|
|
http://laws.findlaw.com/4th/021612p.html |
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
THE TAUBMAN REALTY GROUP
LIMITED PARTNERSHIP, a Delaware
Limited Partnership; TRG-REGENCY
SQUARE ASSOCIATES LLC, a Virginia
Limited Liability Corporation,
Plaintiffs-Appellants,No. 02-1612
v.
NORMAN Y. MINETA, Secretary of
Transportation; FEDERAL HIGHWAY
ADMINISTRATION; COUNTY OF
HENRICO, VIRGINIA,
Defendants-Appellees.
------------------------------------------------*
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (CA-02-2-3)
Argued: January 21, 2003
Decided: February 21, 2003
Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and Morton I. GREENBERG, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation.
____________________________________________________________
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge King and Senior Judge Greenberg joined.
____________________________________________________________
COUNSEL
ARGUED: Steven Raymond Johnson, SCHNADER, HARRISON,
SEGAL & LEWIS, L.L.P., Washington, D.C., for Appellants. Robert
Dean Perrow, WILLIAMS MULLEN, P.C., Richmond, Virginia; Ste-
ven E. Gordon, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellees. ON BRIEF: Neil T. Proto, Gordon S.
Woodward, Matthew B. Holmwood, SCHNADER, HARRISON,
SEGAL & LEWIS, L.L.P., Washington, D.C., for Appellants. Paul J.
McNulty, United States Attorney, Alexandria, Virginia, for Appel-
lees.
____________________________________________________________
OPINION
HAMILTON, Senior Circuit Judge:
TRG-Regency Square Associates, LLC (TRG)1 appeals the district
court's Rule 12(b)(6) dismissal with prejudice of its claim against
Henrico County, Virginia (the County), alleging that the County vio-
lated the Supremacy Clause of the United States Constitution, Art. VI,
§ 2, by approving a certain private developer's "Plan of Develop-
ment" to construct a regional shopping center known as Short Pump
Town Center in the County near the intersection of Interstate High-
ways 64 and 295.2 Fed. R. Civ. P. 12(b)(6). Under Supremacy Clause
jurisprudence, TRG's Supremacy Clause claim is broadly character-
ized as alleging that the County's approval of the Plan of Develop-
ment for Short Pump Town Center stands as an obstacle to the
accomplishment and execution of the Federal-Aid Highway Act
(FAHA), 23 U.S.C. §§ 101 to 189, and the National Environmental
Policy Act (NEPA), 42 U.S.C. §§ 4321 to 4370e. See, e.g., English
v. General Electric Co., 496 U.S. 72, 79 (1990).
____________________________________________________________
1 We note that at some point after the initial filing of the complaint in
the present action, TRG changed its name to Taubman Regency Square
Associates, LLC.
2 TRG is a Virginia limited liability corporation, which owns Regency
Square Mall, a regional shopping center located approximately five miles
from the development site for Short Pump Town Center.
2
More specifically, with respect to the FAHA, TRG's Supremacy
Clause claim alleges that, by approving the Plan of Development for
Short Pump Town Center, the County usurped the Secretary of Trans-
portation's authority, as delegated to the Federal Highway Adminis-
tration (FHWA), to approve new access to Interstate Highway 64 at
Gayton Road or modified access to the same highway at West Broad
Street. See 23 U.S.C. § 111(a); 23 C.F.R. §§ 625.1 to 625.4. In this
regard, TRG's complaint alleges that operation of Short Pump Town
Center will create such significant traffic congestion of the existing
roadways in the vicinity of the development site for Short Pump
Town Center that the FHWA will be required, without the ability to
exercise any discretion in the matter, to approve a change in access
to Interstate Highway 64. Similarly, TRG claims that the County's
approval of the Plan of Development for Short Pump Town Center is
in violation of NEPA's requirement that an environmental impact
statement (EIS) be prepared by the appropriate federal agency for
"every recommendation or report on proposals for . . . major Federal
actions significantly affecting the quality of the human environment
. . . ." 42 U.S.C. § 4332(C). According to TRG, the appropriate fed-
eral agency in this case is FHWA and the change in access to Inter-
state Highway 64 that will inevitably be required by execution of the
Plan of Development for Short Pump Town Center constitutes a
major federal action for purposes of NEPA.
TRG also appeals the district court's Rule 12(b)(1) dismissal of its
two claims, brought pursuant to the Administrative Procedure Act
(the APA), 5 U.S.C. §§ 701 to 706, against the Secretary of the
United States Department of Transportation, Norman Mineta, and the
FHWA (collectively the Federal Defendants). Fed. R. Civ. P.
