NJTransit Does Not Need Federal Approval to Abandon Commuter Rail Lines, says STB

On July 25, the federal Surface Transportation Board (STB) issued its ruling responding to a petition filed on June 24, 2013 by the National Association of Railroad Passengers (NARP) and the New Jersey Asssociation of Railroad Passengers (NJARP) arguing that NJTransit needed STB approval before abandoning the Dinky Station and shortening the line.  Save the Dinky filed a separate comment joining the petition, as did Princeton resident and journalist Chris Hedges.   Federal approval would have required a review for adverse impacts on the environment and on  historic resources.  However, the STB declined jurisdiction in an opinion stating that under the relevant federal statutes NJ Transit enjoys an exemption from federal oversight because it is a state agency operating mass transit commuter lines.  The STB’s ruling, according to the opinion,  applies to all of NJTransit’s commuter rail lines,not just to the Princeton Branch.

No  decision has been made about an appeal.  If the STB decision stands, it means that state law provides the only protection for the public against abandonments or partial abandonments of commuter rail lines that serve developers but disserve members of the public who rely on convenient mass transit.

 In a presentation to the Transportation Research Forum in June, Henry Posner (Princeton alum and Chairman of the Railway Development Corporation) argued that unscrupulous politicians and developers may scrap well-functioning rail operations when the value of the land without rail outstrips its value for public transportation.  Posner discusses three cases:  Estonia, Guatemala, and New Jersey–specifically the case of the Dinky.  For slides of the presentation see this link.

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Save the Dinky Litigation Update: Midsummer 2014

Over the past months, as the University has doggedly moved forward with its “arts and transit” construction, we have moved forward with our litigation, with mixed results that we summarize below

(1)  1984 Sales Contract Case.   Filed in 2011, this case challenged the University’s claim that it had the unilateral legal right under its 1984 contract with NJ Transit to move the station stop.  In 2013, Chancery Judge Paul Innes agreed with us  that the contract did not give the University a unilateral right to move the terminus.  He said that NJ Transit retained the ultimate authority to decide.   However, he ruled that the contract “permitted” a second move of the terminus, and he cited a letter from NJ Transit’s Executive Director Jim Weinstein as evidence that NJ Transit had given permission.  Save the Dinky has appealed, arguing that the move is unlawful without action by NJ Transit’s Board.  The University has cross-appealed, arguing that Dinky riders have no “standing” to question its “private” agreement with NJ Transit.  This case is still in the briefing stage.

(2)  New Jersey Historic Sites case.    Because the Dinky Station was listed as an historic “operating passenger railroad station” in 1984, NJ Transit needed approval from the Commissioner of the NJ Department of Environmental Protection (DEP) before agreeing to the University’s request to move the terminus.  In 2012, the DEP gave permission.  NJ Transit told the DEP that it had a legal obligation under the 1984 cortract to agree to the project.    In response to our appeal, the NJ Appellate Division  upheld the DEP ruling. We then filed a Petition for Certification  seeking review by the NJ Supreme Court.  See also  our Reply to Opposition to Certification.  We argued that the Court should take the case to clarify that the terms of the Register of Historic Places Act require a meaningful review and cannot rest on the alleged terms of private contracts negotiated without public participation.  On July 9, the Court denied our request for review.  The Court grants review in only about 10% of cases, and a denial of review does not mean that the Court agrees on the merits of the decision below.   It does mean that the court found the case did not present the special reasons required for further review or that it presented complicating factors that would make a grant of review improvident.  Whatever the reason, the result is disappointing since the record is clear that NJ Transit leveraged permission to encroach on the historic station by relying on a position about the 1984 contract that the Chancery Judge ultimate found was an incorrect position.

(3)  NJ Transit Board Appeal.  In June 2013, NJ Transit’s Board at a last-minute telephonic meeting voted to transfer the easements covering the Dinky property to the University in exchange for an easement of lesser value.  The New Jersey Association of Railroad Passengers (NJ-ARP) and Save the Dinky appealed  We argue that the state Public Transportation Act requires NJ Transit to hold a public hearing before shortening an active passenger railroad line and abandoning a functioning terminal station.  Other issues include the argument  that Governor Christie, who has veto power over all NJ Transit Board decisions,  should have recused himself because he is a University Trustee and has been an outspoken supporter of the project.  This case is in the briefing stage.

