Newman v. United States Department of Transportation

No. 70 C 1565 (2 ERC 1617) (E.D.N.Y. January 27, 1971; February 25, 1971)

The provisions of the Urban Mass Transportation Assistance Act of 1970 are designed to protect public parks, wildlife refuges and historical and cultural assets from needless destruction and are not applicable to a federal grant project to improve the electrification system of the Long Island Railroad. The project was under construction prior to the date on which the statute took effect (Oct. 15, 1970). The provision of the Demonstration Cities and Metropolitan Development Act of 1966, which requires coordination of all federal aid programs in metropolitan areas, by its terms does not apply to grant applications made prior to June 30, 1967. The application by the Metropolitan Transportation Authority was made Jan. 27, 1967. Plaintiff, an owner of land near the questioned project, has not demonstrated an interest in law or fact sufficient to require notice and a hearing before construction may begin.

Counsel for Plaintiff:
Mark X. Lynch
1010 Park Boulevard
Massapequa Park, N.Y. 11762
(516) 541-1060

Counsel for Federal Defendants:
Edward R. Neaher U.S. Attorney
225 Cadman Plaza East
Brooklyn, N.Y. 11201
(212) 596-5700

Counsel for Metropolitan Transportation Authority:
John R. Hupper
Cravath, Swaine & Moore
1 Chase Manhattan Plaza
New York, N.Y. 10005
(212) HA2-3000

[1 ELR 20333]

Dooling, D.J.

MEMORANDUM OF JANUARY 27

Outline of case: Petitioner seeks to prevent the building of an electric power sub-station on the northwest corner of Front Street and Park Lane in Massapequa Park, and to that end to have this Court review the legality of the procedures leading to the construction, which is now underway.

It does not appear that an evidentiary hearing is required to determine the issues now presented. The facts that emerge are as follows:

Metropolitan Transportation Authority (MTA), established by the Metropolitan Transportation Authority Act (N.Y. Public Authorities Law §§ 1260-1278) as a public benefit corporation [§ 1263(1)] to continue, develop and improve commuter transportation and related services in the metropolitan commuter transportation district [§ 1264(1)], is, by the statute of its formation, regarded as performing an essential governmental function in carrying out its purposes and exercising the powers granted to it by the statute [§ 1264(2)]. It has the power to acquire and hold real property in the exercise of its power [§ 1265(7)], and it is broadly empowered to acquire, operate, renovate, improve and extend any transportation facility in the metropolitan commuter transportation district directly or through one or more subsidiary corporations [§ 1266].

Under date of January 27, 1967, MTA applied to the United States Department of Housing and Urban Development for a Mass Transportation Facilities Grant under the Urban Mass Transportation Act of 1964 (49 U.S.C. § 1601 et seq.) and on August 29, 1967, the United States Department of Housing and Urban Development, Urban Transportation Administrator, executed with MTA an Urban Mass Transportation Capital Grant Contract covering a capital improvement project embracing (a) extension of the electrification of the Long Island Railroad between Mineola and Huntington a distance of 16.1 miles, including sub-station and other facilities, and (b) rehabilitation and supplementation of the existing 104 miles of electrification, including substation and other facilities.

While the application for grant was presented before rather than after June 30, 1967, Exhibits C and F, annexed to and forming part of the MTA application, related the grant-project to the "immediate action program," designated to lead to solutions to current critical transportation problems, incorporated in the comprehensive regional planning process undertaken by the Tri-State Transportation Commission. The application for grant was accompanied by a copy of a letter of Tri-State Transportation Commission addressed by that Commission to MTA advising that the proposed set of improvements to the electrification of the Long Island Railroad had been discussed by the Tri-State Transportation Commission and that the program was fully consistent with the transportation and planning programs of the Tri-State Transportation Commission and that the extended electrification would serve areas of rapidly growing suburban settlement and provide faster and more comfortable travel. See 42 U.S.C. § 3334 (Section 204 of the Demonstration Cities and Metropolitan Development Act). The Tri-State Transportation Commission, formed by compact among the states of New York, New Jersey and Connecticut, (New York Unconsolidated Laws §§ 8301-8318) has among its functions (a) acting as an official planning agency of the compact region, conducting surveys and submitting recommendations respecting transportation problems and considering land use problems related to the development of proper transportation plans; and (b) acting as liason to encourage coordination among all agencies and entities having a substantial interest in the planning or providing of transportation and other related public facilities within any part of the compact region or in solving problems connected with transportation and land use and development (Sec. 8306).

