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Citizens for Rational Coastal Development v. U.S. Federal Highway Administration

February 20, 2008

CITIZENS FOR RATIONAL COASTAL DEVELOPMENT, PLAINTIFF,
v.
U.S. FEDERAL HIGHWAY ADMINISTRATION, ET AL. DEFENDANT.
BOROUGH OF SEA BRIGHT, PLAINTIFF,
v.
J. RICHARD CAPKA, SECRETARY OF TRANSPORTATION, ET AL., DEFENDANT.



The opinion of the court was delivered by: Pisano, District Judge

OPINION

Plaintiffs, Citizens for Rational Coastal Development ("CRCD") and the Borough of Sea Bright ("Sea Bright," collectively with CRCD, "Plaintiffs") brought these actions against the Federal Highway Administration, the Secretary of Transportation, J. Richard Capka, the New Jersey Department of Transportation, and the New Jersey Department of Environmental Protection (collectively, "Defendants") seeking to enjoin an ongoing transportation project that will replace an existing movable bridge (i.e., drawbridge) on New Jersey State Route 36 (the "Route 36 Bridge") with a higher, fixed-span bridge. Presently before the Court is a "joint motion" by Plaintiffs for a preliminary injunction directing defendants to "refrain from any further planning, acquisition of right-of-way, financing, awarding of bids, contracting, or construction of the proposed action until Defendants have fully complied with section 4(f) of the [Department of Transportation] Act [49 U.S.C. § 303]." Moving Brf. at 1-2. The Court heard oral argument on the motion on January 28, 2008, and February 4, 2008. As set forth below, because the Plaintiffs have failed to establish that they are entitled to preliminary injunctive relief, their motion is denied.

I. Background

A. The Route 36 Bridge

The Route 36 Bridge extends over the Shrewsbury River near Sandy Hook Bay and connects Highlands Borough on the mainland with certain shoreline towns such as Sea Bright. It has four lanes (two lanes in each direction) and two sidewalks. The bridge is a double leaf bascule*fn1 structure, which means that it consists of two leaves that can be opened to allow marine traffic to pass underneath. With a vertical clearance of 35 feet when closed, the bridge must be opened in order for sailboats and other marine vessels to pass through.

The bridge is considered historic in nature, being designed in 1931 "by the noted engineering firm of Wadell & Hardesty," Def. Ex. 17 at 1, and was built in the years 1932-33. In 1991, the New Jersey State Historic Preservation Office ("SHPO") found that the bridge was eligible for listing on the National Register of Historic Places, stating that the bridge "is an exceptionally well-preserved and beautifully situated example of early 20th century movable bridge technology." Def. Ex. 17 at 1. Additionally, there are several historic sites located in the area of the bridge. These include, but certainly are not limited to, the Twin Lights Historic Site (Navesink Lighthouse), Fort Hancock and the Sandy Hook Proving Ground Historic District. Def. Ex. 30.

According to Defendants, the Route 36 Bridge is approaching the end of its 75-year estimated service life and has been classified by the New Jersey Department of Transportation ("NJDOT") as "Structurally Deficient and Functionally Obsolete" based on federal standards. Def. Ex. 56, at ¶ 2. As noted by Richard Dunne, NJDOT's Executive Manager and Deputy State Transportation Engineer, the bridge and its approaches contain substandard geometric features including lanes that are too narrow, radii on the approach ramps that are too small, poor skid resistance on the bascule (drawbridge) section, inadequate railings, and lack of shoulders and median barriers. The existing piles and foundations, and the existing high-rocker type expansion bearings and relatively narrow piler caps, similarly do not comply with modern seismic criteria specifications. These features would not provide adequate protection in the event of a seismic event, such as an earthquake. These antiquated features make the existing bridge significantly less safe than a modern bridge meeting all current safety standards.

Id. at ¶ 3. See also Declaration of Thomas Everett, Def. Ex. 57, at ¶¶ 10, 11 ("several bridge components are already in an advanced state of deterioration. . . [c]ontinued rapid deterioration of the condition of the bridge is expected to occur."). Because of the ongoing deterioration of the bridge, its load carrying capacity is steadily decreasing and the bridge will eventually reach a point where it cannot carry normal traffic loads. Id. at ¶ 8. As a result on the continued deterioration, the bridge is subject to frequent inspections. NJDOT has scheduled inspections of the bridge every three months while, typically, bridges are inspected every two years. Id.

During the busy summer month at the New Jersey shore, frequent openings of the Route 36 Bridge cause traffic delays for motorists. As discussed further below, it has been noted that such delays are particularly unacceptable in times of emergency, because the bridge is used by emergency services, e.g., ambulance and fire department, and it is also part of the planned coastal evacuation route for the residents of the area. See, e.g., Def. Ex. 15 at 19. As a result of the deficiencies with the existing bridge as well as these traffic issues, a project is presently underway to replace the existing Route 36 Bridge with a new, high-level fixed bridge.

B. History of the Proposed Replacement of Existing Route 36 Bridge

The record in this case is extensive and goes back approximately 20 years.*fn2 It shows that as early as the 1980's, the State of New Jersey began seeking federal funds under the Federal-Aid Highway Act, 23 U.S.C. § 101, et seq., in order to undertake environmental and design studies for the rehabilitation or replacement of the Route 36 Bridge. The amount of federal funds authorized for these studies, to date, totals over $14 million.

