Dri War ag City of Detroit flea CITY COUNCIL Marae Todo LEGISLATIVE POLICY DIVISION Seno ame 208 Coleman A. Young Municipal Center asta Fone Detroit, Michigan 48226 ee aki Rare ag Phone: (313) 224-4946 Fax: (13) 224-4336 To: ‘The Honorable Detot Cig Cyl FROM: David Whitaker, Diet slave Policy Division Stat DATE: sune22,2015 RE: Review of Riverside Parl/Land Exchange Agreement In response to City Couneil’s request, the Legislative Policy Division (LPD) reviewed the Land Exchange Agreement between the City of Detroit and Detroit Intemational Bridge Company (DIBC). dated April 29, 2015. Central to the Agreement is a real property parcel owned by the DIBC, 2 pareel of Cty-owned property, and the City's Riverside Park - all in the vicinity of the ‘Ambassador Bridge. DIBC seeks land and air rights from the City for the purpose of constructing and operating a proposed twin span immediately adjacent to its existing bridge to in part service customers while maintenance work is performed on the Ambassador Bridge." As discussed in the City’s FY 2014 CAFR (Comprshensive Annual Financial Report) at page F5, released June 17, 2015, « different publicly financed bridge, the “New Intemational Trade Crossing” ‘which has been recently named the Gorge Howe Intemational Bridge (NITC), between Windsor, Ontario, dy been approved for construction by officials on both sides of the border. ederal governinent and the State of Michigan , 2012, land foquisiton in Michigan, and the construction of ramps from Interstate 75. The Canadian contribution ‘Would be repaid from bridge tolls, On April 12, 2013, the US. State Department issued a Presiential pert tothe State of Michigan forthe new bridge. On May 22,2013, the Canadian government allcated ‘325 million to begin land acquisition on the Detot side. The crossing, a8 proposed, would exnnect Detoit and Windsor by linking interstate 75 and Interstate 94 in Michigan with the new Windsor-Essex Parkway connection to Highway 401 in Ontario, The bride is tentatively scheduled for completion in 2020, The NITC fs expect to provide an orderly flow of people and goods between the two cous.” Shouid this new bridge contemplated by DIBC actually be constructed, despite well known serious ‘obstacles to its construction, (Ses, Opinion of Federal District Curt Judge Rosemary M. Collyer in case taptioned: Detroit International Bridge Co. ¥ Government of Canada, et al, Civil Action No. 10-476 USDC DC, May 30, 2014)(Atachment 1, it would add another vehicular pathway aross the rive fromIn exehange, DIBC is offering the immediate ownership of, and eventual access to, a pareel of land adjacent to the City's existing Riverside Park, a waterfront easement across the portion of Riverside Park that DIBC will acquire, funds (characterized as a “contribution” to the City) for park improvements, and finally (but heretofore unrelated to the bridge project or the legal {ransaction at issue), remediation of the long-term iconic blight at the DIBC owned Michigan Central Train Depot. The Agreement contemplates a fairly immediate “First Closing”, followed bya “Second Closing” if certain conditions are met. “The following summary of the Agreement and general background information is provided for your information. More detailed background outlining a longer view of interaction with DIBC ‘ver the past decade is forthcoming from LPD information under separate cover. 1. The Agreement “The initial recitals in the Agreement acknowledge that DIBC owns riverfront property on whic the “News Warehouse” stands: The City owns nearby property the currently closed Riverside Park) over which DIBC secks air rights because “DIBC intends to develop, construct and operate ‘a new span over and upon portions of the City-Owned Property and the Air-Rights Easement Property for the purpose of providing enhanced international bridge services to the City.” The recital futher state that “with the support and assistance of DIB” the City intends to develop & park along the watcefront on the News Warchouse Property, for which purpose the DIBC wil ‘convey the property and make a private contribution tothe City. The City agrees to grant DIBC ‘an air tight8 easement over City property “forthe construction and operation of the New Span.” In exchange, DIBC will grant the City a waterfront easement for recreational. purposes (presumably continuation of dhe river walk), over land acquired from the City ifthe conversion of the federally finance parkland is approved and the land thereafter is transferred to DIBC pursuant to the terms ofthis transaction. Detroit to Canad that could provide some added potential economic benefit to the region through increased flow of ieight, ut would adversely affect ar quality inthe area. 2 This property is adjacent to the City's curently closed Riverside Park, In connection with land wse throughout this eatie riverfont area, City officials must be mindful of the agreements relating to ‘Springing Interest and Master Concession Agreement, initially entered into on or about June 21, 2005, ‘betwoon the City end the Ambassador Port Co, a subsidary/afliste ofthe DIBC and the Moroun family imerests. Pursuant tothe Master Concession Agrooment and the powers ofthe Port Authority, care must be taken to avoid unaccountable private ovmership and contro! over large areas of shoreline on the FHverfont. LPD has not ben able to identify any specific concems about additional powers granted tothe IRC or any afin via the Master Concession Agreement with any direct eonneston or nexus tthe {and transactions at issue, bat Couneil may wish to ask the Administration whether or nt the interaction ‘between the 2005 agreements and tis land swap raises any additional issu ® DIBE needs fo purchase the land and ai ighs over @ potion of Riverside Park andthe ety streets immesiately adjacent thereto inorder to overcome the US, Coast Guard's expressed concems that DIBC rust win these aright from the ity prior fo the Coast Guard's issuance ofthe required navigational ‘permit that would okay bridge construction onthe U.S. sie ofthe border. See. I. 1g Collyer's opinion pp 12, 25-26, 28.29 and 36-0.Contract law requires that something of value be given by both partis to a contract/agreement that induces each of them to enter into the exchange, e.g, I pay you the doliar value of an item fand in exchange, you give me the item. In legal terms, the “something of valve’ “Consideration” for the exchange and its enforceable. The Agreement at issue is termed a “land exchange”, and the consideration from the City is « portion of Riverside Park, a significant air Fights easement over a portion of Riverside Park, and a promise of cooperation, for up to the next 25 years, in securing necessary governmental approvals to allow DIBC to construct a second Jnternational bridge across the Detroit River. DIBC’s consideration is conveyance to the City of the News Warehouse Property, and a waterfront easement over the portion of Riverside Park conveyed to DIBC. The monetary “contribution” offered by DIB to the City comes inthe form fof a gift a contribution, but not payment for value obtained. Consequently, the enforcement of the provision should any non-performance occur would be dubious. However, given that this language has been included in this transactional agreement, its early performance date should provide some strong indication of the reliability of DIBC us a contract partner going forward. Likewise, the promise by DIBC to begin to remedy the blight at Michigan Central Train Depot is ‘merely a show of good will and not legal consideration for this Agreement. “The specific terms of the Agreement aze contained in the following twenty-seven enumerated sections 1. ‘The effective date ofthe Agreement shall be “five days after the City Council Resolution [approving the Agreement and authorizing execution, delivery and performance ofthe ‘transactions contemplated] becomes effective under the City’s Charter and ordinances.” 