12(b)(1). The district court dismissed these claims without prejudice.
TRG's first claim against the Federal Defendants alleged that they
violated the FAHA by refusing TRG's written request that they halt
the County's approval process with respect to the Plan of Develop-
ment for Short Pump Town Center until FHWA performed a formal
assessment to determine whether operation of Short Pump Town Cen-
ter would require a change in access to Interstate Highway 64. TRG's
second claim against the Federal Defendants alleged the same in the
context of preparing an EIS under NEPA. The district court based its
3
Rule 12(b)(1) dismissal of these two claims on the ground that TRG
lacked standing to assert them.
For reasons that follow, we affirm.
I.
Because the district court's published opinion thoroughly and accu-
rately sets forth the relevant facts and procedural history of this case,
we do not undertake to recite them again here. See Taubman Realty
Group Ltd. P'ship v. Mineta, 198 F. Supp. 2d 744, 746-52 (E.D. Va.
2002). Accordingly, we proceed directly to consider TRG's challenge
to the district court's Rule 12(b)(6) dismissal of its Supremacy Clause
claim against the County. First, we declare our agreement with the
district court's reasons for dismissing the claim. Taubman Realty
Group Ltd. P'ship, 198 F. Supp. 2d at 760-64.
Additionally, we reject TRG's argument, not specifically addressed
by the district court, that our decision in Maryland Conservation
Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir. 1986), requires us
to vacate the district court's dismissal of its Supremacy Clause claim.
Suffice it to say that Maryland Conservation Council, Inc. is of abso-
lutely no aid to TRG because, unlike the highway project at issue in
that case, the shopping mall project at issue in the present case does
not require federal approval in any manner for its completion. TRG
seeks to avoid the import of this distinction by arguing that, under
Rule 12(b)(6), we must accept as true the allegation in its complaint
that the County's approval of the Plan of Development for Short
Pump Town Center "will, by necessity, require a change in access to
I-64, whether modifications and improvements to the I-64/West
Broad Street interchange or a new interchange at Gayton Road,
regardless of FHWA's discretion to approve or deny them . . . ." (J.A.
30). TRG's argument is without merit because the allegation upon
which it relies is a bare legal conclusion which neither the district
court nor this court is required to take as true for purposes of consid-
ering whether a complaint should survive a Rule 12(b)(6) motion.
Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175,
180 (4th Cir. 2000).
In sum, we affirm the district court's Rule 12(b)(6) dismissal of
TRG's Supremacy Clause claim against the County.
4
II.
Next, we consider TRG's challenge to the district court's Rule
12(b)(1) dismissal of its two claims against the Federal Defendants
for lack of standing. TRG's challenge is without merit.
In order to satisfy the standing requirements of Article III of the
Constitution, a plaintiff must demonstrate that: (1) it has suffered an
injury in fact; (2) the asserted injury in fact is fairly traceable to, or
caused by, the challenged action of the defendant; and (3) it is likely
rather than just conjectural that the asserted injury in fact will be
redressed by a decision in the plaintiff's favor. Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000).
"[T]he injury-in-fact element requires that the plaintiff suffer an inva-
sion of a legally protected interest which is concrete and particular-
ized, as well as actual or imminent." Friends for Ferrell Parkway,
LLC v. Stasko, 282 F.3d 315, 320 (4th Cir. 2002) (internal quotation
marks omitted). "In addition, an association has standing to bring suit
on behalf of its members when: (1) its members would otherwise
have standing to sue as individuals; (2) the interests at stake are ger-
mane to the group's purpose; and (3) neither the claim made nor the
relief requested requires the participation of individual members in
the suit." Id.
Also of relevance in the present case, a plaintiff challenging agency
action under the APA must satisfy an additional standing requirement,
which is a prudential rather than a constitutional standing require-
ment. 5 U.S.C. § 702; Pye v. United States, 269 F.3d 459, 466-67 (4th
Cir. 2001). Under this prudential standing requirement, the plaintiff's
grievance must fall within the "zone of interests" to be protected or
regulated by the statute or the constitutional guarantee in question.
Pye, 269 F.3d at 466-67. As the district court cogently stated in its
published opinion below, "[t]his inquiry must be determined not by
reference to the overall purpose of the statute in question but, instead,
by reference to the particular provision(s) of law upon which the
plaintiff seeks redress." Taubman, 198 F. Supp. 2d at 755 n.22. See,
e.g., Bennett v. Spear, 520 U.S. 154, 175-76 (1997).
