On October 27th, 2010, New Jersey Governor Chris Christie announced the cancellation of the Access to the Regions Core Tunnel (ARC Tunnel) Project because of financial complications.

In a statement from the Governor’s office, Christie stated that the $10.9 to $13.7 billion to construct the tunnel would prove too costly for the economic climate in New Jersey and would be fiscally irresponsible.

US Secretary of Transportation Ray LaHood attempted to work with Christie by providing an additional $378 million in federal funding.  Even with this additional funding, Christie said his decision to cancel the project was unchanged.

Hundreds of property owners whose land was to be taken for the tunnel project are left in the middle of condemnation proceedings against them with no idea what happens next.  Thirty owners of commercial property have already lost their property as a result of this project.

Article from the Daily Targum

Article from the Hudson Reporter

The NJ Transit Executive Director James Weinstein recently announced that the state was temporarily ceasing all new work and putting a halt on additional bidding and property acquisition for the project over the next 30 days while the state re-evalutes the project budget.   This was in response to discussions with federal transportation officials who project cost overruns in the amount of $1 billion.

State officials also claimed that the Federal Transit Administration has not finalized the closing agreements for funding the project because it wants to see a plan to fix the nearly bankrupt New Jersey Transit Fund prior to releasing the funds.

The current budget for the project is $8.7 billion paid for in part by the federal government and the Port Authority of New York and New Jersey, who are each contributing $3 billion, and the state of New Jersey, who is contributing $2.7 billion.

Although all new work is suspended, existing work including a track underpass in North  Bergen and construction of the tunnel under the Palisades will continue.

Pursuant to §201-204 of the New York Eminent Domain Procedure Law, a public hearing was held on July 7th, 2010 at the Pennsylvania Hotel in midtown Manhattan to consider the proposed acquisition by condemnation of certain properties and property interests in Manhattan.

The purpose of the meeting was to inform the public of the project, review the public use and benefit of the project, discuss the proposed location of the project, and to analyze the impact the project might have on the environment and residents.

Tom Wright, Executive Director of the Regional Plan Commission, testified on behalf of the project, and in support of the use of eminent domain by stating “RPA is sensitive to the fact that certain New York and New Jersey residents and business owners are being forced to sell their properties, but we also believe there is not a more clear-cut instance of a project with tremendous public benefits that will improve the region for decades to come.  ARC is a project of regional significance, in which the use of eminent domain is entirely appropriate.”

Read the entire testimony here:

EDProcedureLawhearing

While the ARC Tunnel project was designed to support anticipated future development in most areas, there are certain properties that are located in the project protection zone (properties located close to escalator shafts, station caverns, ect) that will require a restrictive declaration filed against the property.

The restrictive declaration will force property owners to submit any current or future construction and development plans to the Port Authority for approval prior to construction.  The Port Authority will then determine if such development or construction would have an adverse affect on the ARC project’s tunnels or other structural elements, or affect public safety.

The following document from the Port Authority details the restrictive declaration process more thoroughly.

restrictive_declaration

In this document, the Port Authority claims that the restrictive declarations should not limit or constrain development of a property to less than its maximum use.  On properties where planned developments are known, the Port Authority is intending to allow for maximum build out of land.  The Port Authority claims that the only restriction for development in these cases is the location of the building core.

On the surface, it appears that the restrictive declarations will have little to no impact on future development.  However, upon further scrutiny, they state ‘the restrictive declaration is intended to allow for future development with in the Project Protection Zone consistent with current zoning’.  They continue to say that ‘on sites where future development is yet to be proposed, the restrictive declaration allows for future construction with heights, bulk, and use permitted by the existing underlying zoning’

Herein lies the problem.  Although the Port Authority assures owners that the restrictive declaration will allow for maximum build out permitted by the current zoning, it doesn’t clearly address the development impacts for those properties not developed to the property’s highest and best use, which could encompass a re-zoning to a higher density use.

In the end, we have determined that the restrictive declaration could negatively impact those properties that need rezoning to a higher density use in order to develop their property to its highest and best use.  If the Port Authority determines that a higher density rezoning and/or development within the existing zoning would affect the integrity of the ARC tunnel and it’s structures, then the property owner is entitled to receive compensation for these damages.