2, DIBC Conveyance to City. ‘A. Within 15 days ofthe effective date, DIBC shall have prepared a “fee owner's title insurance poliey” without standard exceptions insuring free and clea title to both the News Warehouse Property and the Air-Rights Easement Property, as well as @ land tile survey for both properties. ‘The City grants DIBC and its contractors access to the Air-Rights Easement Property to accomplish these tasks, but requires DIBC to Fist request authorization from BSEED, obiain aright of entry leter, an fully estore the property 10 its condition prior tothe entry. BB. Any objections to the surveys of ttle commitments must be made known with fifteen days of receipt. The necessary surveys and tile searches, including complete title searches pertaining to all ownership interests and entities involved in the various railroad tracks and spurs that traverse the subject property should also be known and reviewed to the City's satisfaction before execution ofthe apreements at issue, . The closing of DIBC’s conveyance of the News Warehouse Property to the City (First Closing”) shall take place five business days after resolution of any title defects, At the First Closing, DIBC shall execute and deliver: marketable tile to the News Warehouse Property (including real estate transfer valuation affidavits), * Council should seek explanation from the Law Department asf the extent and ramification ofthis clauseassignment ofall other agreements the City deems necessary for access and utilities to service the property, However, the City will, pursuant to Section 2(G), immediately assign back to DIBC all rights to the remaining rental payments for the current Jase of the property thereby creating a situation where DIBC has (through the continuation fn the tenant's lease) effective possession of both properties being exchanged, D. City shall give, grant and convey fo DIBC and its successors and assigns an ‘easement forthe air space above the Air-Rights Easement Property “for the purposes of constructing, repairing, replacing, inspecting, maintaining, operating and using the ‘New Span and all activities incidental thereto (the ‘Permitted Air Uses')". “DIBC shall not be entitled to exercise the Air Rights Easement unless and until the ‘Second Closing has occurred. ... DIBC shall be authorized fo grant a license or Tease fo guests, customers, tenants, contractors, agents, licensees and/or permittees of DIBC to utilize the Air-Rights Easement Property for any of the Permitted Air Uses.” Again, these rights become effective only if the conversion is approved and the land swap is consummate. E, Requited City approvals shall be granted, as a condition precedent to the First and ‘Second Closings. Note that no further explanation of this requirement is offered. It appears the City is commiting to grant approvals in advance of specific requests Council may wish to secure @ further explanation of this provision from the ‘Administration and/or clarifying language in the document to avoid disputes going forward F. IBC shall pay all realestate, personal property taxes and assessments due against the News Warehouse Property as ofthe Fist Closing date. NOTE: DIBC should be required to pay ALL taxes and assessments due with respect to any holdings located In the City before the City enters into an agreement, as required by the Home Rule Cities Aet's prohibition against entering into a contract with a debtor of the city. Se MCLIIPS(VOS G. After the execution date, DIBC shall not enter into, modify, or amend any lease for any part of the News Warehouse Property which would extend beyond July 31, 2018. ‘As soon as possible after the effective date, DIBC shall negotiate forthe relocation of all tenants or occupants of the News Warchouse Property. At the First Closing, DIBC. ‘assigns allright, ile and interest in the Leases tothe City, however, City then assigns ‘any rights it has jst acquised in remaining rental payments back to DIBC. DIBC will perform landlord funetions and hold the City harmless. Under this scenario, the Cily’s possessory righ in the land are subordinate tothe tenant's leasehold interest ta response to questions asked of the administration in writing by Council Member Castateda-Lépez, dated June 3, 2015, the, Administration states that all oustanding code violations aftibutable to the ‘Moroun family interests have now boen paid in ful. However, thee is no assertion whether or aot the City has eceved al outstanding property or ther tx rceips, om behalf oftheir interests andthe DIBC. "There should be a sinilar statement from the Administration regarding payment status of corporate and other taxes. In edition, Council may wish to requost a listing ofall past City and State fines paid, including dollar amountswhich are essentially in place until at least 2018, but its ownership interest vests at the first closing. H, Within 120 days ofthe later of the following: the Second Closing or the termination of Leases on July 31, 2018 (plus such additional time necessary to evict a holdover tenam wider a Lease), DIBC will demolish the improvements on the News Warehouse Property and remove footings and subsurface structures that would ‘impede redevelopment. In consequence, the City will not have the use of the land Lil some time after 2018. A casual inspection of the land in and around the News ‘Warehouse Property site shows multiple allroad tracks, some of which seem to ‘actually be entering the facility on the property, raising the questions regarding the ‘ownership of the railroad tracks themselves and whether any other entities have rights to this land? (See photo below.) Council might request a written response to the ‘questions posed by the existence of these railroad tracks on the DIBC property that is the subject ofthis transaction wherein the City isto obtain clea ile. DIBC can only sell the right, title, and ineerest DIBC holds. Additionally, itis wnelear whether Because of ownership factors, the railroad tracks can be removed by ether part An additional concern is raised by this passage when it is considered along with Section 9 dealing withthe conditions precedent to the Second Closing. Pursuant 10 Section 9, the Second Closing cannot occur prior 10 the fulfilment of section 2H, which requires the demolition of the News Warehouse Property: However, the demolition isn't required until, at the earliest, 120 days afer the Second Closing. It would appear that DIBC would never be compelled to demolish the property, thus ‘mating the Second Closing unlikely. This invonvstency must be addressed 1. DIBC warrants to the City that no remediation of hazardous materials is required “under the environmeatal cleanup criteria applicable to the News Warehouse Property as ofthe First Closing Dat in light ofthe use of the Newss Warehouse Property immediately prior tothe date thereof.” Any other necessary environmental remediation that becomes known prior to the First Closing may be grounds for DIBC to terminate the Agreement priot to the First Closing, Note shat this warranty only addresses hazardous materialsInown prior to the First Closing and does not address any environmental concerns that ‘may be found after the First Closing. This is of some concer: Tenants are currently engaging. in an ongoing business in the News warehouse facility. Tt is unclear whether or hot additional potential environmental hazards are being created or may be introduced luring the period ofthis lease agreement. ‘The facts ate not clear in the documents; the City: should certainly review the lease documents to determine whether or not the activities of the tenants pose additional environmental health concerns. On June 6, 2015, the General Manager for Environmental Affairs of the Buildings, Safety Engineering and Environmental Department (BSEED) reported to the Law Department regarding environmental activities to date for the News Warehouse Property at 3801 W. Jefferson. The Short two page BSEED memorandum briefly summarizes Phase T and I Environmental Site ‘Assessment (ESA) activities regarding the site. Highlights of these incomplete, preliminary ‘environmental assessments include: ‘© Soil sampling on March 31, 2015 ‘© Phase LESA dated May 19, 2015 ‘+ Draft Phase II ESA, dated June 9, 2015, is being finalized in preparation ofthe Baseline Environmental Assessment (BEA) the City is preparing to submit to Michigan Department of Environmental Quality (MDEQ) for liability protection as an “innocent landowner” + A 1,000 gallon gasoline Underground Storage Tank (UST) was installed inside the building in 1949 and closed in-place in 1987. Closure documentation regarding the environmental status ofthe tank isnot availabe. ‘©The property was historically part of the Detroit River, and was reclaimed to support the existing development; origin and environmental status of the sols used to reclaim the land is unknown ‘+ Westem portion ofthe property was formerly occupied by Champion Fuel and coal yard ‘+ Westerly adjacent site was formerly a junliserap yard, with USTs; MDEQ records indicate presence of fly ash and demolition debris used during the reclamation activity ‘© Limited Phase II ESA identified excess arseni, chromium, Jead, selenium, Polynuclear ‘Aromatic Hydrocarbons (PNAS), zine, Volatile Organic Compounds (VOCs) ~ although benzene is a known, naturally occurring toxic constituent of gasoline, in spite of the presence of one of more 1,000 gallon USTS, the report omits any mention of benzene, 8 ‘known carcinogen and cause for other potential health and exposure hazards requiting ‘careful remediation ‘+ A Due Care Plan is being developed to propose limited engineering controls to mitigate any potential exposure tothe public. "Nevertheless, the BSEED report concludes somewhat cryptically