(4)  Surface Transportation Board (STB) Petition.  The NJ Association of Railroad Passengers (NJ-ARP) and the National ARP  petitioned the federal STB in June 2013 to rule that abandoning the Dinky station and right of way requires federal approval since the Dinky operates interstate commerce. According to one NJ-ARP member, how could “a transit agency in the most congested state in the nation . . . agree to abandon an historic station that could be reached by foot from the center of town in order to build an access road to a parking garage”?  Save the Dinky has filed a comment supporting the NJARP petition.  It is still pending in Washington, D.C.

Now that the Station has been dismantled and the project is well underway,  can these cases make a difference?   Yes.   In 2013, Save the Dinky sought an injunction to preserve the status quo and prevent damage to the station while the litigation was in the courts.  The University opposed the injunction, arguing among other things that there would be no permanent damage because they would restore removed track and other NJ Transit facilities if NJ Transit had acted unlawfully.

What if the legal cases do not succeed?  Save the Dinky’s mission is to preserve Princeton’s entire historic rail link to Princeton Junction, not simply the historic station.  The plan to replace the Dinky with a Bus Rapid Transit (BRT) system and to convert the rail right of way to a limited access road for buses still has powerful supporters, and the need for our vigilance and our advocacy will continue, win or lose this round.

 

 

 

 

 

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Ruling in Contract Case: NJ Transit NOT Obligated to Agree to University’s Terminus Relocation Plan

On December 23, the Honorable Paul Innes issued an opinion  granting summary judgment for the University.  Innes Opinion This looked like a win for the University on the meaning of the 1984 contract, but the opinion tells a different story.  See Chancery Opinion Press Release.

For years, NJ Transit and the University have claimed that the 84 contract gave the University the right to compel NJ Transit to move the Dinky terminus southward to facilitate automobile access to a campus parking garage. See Minutes June 211 Borough Council Meeting.   Judge Innes did not endorse this claim. Although he did not accept SDKY’s position that the contract does not allow a second terminus move, he said NJ Transit had the “sole power” to make decisions about the terminus location.”Princeton University is permitted to propose” a relocation, he said, but he also said NJ Transit could object and “its denial of the plans would prevent any alteration to the services within the station property.”

Judge Innes also said that because planned new station next to the campus garage is still on the station property, the public transportation easement covering the property remains in “full force.”  However, Judge Innes had earlier ruled that Save the Dinky and the individual plaintiffs did not have standing to enforce the public transportation easement.  Save the Dinky will be making a decision whether to appeal over the next weeks.  For news coverage of the opinion, see Town Topics; Planet Princeton; Trentonian.   For recent background coverage of the controversy, see Bloomberg News; Providence Journal; Chicago Tribune.

Our other  state court challenges are still pending.  One–the challenge to the decision by the NJ DEP approving New Jersey Transit’s request to prematurely public rights in the historic station property–will be argued on January 8.  NJ Transit based its request on alleged contract obligations that, according to the Innes opinion, it did not have.

The other, in which SDKY is joined by the NJ Association of Railroad Passengers,  challenges the resolution passed by NJ Transit’s Board at a last minute meeting on June 25 to authorize its staff to exchange the easement on the station property for an easement over University land farther away. See Star Ledger on NJT Board Appeal.  We believe that NJ Transit violated its statutory obligations to hold a full public hearing and that Governor Christie should have recused himself because he is an ex officio member of Princeton University’s Board of Trustees.   The Governor is reported to be  “actively involved”  as a trustee and has been an outspoken advocate for the University’s Arts & Transit plan.   Prior to a joint Borough/Township meeting on January 31, 2011, the Governor  wrote that the University’s plan represents “the best plan for the Princeton rail shuttle, both now and in the future.”  See  Jan. 31, 2011 Letter.

As recently reported by  the Princeton Packet, NJ Transit’s ridership on the Dinky branch declined 13% for the quarter July 1-September 30, 2013.  (For another viewpoint on the data, see Planet Princeton.) This period only partially accounts for the impact of the abandonment on August 23 of the historic station location and the institution of temporary service 1200 feet to the south.   Last fall, SDKY unsuccessfully sought a stay to prevent the removal of the railroad infrastructure at the station.  In opposing it, the University said it would pay to restore NJ Transit  facilities if NJ Transit had acted unlawfully.  SDKY continues to believe the University can build its arts buildings without depriving the community of its mobility and  will continue to work  towards the goal of preserving the public transportation right of way and restoring service to our in-town station.

