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Preservation Pittsburgh v. Mary Conturo

September 9, 2011

PRESERVATION PITTSBURGH , PLAINTIFF,
v.
MARY CONTURO, EXECUTIVE DIRECTOR SPORTS AND EXHIBITION AUTHORITY OF PITTSBURGH AND ALLEGHENY COUNTY, ROB STEPHANY, EXECUTIVE DIRECTOR THE URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH, LUKE RAVENSTAHL, MAYOR CITY OF PITTSBURGH, DAN ONORATO, COUNTY EXECUTIVE, ALLEGHENY COUNTY, RAY LAHOOD, SECRETARY, UNITED STATES DEPARTMENT OF TRANSPORTATION, VICTOR M. MENDEZ, ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION, AND RENEE SIGEL, PENNSYLVANIA DIVISION ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION, DEFENDANTS.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, Preservation Pittsburgh, filed this action for declaratory and injunctive relief against Defendants, Ray LaHood ("LaHood"), Secretary of the United States Department of Transportation, Victor Mendez ("Mendez"), Administrator of the Federal Highway Administration ("FHWA"), Renee Sigel ("Sigel"), FHWA Pennsylvania Division Administrator (collectively the "Federal Defendants"), Mary Conturo ("Conturo"), Executive Director of the Sports and Exhibition Authority of Pittsburgh and Allegheny County (the "SEA"), Rob Stephany ("Stephany"), Executive Director of the Urban Redevelopment Authority of Pittsburgh (the "URA"), Luke Ravenstahl ("Ravenstahl"), Mayor of the City of Pittsburgh (the "City"), and Dan Onorato ("Onorato"), Executive of Allegheny County (the "County") (collectively the "City Defendants"). The Federal Defendants have filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Conturo has filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and Ravenstahl has filed a motion to dismiss, adopting the arguments set forth in Conturo‟s brief in support. Plaintiff has responded and the matter is now before the Court.

II. STATEMENT OF THE CASE

The Civic Arena is a public building dedicated in 1961, and owned by the SEA. Complaint ¶ 32. From 1967 until 2010, the Civic Arena was primarily utilized as the home of the Pittsburgh Penguins (the "Penguins") hockey team. Id. In March of 2007, SEA, the City, the County and the Commonwealth of Pennsylvania entered into an agreement with the Lemieux Hockey Group, LP, the owner of the Penguins to construct a new arena and make the Civic Arena site available for redevelopment. Complaint ¶¶ 35 & 36.

Because the Pennsylvania Historical and Museum Commission ("PHMC") had determined in 2001 that the Civic Arena was eligible for inclusion in the National Register of Historical Places, the SEA was required by the Pennsylvania Historic Preservation Act to consult with the PHMC prior to "demolishing, altering, or transferring" the Civic Arena property. Complaint ¶ 34; 37 PA. CONS. STAT. ANN. § 508(a)(1). Beginning in early 2010, SEA engaged in consultation with the PHMC to identify and evaluate a range of redevelopment options for the Civic Arena site. Declaration of Mary Conturo ("Conturo Decl.") ¶ 4. Over an eight (8) month period, the SEA held meetings with the PHMC and over thirty (30) other interested parties as part as the consultation process. Id. On September 16, 2010, the SEA voted to demolish the Civic Arena and redevelop the 28 acre site. Complaint ¶ 44.

On October 19, 2010, the SEA submitted a Project Development Plan application to the City of Pittsburgh Planning Commission. Conturo Decl. ¶ 6. The Planning Commission held a public hearing on the SEA‟s demolition plan on November 23, 2010, and at the conclusion of the hearing, unanimously approved the plan. Id. On the same day, Plaintiff and other interested groups filed a Historic Nomination of the Civic Arena with the City of Pittsburgh Historic Review Commission to have the Arena designated as a "City Designated Historic Structure." Conturo Decl. ¶ 7. The petition was rejected at every level of review culminating in a vote against designation by the Pittsburgh City Council on June 28, 2011. Conturo Decl. ¶ 8. In July of 2011, the SEA executed a contract with a demolition contractor for the demolition of the Cvic Arena. Conturo Decl. ¶ 9.

Plaintiff contends that the demolition of the Civic Arena is an integral part of a plan to redevelop the site using federal-aid highway funds from the FHWA, beginning with the construction of a traditional street-grid system to establish a conventional urban block setting. The Arena‟s demolition, therefore, is inextricably related to a transportation project requiring approval of the FHWA. Such approval must be exercised in conformance with Section 106 of the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470f, Section 4(f) of the Department of Transportation Act ("DOTA"), 23 U.S.C. § 138, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2). Plaintiff argues that the SEA‟s premature demolition of the Civic Arena will evade the evaluations of alternatives to avoid or mitigate the destruction of historic properties mandated by the above statutes.

III. LEGAL STANDARD FOR MOTION TO DISMISS

Under a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of persuasion that the court has subject matter jurisdiction. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). There are two categories of Rule 12(b)(1) motions: a facial attack on the complaint, and a factual attack that challenges the plaintiff‟s facts "at any stage of the proceedings, from the time the answer has been served until after the trial has been completed." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891-892 (3d Cir. 1977). In reviewing a facial attack, "the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).

If the attack is factual, however, the court is not confined to the allegations in the complaint and "can look beyond the pleadings to decide factual matters relating to jurisdiction." Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000) (citation omitted). The Court, therefore, must weigh the evidence relating to jurisdiction, "with discretion to allow affidavits, documents, and even limited evidentiary hearings," and "accords plaintiff‟s allegations no presumption of truth." Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). Further, with a factual challenge, the plaintiff bears the burden of proving that jurisdiction does, in fact, exist. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, 227 F.3d 62, 69 (3d Cir. 2000).

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must be dismissed for failure to state a claim if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1960, 173 L. Ed. 2d 868 (May 18, 2009); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The Supreme Court explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Ashcroft v. Iqbal, 129 S. Ct. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. at 555).

The United States Court of Appeals for the Third Circuit expounded on this standard stating:

After Iqbal, it is clear that conclusory or "bare-bones" allegations will no longer survive a motion to dismiss: "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." The Supreme Court‟s ruling in Iqbal emphasizes that a plaintiff must show that the allegations of his or her complaints are plausible.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(citations omitted). In light of Iqbal, the Fowler court then set forth a two-prong test to be applied by the district courts in deciding motions to dismiss for failure to state a claim. First, the district court must accept all well-pleaded facts as true and discard any legal conclusions contained in the complaint. Fowler v. UPMC Shadyside, 578 F.3d at 210-211. Next, the court must consider whether the facts alleged in the Complaint sufficiently demonstrate that the plaintiff has a "plausible claim for relief." Id. at 211. To survive a motion to dismiss, a complaint must show an entitlement to relief through its facts. Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, ...


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