that this “contamination does not preclude the property from being acquired and redeveloped as a public park.” Based on the known and unknown risks apparent from the BSEED report, Couneil may wish to ask and ‘obtain written responses to‘* Whether it would be more prudent to consummate the land swap after completion of the Phase II ESA, BEA and Due Care Plan, and if not, why not? ‘© What, if any public parks are known to have been redeveloped inthe face of comparable ‘environmental risks and challenges? ‘© Why was no benzene detected on land where UST’s containing gasoline were located for ‘many years? Must the tank present on the site, and adjacent tanks, be removed, filled or ‘otherwise further remediated to prevent or minimize the aforementioned hazards, particularly where the land upon which the tank rests is shore line fll and the building ‘must be demolished to clear it for park land? ‘+ Are there altematives either a) for use of the property otherwise than as @ public park, and/or b) for development of a public park on other land in the area that is Tess contaminated? ‘© What options would the City have if this exchange were approved before completion of the environmental assessments, and the levels of contamination and costs of remediation ‘are subsequently found to be higher than currently understood, estimated and assessed? ‘Would the City nevertheless proceed with park development? ‘+ Have any ofthe following options® been chosen in connection with this exchange: ‘© requite that the seller clean up the property prior tothe sale; 6 reduce the cost of the property commensurate with the cost of remediation required; and/or fo pursue acquisition and clean up altematives that help control the City's ‘environmental lbilty forthe property? 3. Private Contribution by DIBC. IBC shall make a cash contribution to the City in the amount of Five Million Dollars, in ‘two installments: Three Million Dollars shall be paid by wire transfer on the date ofthe First Closing. The second installment of Two Million Dollars shall be paid on the Secon Closing date. NOTE: By the terms of the Agreement, these “contributions” are not supported by any legal consideration; rather they are mere gifts and more likely (0 be determined to be unenforceable promises. 4. City Conveyance to DIBC. ‘A. After the effective date, DIBC shall at its sole cost and expense, perform a survey land prepare legal descriptions for the purpose of the lot split of City-owned property. B, The City shall submit such information as is necessary to accomplish the tox pparcel reconfiguration. Again, the issue of ownership of railroad tracks must be addressed. * Derived from the Wisconsin Department of Natural Resources Small Business Environmental _Assistanee Program: hp/idne i zovifilespdToubsan/am465 pf._DIBC shall have ttle insurance prepared forthe City-owned property D. The City shall have fifteen business days to make any objections to the condition of the property and the ttle E, The Second Closing conveying the City-owned property to DIBC and DIBC’s grant of Waterfront Easement to the City chall bo consummated after satistsetion of the conditions precedent in Section 9 of the Agreement. The City shall execute and Geliver to DIBC the following: a quit claim deed to DIBC for the City-owned property, assignment of all other agreements necessary for access to uilites, and acknowledgement that DIBC can exercise the Air Rights Easement. DIBC shall ‘execute and deliver the Waterfront Easement tothe City F. Taxes and vtlities due shall be apportioned between the partes and DIBC shall pay the cost of preparation of closing documents G. DIBC agrees thatthe lowest point of the deck of the new bridge shall not be lower than fifty fext above the surface ofthe City-owned property, 1H, DIBC agrees it will not place a facility or building on the City-owned property that interferes with the use and enjoyment of Riverside Park except activities that are ‘conducted by DIBC and its contractors forthe construction of the new span and for the operation of the existing bridge and the new span in the ordinary course of business, such as, a facility emitting noxious fumes, odors, or creates loud noise 1. After the Second Closing, DIBC shall not proceed with construction activites until it secures necessary approvals fom the U.S. govemment. 5. Grant of Waterfront Easement. IBC shall grant « 100 foot wide easement to the City fora pedestrian walkway subject to DIBC's need for support or security of the new span. DIBC will assist the City in securing the property or an easement east of the existing bridge for a pedestrian walkway, as well Governmental Approvals. Conveyance of the City-owned park property constitutes a “conversion” to non recreational use under the Land and Water Conservation Fund Act (LWCFA) and/or the “Michigan Resoarees and Environmental Protection Act, and the parties will cooperatively apply for approval, at DIBC's expense. It is understood that, pursuant tothe LIVCFA the City is required to retain and use the park land in question solely for outdoor recreational we. However, the property may be converted for other uses with the ‘consent ofthe Michigan Department of Natural Resources and the National Park Service (of the United Sates Depariment of the Interior. Substitute land must be provided tha is Of at least eqral monetary value and that offers reasonably equivalent recreational opportunities. The City acknowledges that the time involved to accomplish this may be longer than the three or more years currently anticipated. Federal law only permits suchconversion under limited circumstances. See, attached leter from the City’s Law Department dated September 20, 2011, (Attachment 2) Agreements, acknowledgements and expressions of belief. ‘The parties acknowledge that the City’s use of the properties to be received is recreational and the DIBC’s proposed use of property and easement is for a new international bridge. The land and easement swaps are the exclusive consideration for these conveyances. Again, the contribution of funds by the DIBC to the City is nor ‘enforceable and does not appear to be factor into the conversion evaluation possess. “The parties believe that the News Warehouse Property is of more value and of equivalent ‘or better usefulness for the use as recreational property and that t will meet the eligibility requirements for necessary approvals. The equivalent value of property being swapped for federally financed park land is @ key factor in the conversion process. DIBC agrees to install new windows throughout its long-blighied property at 2001 15 St, Detroit, a/k/a Michigan Central Train Depot, no later than December 31, 2015. This provision of the Agreement is equally nenforceable as the contribution of funds ‘However, as the owner ofthis property which is subject to the City’s light remediation ‘and dangerous building code sections, DIBC Is already required to perform in the ‘manner expressed in this Agreement, In consequence, DIBC’s assent to comply withthe Taw should save the City from the cost and energy to enforce compliance through the cours. Reasonable Best Efforts. ‘At DIBC’s expense, the parties shall se their reasonable best efforts to consummate the transactions contemplated by the Agreement, including the City’s cooperation in efforts to obtain “all consents, waivers, approvals, authorizations and orders” from governmental authorities necessary to accomplish the transactions, including vigorous defense of lawsuits; “if requested by DIBC, commence’ or threaten to commence and pursue vigorously any action reasonably necessary to the consummation” of the transactions, ete LLPD’'s understanding ofthis section is thatthe City will be inthe position of advocating 1s vigorously as necessary alongside of DIBC with respect 9 advancing this stage of ‘DIBC 's eforts to proceed with a new span. While the Agreement provides that all legal ‘and other proceedings wil! be at DIBC's expense, the extent is undefined and unclear as to whether the City will be covered only for out of pocket expenses, or legal and other staf time as well. Section 8.8. states thatthe City’s obligations terminate either after the Second Closing or on the 25" anniversary of the execution date if the Second Closing has not yet occurred. Thus, the City could potentially be obligated to support DIBC’s efforts to construct a new span for the next 25 years, binding future City administrations, ifthis deal is consummated. Council may wish (0 ask fit isin the City's best interest to require the City to assume this role "The iy sal ot be obligated ont ox paiciatein gation opposing the New Intestinal Bridge crossing.10 Further, the City may wish fo i the future, objec to participating in legal proceodings if the City finds them to be futile, vexatious or not well-grounded in law. In such a case, the dispute between DIBC and the City shall be resolved through arbitrati Scation 8.C. requires full communication between the City and DIBC wit respect to the legal proceedings described above, 9. Conditions Precedent to Second Closing. The obligations to consummate the Second Closing depend on satisection of the following: i, Detroit City Council shall enact the resolution; ii. DIBC and the City shall hhave acquired the goveramental approvals for the section 6 transactions (park conversions, etc); ii, DIBC shall have paid the first installment of the contibution and bbe prepared to pay the second: iv. The conditions of 2.E. and H. shall be satisfied (all required City approvals granted, and DIBC's demolition of improvements on News Warehouse Property, etc. However, as aforementioned pursuant to section 2.H, demolition ofthe improvements on the News Warehouse Property is not to occur until the later of termination of the Leases or the Second Closing. These requirements are inconsistent), After the Fist Closing, regardless of whether the land exchange takes place, the City shall be entitled to retain, without liability or obligation to DIBC, the City ‘owned property, the News Warehouse Property, and te initial Three Milion Dollars. 