STATE OF NEW JERSEY v. MOUNTAIN CREEK RESORT INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY, by the

COMMISSIONER OF TRANSPORTATION,

Plaintiff-Respondent,

v.

MOUNTAIN CREEK RESORT, INC., a

New Jersey Corporation, formerly

known as Great Gorge Resort, Inc.,

a New Jersey Corporation,

Defendant-Appellant,

and

STATE OF NEW JERSEY, DEPARTMENT OF

TREASURY; MANUFACTURERS AND TRADERS

TRUST COMPANY, a New York Banking

Corporation, a/k/a or M & T BANK, a

New York Banking Corporation;

MOUNTAIN RESORT PROPERTIES, INC.,

a New Jersey Corporation; FESTIVAL

FUN PARKS, L.L.C., a Delaware

Limited Liability Company, d/b/a

Mountain Creek Water Park; TERRALOGIC

PARK INDUSTRIES, L.L.C., a New Jersey

Limited Liability Company; SUSSEX

RURAL ELECTRIC COOPERATIVE, a New

Jersey Corporation; and TOWNSHIP

OF VERNON, in the County of Sussex,

a Municipal Corporation of New Jersey,

 

Defendants.

_________________________________________

February 10, 2014

 

 

Before Judges Sapp-Peterson and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-606-12.

 

David M. Blackwell argued the cause for appellant (Graham Curtin, P.A., attorneys; Mr. Blackwell, of counsel and on the briefs; Jared J. Limbach, on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Sharon Price-Cates, Deputy Attorney General, on the brief).

 

PER CURIAM

Defendant Mountain Creek Resort, Inc., a New Jersey corporation (Mountain Creek), owns and operates a skiing/water park resort located on both sides of Route 94 in Vernon. Mountain Creek appeals from a Law Division order denying its motion to dismiss the condemnation complaint filed by plaintiff State of New Jersey by the Commissioner of Transportation (the State), seeking a temporary construction easement. The State sought the temporary easement to facilitate the "Black Creek Culvert Tributary Replacement Project" (the project), designed to replace a structurally deficient culvert located along Route 94. The State seeks 605 square feet of Mountain Creek's 2,845,949 square foot property, located where the Black Creek Tributary bisects Route 94, an area that encompasses the sole means of ingress and egress to the resort. While the project is underway, one traffic lane on Route 94 will be shut down and a temporary traffic signal will be used to coordinate the temporary two-way alternating traffic pattern.

On appeal, Mountain Creek challenges the legal sufficiency of the complaint, arguing the State did not engage in statutorily required bona fide negotiations prior to initiating condemnation proceedings. Also, Mountain Creek argues the State circumvented the constitutional mandate to provide "just compensation," as it failed to account for business losses resulting from the partial shutdown of Route 94, which would substantially delay visitors' travel to and from the resort. The State maintains "just compensation" was properly limited to the fair rental value of the physical taking during the term of the easement. We affirm.

I.

Mountain Creek's operations run year-round, with peak seasons occurring from December 5 to March 31, and from Memorial Day to Labor Day. During these peak seasons, the resort has accommodated up to 10,000 visitors on a given day. Mountain Creek s irregularly shaped property consists of more than sixty-five acres (2,845,949 square feet), which is located predominantly on the northbound side of Route 94, northeast of its intersection with County Road 517 (Rudetown Road). The resort's main entrance and exit is from Route 94.

The State provided notice to Mountain Creek of the proposed project to replace the existing "structurally deficient" culvert along Route 94 and to resurface Route 94 after widening it to provide four-foot-wide shoulders in each direction within the project limits. The project is divided into three stages. During the first and second stages, reconstruction of the culvert would be undertaken. Stages one and two propose closure of one-half of the affected roadway, requiring all traffic to use only one lane of Route 94. To regulate traffic flow and manage the two-way alternating traffic pattern, the State would install a temporary traffic signal. The third stage would entail resurfacing the roadway.

It is undisputed that the resort's entryway will not be blocked and "[t]here is no question that tourists will be able to access Mountain Creek's resorts." Based on his review of the maps, the trial judge calculated the distance of the road work from the entrance to be "at least several hundred feet."