The grant project included, among the improvements to the present electrification system of the Long Island Railroad, ten new sub-stations for the two-track Jamaica to Babylon line (27.6 miles) as well as modifications to five of the twelve already existing sub-stations. The contract for construction of the sub-station in question was awarded on September 30, 1970, and construction work started soon afterward. The site was taken in condemnation in accordance with the procedure provided in New York Public Authorities Law § 1267-a (see Highway Law § 30). Funds for the project were authorized and appropriated by the Congress and obligated to the project before the enactment of Public Law 91-453 of October 15, 1970.

It appears that plaintiff's property is on the easterly side of Park Lane north of Front Street and is the most northerly tract on the easterly side of Park Lane that is zoned for business uses. Plaintiff's property is about 200 feet from the intersection of Park Lane with Front Street. South of and parallel to Front Street is the Long Island Railroad right of way, beyond it and parallel to it is a strip of land estimated to be 30 to 50 feet wide which is vacant, and beyond that band of vacant land is the Sunrise Highway, a main artery for unrestricted vehicular traffic. The northwest corner of Park Lane and Front Street and the area north and west of those streets is generally zoned for residential uses, and at a fairly recent date an application to rezone it for business purposes was denied.

The proposed sub-station will not give rise to any emanations of sound or of electric or electronic signals or odor or heat or other pollutants or diluents of atmosphere beyond the site boundary; it will be fenced to secure it from intrusion and against becoming any sort of risk to passersby or inquisitive children. The present plan for the property visualizes that the buildings and structures will be painted to harmonize with the surroundings and that vertical cedar slats will be added outside the security fencing. The perimeter of the property under present plans will be landscaped. The dimensions and location of the property taken, and the size and style of the buildings are as set forth in the Garrison affidavit sworn to January 6, 1971, paragraphs 8 and 12.

Title to the land was taken on October 16, 1969. No public hearing was held on choice of site before the taking but MTA considered alternative sites before deciding on the site finally taken.

The issues are essentially (1) compliance with Section 204 of the 1966 Act as raised in plaintiff's memorandum filed January 18, 1971, and (2) jurisdiction over the United States Department of Transportation, as raised in the United States Attorney's Memorandum. The issues framed around P.L. 91-453, 84 Stat. 962, drop into the background — along with concepts drawn from the fields indicated in such discussions as 37 Brooklyn Law Review 192 (1970) and Maloney, The New Standing Applied to Eminent Domain, 1970, 25 The Record (A of B of C of N.Y.) 669.

It appears that the case is ready for disposition on the present papers unless any party wishes to present further data (such as a blueprint of the plan of the site area showing the streets, right of way, etc., any report rendered on the site survey, and any blueprints of the layout of structures on the site and architect's renditions of the completed sub-station as presently visualized). Counsel will please advise on this point within a week.

It is so Ordered.

MEMORANDUM OF FEBRUARY 25

Reference is made to the Memorandum of January 27, 1971, which sets out the case presented by plaintiff.

At first plaintiff rested her case on Sections 2 and 6 of the Urban Mass Transportation Assistance Act of 1970, approved October 15, 1970 (Public Law 91-453), but that enactment, as MTA contends, does not apply to such a project as the present one, which was already in its final stages when the Act became law. The sections relied on were oriented to requiring an opportunity for public hearings and an appropriate determination that no significant and avoidable environmental damage will be done by a transportation project before a statutory loan or grant is made for it. By its nature, the new legislative requirements, addressed to the formative stages of new project proposals, is inapplicable here. The policy which it reflects is not retrospective but prospective.

Plaintiff contends now that there has been a failure to comply with Section 204 of the Demonstration Cities and Metropolitan Development Act of 1966 (42 U.S.C. § 3334). By its terms the Act is inapplicable. It extends only to cases where the application is made after June 30, 1967. The present application was made before that day.

On the broader ground of her having an "interest" entitling plaintiff to notice and a hearing before a public project can be embarked upon, the plaintiff fails to show an "interest" in fact or in law. The materials descriptive of the project, its background, its appearance and its effect have been voluntarily furnished by the parties. They demonstrate minimal affectation of an environment in which the major transportation impingements had been made long ago. Such facts as here appear do not rise to a taking nor to a measurable interference with any definable interest of property enjoyment. Absent a right granted by statute, which would, in effect, extend the right of property into new domains, no relief may be granted. Cf. Cart v. Cole, 2d Cir. 1959, 263 F.2d 244, 251; Kendler v. Wirtz, 3d Cir. 1968, 388 F.2d 381, 384.

[1 ELR 20334]

It is accordingly,

Ordered that plaintiff's application for mandatory and declaratory relief and for the relief of review as upon certiorari and annulment of the action of the Secretary of Transportation is denied and the Clerk is directed to enter judgment that plaintiff take nothing and that the action is dismissed on the merits. No costs.