10, Limitation of Liability. IBC waives and releases any money damage claims or demands against the City for any breach or alleged breach of the Agreement. However, DIBC shall have the right to seek injunctive relief, specific performance or other equitable remedy not cured within 60 days ‘of written notice. The City shall have no obligation to undertake any activity that would result in the City being required o incur liabilities in excess of $500,000. 11. Indemnity: DIBC shall indemnify the City and its affiliates fom claims, ete, relative to DIBC's performance tnder the Agreement, with the exception of environmental cleanup activities fat the News Warehouse Property of the City-owned property necessitated by DIBC negligence. 12, Interference. ‘After the effective date, the City will not convey any other property in confit with this, ‘ransaction. ‘The City may install a river walk subject to DIBC’s full access to install support piers forthe ridge. 13. Right to Grant License or Lease. After the Second Closing, all rights granted to DIBC can be made available to third partes. “The remainder of the paragraphs are unexceptional. Section 16 indicates tha the parties take the Jand being exchanged “AS IS”, Section 18, despite the seemingly contrary language of Section 8u ‘with respect to “best efforts", indicates that none of the provisions of the Agreement shall be deemed to create a partnership or joint venture between the parties. 1. Background |A. Historical Review of Riverside Park Location: West Rivertront Acreage: 19.9 “Acquired: 1922, 1929, 1979 ‘The area known as Riverside Park was originally part of the early French “ribbon farms,” land ranted to settlers in the early 1700s. A ribbon farm consisted of a narrow strip of fand with “ver frontage of three hundred to nine hundred fect that then stretched back from the river one to three miles. The river frontage provided the farm with access to the river and transportation; the rear portions of the farm were generally woodlands. In 1808, the United States government fixed the boundaries ofthe original land claims of “ribbon farms,” which became known as the “private claims." Riverside Park is composed of several smaller parks which were part of the original ribbon farms of early Detroiters: Alexis Campau, Edward W. Voigt , Gabriel Godtoy and George B. Porter (Territorial Governor). In 1922, the Public Lighting Department transferred land to the Department of Parks and Recteation for the purpose of establishing Riverside Park. In 1979, the City acquired addtional land fom the Michigan Consolidated Gas Company and expanded the Park. This expansion allowed for the construction of an athletic complex, a baseball fel, basketball cout, and picnic facilities. In 1984, a new boat launch and playfield were added tothe park. With the addition of these facilites, Riverside Park expanded to 19.9 acres Riverside Park has over 2000 feet of shore; it has been the most popular fishing site in the Riveritont Park System, It is also the site of the world’s only floating Post Office: The J.W. ‘Wescott II, which provides mail services to passing Great Lakes freighters. ‘The Riverside Park site has been used as the Headquarters of the Detroit Fire Boat, the Dog Pound, a sewer pumping station, and a coal degasification facility B, Park Conversion Issues According to communication fiom the Michigan Department of Natural Resources (DNR), Riverside Park is “encumbered in perpetuity” for public outdoor recreation connected to grant funding awarded to the City to acquire and develop Riverside Park. (See attached letter dated May 5, 2015 from DNR Director Keith Creagh) (Attachment 3) Per Director Creagh’s correspondence with Mayor Duggan, “converting ths land to a non-recreation use, or conveying any portion of it (including air rights), requires both state and federal approval.” More detailed information relative to the conversion process to non-recreational use, particularly ‘with respect to Riverside Park, i contained inthe September 20, 2011 leter from the City's LawR Department to former Michigan State Representative Paul Opsommer.* The Law Department's letier, prepared in response to former Rep. Opsommer's request for further information cconceming legal impediments to the transfer of Riverside Park to DIBC, cites the Land and Water Conservation Fund Grants Manual for the proposition that property acquiredimproved swith LWCFA funds, such as Riverside Park, may not be converted to non-reereational use, ‘except under very narrow circumstances requiring a substitution of land of equivalent fair market ‘value and “reasonably equivalent usefulness and location.” (See, 16 U.S.C. 4601-8(6)(3)) DIBC’s unauthorized closure ofthe park, fencing ofthe park, conversion restictions relative to federal and state law, a3 well as the City’s Master Plan, will be addressed in another report forthcoming from LPD. c. DIBC's (ory of Blight and Other Violations of City Code ‘The Michigan Central Train Depot, located at 2001 15" Street, Detroit, is owned by DIBC and is ‘a now world-famous symbol of a blighted Detroit. It is unrelated to the construction of the second spat, however initial cleanup of the site is built into the Agreement at section 7.M. The train station is only one of DIBC’s most visible holdings. A June 3, 2015 memorandum from the Department of Administrative Hearings indicates that the DIBC and its subsidiaries have paid the City $156,687.34 to cover all outstanding fees and fines. Additionally, a memo from the Law Department addresses the resolution of disputes with DIBC over street closures in the area ‘of the Ambassador Bridge. This information supports some of the representations (payment of taxes remains unaddressed) made by Michael Samhat, Vice President-Real Estate of DIB.” DIBC’s history of negative dealings with the community inthe area of the bridge is well known in the City. Commitments have been made by DIBC to the community on a variety of issues ~ job creation, blight remediation, environmental remediation ~ with a continuing lack of follow through. At the very least, some level of community engagement through community meetings, public hearings, ete, would be advisable before embarking on this complicated transaction, Council Member Castaeda-Lépee’s 74 questions dated June 4, 2015, and partial responses to same are also attached. (Attachment 4) in 2013, was reportd that Mr. Opsommerbocame he “ecto of governed fas for Cena Ine, the holding company tat owns the Ambassador Bridge, Cesral Transport and che intrest controled by Grose Pointe ilionie Manel ‘May Moro.” Se, nip thetnorningsun conarceMS20130202/eWs01/130208556. in 46/12/15 email LPD, Mr Sarat indicts a fellows: “I very much respect he proces andthe work you ae tasked with examining the Land Exchange Agreement Realiig prof the procs s reviewing the past and ‘ure reltonship ofall ou eltd parties withthe City of Deno, wanted 0 underscore he folowing Tomy knowledge, no known open litigation between DIBC or afiites and City of Delt *To date have pai al open ines * All property tes upto dite { Wrking with BSEED on our ew 20 milion dolar logistic come in 94 Inds Pak (1504 ne jobs) + Very active in maintaining or propertiss an being compliant ‘Staying ontrack with our commitments as I elas to Michigan Cenrl DepotB Answers to LPD's five questions dated June 18, 2015 that were adiressed to the Recreation Department, remain outstanding as well, See questions that refer to the cover letter and ‘agreement provided by the Administration below: 1. Your 4th paragraph and 2nd footnote on page one ofthe cover letter basically indicates that the City will receive a $3 million contribution, or gif”, for phase ‘one of the project, and thatthe contribution will be used for improvements to the Riverside Park. Your 3rd paragraph on page two indicates that he City would receive an additional $2 million cooteibution ifthe City Property is converted and phase 2 starts. After receipt of the contributions, who would be responsible for ‘conducting the improvements to the Riverside Park, Recreation of General Services? 