The State pursued acquisition of a 605 square feet temporary construction easement from Mountain Creek, which was located in the area where the Black Creek Tributary bisects Route 94 (the easement).1 The State retained appraiser Vincent Fagan to establish the fair market value of the proposed temporary construction easement. After inspecting the property, Fagan prepared his valuation report, which appraised the land, not improvements. His report valued the temporary taking, projected to last two months, at $2,000.

On September 22, 2001, Bernadette Pasqua, the State's negotiator and realty specialist, hand delivered the State's offer package to Mountain Creek. The package included Pasqua's written offer letter, explaining the State requested acquisition for two months and its offer to remit $2,000. She also noted if the State determined extensions were necessary to complete the project, the temporary easement could be extended by written notice from the resident engineer to Mountain Creek. Compensation during any period of extension would be $200 per month.

On behalf of Mountain Creek, Paul Jorgenson expressed concern regarding the timing of the partial road closure. Pasqua met with Mountain Creek's general counsel, John Fetterly, to discuss the project and the proposed temporary construction easement. Following this meeting, Pasqua emailed Fetterly and Jorgenson that the proposed duration of the project was December 2012 to fall 2013.2 In a subsequent email, Pasqua requested Fetterly propose an alternate timeline that would best suit Mountain Creek, which she would submit for review. After receiving no response, Pasqua sent a second request. Fetterly immediately replied, setting forth concerns the project would adversely affect traffic flow during the peak seasons, and recommended the construction begin and end in April, or in October and November. Pasqua replied the partial road closure would run from April to August 2013.

Fetterly and Pasqua continued discussions at a meeting on January 18, 2012. At this meeting, Mountain Creek proposed the project occur between the end of the summer season on Labor Day and the beginning of the winter season on December 5. In an email sent following the meeting, Fetterly advised "Mountain Creek . . . cannot agree to grant easements for a project with a construction window that will cause Route 94 to be reduced to one lane, alternating traffic flow during the summer months[,]" and that partial closure of Route 94 as proposed would have a "catastrophic impact on [Mountain Creek's] summer seasonal businesses[.]"

Fetterly's email also provided alternative proposals for conducting the project. First, Mountain Creek proposed that the State build a road to divert traffic from the culvert location allowing Route 94 to be maintained as an open, two-lane highway. Second, Mountain Creek suggested that the State close Route 94 between March 15 and July 1. Pasqua forwarded Fetterly's requests. A meeting was scheduled between Mountain Creek and the State's newly appointed project manager, Nick Dogias, on January 26, 2012. At this meeting, the State rejected Mountain Creek's suggested timeline and presented a revised proposal advising "substantial completion" of the project would not be achieved until January 2014. Mountain Creek rejected this proposal because it would impact both the 2013 waterpark and 2014 peak ski seasons. Although Mountain Creek maintains Dogias suggested the parties continue discussions, the day after the meeting, Pasqua sent a letter advising the State could not accommodate Mountain Creek's proposed timeframe requests because of "DEP restrictions, as well as other considerations that may impact the construction schedule." She stated the State had

determined that bona fide negotiations have taken place and that an agreement acceptable to both parties cannot be reached at this time. If you have any reason to believe that settlement discussions may prove to be useful, please contact me immediately. Absent such contact, it will be interpreted that you agree with the [State's] determination that it is unable to acquire your property through negotiations.

 

In March 2012, Fetterly called Dogias and left a voicemail message inquiring about the status of the matter. The State did not return the call.

On September 18, 2012, the State filed a verified condemnation complaint and order to show cause against Mountain Creek,3 seeking judgment granting acquisition of the condemned property and appointing Commissioners to fix the amount of compensation to be paid, N.J.S.A. 20:3-12. The State deposited the estimated compensation of $2,000 and thereafter filed a declaration of taking. Mountain Creek moved to dismiss the complaint, asserting the State had not engaged in bona fide negotiations prior to seeking condemnation.

