The opinion of the court was delivered by: Pisano, District Judge
Presently before the Court is a motion by Plaintiffs, the Borough of Sea Bright and proposed Plaintiff Thomas E. Scriven*fn1 (together, "Plaintiffs") for a preliminary injunction enjoining "any further planning, acquisition of right-of-way, financing, awarding of bids, contracting or construction of" an ongoing transportation project that will replace an existing movable bridge on New Jersey State Route 36 (the "Route 36 Bridge") with a higher, fixed-span bridge. Plaintiffs seek to enjoin the project "until and unless Federal and State Defendants have fully complied with [Department of Transportation Act, Section 4(f), 49 U.S.C. § 303]," referred to herein as "Section 4(f)." This is Plaintiff's second motion for an injunction under this statute, as Plaintiffs previously filed a motion seeking similar injunctive relief that the Court denied by way of an Opinion and Order filed February 21, 2008 ("February 21 Opinion"). As set forth below, because the Plaintiffs have failed to establish that they are entitled to preliminary injunctive relief, their motion to enjoin the on-going bridge replacement project is denied.
An extensive discussion of the underlying facts is set forth in this Court's February 21 Opinion and, therefore, will not be repeated here. However, while familiarity with the facts in the prior Opinion is presumed, a brief factual summary that includes certain additional facts relevant to the instant motion is provided below.
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. In 1991, the New Jersey State Historic Preservation Office ("SHPO") found that the bridge was eligible for listing on the State and National Register of Historic Places, both as an example of early 20th century moveable bridge technology as well as for its role as part of the viewshed of the Navesink Lighthouse, an historic lighthouse.
It would not be an exaggeration to say that the Route 36 Bridge project has been underway, in some form, for decades. Beginning as early as the 1980's, the State of New Jersey began seeking funding under the Federal-Aid Highway Act, 23 U.S.C. § 101, et seq., to undertake the requisite environmental and design studies for the rehabilitation or replacement of the Route 36 Bridge. At first, a major rehabilitation to the existing bridge was proposed, but in October 1991, New Jersey's Department of Transportation ("NJDOT") reconsidered the proposed rehabilitation project and explored the alternative of replacing the bridge. The proposed fixed-span replacement bridge provided a long term solution to deficiencies in the existing bridge as well as to traffic problems caused by numerous openings of the drawbridge. Over several years, a number of studies were undertaken to evaluate the available alternatives for the bridge. Ultimately, the alternative of a high-level fixed bridge was recommended as best meeting the goals of the project.
After deciding to proceed with the recommended alternative, NJDOT engaged in community outreach regarding the project for the next several years. As a result, the neighboring municipalities of the Borough of Highlands and Sea Bright, the plaintiff in this case, passed resolutions supporting the proposed replacement bridge and entered into utility agreements with NJDOT. NJDOT also consulted with and obtained from the appropriate agencies the necessary approvals and permits to move ahead with the replacement project. With respect to Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303, the Federal Highway Administration ("FHWA") and the NJDOT issued a Nationwide Programmatic Section 4(f) Evaluation in July 2005, concluding that there was no prudent and feasible alternative to the use (demolition) of the existing Route 36 Bridge.
Additionally, NJDOT and FHWA consulted with SHPO, the Advisory Council on Historic Preservation, and the National Park Service under the National Historic Preservation Act ("NHPA") Section 106, and Federal-Aid Highway Act ("FAHA") Section 4(f). A memorandum of agreement was executed and approved by FHWA, the National Park Service, the NJDEP, and NJDOT, resolving the relevant issues and addressing how the project would be carried out to mitigate the historical impact. On May 25, 2007, after extensive consultation between NJDOT and New Jersey's Department of Environmental Protection ("NJDEP")*fn2 as to the remaining historical impact issues under state law, SHPO approved NJDOT's application for the project.
In addition to the demolition of the existing bridge, the current construction project involves the use of certain parcels of land near the bridge known as Parcel 122 and Parcel 123. The state of New Jersey acquired Parcel 122 and certain other parcels by deed dated December 4, 1962. See State Def. Ex. 1, Ex. 2 at ¶ 3. Forty-five years later, in 2007, to clarify the status of Parcel 122, a second sale agreement was executed for nominal consideration of one dollar and a new deed recorded. State Def. Ex. 2 at ¶ 3. According to the declaration of Richard Crum, the Director of the Division of Project Management for NJDOT, the ownership of Parcel 122 by the State predates the Green Acres program of the State, and the parcel has never been listed as parkland on the Open Space Inventory of the Borough of Highlands or with the NJDEP. State Def. Ex. 2 at ¶ 4.
Lot 123 was acquired from the Borough of Highlands in 2007. This area, known as "South Bay Avenue Park," was considered protected parkland. State Def. Ex. 2 at ¶ 5. It was, consequently, evaluated in the 2005 Nationwide Programmatic Section 4(f) Evaluation and mitigation of the project's impact as to this parcel has been provided.
The Borough of Sea Bright filed its Complaint in this action on October 31, 2007, against the Secretary of Transportation, J. Richard Capka, and the Federal Highway Authority seeking judicial review under the APA, 5 U.S.C. § 706(2)(A), asserting that the Defendants approved this project in violation of certain federal statutes. The Complaint alleged violations of the following:
(i) National Environmental Policy Act; (ii) Section 4(f) of the Department of Transportation Act ("Section 4(f)"); and (iii) the FHWA's "Movable Bridge Policy" embodied in 23 C.F.R. 650.809. Citizens for Rational Coastal Development ("CRCD") filed an earlier, similar suit against these defendants, the New Jersey Department of Transportation and the New Jersey Department of Environmental Protection. The Court consolidated both civil actions for all purposes on January 28, 2008.*fn3
Plaintiffs subsequently moved for preliminary injunctive relief under Section 4(f), which the Court denied from the bench on February 4, 2008. A written Opinion and Order ...