2, Since the contributions are gifts, the Administration needs fo submit a Council Jette to Council to be voted on as apart ofthe land exchange agreement approval ‘process indicating the City's initial receipt of the $3 million, and the potential/eventual receipt of the $2 million, as pitts for improvements to the Riverside Park, The Council letter should be signed off by Budzet and Finance, ‘and it should be accompanied with a resolution showing which appropriation in Recreation or General Services would receive the contributions for the future use of improving the Riverside Park. This way, Couneil ean track the usage of the sift monies in the appropriation, 3, If Council approves this transaction, would the $3 million contribution be used ‘solely for improvements to the News Warchouse Property, which could not occur until the current DIBC tenant lease ends by July 2018; or would the contribution be used immediately for improvements tothe exiting Riverside Park area? 4 the 2nd paragraph on page 2 of the cover leter attached below, would the "News Warehouse Property help to provide "better recreational spportunites than it does now" after the City spends the $3 million contribution to improve the News Warehouse Property? '5. Do you have an appraisal, or some type of valuation analysis, of the City Property and the News Warchouse Property? In addition, do you know how much the DIBC is receiving annually in lease revenue from the tenart ofthe warehouse ‘on the News Warehouse Property that the City would not be receiving, even when the City would have title to the News Warehouse Property through July 2018? In ‘other words, isthe $3 million contribution, and potential $5 milion, «reasonable ‘compensation for this land exchange transaction? ‘AttachmentsATTACHMENT 1UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA > DETROIT INTERNATIONAL ) BRIDGE COMPANY, ef a, ) d Plaintiffs, ) ) v }) Civil Action No. 10-476 MO) ) GOVERNMENT OF CANADA, etal, ) ) Defendants. ) d OPINION “The Ambassador Bridge spans the Detroit River between Detroit, Michigan and ‘Windsor, Ontario and carries more than one-quarter ofthe total commercial traffic between the United States and Canada. The Bridge is privately owned by the Detroit Intemational Bridge Company (DIBC, or Bridge Company) and its wholly-owned subsidiary, the Canadian Transit Company, which collect tol revene for Bridge maintenance and profit. However, the Ambassador Bridge is more than eighty years old. Is owners want to construct a Twin Span immediately adjacent to the existing Bridge to service customers while maintenance work is performed on the Armbassador Bridge, To ther dismay, however, a erossborder partnership of govemment entities has propoted the construction of «new publiy-owned bridge, which Would compete withthe Ambassador Bridge and possibly destoythe financial basis forthe Twin Span. IBC applied for navigational permit fom the U.S. Coast Guard approximately en years ago, before the prtaership was formed, but the Coast Guard has reftsed to proces the application pending resolution of local property rights dispute. IBC sues the Coast Guard fo, inter alia, its failure to ise a navigational permit for the Twin Span, ‘The Coast Guard moves to dismiss this claim, and DIBC eross-moves for summary judgment. DIBC also moves to enjoin the Coast 1Guard fom issuing a navigational permit forthe competing governmentovrned bridge, For the mons act frth low, the Court will deny Plaintiff’ Motion for Preliminary Injunction and grant the Coast Guard's Motion to Dismiss Count IV ofthe Second Amended Complaint 1. FACTS “The instant dispute stems from the Coast Guard's refs to issue a navigational permit forthe Twin Span based on DIBC's failure to sequire ean local property rights. DIBC contends thatthe Coast Guard's refusal to grants navigational pent constitutes arbitrary and ‘capricious agency action, particularly in fight ofthe Agency's pending approval fr the _government-ovned “New International Trade Crossing Detroit River International Crosing” (NITCIDRIC) (pronounced Nitsy:Drck) bridge. Specifically, DIBC argues thatthe Cost ‘Guard's decision to return it appli im is based ona regulation that either is invalid or has ‘been improperly applied to the Twin Span, Because the Coast Guard i allegedly poised to grant the NITC/DRIC’s permit application, DIBC also has moved for preliminary injunctive elit ‘See Mot. fr Prelim. Inj [Dkt. 143] |A. Statutory Framework for Navigational Permits A bit of history i necessary to understand the dispute. Ina series of Rivers and Harbors Acts in the 19th century, Congress delegated tothe War Department! the authority to regulate navigable waters inthe United States. One ofthe first of these statutes, enacted in 1880, lected the War Department to remave sunken vessels fom waters to ensure their navigability ‘See Act of Sune 14, 1880, ch, 211, § 4,21 Stat. 197 (1880). Four years later, Congress * Established in 1789, the War Department existed nti 1947, when its tile was changed to Department ofthe Army, and it was combined withthe Departments of the Navy and Air Force to form the National Military Establishment. See Act of July 26, 1947, ch, 343, § 205(a), 61 tat S01 (1947) (epealed by Act of Aug. 10, 1956, ch. 1041, § 53, 70A Stat 641 (1956). The National Military Establishment was renamed the Department of Defense in 1949. See Act of ‘Aug 10,1949, ch 12, 63 Stat. 592 (1949).authorized the Wat Department to issue permits for approved bridges over navigable waters. See ‘Act of luly 5, 1884, ch. 229, § 8,23 Stat. 133, 148 (1884) (empowering Secretary of War to. review bridge proposals fr projects that might obstruct navigation), In 1899, Congress prohibited the construction of any new bridge extending over navigable waters without prior congressional approval. See Rivers and Harbors Act of 1899 (1899 Act), ch. 425, §9, 30 Stat, 1121, L151 (now codified at33 U.S.C. § 401). The 1899 Act provided that: (Mf shall not be lawful to construct oF commence the construction fof any bridge, dam, dike, or causeway over or in any. port, roadstead, haven, harbor, canal, navigable rive, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans forthe same stall have been submitted to and approved by {he Chief of Engineers and the Seeretary of War. 1H. By its tems, the 1899 Act applied to domestic and international bridges, ‘Notably, the 1899 Act required Congres to approve each and every proposed Ide over navigable waters daring time of extensive national grow and eeonomi evelopment. Congres established «process forthe approval of bridge construction plans in 1906, See 1906 Bridge Act, ch 1130, § 1,34 Stat. 84 (1906) (now codified at 33 USC. $6491 498), The 1906 Bridge Act established uniform rules regarding the construction and operation of congressionally-authorized brides over navigable waters. AL is core, the 1906 Bridge Act ‘ordered that bridges authorized by Congress shall not be built or commenced vat the plans and specifications for its construction, together with such drasvings of the proposed 2 The 1899 Act exempted from the requirement of prior congressional approval those “waterways the navigable portions of which lie wholly within the limits ofa singe State,” for ‘which approval could be obtained from th State Legislature. See 1899 Act, eh 425, $9, 30 Stat 1121, 1151 (now codified at 3 U.S.C. § 401). Thus, the 1899 Act was directed at bridges affecting ether interstate of foreign navigation,construction and such map of the proposed location as may be required for a full understanding of the subject, have been sulbitted tothe Secretary of War and Chief of Engineers for their approval, nor until they shall have approved such plans and specifications and the location of such bridge and accessory works] a “Tus in 1906, Congress gave the Secretary of War and Chief of Enginers statutory authority to asess and approve proposed bride plans. The 1906 Bridge Act was the last congressional enactment concering aternationl ridges until 1972, long afer Congress hha approved the Ambassador Bridge in 1921. 