Judge Thomas L. Weisenbeck denied the motion to dismiss. The order was accompanied by a written statement of reasons. He found "the State's proposed temporary taking [would] not create a compensable business loss to Mountain Creek[,]" emphasizing that "the taking [would] not directly and physically deprive the public of access to Mountain Creek's property." "While it may take tourists longer to access the [r]esort, Mountain Creek has not presented any case law, precedential or otherwise, indicating that the State must compensate a condemnee for a partial slowdown in business access to a subject property." The judge reviewed the events leading to the filing of the complaint and determined the State had engaged in bona fide negotiations prior to commencement of the action, concluding:

The [c]ourt also notes that Mountain Creek has provided no statutory support or case law supporting its contention that the State was required to compromise over the time-frame of the proposed temporary taking, and concludes that this factor is not relevant to the determination of the amount of compensation to be offered. Put another way, simply because the State did not accede to Mountain Creek's demands that the repair work not interfere with its busy season does not mean it negotiated in bad faith, especially in light of the tight schedule the State faced.

 

Final judgment was entered appointing condemnation commissioners. This appeal ensued.

II.

On appeal, Mountain Creek argues the trial court erroneously denied its motion to dismiss the condemnation complaint. Mountain Creek asserts the State failed to conduct bona fide negotiations, in accordance with N.J.S.A. 20:3-6, as its offer of compensation and its appraisal report failed to account for the loss of business Mountain Creek would suffer from the partial closing of Route 94, which would adversely affect travel to and from the resort. Alternatively, Mountain Creek requests the matter be remanded for a proof hearing to determine "the reasonableness of the restricted access and its impact o[n] the property's use for the duration of the project."

A.

Wereview the appropriateness of the trial court's denial of Mountain Creek's motion to dismiss for failure to state a claim pursuant to Rule 4:6-2(e). In reviewing a motion to dismiss, we apply the same standard as used by the trial court. Donato v. Mudlow, 374 N.J. Super. 475, 483 (App. Div. 2005). Accordingly, our analysis "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint[,]" searching "the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim[.]" Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). In undertaking our review, we afford plaintiff all reasonable inferences of fact. Ibid.

An exercise of eminent domain invokes "the rightful authority which exists . . . to appropriate and control property for the public benefit as the public safety, necessity, convenience, or welfare may demand." Valentine v. Lamont, 13 N.J. 569, 575 (1953), certif. denied, 347 U.S. 966, 74 S. Ct. 776, 98 L. Ed. 1108 (1954). Through the Takings Clause of the Fifth Amendment of the United States Constitution, U.S. Const. amend. V, made applicable to the states through the Fourteenth Amendment, Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536, 125 S. Ct. 2074, 2080, 161 L. Ed. 2d 876, 886 (2005), and the New Jersey Constitution, N.J. Const. Art. I, 20, the sovereign is granted this authority. See also N.J.S.A. 20:3-1 to -50 (granting the power of eminent domain). More specifically, the State, by the Commissioner of Transportation, is authorized by N.J.S.A. 27:7-22 to "acquire lands or rights therein whether for immediate or future use by gift, devise, or purchase," or by condemnation in a manner consistent with the Eminent Domain Act of 1971 (the Act), N.J.S.A. 20:3-1 to -50. See also City of Atl. City v. Cynwyd Invs., 148 N.J. 55, 68 (1997) (explaining the Act "provides uniform procedures to be applied to ensure that these constitutional requisites are met and to 'increase protection to the citizen whose property is condemned'" (quoting Cnty. of Monmouth v. Wissell, 68 N.J. 35, 40 (1975))).

The State's power of eminent domain is limited. Norfolk S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 146 (2013). Private property may not be taken "without just compensation." U.S. Const. amend. V. See also N.J. Const. Art. I, 20 (providing "[p]rivate property shall not be taken for public use without just compensation"). When the State takes a portion of one's land through condemnation, just compensation amounts to "the value of the portion of land actually taken and the value by which the remaining land has been diminished as a consequence of the partial taking." State v. Silver, 92 N.J. 507, 514 (1983). This requires the government to place the owner in "as good a position monetarily as the owner would have occupied had the property not been taken, since what is to be valued for taking purposes is what the involuntary sellers have to sell, rather than what the public buyer seeks to acquire." Casino Reinvestment Dev. Auth. v. Katz, 334 N.J. Super. 473, 485 (Law Div. 2000).

