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.
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.
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 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 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, 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.*fn1
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.
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' ...