1m 1946, Congres enacted the General Bridge Act of 1946, cuncently codified at 33 US.C. §§ 525-534. The General Bridge Act of 1946 removed Congres fom the process of spproving individual domestic bridges and authorized ll such bridges subject only t approval bythe War Department. See Sisselnan » Smith, 432 F.24750, 753 (34 Cit. 1970) (hong that, with respect to domestic bridges, “he General Bridge Authority Act was clary intended to «nd piecemeal Congressional supervision of bridge construction by delegation of Congressional thority to an expert administrative agency"). However, international bridges remained subject only tthe 1906 Bridge Act. See33 U.S.C. § 531 (providing thatthe General Bridge Act of 1946 “sal not be construed to authorize the construction of any bridge which will connect he ‘United States, or any Territory or possession ofthe United State, with any’ foreign county") nits most recent statute on bridges over navigsble waters, Congress enacted the International Bridge Act of 1972, 33 U.S.C. §§ 535-S35i, By this enactment, Congress removed itso fom the busines of bridge approvals and gave advance consent to international bridges, subject to compliance with the 1906 Bridge Ac, approval by the foreign goverment and US. {Federal officials, and compliance wit all applicable technical requirements. 33 U.S.C. § 535,‘Over time, Congres als has shied the authority to approve bridges over navigable waters to different executive departments and constituent agencies, The War Department intl had besa tasked wih approving the plans, specifications, and locations of bridges. See 1906 Bridge Act, ch 110, § 1,34 Stat. 84 (1906) (ow codified at 33 USC. § 491-498) The War Department existed until 1947, when the National Security Act of 1947 ‘changed its tte to the Department ofthe Amiy, See Act uly 26,1947, ch. 343, §205() 61 Stat, 501 (repeated by Act of August 10,1956, ch 104, § 53, 708 Stat 641). Thereafter, the Amy Comp of Enginers was charge with reviewing and approsng bridge permit applications. See id. In 1967, Congress crested the Department of Transporation and tansfered the Coast, Guard to that newly-created Deparment. 49 U.S.C. § 1655(0) (1970). As part ofthe ‘Transporation Ad, Congress also transfered all authority to zevew and approve bidge permits from the Army Corps of Engineers tothe Coast Guard, Id. §1655(g) (1970). The Coast Guard temained within the Department of Transportation unt 2002, when Congress transfered the Coast Guard and is authorities, netions, and persone! to the Department of Homeland Secutity (DHS). 6 U.S.C. § 468, (e) The Coast Guard is now a constituent agency of DHS ‘vith exclusive authority over navigational permits fr bridges over domestic and nematonal navigable waters. See 6 USC. §468(0) B. Regulatory Framework for Navigational Permits “The Coast Guard as inherited eles and promulgued regulations concerning the “[tjoeations and clearances of bridges and causeways over the nviguble waters.” See 33 CFR. {§11401((1). As explained bythe Coast Guard ‘The several bridge laws . . . are intended to prevent any interference with navigable waters ofthe United States... except by express permission ofthe United Stats. The decision as to ‘whether a bridge permit or © drawbridge operation regulation will be isued or promulgated must rst primarily upen the effect ofthe 5proposed action on navigation to assure that the action provides for the reasonable needs of navigation after fall consideration of the fffoct of the proposed action on the human environment. The Coast Guard i not responsible for any other permits that the applicant may need fon other federal, state, or local agencies and issuance ofa bridge permit does not affect flood control projects or other governmental progam. B3CER.§ 11410, “The patis dispute the scope of, and statutory authority for, a Coast Guard -regulation entitled “Necessary Primary Authority,” most particularly its last sentence: For bridges constructed by State or municipal agencies, the primary authority will be presumed without proof. Ifthe law of the State requires a license for or approval of the beidge from = consiuted State agency, a copy of sich license or approval will be required and may be acrpted as evidence of the primary authority Ir theo is no State regulation of bridges in navigable waters, the necessary primary authority may be that granted in the charter of ccorporation, or the authority inherent in the ownership ofthe land ‘on which the structure is placed. The applicant will in such cases be required to furnish anextact from the charter ora statement of| fownership. Spectal care willbe taken that Federal approval isnot {ranted when there is doubt of the right of the applicant to ‘construct and uilize the Bridge, 33 CER, § 115,05 (emphasis added). Par 115 of Title 33 is tiled “Bridge Locations and Clearances; Administrative Procedures." It identifies its statutory authority as the 1899 Act, the 1906 Bridge Act, the General Bridge Act of 1946, and the 1972 Intemational Bridge Act. Se i ‘The partes dispute the meaning and seqpe of 33 CFR. § 115.05. While DIBC contends thatthe regulation applies exclusively to domestic bridges under the 1946 General Bridge Act, see Pls [MSI [Dkt. 96-1] at 4, the Coast Guard responds that it applies to both domestic and ‘nteational bridges under the 1906 Bridge Act, see Fed, Defs. Opp'a to MSI [Dkt. 106] a 29- 3 5 All page references tothe parties’ molions correspond tothe conventions supplied in briefing, ‘ot those supplied by the eletonie casing (ECF) system.Regulation 115.05 was not adopted in isolation. The War Department published its predecessor on Seprember 11, 1946: For works constructed by State or municipal agencies, the primary authority will be presumed without proof, If the law of the State requires a Heense for of approval of the work from a constituted State agency, a copy of such license oF approval will te required and may be accepted as evidence of the primary authority. If there bbe no State regulation of structures in navigable waters, the necessary primary authority may be that granted in the charter of corporation, or the authority interet in the ownership of the land fon whieh the structure is placed. The applicant wil in such cases be requized to finish an extract from the charter, ora statement of ownership. Bypecial care will be taken that Federal approval is hot granted when there 48 doubt of the right of the builder to ‘onsine and utilize the work SBCER.§ 209345 (1946) (emphasis added). Part 209 of Title 33 wasted “Rules Relating to Admsnistative Procedre” Regulation 209.120 provided tat “he builer of bridge must file -an application showing]... the waterway and locaton ofthe bide; citation tothe act of| ‘Congress or the State lgisltur authorizing the bridge; and be accompanied by a map ofthe location and plans ofthe bridge showing these features which ffet navigation...” Ta addition, 33 CIF. § 209.330 (1946) explained that: (@) The decision as to whether a permit willbe issued must rest primarily ypon th effect of the proposed work on savigation. However, in cases where the structure is unobjectionable from the standpoint of navigation but when State or local authorities decline to give their consent to the work, i is not usual for the Department actually to issue a permit. This is fr the reason ‘that while the instrument merely expresses assent so far as ‘consems the public rights of navigation, it practically becomes ff 30 value in the event of opposition by State or local Aauttorty and may be regarded by such authority as an act of siscourtesy.. In such eases the applicant is informed that the ‘scusture is unobjectionable from the standpoint of navigation land that permit would be issued were the consent cf the local auttority also fortheoming(6) In cases of conficting property rights the Department cannot undertake ( adjudicate rival claims 1 Thus, the prodecessor War Department roles warned that local opposition might prevent a ‘widge proponent from acquting «navigational permit. In addition 33 CFR. § 115.05, the Coast Guard has imposed other regulatory requirements on he permit aplication process For instance, when the Coast Guard receives a avigtional permit aplication, “the District Commander verifies the authority for construction ofthe bridge, reviews the application and plans for suiciency, ascertains the views of local authorities and other interested partis, and ensures thatthe application complies with relevant cavironmental laws, regulations, and orders.” 