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More on the “Temporary” Station

Over two months have passed since New Jersey Transit–acting at the bidding of Princeton University–stopped train service to the historic Princeton Station on University Place and instituted service at a “temporary” station 1200 feet to the south.   The temporary station is a Soviet-style wooden structure, with an S-shaped ramp, and a truncated platform.  2013-09-07 18.07.18 It sits in a desolate spot, but to date the surrounding parking lot provides  free parking with auto access.  Even though the auto commute is five or more minutes longer than the previous one to University Place, the temporary station is  “auto-friendly”  if only because pedestrian access is so difficult.  The only convenient access for pedestrians is from the northeast along a campus walk that adds about seven minutes to the walk time from the  historic station on University Place.   Pedestrian access from due north and west is daunting.  Construction barriers prevent a “straight shoot walk” from the historic station to the temporary one” over land that is supposed to be  protected by a  public transportation easement.     Pedestrians are forced to walk to Alexander and then south and, in the process, to navigate construction barriers that seem to change on a daily basis.

New Jersey Transit maintains that it was legally obligated under the terms of the 1984 sale contract to relocate the terminus.  In the debate over the project, the University claimed that it needed to move the  terminus to accommodate an access Road to its Lot 7 garage and that NJ Transit would not agree to provide a grade crossing over the tracks.  Our research indicates that the University never made a formal request for a grade crossing and that NJ Transit’s alleged objections were never tested.   See NJ Transit Grade Crossing Emails.   Now that the trees along the right of way have been removed, we now have a clear picture of the vista that will be new Princeton “gateway” to the east if and when the temporary station is built.

Lot7Garage

The Lot 7 garage wasn’t built until the year 2000,  and so far as we can tell, the garage access is not the real reason for the University’s desire to move the terminus.  It appears that the University is moving the station to free up development rights on the Dinky right of way and the property associated with the station.

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Arts & Parking: Temporary Dinky Station Now In Service

On Monday, August 26,  NJ Transit stopped passenger service to the Dinky Station and instituted temporary service at the remote station 1200 feet to the south.   This was a ribbon-cutting without ribbons and without a celebratory gathering of local officials.    However,  the event was televised,  NBC Report on Controversy, and was reported in  local media.  Princeton Packet.  For photos of the temporary station, see this link.

Pedestrian access to the remote station is difficult.  The University is compensating with shuttle buses from University Place to Princeton Junction, with a return stop at the temporary station.  NJ Transit is also running buses.  Alexander Street now sports two or more new bus shelters to mark Princeton’s transition from accessible in-town train service to a plan that seems to incentivize  use of cars and buses.  If the interruption of passenger service at the Princeton Station becomes permanent, the BRT cannot be far behind.  See MOU, Pathway to BRT.

STDY is still waiting for answer on its request for a DEP stay of the ruling permitting NJ Transit to abandon public rights in the historic station.   NJ Transit and Princeton University opposed our request, arguing that we were too late, that there was no real harm, and that our case was not strong, and we submitted a rebuttal to these arguments on August 27.  See Town Topics   In the meantime, if you use the Dinky to commute into or out of Princeton or for others reasons, please contact us to let us know how the interruption in service to the University Place station affects you.

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Not the Last Train: Legal Battle Not Over & University Says It Will Pay NJT’s Costs to Restore Train Service If the Plan is Illegal

The University announced a few days ago that the last Dinky train on the August 23d schedule (1:27 a.m. 8/24) will be the last train ever from the historic Princeton Branch Station.  We don’t think so.   We still have not had a court hearing on the merits of our legal claims, and the University is now saying that it will pay NJ Transit’s costs to undo the damage and restore the service if a court rules that the plan to abandon service to the Station is illegal.   Here is a brief update:

(1)   Historic Site Case  On August 16, we applied to Commissioner Robert Martin to put a hold on the okay DEP gave to NJ Transit to agree to a project that will destroy the Princeton Station as an historic operating station.  Our appeal from that ruling is pending in the Appellate Division.   We still have had no answer from the NJ DEP on our stay request.

(2)  Contract Case    Yesterday morning  (August 23),  we  filed papers asking the Chancery Judge presiding over our contract case (Paul Innes)  to issue temporary and preliminary relief  preventing further work to destroy the Dinky station as an operating train station.   The Judge  turned down the  request for a  temporary order, but he agreed to hear our request for a  preliminary injunction and set a date of   October 11.   So, while we did not get the Judge to order NJ Transit and the University to immediately stop the work that will permanently end service to the station,   the Judge is willing to consider this in October.     