At first, a major rehabilitation to the existing bridge was proposed at an estimated cost, in 1991, of $19.3 million. See Def. Ex. 1-7, 11. Such work would have included replacing the concrete approach spans, replacing the deck and widening the flanking and bascule spans, upgrading the electrical and mechanical systems, and making improvements in the bridge and approach roadway. Def. Ex. 11 (Value Engineering Evaluation, October 1991).

Around this same time, on June 6, 1991, the SHPO determined that the Route 36 Bridge was eligible for listing on the National Register of Historic Places. Def. Ex. 8, 17. At that time, however, a determination could not be made by SHPO as to the effects of the proposed rehabilitation on the historic nature of the bridge. Def. Ex. 7 at 6. After more information was provided to SHPO, the organization concluded that the proposed rehabilitation work was such that it would constitute an "adverse effect" on the historical nature of the structure. Id.

In 1991, a Value Engineering Evaluation compared the proposed rehabilitation with the alternative of replacing the existing bridge with a high level bridge. Replacement of the bridge was intended to address the deficiencies in the existing bridge as well as the traffic problems caused by numerous bridge openings. Def. Ex. 11 at 10. The report concluded that the expenditure of $19.3 million for the proposed rehabilitation may not be cost effective when, for a comparable cost, the bridge could be replaced with a structure that would have a significantly longer service life, provides better service for traffic and provide major safety improvements. Id. at 4-5. Taking into account the projected service life, operational costs and construction costs, the report found that replacement of the existing bridge rather than the proposed rehabilitation resulted in a savings of over $21 million, and the report recommended replacement as the preferable alternative. Id. at 9. Upon review of the Value Engineering Evaluation in December 1991, the Federal Highway Administration ("FHWA") generally "concur[red] with the concept of constructing a high level structure at this location." Def. Ex. 12.

Over the course of the next decade, several studies were prepared to evaluate the available alternatives for rehabilitation or replacement of the Route 36 Bridge. These included the "Historic Bridge Alternatives Analysis" in November 1996, (Def. Ex. 13); "Optimum Height Analysis" in July 1998, (Def. Ex. 14); and "Feasibility Studies: Evaluation of Alternatives" in December 1999 (Def. Ex. 15).

The 1999 study considered five alternatives in addition to the alternative of "no build" (i.e., doing nothing except routine maintenance): (1) minor rehabilitation; (2) major rehabilitation; (3) new bridge on new alignment; (4) replacement on line: high-level (55'-65') fixed bridge; and (5) replacement on line: high-level (55' to 65') movable bridge. At that time, because the Coast Guard took the position that the structure must accommodate vessels in excess of 65' high (a position which the Coast Guard later changed), NJDOT chose the last alternative, i.e., replacement online with a high-level movable bridge. This was the only alternative that met all of the project needs that were identified in the report. These project needs included maintaining "system linkage" (i.e., maintaining this link in Route 36 as a coastal evacuation and emergency services route), increasing safety on the bridge, minimizing conflicts between vehicular and marine traffic (i.e., minimizing bridge openings), remedying structural deficiencies, minimizing operating costs, and meeting Coast Guard requirements. According to Defendants, the 1999 analysis was reviewed by the FHWA and the agency requested further studies.

Consequently, a "Feasibility Assessment Report" was completed in June 2003. Def. Ex. 21. This analysis considered four alternatives in addition to the "no build" option: (1) minor rehabilitation; (2) major rehabilitation; (3) new movable bridge on new alignment; and (4) new high-level fixed bridge. This study recommended that last alternative, under which the existing bridge would be demolished and replaced with a 65' high fixed bridge on a slightly different alignment than the original (by this time the Coast Guard had changed its position with respect to the minimum acceptable height of a fixed bridge). This alternative most fully addressed the issues of disruptions to emergency services, safety on the bridge, vehicular and marine traffic conflicts, structural deficiencies, and operating costs, and it met all Coast Guard requirements. However, the report noted that some key issues and problems would need to be addressed in order to implement this alternative. Among these were gaining acceptance through community outreach, obtaining the appropriate permits, and mitigating historical impact through design considerations in order to obtain SHPO approval of the new design. A decision was made to proceed with the recommended alternative of replacing the Route 36 Bridge, and the state undertook efforts to address the issues identified in order to implement the plan.

NJDOT has engaged in community outreach regarding the project for many years. Declaration of Pankesh Patel, Def. Ex. 59 at ¶¶ 2, 4, 5; Def. Ex. 24, 63-64. As a result, the Borough of Highlands and plaintiff Sea Bright passed resolutions supporting the proposed replacement bridge and entered into utility agreements with NJDOT. Def. Ex. 65 (February 2, 2005 Resolution by Borough of Highlands approving bridge replacement project), Def. Ex. 66 (March 15, 2005 Resolution by Sea Bright approving bridge replacement project), Def. Ex. 68 (May 17, 2005 Resolution by Sea Bright authorizing entry into utility agreement), Def. Ex. 69 (July 20, 2005 Resolution by Borough of Highlands authorizing entry into utility agreement).

In addition to community outreach, NJDOT consulted with the appropriate agencies for the necessary approvals and permits. The state consulted with and/or obtained the necessary approvals and permits for the bridge replacement from the Coast Guard, Def. Ex. 41, 48-50, the United States Army Corps of Engineers, Def. Ex. 46, the National Park Service, Def. Ex. 18, ...


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