that the entrance should be at
the southeast corner of 86th Street and Second Avenue, an alternative
which is referred to in this litigation as “Revised Alternative 5.”
Defendants move to dismiss plaintiffs’ complaint. Plaintiffs have
moved for a preliminary injunction.
Defendants’ motion to dismiss is granted. The court already
denied plaintiffs’ motion for a preliminary injunction at a hearing on
November 2, 2011, but this opinion will demonstrate more fully the
reason for such denial.
THE COMPLAINT
Unless otherwise indicated, the following facts are taken from the
complaint and two documents referred to throughout the complaint,
(i) the Supplemental Environmental Assessment prepared by the
Metropolitan Transit Authority and its affiliates dated May 2009 and
(ii) the Finding of No Significant Impact issued by the Federal Transit
Administration dated October 29, 2009. These facts are assumed to be
true for purposes of the motion to dismiss.
Parties
Plaintiff Yorkshire Towers Company, L.P. is the owner of a
21-story, 695-unit apartment building that spans the length of Second
Avenue between 86th Street and 87th Street. This building has over
2,000 residents. Plaintiff Yorkshire Towers Tenants Association is an
unincorporated association made up of the tenants in the Yorkshire
Towers building.
The defendants in this action include the United States
Department of Transportation (“DOT”), the Federal Transit
Administration (“FTA), the Metropolitan Transit Authority (“MTA”), the
New York City Transit Authority (“NYCT”), and the MTA Capital
Construction Company (“MTACC”). Plaintiffs have also sued the
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Secretary of the DOT, the Administrator of the FTA, the Chairman of the
MTA, the President of the NYCT, and the President of the MTACC.
The 86th Street Subway Entrance
The MTA is in the process of building the Second Avenue Subway,
which will run along Second Avenue from 125th Street in Harlem to
Hanover Square in Manhattan. Although the MTA is building the
subway, this is a federally funded project and is subject to federal
environmental review.
The MTA considered various alternatives for the 86th Street
subway entrance. One of these alternatives was what is known as
Alternative 7, which would locate two pairs of escalators on the north
side of 86th Street, in front of Yorkshire Towers, and one elevator at the
southeast corner of the intersection. Another alternative was Alternative
5, which would locate five elevators in a newly constructed building on
the southeast corner of Second Avenue and 86th Street. Ultimately, the
MTA chose Alternative 7 as the “Preferred Alternative.”
The MTA chose the Preferred Alternative in part because of
passenger convenience concerns. The MTA determined that 2,900
passengers would enter the subway and 700 would exit at the 86th
Street entrance during the morning peak hour, and that 68 percent of
those passengers would come from northeast of the intersection at 86th
Street and Second Avenue. Alternative 7 would allow the large number
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of northern-residing passengers to enter the subway without crossing to
the south side of 86th Street.
Another important benefit that the MTA identified with the
Preferred Alternative is that it would not require the acquisition of
buildings, displacement of residents or businesses, temporary closures of
businesses, or modifications to existing buildings. Alternative 5, in a
revised form as will be described, is advocated by plaintiffs. In the
original form considered by the MTA, it would require the acquisition and
destruction of two buildings and displacement of two businesses and
fifteen residents.
The MTA announced its decision in a Supplemental Environmental
Assessment (“SEA”). The SEA was published and distributed in May
2009. A public hearing was held on June 18, 2009. Comments were
allowed until July 31, 2009.
Plaintiffs attacked the MTA’s decision to place the subway entrance
mid-block and cited public safety, pedestrian convenience, traffic, and
quality of life reasons why the subway entrances should be placed
elsewhere. Plaintiffs did not at this stage insist on Alternative 5,
although in one comment they indicated that the entrances to the
subway should be on the south side of the street, and Alternative 5 was
on that side of the street.
After evaluating the MTA’s decision and the public comments, the
FTA issued its Finding of No Significant Impact (“FONSI”) on October 29,
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2009. In the FONSI, the FTA responded at length to comments from
numerous concerned residents who objected to various aspects of the
Preferred Alternative. The FTA found that Alternative 7 was preferable to
Alternative 5. The main reasons for this were that Alternative 7 would
not require the acquisition of any buildings or the displacement of any
businesses or residents and would be convenient for passengers.
On December 9, 2009, the FTA published a Notice of Limitation on
Claims in the Federal Register. This notice announced the FTA’s
decision to locate the 86th Street subway entrance in front of Yorkshire
Towers. The notice stated that a “claim seeking judicial review of the
FTA actions announced herein for the listed public transportation
projects will be barred unless the claim is filed on or before June 7,
2010.” See 74 Fed. Reg. 235, 65203 (Dec. 9, 2009).
