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 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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