Right now,  the University and NJ Transit can move ahead with the work that has already damaged the historic station compex:  A huge gash has been cut in the platform just below the passenger building.     However, as we said above, the University now claims that this work and the work to follow does not add up to “irreparable harm”  because the University will pick up the bill and pay NJ Transit’s restoration costs if a court finds that New Jersey Transit has violated its legal obligations.

As taxpayers, we hope that NJ Transit has an airtight guarantee and is watching out for its obligations to passengers more carefully than it watched out for its trains  before Hurricane Sandy.  If NJ Transit can’t enforce the University’s agreement or the University’s agreement doesn’t really cover all of the potential costs, taxpayers will foot the bill.

In the interim, beginning on Monday, access to the Dinky will be by auto or by bus.   There will be no effective pedestrian access to Princeton’s train link to the Junction for the first time since the 1860’s.

As for the arts, we wonder  how, in the name of the arts,  a major Ivy League University, with all sorts of writers and poets on its faculty, can be serious about a plan  to decommission a functioning train station that was immortalized by J.D. Salinger in Franny and Zooey,  that figures in Fitzgerald’s Tender as the Night,  and also figures in many other other lesser known works of literature.  Einstein took the Dinky from the University Place Station.  Richard Nixon took the Dinky from there.  The list is long.  The cultural associations are deep.

When  NJ Transit sold the Station property to the University in 1984,  the Princeton community (both town and gown) celebrated.  The late Barbara Sigmund was Borough Mayor then.  In the 1970’s, she was an active member of the first Save the Dinky Group.  In the 1970’s, the fear was that the line would not be continued after the Penn Central bankruptcy.  In 1984, the hope and the belief were that our in-town train link to Princeton Junction was secure unless the service proved economically infeasible to NJ Transit.  Now,  we are faced with the reality that Princeton University and NJ Transit–perhaps in deference to the arts–are reading their 1984 Sale Agreement by the book of Orwell and Ayn Rand and not in accord with the rule of law.

We are still counting on the rule of law.  Please consider a contribution to  help us defray our legal costs.

Dinky Admins

(Revised August 24)

 

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Historic Operating Station Under Threat of Destruction Before Courts Rule; University Says Loss of Princeton Station Is Justified by New Station & WaWa

Save the Dinky is rushing against time to get court rulings on the legality of New Jersey Transit’s plans to abandon Princeton’s historic in-town operating station.   On August 8,  along with the NJ Association of Railroad Passengers, SDKY appealed a June 25 action of NJ Transit’s Board authorizing a sale of the easement protecting the station, see  Star Ledger on Rail Group Appeal.   On August 16, SDKY applied for an emergency order from the Department of Environmental Protection asking it to suspend the  go-ahead it gave to NJ Transit to abandon the station–which was on the NJ Register of Historic Places when NJ Transit sold it to the University in 1984. –to allow the University to remove the canopy and railroad infrastructure and build on the right of way to convert the freight building to a restaurant.    See stories in  Town Topics,  Planet Princeton , Princeton Packet, Trenton Times, Princeton Patch.

The University claims that the 1984 sale gave it the right to end the station’s operating function by moving the terminus. In 2010, it asked NJ Transit to move it 460′ southward next to a parking garage to build a road that will make it easier for University employees to reach the garage from Alexander.  NJ said the ’84 agreement obligated it to agree to this.  SDKY’s lawsuit challenging this interpretation is pending before a Chancery Judge, but this suit and the Appellate Division suit won’t be decided until sometime in the fall.   There is still no word from the STB on the petition filed in June by the National Association of Railroad Passengers.

In the meantime, the University is rushing  to create facts on the ground that will destroy the track bed and right of way to the station before the courts rule.  On August 26, service is slated to open at a  temporary station located 1210 feet south that will operate for over a year.  After that, it is a matter of time before the rails are removed and the embankment supporting the right of way is leveled.

The temporary plan will cause massive inconvenience to commuters who rely on pedestrian access because there will be no practical pedestrian access.  University official Bob Durkee told the Princeton Packet that the loss is justified by ”a new station, with added amenities, a new Wawa, new restaurants in the area and an arts complex designed by one of the world’s leading architects.”

The University plans to run a shuttle bus to the temporary station to make up for the loss of easy access. When the proposed new station opens,  bus service will be the new normal for Princeton, and the community  can look forward to a renewal of the plan — overwhelmingly opposed a few years ago — to replace the Dinky with a bus rapid transit system.  The  MOU Task Force studying options for service to Nassau Street–if the Dinky is moved–is already preparing to recommend a bus system as the best choice.