Plaintiffs first provided defendants with Revised Alternative 5 in
December 2010, three months before they filed this lawsuit, and they
presented defendants with subsequent refinements to Revised Alternative
5 during the summer of 2011. The main difference between Revised
Alternative 5 and the original Alternative 5 considered by the MTA is that
the revised version requires the acquisition of one commercial property
and nine residential units, as opposed to the original, which required the
acquisition of two commercial properties and fifteen residential units. 1
In their complaint and their papers on the present motions, plaintiffs
also set forth numerous other alleged benefits of Revised Alternative 5
over the original Alternative 5 and the Preferred Alternative.
1
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Although defendants apparently reviewed Revised Alternative 5, they did
not adopt Revised Alternative 5 or issue a formal response explaining
why they would not adopt it.
The Present Action
Plaintiffs filed this suit on February 16, 2011. Their primary claim
arises under the National Environmental Policy Act of 1969, 42 U.S.C. §§
4321-4347 (“NEPA”). Plaintiffs claim that the agencies’ selection of
Alternative 7 was arbitrary and capricious.
Plaintiffs also claim that the agencies have a continuing obligation
under NEPA to consider “new information.” The issue of new information
is relevant to the statute of limitations issue, which will be discussed
hereafter. The only piece of new information referred to in plaintiffs’
complaint is Revised Alternative 5.
In their opposition papers and at oral argument on this motion,
plaintiffs also rely on the following additional pieces of allegedly new
information, which are not located anywhere in their complaint:
•
The MTA’s Design Guidelines;
•
The 2010 edition of the National Fire Protection Association
130, “Standard for Fixed Guideway Transit and Passenger
Rail Systems” (“NFPA 2010”);
•
Solutions to queuing and maximum surge condition
problems;
•
Solution to pedestrian inconvenience concerns;
•
Cost analyses;
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•
Claims of superior safety considerations related to Revised
Alternative 5. 2
All of these pieces of new information are offered to show that Revised
Alternative 5 is superior to the Preferred Alternative.
Plaintiffs also bring state law claims under New York’s State
Environmental Quality Review Act, N.Y. Env. Cons. L. Art. 8 (“SEQRA”),
and New York General Municipal Law section 51. The SEQRA claim
alleges various failures to appropriately consider the environmental
impacts of the Preferred Alternative. The claim under the General
Municipal Law alleges misapplication of funds.
The Present Motions
Defendants base their motion to dismiss on the argument that the
claim presented in the complaint is barred by the applicable statute of
limitations. The claim is an attack on the decision to approve the
entrance in front of Yorkshire Towers. Defendants contend that the
lawsuit, attacking the decision, was not brought within the allowed time
period.
Plaintiffs contend that the complaint, seeking to set aside the
decision, is not time-barred because of equitable tolling. In addition,
they contend that they have brought up various forms of “new
information” not considered in making the decision, and that under
Plaintiffs also initially claimed that certain letters written by the MTA
were new information, but at the hearing on this motion on November 2,
2011, plaintiffs withdrew this argument.
2
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NEPA, this new information must be given fresh consideration and that
their claim in this regard is not time-barred.
In their motion for a preliminary injunction, plaintiffs requested an
injunction to preserve the status quo by holding up work on the 86th
Street subway entrance.
DISCUSSION
The Relevant NEPA Provisions Regarding Limitations
Under NEPA, there is a 180-day statute of limitations. The statute
provides:
Notwithstanding any other provision of law, a claim arising
under Federal law seeking judicial review of a permit,
license, or approval issued by a Federal agency for a highway
or public transportation capital project shall be barred
unless it is filed within 180 days after publication of a notice
in the Federal Register announcing that the permit, license,
or approval is final pursuant to the law under which the
agency action is taken, unless a shorter time is specified in
the Federal law pursuant to which judicial review is allowed.
23 U.S.C. § 139 (l)(1).
Thus, an action seeking judicial review of the approval by a
federal agency for a public transportation capital project is barred
unless it is filed within 180 days after publication of a notice in the
Federal Register announcing the final approval of such project.
Here, notice of the FTA’s decision to site the main subway entrance
mid-block on 86th Street was published in the Federal Register on
December 9, 2009. The statute of limitations expired on June 7, 2010.
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Plaintiffs did not commence this action until February 2011. Thus the
action would appear to be barred by the statute of limitations.
However, a de facto exception to the statute of limitations is
created by the concept of “new information” contained in 23 U.S.C.
