Matter of Unicon v NYS Commr. of Transp.

[*1] Matter of Unicon v NYS Commr. of Transp. 2012 NY Slip Op 51262(U) Decided on July 13, 2012 Supreme Court, Albany County Lynch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2012
Supreme Court, Albany County

In the Matter of the Application of UNICON, by it Chairman, Gary Squires, Laborer's International Union of North America, Local Union No. 435, by its Business Manager, Robert Brown, Brien Zingo, and Clarke Conde, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

NYS Commissioner of Transportation, Respondents.



4005-2011



Gates & Adams PC

Attorneys for Petitioner

By: Anthony J. Adams, Esq.

28 East Main Street Suite 600

Rochester, New York

Eric T. Schneiderman

Attorney General of the State of New York

Attorney for the Respondents

By: Douglas J. Goglia, Esq.

The Capital

Albany, New York 12224

Michael C. Lynch, J.

Petitioner/plaintiffs (hereinafter, petitioners) commenced this hybrid declaratory judgment action/CPLR Article 78 proceeding to challenge the respondent New York State Department of Transportation's (hereinafter, DOT) alleged misappropriations or misapplication [*2]of Federal Aid Highway Funds and matching State funds.Now, the DOT seeks to dismiss the petition on the ground that the petitioners lack standing and that the matter is not ripe for review.

The petitioner UNICON is "an industry-wide labor management committee established in the form of a trust...by employers in the construction industry and building trades unions" doing business in and around Monroe County (Petition ¶1) . Petitioner Laborer's International Union of North America, Local Union No. 435 (hereinafter, Local 435) is an "unincorporated association and a Labor Organization ... , whose members are journeymen and apprentice laborers" who work and live in and around Monroe County (Petition ¶4).Petitioner Mr. Zingo is a taxpayer and a construction worker who is a member of Local 435 who lives in Monroe County and works in and around Monroe County (Petition ¶5). Petitioner Mr. Conde is a taxpayer who resides in Monroe County.

Title 23 of the United States Code governs the federal funding system for highway and bridge improvement programs. As relevant to this dispute, the DOT is responsible for administering and distributing Federal-Aid Highway (FAH) money in accordance with the Federal-Aid Highway Act (23 USC §§101-160 [hereinafter FAH Act]; see, Transportation Law §14; Highway Law §§ 10, 80). The FAH Act requires the DOT to develop, subject to Federal approval, a statewide transportation plan and statewide transportation improvement program (STIP) for all areas in the state (23 USC §134 (a); 135 (a); 23 CFR §§450.216).

The process for developing a STIP requires the State to designate Metropolitan Planning Organizations (MPOs) in areas with more than 50,000 people (23 USC §134 (d)).Monroe County is located in Region 4, the "Rochester MPA [FN1]"; Erie County is located in Region 5, the "Greater Buffalo-Niagara MPA" (Petition ¶20).The MPOs and the State develop long-range transportation plans and transportation improvement programs (TIPs). Once the TIP is approved by the MPO and the State, the TIP must be included without change in the STIP (23 CFR §450.216 (b)).The State's STIP is thus derived from the TIPs developed by the regional MPOs. If a project is in a STIP, it may be eligible for State Highway funds, subject to the availability of such funds (23 CFR

§450.220).

In September 2008, the DOT issued a "Program Update and Instructions" for the planning period 2009-2015 (hereinafter, 2008 update), which was described as, "a comprehensive planning effort for all of the State's transportation assets and services" overseen by the DOT. (See Petition Exhibit A - "Introduction"). The 2008 Update included certain ""needs-driven, statistics based formulas" to distribute FHA funds among the regions (Exhibit B).Petitioner alleges that the DOT also published an updated five-year allocations of FHA and matching funds to the regions in 2008 and that these updated allocations were used to amend the Rochester-MPA TIP and the State's current STIP (¶24). The 2008 Instructions specifically advise that, "[g]iven the uncertainty in future Federal and State funding levels and potentially significant changes to the Federal program structure, it should be understood that funding estimates and allocations are subject to change" (Exhibit A, p. 2).

Petitioner alleges that after the 2008 allocations were published, DOT received complaints from representatives in the Buffalo Region and "perhaps others", that the formulas did not allocate enough funding to their region (¶25). According to petitioners, DOT, in [*3]response to these complaints, "undertook to modify its allocations in favor of the Buffalo Region and other politically favored regions by manipulating or over-riding the newly developed formulas" (¶ 26). In November 2009, DOT published draft revised funding allocations to the regions; and, in December 2009, DOT issued its final, revised five-year allocations, with instructions that the MPOs should use the allocations to develop updated TIPs ( ¶27).