 

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Save the Dinky prevails in court; Rail Passengers file petition to save the Dinky; NJ Transit gives approvals for removing Dinky in telephone meeting

On June 7, a New Jersey Chancery Judge  court ruled against Princeton University’s request to throw out Save the Dinky’s lawsuit arguing that the University does not have the right to relocate the station terminus under its 1984 agreement with NJ Transit.   Princeton University and NJ Transit claim that NJ Transit gave the University the right to move the stop away from town and off of the historic platform and to rid the land of the public transportation easement.   The  University argued  that the 1984 deal was a private one between the state and the University, and that Dinky passengers had no right to contest that interpretation of the language, even though the property rights in dispute are public property rights.  The Judge disagreed and said that train riders are third-party beneficiaries of the contract and have standing to argue about its meaning.  For more details see Planet Princeton’s article, Judge Rejects Princeton University’s Request to Throw Out Save the Dinky Lawsuit

On June 24, the New Jersey Association of Railroad Passengers (NJ-ARP) and the National Association of Railroad Passengers (NARP) jointly filed a petition with the Surface Transportation Board to halt the move of the Dinky.  Click here to view the petition(pdf).  The petition claims that the line is a line of railroad in interstate commerce and that federal regulatory review is required before the station facility is dismantled and the line is partially abandoned.  For news accounts, see Planet Princeton  and  Railway Age.  Federal regulatory review would include an evaluation of the environmental impacts and a review of the impacts on historic assets.

Many people do not realize that the Princeton Station has been listed on the state and federal registers of historic places since 1984, and in fact was listed before NJ Transit entered into its 84 sale contract with the University.  NJ Transit did not seek state historic sites approval for the contract in 1984.   However, last year, NJ Transit, relying on the 84 contract,  received an OK from the NJ Department of Environmental Protection to abandon the easement protecting the site so that the University can dismantle the historic station and incorporate it into the University campus.  Save the Dinky’s  appeal from this ruling is now pending in the NJ Superior Court Appellate Division.  In Re: Princeton Railroad Station Track Removal Project, Princeton Railroad Station.

In an apparent attempt to shortcircuit the legal process, the New Jersey Transit Board held a special Board meeting on June 25 to authorize its managers to deed  public property rights to Princeton University as part of the agreement to facilitate the University’s arts campus expansion.     New Jersey Transit has never held a public hearing on the transportation impacts of the planned abandonment of the historic station facility and the relocation of the terminus southward and away from Nassau Street.  The June 25 proceeding was a meeting by telephone.  Members of the public, including representatives of Save the Dinky,  were given the opportunity to comment.  Although all commentres objected to the proposed authorization, the Board voted to approve it without any discussion.   The University was not present.  The public notice for the Tuesday special meeting was given on the Friday before.

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Alert: New Jersey to hold unusual “Special Telephone Meeting” to transfer easement, reduce its size, increase commuter time while calling it an “enhancement.”

telephone meeting

Why is New Jersey Transit holding a telephone meeting to transfer a valuable easement to a private institution for its own purposes, and asserting that adding distance for Princeton commuters is an “enhancement.”?

EMAIL  NJTBOARD@NJTRANSIT.COM

Click here for original notice (pdf)

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The loss in accessibility: Not 460 feet anymore

How many times have we heard that the station terminus was only being moved 460 feet to the south?  How many times has it been suggested that this distance is trivial–not much more than a walk from the Library to Small World?  How many times have Dinky supporters pointed out that the proposed location of the new terminus is downhill on a steep gradient and that the 460 number is misleading?

Now, we have a graphic illustration of  just how misleading the number is.   The University’s site plan includes a slide showing the two proposed walkways for pedestrians, both significantly longer than 460 feet.

Note that the blue ADA walkway has to traverse a building that will block the current Dinky right of way. The University’s architect testifying at the 12/18 Planning Board hearing said he had not calculated the distance.  Dr. Kornhauser has calculated it at 1100 feet for a 141% increase in walking distance to the station terminus.   As for the downhill walk via the stairs, Dr. Kornhauser calculates that distance at 700 feet.    For the full analysis, see http://orfe.princeton.edu/%7Ealaink/SaveTheDinky/WalkDistances2MajorVenues_v1.pdf

For those who drive to the Dinky or are dropped off, the picture is no better.  Auto commuters from town will have to navigate a new traffic circle at Alexander and University and then make a left turn into the plaza.  The proposed “kiss and ride” drop off areas are not adjacent to the platform.

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