"In exercising their powers of eminent domain, government entities must strictly comply with the rules and statutes governing condemnation." City of Passaic v. Shennett, 390 N.J. Super. 475, 486 (App. Div. 2007). The Act requires any condemnation action may not commence "unless the condemnor is unable to acquire . . . title or possession through bona fide negotiations with the prospective condemnee[.]" N.J.S.A. 20:36. See Shennett, supra, 390 N.J. Super. at 482 (holding a condemning authority is required to engage in the process of pre-litigation bona fide negotiations (citation omitted)). Determining whether the State engaged in the requisite bona fide negotiations in this matter requires an examination of the scope of the claimed diminished value suffered by Mountain Creek as a result of the imposed temporary construction easement on its property.

Mountain Creek urges us to conclude the measure of compensation encompasses anticipated financial losses from business interruption caused by the partial roadway closure. Analogizing its situation to the compensable loss of "going concern value" found in Kimball Laundry Co. v. United States, 338 U.S. 1, 9, 69 S. Ct. 1434, 1439, 93 L. Ed. 1765, 1774 (1949),4 Mountain Creek maintains the State's failure to consider consequential business losses in its offer of compensation equated to a failure to conduct bona fide negotiations for the temporary taking.

Judge Weisenbeck rejected this argument and determined the State was bound to provide compensation based on the rental value of the property taken. See, e.g., State v. Sun Oil Co., 160 N.J. Super. 513, 527 (Law Div. 1978) ("Rental value of the land involved, not a business loss, is the proper measure of damages for a temporary construction easement." (citation omitted)). He grounded this conclusion on the nature of this taking, which did not close Mountain Creek's entrance or appropriate a portion of its land integral to its resort operations. We agree.

Distinguished from a permanent taking, which does not allow compensation for ongoing business value because the business could be relocated, a temporary taking completely deprives the owner of the ability to conduct business during the period of the taking. Kimball, supra, 338 U.S. at 14-15, 69 S. Ct. at 1442, 93 L. Ed. at 1776-77. Under these circumstances, the business owner suffers an unavoidable diminished value in his going concern during the period operations are suspended, which must be compensated. Ibid. Consequently, damages include the value of the actual taking and any diminishment to the remaining property suffered as a consequence of the partial taking. Silver, supra, 92 N.J. at 514.

In State v. Weiswasser, 149 N.J. 320 (1997), the State sought a .39 acre crescent-shaped section of the defendant's property to construct a jug-handle on the adjacent highway. Id. at 323-24. In doing so, the State significantly decreased the property's frontage on the highway, which the defendant argued decreased visibility of its proposed housing development. Id. at 328-29. The Court held the defendant's "[l]oss of visibility as an element of severance damages may be related to a loss of access"; however, the basis of compensation "would be whether the loss is attributable to the taking of the property itself or off-site conditions." Id. at 341.

In its review, the Court cited with approval prior decisions of this court reviewing whether just compensation flows from changes in traffic patterns, stating:

It is also established that a change in traffic patterns resulting in damages to a property owner is not considered a compensable taking. E.g., State v. Charles Inv. Corp., 143 N.J. Super. 541, 545 (Law Div. 1976) (holding that property owner was not entitled to compensation for the economic harm suffered as a result of the decreased traffic flow directly in front of his station), aff'd, 151 N.J. Super. 14 (App. Div. 1977), aff'd, 76 N.J. 86 (1978); State v. Monmouth Hills, Inc., 110 N.J. Super. 449, 451-52 (App. Div.) (rejecting the owner's claim for additional compensation for the damages in an amount equal to the cost of installing ramps to improve access to the remainder property when the damages were attributable to the closing off of an opening in the highway median strip), certif. denied, 57 N.J. 133 (1970).

 

[Id. at 340.]