The properties most susceptible to these restrictions are vacant or low rise buildings.  If there is potential for development restrictions on your property as a result of this project, you should be mindful of the NY eminent domain statute which states that a property owner has 3 years to file a claim for damages. (NY EM DOM PROC § 503)   If you are planning to develop your property now or in the future, you will need to determine within 3 years time, whether or not the ARC Tunnel and its structures will hinder your development plans.  Once outside this 3 year window, a property owner can not pursue compensation for their damages.

If you currently do not have plans to develop your property, but you’re considering it for the future, you might consider speaking to an eminent domain attorney, talking to the Port Authority, and possibly obtain an engineering report to determine whether or not your intended development plans will affect the integrity of the ARC tunnel and its structures.

Learn more about the New York eminent domain laws and New York eminent domain attorney fee recovery statutes.  Read more about the ARC Tunnel Project.

Biersdorf & Associates file number: 3011 and 3024

The statistics and general project info contained below was provided by the Port Authority of New York and New Jersey.

It’s no surprise that New Jersey Transit (NJ Transit) ridership quadrupled over the past 20 years and that it is expected to double again over the next 20 years.  Since 1984, NJ Transit’s rail passenger ridership into New York City has grown from 10 million to 46 million trips per year.

This aggressive increase in ridership has caused significant overcrowding in Penn Station and its tunnels.  At peak times, the 3 railroads serving Penn Station (NJ Transit, Long Island Rail Road and Amtrack) deliver 61 trains per hour; many carrying 1500 or more passengers into a station that was not even designed for commuter traffic.  Penn Station does not have enough stairwells, escalators, elevators, exits and not enough room on their platforms to accommodate this influx of commuters.

For those readers not aware of the current structure of the rail lines into New York City, you should know that the entire commuter rail system between New Jersey and New York reduces to a slim, two-track century year old rail line under the Hudson River.

Currently, the existing trans-Hudson commuter options are used beyond their functional limits during peak travel times, and therefore create delays in the upwards of 30-60 minutes.  As structured today, the trans-Hudson transportation system will not sustain the increase in ridership expected over the next 20 years.

In response to the dilapidated transit conditions, the ARC Project (Access to the Regions Core), a mass transit initiative, was spearheaded by The Port Authority of New York and New Jersey to increase rail capacity into Midtown Manhattan, and to improve regional connectivity.  The Mass Transit Tunnel will be constructed deep underground in order to accommodate existing building foundations, current subway tunnels and underground utility lines.  The tunnel will stretch from Kearny Yards, New Jersey to 34^th Street in Manhattan.

The project consists of constructing 2 new tracks in the Meadowlands, two new single-track commuter rail lines under the Hudson River into the Manhattan, and the expansion of Penn Station under 34^th Street with new platforms,  a mezzanine, and entrances at 6^th and 8^th Avenue.

Upon completion, passengers will have direct pedestrian connections to 14 subway lines, the Long Island Rail Road, Amtrck and PATH services.  Also, capacity and a connection to the main Bergen County, Pascack Valley and Port Jervis lines will allow for transfer-free service to Penn Station New York.

Additional Benefits:

1. The Mass Transit Tunnel (MTT) will more than double rail capacity between NYC and New Jersey to 48 trains per hour from the current 23 trains.
2. MTT will take 22,000 cars off the NJ Turnpike, the Garden State Parkway, and other roads
3. The MTT will help reduce greenhouse gasses and other pollutants by 66,000 tons per year
4. The project will generate 6,000 new jobs and will create $45 billion of new economic activity

As provided by the Port Authority of New York and New Jersey, following is a project overview map:

THEprojectoverview042310

Construction of the tunnel began in 2009 in New Jersey, and is expected to begin later this year at the shaft site in Manhattan at 12^th Avenue and 28^th Street.  Construction at other major shaft sites is not expected to begin until 2011.  Major tunneling should begin in 2010, and detailed construction schedules regarding the rest of the project are currently being developed.

The construction of this project will require the acquisition of private property and the filing of restrictive declarations.  We will discuss these facts and issues in the next blog.

For information Regarding the Project, please visit the Arc Tunnel project website.