• View enhanced case on Westlaw
  • KeyCite this case on Westlaw
  • 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
    

    FindLaw Career Center

      Search for Law Jobs:

        Post a Job  |  View More Jobs
    Ads by FindLaw