33 CER. §115.60(). . The Ambassador Beige and Proposed Twin Span “The American Transit Cmmpany (ATC), predecessor to DIBC, was established in 1920 to build suspension bridge between Detrit, Michigan and Ontario, Canada. Congress approved the bridge construction project in 1921 and enacted a statute proving that “the consent of Congress is hereby granted to American Transit Company its successors and assigns, to constrict, maintain, and operate abridge and approaches thereto across Detroit River ata point suitable to the interests of navigation, within or near the ety limits of Detroit, Wayne ‘County, Michigan, in accordance with the provisions of” the 1906 Bridge Act, Act of March 4, 1021, oh. 167, § 1, 4 Stat. 1439 (1921). In 1927, ATC transferred all fits rights and assets to DIBC, which, in tr, merged into the present-day DIBC in 1979, ATC’s comorate charter stats tht its purpose i to “cary onthe constuction, operation and development of bridges, tumels, approaches and accessories thereto, and all allied projects as may be required or as may be hereinafter mentioned.” Pls, MSI on Counts 1, 3,6, and 7 of Third Am. Compl. {Dkt. 133], Ex. 12(ATC[Anicles of Incorporation) [Dkt, 133-16] at 3. Canada also enacted legislation to approve construction ofthe Ambassador Bridge on the Canadian side ofthe Detroit River. See Mot. for Prelim, Inj. [DKt. 143], Ex.3 (CTC Aet) [Dic 14% 10] a3. Construction of the Ambassador Bridge was completed in 1929, andthe Bridge fist opened for traffic on Novernber 11, 1929. Second Am. Compl. {Dkt. 83] 169 ‘According tothe Second Amended Complain, the legislation enacted by Canada had the effect, under Canadian law, cf giving the Canadian Transit Company (CTC) an exclusive franchise “wo operate its faites and collect tolls o fares and to exclude competition as long as the [BIsidge remains use.” /d 17.° The Second Amended Complaint also alleges that “elxclusivity ofa tll bridge franchie is breached under Canadian law if competing bridge diverts traffic from the franchisee,” which means that any new bridge “must be placed at sulicent distance ..10 avoid competition..." Id. 79. DIBC further alleges that the statute granting the Bridge Company the ight to “construct, maintain, and operate” its bridge under US. law, see Act of Mar 4 1921, ch, 167, § 1,4 Stat, 1439 (1921), contains no termination date, From this history, DIBC claims “a perpetual and exclusive righ of franchise to build, ‘operate, maintain, and collect tolls ona bridge across the Detroit River...” Second Am. Compl. 163 (emphasis added), * Page references tothe parties’ exhibits are based on the conventions supplied by the ECF system, 5 Om April 5, 2013, the Court directed the partis to brief Count IV, ie, DIBC's Administrative Procedure Act (APA) claim against the Coast Guard. See Apr. 5,2013 Scheduling Order [Dit 90} at 2-3, DIB fled a Third Amended Complaint on May 29, 2013, “subject to [the] specific representation with respect t3 Count Four... that the amendments {were} not intended to aise new isues of claims, but to ensute thatthe allegations are consistent with the fact as already alleged in the [Second Amended} [Clomplaint.” Mot, for Leave to File Third Am. ‘Comp [DKt. 108] a2, References the Complaint, therefore, wil be to the Second Amended Compaint,DIBC owners now deste to build a new span diretly alongside the orginal Ambassador Bridge. Such constriction wold be completed using oly private funds, DIBC contends tat mst obstacles to constuction have been remove, tat the approch ramps for tbe ‘Twin Span have ben conducted onthe Canadian side, and that it already owas ll the land between the ramp and the Detroit River on the Canadian side, “And DIBC believes that it willbe able 0 ‘each agreement withthe City of Detroit to purchase an easement, itmecessary, tallow the New Span to pas over the ane unowned parcel of laut... on the US. sie afer the permits to build the [New Span ain place. Second Am. Compl. ¥ 143 (emphasis adie). In other words, DIBC owns al land necessary to build the Twin Span, but equres “aright” over a portion of Riverside Par, Detroit thats closed tothe public duet ontamination, Despite its private funding the Twin Span must be permite by the Coast Guard under the 1906 Bridge Aetio avoid any impermissible impact on the navigable waters between Daroit and Canada, The Twin Span cannot be constructed without navigational permit. Ia fact, thee does not seem tobe any question as to whether the Twin Span wil fet navigation, 2sitsabutmeats would be on land rather than in the Det River. See DIBC Response to Notice of Supp. Auth, [DKt, 159] a8 (*DIBC has changed its design so that no per wl be built on the atk, andthe bridge will es 70 fet over the par...” DIRC applisd fora navigational permit forthe Twin Span in 2004. The Coast ‘Guard held public hearings and consulted with the Environmental Protection Agency (EPA), The “unowned parcel of lind” is owned by the City of Detroit. DIBC's reference merely conveys that the Bridge Company does not own land rights othe relevant portion of Riverside PakWhich expressed concems about the Twin Span's potential impact on air quality.” Further analysis and public hearings proceeded thereafter, The Coast Guard also expressed concern shout DIBC’s failure to secure an ai righs easement over @ portion of Riverside Park. On Match 6, 2008, the Coast Guard informed DIBC that “the issue of property ownership forthe US. bridge piers [would] not delay completion ofthe NEPA process,” but that “the issue must ‘be resolved prior to any [Const Guaed} permit issuance." Fed. Defs. Opp'n to Mo. for Pretim. Inj (Dk. 149], Ex. 14 (Mar. 6, 2009 Later from Coast Guard to DIBC) (Dit. 149-14] at 4 Le “air rights” issue is informed by recent Dewoit history. Aer September 11 2001, DIBC sought and received approval fom the Mayor of Detoit to construct a 150-foot ‘buffer between the public point of access and the Ambassador Bridge o protect the structure from potential terorst activities, See i, Ex. 15 (Apr. 30, 2009 Letter from City of Detoit to ‘Coast Guard) [Dkt, 149-15] at 3. Based on this approval, DIBC constructed a fence approximately 150 fost from the Bridge, which removed direct public access to a section ofa ublicly-owned, yet undeveloped portion of Riverside Park. Between its need to protect the Ambassador Bridge and the Mayor's approval, DIBC construed its permission to occupy the 150-foot incursion onto Riverside Park broadly and appears to have assumed that it could readily place Twin Span abutments there, This sate of affairs did not last. In City of Detroit. Ambassador Bridge Co, No. 08337680 (Mich. 36th Dist, Court, Oct. 2, 2008), aff'd, Ambassador Bridge Cov. City of Detroit, Ne. 09-026059-AV (Mich. Cir. Ct Feb. 3, 2012), the 7 in part, EPA was concerned because of two Bridge-related projects: the Twin Span and the Dettoit River Gateway Project, by which new high-speed roads have connected the Bridge to highways around Detroit instead of into City streets. See Sept. 7, 2012 Letter tothe Coust [Dit 64], Ex 5 (Aug, 23, 2012 Letter from EPA to Coast Guard) [Dit 64-5] at | * The Michigan State Coust decisions are included inthe record. See Fed Defs. MTD, Ex. A ambassador Bridge Co. v. City of Deroit) (Dk. 92-1}; i Ex. B. (City of Detroit. “Ambassador Bridge Co.) (DKt, 92-2) n“Michigan cous gave the City of Dette right to evict DIBC from its space behind the fence in Riverside Pn, ining that DIBC merely eld license fom the former Mayor tat could be ‘terminated ot any time, DIBC has esponded by redesigning the Twin Span abutments so that ‘they wil be located on land wholly owned by DIBC. However, DIBC ha not acquired an ae sights easement over Riverside Pitk, and the City of Detroit has indicated that itis um ing to ‘sell such rights to DIBC for purpaes of constructing the Twin Span. See Prelim. Inj. Ex. 16” ‘@eclaration of Dan Stamper (Stamper Dec.)) 21 (stating that, on October 22, 2013, “Mir ‘Brown [Chief Compliance Officer forthe City of Detroit said there had been an “instruction” “from Lansing" to the City of Peto nt to sell DIBC an easement forthe Riverside Air Space and that Lansing... would object o any efforts by DIBC to acquire an easement forthe Riverside Air Space”); Stamper Deel, Ex. A (Nov. 7, 2013 Letter from Miler Canfield P.L.C. to ‘DIBC) (“After careful review of your offer, the City has asked me to inform you that the City will ot transfer any interest in [Riverside Park] fo DIBC:"). (On March 2, 2016, the Coast Guard returned DIBC’s permit application om the _ground that DIBC did not own all of the necessary propesty rights. The Coast Guard relied on 33 CER. § 115.05 to suppor this aston. ° See also Prelim. Inj. Exhibit List (DKt. 160] at 2 "Federal Defendants dispute Mr, Stamper's contention that “Lansing,” Le, government officials inthe Michigan tate capital, instructed Mr. Brown and other Detroit officials not to sll an ait rights easement over Riverside Park to DIBC. Fed. Def. Notice of Supp. Auth, {Dkt. 157] a2; fd, Ex. | (Declaration of Gary Brown (Brovea Decl) [Dkt. 157-1] #9 (I did not ak officals in Lansing forthe State's position ana sale of the Riverside Ait Tomy [knowledge there was never an instruction fom Lansing not to sell DIBC an easement forthe Riverside Air Space.”). This dispute is immaterial tothe issues at hand 2D, Procedural History “This suit was fled on March 22, 2010, against the Coast Guard, the Department ‘of Homeland Security, the Fedral Highway Administration (FHWA), and the Government of ‘Canada. See Compl. {Dkt. 1} $5 17-20. As originally filed, the Complaint alleged that the Coast “Guard had volaied the Administrative Procedure Act (APA), 5 US.C. $§ 553, 701-706, by refusing tissue a navigational permit forthe Twin Span. Compl. $§ 203-210. Federal Defendants moved to dismiss on July 8, 2010, and DIBC voluntarily dismissed Canada, FHWA, _and certain ned ofisials because he Michigan Legislature appeared to have blocked ‘construction ofthe NITCDRIC. SeeNov. 