 

In State v. Van Nortwick, 260 N.J. Super. 555 (App. Div. 1992) (Van Nortwick I), we considered "whether the diminution of access to the fronting highway is a compensable element of a condemnation taking." Id. at 557. In order to construct a deceleration lane and an exit ramp, the State took a 28.5 foot strip of the landowner's frontage, requiring the landowner to construct a new driveway to maintain access to Route 37. Id. at 557-58. We remanded the matter to the trial court to consider the damages resulting from the taking's diminishment of access. Id. at 558-59. We affirmed the determination on remand that "on-site impact was compensable as part of severance damages and that a properly instructed jury may be presented with evidence that allows it to separate the compensable on-site damage from the impermissible diminution per se damages." State v. Van Nortwick, 287 N.J. Super. 59, 63 (App. Div.), certif. denied, 143 N.J. 320 (1995) (Van Nortwick II). We agreed the permanent taking and resultant "restriction and location of the limited access, combined with the prevailing zoning requirements in the town, caused [the landowner's property] to be less useful and less valuable in terms of its highest and best use." Id. at 72-73.

These determinations are not the result of application of broad legal principles. More appropriately, the resolution of whether consequential compensation flows from a proposed taking turns on the individual facts. As correctly identified by Judge Weisenbeck, the key feature of a compensable business loss, such as suffered in Kimball and discussed in Weiswasser, is whether the actual business interruption is attributable to the physical taking. On the other hand, if the losses are traceable to some other offsite activity, compensation is unwarranted. See Weiswasser, supra, 149 N.J. at 341 ("The critical factor, therefore, in determining if loss of visibility is a compensable element of damages in a partial-taking condemnation, is whether the loss arises from changes occurring on the property taken.").

Mountain Creek did not demonstrate the temporary two-month 605 square foot construction easement sought on its property by the State will have any effect on its business operations or revenue. Rather, Mountain Creek's claimed loss emanated from the disruption of traffic flow on Route 94 by the proposed traffic pattern during the period of construction. Mountain Creek asserts traffic congestion will dissuade customers from attending its resort.5

We reject as unfounded Mountain Creek's contention that "mere hindrance" of access to commercial property is sufficient for a compensable "taking." The unequivocal facts reflect the taking will not alter its business. There is no physical diminishment of access to Mountain Creek from Route 94. Further, neither the construction easement nor the lane closure on Route 94 will prevent entry and exit to its property.

Highway construction is an exercise of the State's police power. Sun Oil, supra, 160 N.J. Super. at 527. See also N.J.S.A. 27:7-53 ("[A]ll improvements to roads, parking areas and driveways already constructed on land owned by the State shall be made under the supervision of the commissioner[.]"). "While a property owner has a right of reasonable access to the [s]tate's highway system, he or she does not have an absolute right to access the highway from any particular point on his or her property." State v. Marlton Plaza Assocs., L.P., 426 N.J. Super. 337, 355 (App. Div.), certif. denied, 212 N.J. 463 (2012), cert. denied, __ U.S. __, 133 S. Ct. 2008, 185 L. Ed 2d 868 (2013).

Judge Weisenbeck found the partial shutdown of Route 94 may delay travel to and from Mountain Creek, but visitors will still be able to enter and leave the resort. Understanding Mountain Creek's claimed loss in light of these facts, we have no hesitancy in agreeing with Judge Weisenbeck's determination circumscribing the scope of compensation to the fair rental value of the temporary taking, without consideration of any possible business diminishment caused by traffic congestion on State property altered to complete the project.

We conclude the trial court appropriately declined to include as just compensation possible business losses to Mountain Creek incurred as a result of the construction project and accompanying partial shutdown of Route 94. Id. at 364 (stating the matter there appeared to be the "typical 'highway access' case where the property owner complains that the limitation on access causes inconveniences or business losses by the resulting need to follow a more circuitous route" (quoting Van Nortwick II, 287 N.J. Super. at 69).

B.

Having concluded Mountain Creek was not entitled to possible consequential business losses from the highway congestion, we reject the contention that the State's complaint must be dismissed because it failed to engaged in bona fide negotiations. See State v. Carroll, 123 N.J. 308, 316 (1991) ("If the state does not conduct the requisite negotiations, the condemnation complaint will be dismissed."). Moreover, we conclude the State's rejection of Mountain Creek's counterproposals, which included an alternative construction timeframe, was not an act of bad faith. See Essex Cnty. Imp. Auth. v. RAR Dev. Assocs., 323 N.J. Super 505, 516 (Law Div. 1999) ("Absent a showing of 'improper motives, bad faith or some other consideration amounting to a manifest abuse of the power of eminent domain,'" courts should not interfere with the condemnation of property (citation omitted)).