§ 139(l)(2), which provides:
The Secretary shall consider new information received after
the close of a comment period if the information satisfies the
requirements for a supplemental environmental impact
statement under section 771.130 of title 23, Code of Federal
Regulations.
The regulation referred to provides:
(a) A draft EIS, final EIS, or supplemental EIS may be
supplemented at any time. An EIS shall be supplemented
whenever the Administration determines that:
(1) Changes to the proposed action would result in
significant environmental impacts that were not evaluated in
the EIS; or
(2) New information or circumstances relevant to
environmental concerns and bearing on the proposed action
or its impacts would result in significant environmental
impacts not evaluated in the EIS.
23 C.F.R. § 771.130(a)(1)-(2).
As the statute points out, the reference is to new information
received after the close of the comment period. The apparent assumption
in the statute is that the “new information” was something not
considered in the making of the decision. The statute of limitations in §
139(l)(1) does not apply to “new information.”
In an attempt to avoid the statute of limitations, plaintiffs argue
that (1) the doctrines of equitable estoppel or equitable tolling should
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apply to prevent their claims from being time-barred and (2) the
alternative they now urge – Revised Alternative 5 – involves new
information, as to which the 180-day statute of limitations does not
apply.
Equitable Tolling and Equitable Estoppel
Plaintiffs contend that for equitable reasons this court should
excuse their noncompliance with the 180-day statute of limitations.
Equitable estoppel applies where a defendant’s “egregious
wrongdoing . . . prevents a plaintiff from bringing suit on a claim of
which the plaintiff is aware.” Netzer v. Continuity Graphic Associates,
Inc., 963 F. Supp. 1308, 1316 (S.D.N.Y. 1997). “Under the equitable
tolling doctrine, on the other hand, a statute of limitations does not run
against a plaintiff who was justifiably ignorant of his cause of action.” Id.
Each doctrine requires the plaintiff to show that his failure to timely file
suit was not the result of his lack of diligence. Id. Courts may also
consider whether the defendant would be prejudiced if the statute is
tolled. See, e.g., Sierra Club North Star Chapter v. Peters, No. 07-2593
(MJD/SRN), 2008 WL 2152199, at *9 (D. Minn. May 15, 2008).
Plaintiffs, relying on Peters, focus their briefing on equitable
estoppel and argue that defendants “lulled” them into believing that it
was not necessary to commence litigation. However, Peters is
distinguishable from the case at hand. In Peters, the federal agency at
issue had published a misleading notice in the Federal Register that did
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not accurately state the deadline for filing a claim. Id. at 10. The correct
deadline was June 4, but the notice stated that the deadline was June 6.
The plaintiff filed its suit on June 5, after expiration of the six month
statute of limitations (as correctly calculated), but before the date
indicated in the inaccurate federal register notice. Id.
Here, unlike in Peters, there is no allegation that plaintiffs did not
know about the correct deadline to file their suit, nor that defendants
made a false representation to plaintiffs about the deadline.
Plaintiffs claim that the MTA lulled them into inaction by not
promptly and sufficiently replying to certain letters from elected officials,
or copying plaintiffs on such responses. However, these facts do not
amount to concealment or egregious conduct. Plaintiffs also claim that
the government’s failure to disclose the MTA Design Guidelines amounts
to concealment of those guidelines in order to lull plaintiffs into not filing
suit. But plaintiffs have not established that the government
affirmatively misstated or unlawfully failed to disclose the internal,
nonpublic MTA Design Guidelines.
Additionally, plaintiffs have not established that they displayed the
requisite diligence to justify application of equitable estoppel. Unlike the
plaintiff in Peters, the plaintiffs in this case did not file their complaint
before the date promulgated by the FTA in the Federal Register Notice.
Rather, they unreasonably waited to file their suit until many months
after the expiration of the statute of limitations. Plaintiffs filed numerous
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comments in opposition to the Preferred Alternative, which were
addressed and rejected in the FONSI. However, after that FONSI was
issued, they unreasonably waited well over one year to file this suit.
Finally, defendants would be prejudiced if the court tolls the
statute of limitations. The six month limitations period ended eight
months before plaintiffs filed this suit. Defendants apparently relied on
the finality of the FONSI and are now in the process of constructing the
subway entrances in front of Yorkshire Towers.
Accordingly, to the extent plaintiffs challenge the decision to site
the main subway entrance mid-block on 86th Street, plaintiffs’ claim is
time-barred by the statute of limitations.