Using the December 2009 allocations, Rochester's MPO adopted a new four year TIP for the Rochester MPA in June 2010 which was then included within the STIP certified by the DOT in September 2010 (¶ 34). According to petitioners, the December 2009 allocations "substantially reduced the dollars allocated to the Rochester Region, either absolutely or proportionately...apparently diverting at least some of those funds to the Buffalo region" (¶ 28).Petitioners claim that the allocations were made "without cooperating with the [Rochester MPO] as required by law", were, "politically motivated and...unrelated to legitimate considerations of public safety and the relative needs of the driving public" (¶32).

Based on the foregoing, petitioners assert four causes of action in this hybrid declaratory judgment/CPLR Article 78 proceeding. By their first cause of action seeking a declaratory judgment and injunction, petitioners allege that the 2009 allocations were made in violation of 23 USCS §134(j)[1](c) because they were not "cooperatively developed"; in violation of 23 USCS §134(k)[4] because "agreed to" projects were removed without authority and/or without consultation with the affected MPOs; were not "fair and equitable" as required by 23 CFR §650.411 (b) [2]; and not allocated in proportion to population as required by 23 USCS §133(d)[3](D). (¶ 43). Petitioners also seek a declaratory judgment and injunction based on its claims that the respondent exceeded its authority when the 2009 allocations were issued (second and third causes of action, ¶¶ 28-55).Finally, petitioners challenge the respondent's December 2009 determination to recalculate the formula developed in 2008 for allocating funds among the regions by omitting the "Broad Street Tunnel" as "unexplained, arbitrary and an impermissible variance from a prior determination" (fourth cause of action, ¶¶56-59). Now, the respondent moves to dismiss the petition/complaint on the ground that none of the petitioner/plaintiffs have standing.

Standing is a "key element of justiciability", thus petitioners must, "demonstrate, at the outset of any suit, a stake in its resolution." (New York State Ass'n of Professional Land Surveyors v. State Dep't of Labor, 167 AD2d 735 [1990]). Petitioners must establish that they have suffered " injury in fact', meaning that [they] will actually be harmed by the challenged administrative action", and the asserted injury "must fall within the zone of interests or concerns sought to be promoted or protected by the statutory provision" at issue (NY State Ass'n of Nurse Anesthetists v. Novello, 2 NY3d 207 [2004]).An "injury in fact" is one that is "in some way different from that of the public at large"(Soc'y of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 773 [1991]; Hassig v. NY State Dep't of Health, 5 AD3d 846 [2004]). Further, "[w]hile the... injury may not be speculative *** and it must be more than conjectural', ***it need not be stated with specific quantification" (New York State Propane Gas Association v. New York State Department of State, 17 AD3d 915, 916 [2005]).An organizational petitioner, such as UNICON and Local 435 herein, "must show that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members" (State Ass'n of Nurse Anesthetists, Supra).

Here, the petitioners allege that the respondent's 2009 modification to the 2008 [*4]allocation formula (1) impairs or threatens to impair the safety and convenience of the traveling public in the Rochester area; (2) causes or will cause suspension or delay or highway or bridge projects necessary to the safety and convenience of the traveling public in the Rochester area; (3) will cause a loss of construction jobs in the Rochester region; and, (4) may impair the financial viability of UNICON's participating employers, and, consequently, there will be fewer qualified contractors able to perform highway and bridge work in the future (Petition ¶¶ 36- 38).

The Court agrees with respondent that the petitioners have failed to demonstrate an "injury-in-fact" sufficient to confer standing. Plaintiff/petitioners' claim, juxtaposed with the applicable statutory and regulatory framework, is, at best, that they or their members suffered harm because a project that may have been included within the State's 2008 list of allocations was later removed.Further, assuming as petitioners do, that an "allocation" was analogous to guaranteed funding, petitioners claim that if the project had remained on the list, it might have been included within the Rochester MPA's TIP, and thus, could have been made a part of the Statewide STIP.As such, in petitioner's view, it is more likely that a highway project in the Buffalo area will be selected for completion with State and Federal highway funds than a highway project in the Rochester area.