The evidence of record shows the State fully complied with the statutory requirements. See N.J.S.A. 20:3-6 (stating "negotiations shall include an offer in writing . . . setting forth . . . the compensation offered to be paid and a reasonable disclosure of the manner in which the amount of such offered compensation has been calculated"). Also, the State fulfilled the requirements of Rule 4:73-1, which provides: "The complaint shall include a statement showing the amount of compensation offered by the condemnor and a reasonable disclosure of the manner in which the amount has been calculated." The State reviewed and considered Mountain Creek's suggestions, but also weighed other factors impacting the timing of the project including avoiding delay in replacing a "structurally deficient" culvert, complying with NJDEP regulations, and avoiding delay of school bus traffic present in the fall. These facts belie the contention the State's rejection of Mountain Creek's proposals evinces bad faith. See also City of Asbury Park v. Asbury Park Towers, 388 N.J. Super 1, 11 (App. Div. 2006) (courts "presume that a public entity of this State will act diligently, responsibly, and honorably.").

III.

Mountain Creek's final challenge asserts Fagan's appraisal report is defective. The claim is not supported by contravening expert evidence. Judge Weisenbeck found the State's appraisal properly complied with the "reasonable disclosure" requirement of Rule 4:73-1. We agree.

The package delivered to Mountain Creek with Fagan's report included (1) two maps: one depicting the area of the easement and another of the "Entire Tract" of Mountain Creek's land; (2) precise identification of the location of the proposed temporary construction easement; (3) the full market value of the property; (4) a description of the valuation method, and the basis for Fagan's reliance on the sales comparison approach; (5) complete descriptions of the comparisons used in the underlying methodology; and (6) a "land sales comparative rating grid" Fagan prepared.

Moreover, Mountain Creek retains the right to challenge the value of the taking in further proceedings. The court ordered appointment of condemnation commissioners, who are charged with review of the adequacy of the compensation. N.J.S.A. 20:3-12.

Affirmed.

1 More specifically, the land is located along Route 94 at Section 9, Parcel E7, at Block 233, Lots 7.01 and 7, as depicted on the tax map of the Township of Vernon.

2 The record suggests the actual timeframe was not determined. Because the project involved construction on a waterway, the State was required to obtain permits from the New Jersey Department of Environmental Protection (NJDEP), which involved timeframe restrictions dependent on whether the waterway was classified as "trout production" (restricting work within a waterway between September 15 to March 15); "trout maintenance/stocking" (restricting work within a waterway between March 15 to June 15); or "non[-]trout" (restricting work within a waterway from May 1 to June 30). Although the State knew of the permit requirements, it had not submitted a permit application to NJDEP and could not identify the applicable permit parameters, which undoubtedly would impact the project's timing.

3 The other named defendants include Mountain Creek's mortgagees and parties to assignment of rent and lease agreements.

4 In Kimball, a privately owned and operated laundry plant was taken over by the government temporarily for the exclusive purpose of servicing the laundering needs of Army personnel during World War II. Id. at 3, 69 S. Ct. at 1436-37, 93 L. Ed. at 1770-71. The plant was commandeered by the military for a definite term to be extended from year to year at the election of the government. Ibid. Throughout the duration of government occupation of the premises, the private business enterprise ceased. Ibid. The United States Supreme Court held:

[A]n exercise of the power of eminent domain which has the inevitable effect of depriving the owner of the going-concern value of his business is a compensable "taking" of property. If such a deprivation has occurred, the going-concern value of the business is at the Government's disposal whether or not it chooses to avail itself of it.

 

[Id. at 13, 69 S. Ct. at 1441, 93 L. Ed. at 1776 (internal citations omitted).]

5 It must be noted that Mountain Creek offered no evidence supporting its claims that the partial closure of Route 94 will bring travel to a "literal halt" and thereby "potentially eliminat[e its] business s profitability altogether." Mountain Creek's hyperbolic predictions of the devastating impact of the construction are at this point unsupported conjecture.