Plaintiff’s New Information Claim
The relevant statute and regulation regarding new information
were quoted earlier in this opinion. To reiterate, the statute provides
that the “Secretary shall consider new information received after the
close of a comment period if the information satisfies the requirements
for a supplemental environmental impact statement under section
771.130 of title 23, Code of Federal Regulations.” 23 U.S.C. § 139(l)(2).
The relevant portion of the regulation provides that an EIS shall be
supplemented whenever the FTA determines that
(1) Changes to the proposed action would result in
significant environmental impacts that were not evaluated in
the EIS; or
(2) New information or circumstances relevant to
environmental concerns and bearing on the proposed action
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or its impacts would result in significant environmental
impacts not evaluated in the EIS.
23 C.F.R. § 771.130(a)(1)-(2).
Section 771.130(a)(1) clearly does not apply here because plaintiffs
do not refer to changes in the proposed action, that is, the Preferred
Alternative.
Section 771.130(a)(2) is phrased differently. It is not limited to
changes to the proposed action, but subsection (2) requires consideration
of new information or circumstances, if these bear on the proposed
action or the impacts of that action and would result in significant
environmental impacts not evaluated in the EIS. Quite clearly it still
deals with, and is limited to, the proposed action, here the Preferred
Alternative. Thus subsection (2) requires consideration of new
information or circumstances bearing on the action which the agency
proposes or the impacts of such action, which would result in significant
environmental impacts of that action. In the view of the court, a new
proposed alternative to that action, or a newly revised alternative to that
action, is not within the purview of subsection (2), according to the plain
meaning of the words in that subsection. What we have in this case is
not new information or circumstances that bear on the proposed action
or its impacts, but rather a suggested alternative, Revised Alternative 5,
to that proposed action, the Preferred Alternative.
Suing on the basis of a new alternative or a revised alternative
after the final decision has been made is an attack on the decision itself.
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As part of the NEPA-mandated decision-making process, an agency must
“give full and meaningful consideration to all reasonable alternatives.” N.
Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147,
1153 (9th Cir. 2008); see 42 U.S.C. § 4332(c). The time leading up to the
FTA’s decision was the appropriate time for plaintiffs to present their
Revised Alternative 5 so that it could have been considered by the agency
in making the decision.
Plaintiffs were required to commence any suit challenging the
agency’s evaluation of reasonable alternatives within 180 days of
publication of the FTA’s decision. See 23 U.S.C. § 139 (l)(1). Plaintiffs
did not do so and their claim regarding Revised Alternative 5 is
time-barred.
As described earlier, the complaint refers to Revised Alternative 5
and in their motion papers plaintiffs refer to additional pieces of allegedly
new information. But these additional items in the motion papers are
put forward only for their asserted value in showing the benefits of
Revised Alternative 5. Therefore, for the reasons just discussed with
regard to Revised Alternative 5, these items are not new information
within the meaning of the relevant statute and regulation.
Plaintiffs also waived their right to insist on their revised
alternative. Failure to raise an alternative before close of the comment
period waives one’s right to challenge the agency’s evaluation of
reasonable alternatives. See N. Idaho Cmty Action Network, 545 F.3d at
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1156 n. 2 (citing Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 764-65
(2004)). During the environmental review process, plaintiffs made
numerous comments, but did not advocate or propose an alternative.
Other concerned citizens presented alternative proposals. The FTA
considered these comments and proposals and provided written
responses. In contrast, plaintiffs did not provide defendants with
Revised Alternative 5 until December 2010, which was well after the
close of the comment period.
The court holds that plaintiffs’ claim under NEPA must be
dismissed on the ground that it is barred by the statute of limitations,
and the further ground of waiver.
Plaintiffs request, that in the event the complaint is dismissed,
they should be allowed to replead. However, their proposed repleading
would only add the items of alleged new information now found in their
motion papers and summarized earlier in this opinion. Such repleading
would be futile and the request is denied.
State Law Claims
Plaintiffs also bring state law claims under SEQRA and New York
General Municipal Law section 51. The court has already dismissed
plaintiffs’ federal environmental claims. The court declines to exercise
supplemental jurisdiction over plaintiffs’ state law claims. See 28 U.S.C.
§ 1367(c).
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The Motion for a Preliminary Injunction
It is evident that the dismissal of the causes of action means that
there can be no injunctive relief granted to plaintiffs. The court confirms,
what was held at the earlier hearing, that the motion for a preliminary
injunction is denied.
CONCLUSION
For the foregoing reasons, the complaint is dismissed without leave
to amend. Plaintiffs' motion for preliminary injunction is denied.
SO ORDERED.
Dated: New York, New York
December 1, 2011
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Thomas P. Griesa
U.S. District Judge
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