Fairly construed, TRG's complaint alleges several injuries which
TRG argues provide it standing to bring its two claims against the
5
Federal Defendants. First, it alleges that the Federal Defendants' dual
failure (1) to determine, pursuant to the FAHA, 23 U.S.C. § 111(a),
whether the operation of Short Pump Town Center will require a
change in access to Interstate Highway 64 and (2) to prepare an EIS,
pursuant to NEPA, 42 U.S.C. § 4332(C), in connection with the proj-
ect deprived it (TRG) of a meaningful opportunity to participate in the
planning process or in the assessment and determination of traffic
safety and environmental impacts that will be created by the operation
of Short Pump Town Center. Second, TRG's complaint alleges that
the same dual failures by the Federal Defendants have put some two
thousand workers at Regency Square Mall at increased health and
safety risk because the operation of Short Pump Town Center will
cause increased traffic and pollution near Regency Square Mall.
Finally, TRG's complaint alleges that as a direct result of the same
dual failures by the Federal Defendants, TRG will suffer economic
loss by way of the devaluation of Regency Square Mall as a commer-
cial property. The district court considered the first and second of
these three alleged injuries, but apparently overlooked the last.
We fully agree with the district court's reasons for concluding that
the first and second alleged injuries set forth above do not provide
TRG a sufficient basis for standing to survive the Federal Defendants'
Rule 12(b)(1) motion to dismiss. Taubman, 198 F. Supp. 2d at 756-
60. With respect to TRG's third alleged injury- i.e., the devaluation
of Regency Square Mall as a commercial property-we also hold that
such injury is insufficient to survive the Federal Defendants' Rule
12(b)(1) motion to dismiss for lack of standing. Critically, assuming
arguendo that devaluation of Regency Square Mall as a commercial
property satisfies all standing requirements under Article III, it does
not satisfy the additional "zone of interests" standing requirement of
the APA. First, we know of no authority, and TRG has offered none,
in support of the proposition that the value of privately held commer-
cial property near an interstate highway subject to the FAHA is within
the zone of interests intended to be protected by the FAHA's require-
ment that the Secretary of Transportation or its designee approve all
changes in access to interstate highways subject to the act, 23 U.S.C.
§ 111(a). We are not surprised by this circumstance given the fact that
the FAHA was enacted with the purpose to improve the interstate
highway system in order to "meet the needs of local and interstate
commerce, for the national and civil defense." 23 U.S.C. § 101(b).
6
Moreover, the potential devaluation of privately held commercial
property is insufficient to trigger NEPA's requirement that an EIS be
prepared for every proposal for major federal action significantly
affecting the quality of the human environment. Town of Stratford,
Conn. v. FAA, 285 F.3d 84, 88-89 (D.C. Cir. 2002) (economic injury
alone does not trigger EIS requirement under NEPA); 40 C.F.R.
§ 1508.14 ("[E]conomic and social effects are not intended by them-
selves to require preparation of an environmental impact statement
[under NEPA]). Accordingly, TRG's NEPA claim under the APA
fails the zone of interests test as well.
In sum, we affirm the district court's Rule 12(b)(1) dismissal of
TRG's claims against the Federal Defendants for lack of standing.3
____________________________________________________________
3 In the event we affirmed the district court's Rule 12(b)(1) dismissal
without prejudice of TRG's claims against the Federal Defendants, TRG
takes the position that we should modify the district court's dismissal
order to provide that its Supremacy Clause claim against the County is
dismissed without prejudice under Rule 12(b)(1) for lack of standing as
well. TRG's position is premised upon its theory that if it lacks standing
to bring its claims against the Federal Defendants, then it necessarily
lacks standing to bring its Supremacy Clause claim against the County.
We disagree. Unlike TRG's claims against the Federal Defendants
under the APA, TRG does not have to meet the additional standing
requirement involving the zone of interests test with respect to its
Supremacy Clause claim against the County. Here, we conclude that the
allegation in TRG's complaint, that devaluation of Regency Square Mall
as a commercial property will be the certain result of the County's
approval of the Plan of Development for Short Pump Town Center, with-
out federal approval of a new access point on Interstate Highway 64, and
without preparation of an EIS under NEPA, is sufficient to establish the
requirements of standing under Article III. The inevitable devaluation of
Regency Square Mall constitutes an injury in fact. Such injury in fact is
fairly traceable to the Supremacy Clause violation alleged. Finally, a
favorable decision (i.e., a declaration that the County's approval of the
Plan of Development for Short Pump Town Center violated the Suprem-
acy Clause, and therefore, is null and void) would redress TRG's alleged
injury in fact. Accordingly, we leave as is the district court's dismissal
order.
7
III.
In conclusion, we affirm in toto the district court's dismissal of
TRG's complaint.
AFFIRMED
8