In this Court's view, the alleged harm to any of the petitioners is too speculative to be considered an "injury-in-fact".Moreover, even if all of the Rochester-area projects were funded, each would be subject to competitive bidding, thus, no individual party nor member of Local 435 nor employer-member of UNICON would be guaranteed to benefit financially from the funding simply by virtue of their apparent geographical proximity to the work.Similarly, the claimed financial loss is too speculative, inasmuch as there is no claim that any petitioner/plaintiff or member of UNICON or Local 435 would be unable or prohibited from bidding or working on a project that might receive funding in the Greater Buffalo-Niagara region.

Finally, the alleged harm to the safety and convenience of the petitioner/plaintiffs is insufficient to confer standing. Even accepting the claim of harm to be true, it is not distinct from that suffered by the public at large (Soc'y of Plastics Indus., Supra; Roberts v. New York City Health and Hospitals Corp., 87 AD3d 311, 319 [2011]).In this Court's view, petitioners' claims amount to no more than a general challenge to respondents' administration of the statute and regulations, which is not sufficient to confer standing (Associated General Contractors, New York State Chapter, Inc. v. Roberts, 122 AD2d 406 [1986]).

The Court also rejects petitioners' claim that they have standing as taxpayers. In this regard, the State Finance Law permits: ... any person, who is a citizen taxpayer, whether or not such person is or may be affected or specially aggrieved by the activity herein referred to, may maintain an action for equitable or declaratory relief, or both, against an officer or employee of the state who in the course of his or her duties has caused, is now causing, or is about to cause a wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property

(State Finance Law §123-b [1]). The statute should be "narrowly construed" (Matter of Humane Socy. of U.S. v. Empire State Dev. Corp., 53 AD3d 1013, 1016 [2008] app. den. 12 NY3d 701 [2009]) and it does not confer standing upon a taxpayer who seeks, "to obtain judicial scrutiny of the [State's] nonfiscal activities" (Transactive Corp. v. DSS,92 NY2d 579, 589 [1998] [*5][quoting Matter of Urban League v. County of Monroe, 49 NY2d 551,556]).Thus, "claims seek[ing] review of a [s]tate actor's alleged mismanagement of funds or the arbitrary and capricious distribution of funds lawfully allocated to an agency are not covered by section 123-b" (Matter of Humane Socy. of U.S. v. Empire State Dev. Corp, 53 AD3d 1013 [2008] app. den. 12 NY3d 701 [2009]; [citing Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 589 [1998]]). Here, petitioners challenge the DOT's methodology in selecting projects eligible to receive federal funds.In this Court's view, petitioner's claims are "broad policy complaints" (Rudder v. Pataki, 93 NY2d 273, 280 [1999]), and thus, are "not of the kind for which State Finance Law § 123-b confers standing" (Transactive, Supra).

In response to respondent's motion, petitioners assert that they are entitled to common law tax payer standing.Common-law standing allows "taxpayers to challenge important governmental actions, despite such parties being otherwise insufficiently interested for standing purposes, when 'the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action' " (Matter of Colella v Board of Assessors of County of Nassau, 95 NY2d 401, 410 [2000], [cit. om.]). In this Court's view, petitioners have not demonstrated that they are entitled to this remedy, inasmuch as they have not challenged any legislative action; and, contrary to petitioners' claim, the petition/complaint does not ""raise issues involving "the continued vitality of the constraints on power that lie at the heart of our constitutional scheme" (Matter of Humane Socy. of U.S., Supra at 1017 [citing Colella, Id.; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 814 [2003]).

Accordingly, based on the foregoing, it is

ORDERED AND ADJUDGED that respondent's motion to dismiss is granted; and it is further

ORDERED AND ADJUDGED that the petition is dismissed.

This represents the Decision and Order/Judgment of this Court. This Original Decision and Order/Judgment is being returned to the Attorney General. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.

DATED:2012

Albany, New York

____________________________________Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Notice of Motion dated February 21, 2012 with Affirmation in Support (Douglas J. Goglia, Esq.) and Exhibits thereto, Memorandum of Law;

2.Plaintiffs'/Petitioners' Memorandum on Opposition dated March 23, 2012, with Exhibits thereto;

3.Reply Memorandum of Law dated March 27, 2012. Footnotes

Footnote 1:Metropolitan Planning Area (Respondent's Memorandum of Law at p. 6, fn 5).