29,2011 Natioe of Voluntary Dismissal [DK 52] [After a petid of poiteal maneuvering tht DIBC contends violated Michigan Jawan allegation thats not part oth lawsuit-NITC/DRIC supporters resumed ther efforts to build a publily-owned bridge. Based on these renewed efforts to construct a govemment- owned bridge, DIBC filed a Second Amended Complaint on February 11,2013, See Second ‘Am. Compl. [Dlt 83]. Count TV ofthe Second Amended Complain alleges tha the Coast Guard was arbitrary and capricious in filing to issue a navigational permit for the Twin Span, 114. $9305-311, The Coast Guard moved to dismiss Count IV on April 8, 2013, se Fe. Def MTD (Di. 92}, and DIBC filed an Cppesiton and Crost-Motion for Summary Jodgment on April 17,2013, see Ps, MSS (DKt 961), (On May 29,2013, DIC fied ts Third Amended Complaint aginst the US. Department of State, the Secretary of Stat, NITCIDRIC partnership, FHWA, the Administrator (of FHWA, the Govemment of Canad, the Windsor-Detroit Bridge Authority, the Coast Guard, and the Commandant of the Coast Gaard, Sce Thied Am. Compl. (DKt 105] 9126-36. The Third Amended Complaint included the same allegations of arbitrary and capricious action bythe Coast Guard, See Third Am, Compl 325-331. The motions on Count IV became ripe on June 21,201 ‘See Fed. Defs, Opp'n to MSI [Dit 106} Ps. Reply to MSI [DK 110} (On Match 7, 2014, DIBC filed a Motion fora Preliminary Injunction, which argued that DIBC is likey to succeed on the merits ofits claims tat (1) the Coast Guard has violated Plants statutory right vo construct, maintain, and operate a bridge by returning DIBC’s application fora navigational permit; (2) the Coast Guard was abitrary and capricious in its refusal to grant an amendment to DIBC’s 1927 navigational pent forthe proposed Twin ‘Span; and (3) the Coast Guard is voting DIBC’s Equal Protection rights under the US. Constitution by favoring publily-owned bridge over Plaintiff privately-owned Twin Span “The Court held preliminary injunction hearing on Apri 30,2014, during which the parties argued the merits ofthe legal principles underlying DIBC’s request for injunctive relief" See Apr 30,2014 Minute Entry. The Court continued the preliminary injunction hearing to May 1, 2014, to hear additonal evidence and argument concerning DIBC’s claims of likelihood of sucess onthe merit and inepaable harm. Se May 1, 2014 Minute Entry. The aries! merits arguments focused primarily on Count IV of the Second Amended Complaint DIRC’s Motion for Preliminary Tjunetion was flly briefed on May 15,2014, See Mot. or Prom, Inj. [DKt, 143} ed, Deft. Opp'n to Mot, for Prelim Inj. [DKt. 149]; DIBC Reply to Mot {for Prelim. Inj [DKt, 151}; Fed. Defs. Notice of Supp, Auth (Dkt, 157]; DIBC Response to [Notice of Supp. Auth. [Dkt. 159], Because the preliminary injunction hearing included an "Counsel for Canada argued that Canada should not be required to brief and argue DIBC’s ‘pending motion beeause Canada is immune from suit under the Foreign Sovereign Immunities [Ret (FSIA), 28 US.C. §§ 1602 et seg. The Coutt notified counse! for Canada thatthe preliminary injunction hearing would be limited othe dispute between DIBC and the US. Coast ‘Guard and that this dispute requited immediate consideration due to DIBC’s request for preliminary injunetive rele‘extensive discussion on the merits of Count IV, the Court reslves both pening motions a this Il, LEGAL STANDARDS A. Federal Rate of Civil Procedure 12(0)(6) ‘A motion to dismiss for flue t state a chim pursuant to Federal Rule of Civil Procedure 12(6\(6) challenges the adequacy of complaint on its face. Fed. R. Civ. P. 1206) ‘A complaint must be sufficient “to give a defendant fair notce of what the ..claim is andthe ‘grounds upon whic itrests” Bll Ad. Corp. Twombly, $50 USS. 54, $55 (2007) Ginteral citations omited). Although a complaint does not nos detailed factual alegtions, a plant's obligation to provide the grounds fr his entitlement o relief “requires more than labels and ‘conclusions, and a formlaic recitation af the elements of cause of action will not do” Id. To survive a motion to dismis, «complaint must contain sufficient factul matter, accepted a tre, to sate claim for relief that is “plausible on its face” Jd at $70. A court must eat the complaine’s factual allegations as tue, “even if doubtful infact." Twombly, 590 US. a 555. But a court need not accep struc legal conclusions st forth inn complaint. Ashora Iba, 556 U.S. 662,679 (2009) “Unlike motions to distis for lack of subject mater jurisdiction under Rule 12002), factual challenges are not permitted under 12(4)(6) andthe Court may only consider the facts alleged in the complaint any documents attached as exhibit threo, and matters subject ojudivial notice in weighing the merits ofthe motion” Kusarv. Transp. See. Admin, 581 F.Supp. 247,14 (D.D.C. 2008), afd, 442. App's $65 (D.C Ci, 2011). When a document ie referred to ina complaint and is central ta plaints claim, the court may considerthe document without converting the motion to dismiss ito one for summary judgment Vanover v Hantman, 77 P. Supp. 2491, 98 (.D.C. 1999. 1, Federal Rule of Civil Procedure 56 Under Rue 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there sno genuine dispute a to any materi fact andthe movant is entitled to judgment asa mater of aw.” Fe. R. Civ. P $6(); accord Anderson v. Liberty Lobby, Inc, 477 US. 242, 247 (1986). Moreover, summary judgment is properly ranted against party who “after adequate time for discovery and upon motion. fils make a showing suicient to establish the existence of an element essential to that partys ease, and on ‘which that party wil bear the burden of proof tia” Cllotex Cop. v Cart, 477 US. 317, 322.1986) In rating on a motion for summary judgment, the court must draw all justifiable inferences inthe nonmoving party's favor. Anderson, 47S. at 255. A nonmoving party, ‘however, must establish more than the ‘mere existence ofa scintila of evidence” in support of itsposition, 1.2252. In addition, ifthe evidence “is merely colorabl, or isnot significantly probative, summary judgment may be granted" Id a 249-50 (internal tations omit). C. Administrative Procedure Act DIBC alleges thatthe Coast Guard was abiteary and capricious in its refsal sana navigational pemit forthe Twin Span based on “opposition from Canadian officials and FHWA mther than the statutory criteria for issuing a permit to bil the bridge under the 1906 Bridges Act...” Third. Am, Compl $326; ee Ps. MSI at 37-54. Plaintiffs claim thatthe Coast Guard has “refused to process and has eturaed the Ambassador Bridge's application forapetit and a FONSI for the... New Span for improper reasons.” Third Am. Compl. 326 “This argument presents two familiar administrative-law inquires: (1) whether the Coast Guard acted within the confines ofthe autherty delegated by Congress; and (2) whether there was a ‘ational basis forts actions. 1, The Chevron Review Standard DIBC’s argument thatthe Coast Guard has acted ulira vires is premised on three ‘aie tenets of administrative law, Fitst, “an agency's power is no greater than that delegated to it by Congres.” Lyng v. Payne, 476US. 926, 937 (1986); see also Transohio Sav. Bank. Dir, Office of hrft Supervision, 967 F.2 $98, 621 (D.C. Cit. 1992). Second, agency actions beyond delegated authority are ultra vires and shouldbe invalidated. Transohio, 967 F.2d at 621. Third, ‘courts look to an agency’s enabling statute and subsequent legislation to determine whether the ‘agency has acted within the bounds ofits authority. Unis. of D.C. Faculty Ass'n NEA w. D.C. Fin, Responsibility & Memt, Assisarce Auth, 163 F-34616, 620-21 (D.C. Cir, 1998) (explaining that ultra vires claims require courts 10 review the relevant statutory materials to determine whether “Congress intended the [agency] to have the power that it exercised when it [acted ‘When reviewing an ageney’s interpretation ofits enabling statute and the laws it sudministrs, courts are guided by “the principles of Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S, 837 1984)” Mount Royal Joint Venture v. Kempthorne, 477 F-34745, 754 (D.C. Cir 2007). Charron sets forth a two-step inquiry. The initial question is ‘whether “Congress has directly spoken tothe precise question at issue" Chevron, 467 U.S. at ‘843, Ifo, then “that i the end ofthe matter" because both courts and agencies “must give "4 FONSI, or “Finding of No Significant Tact,” satisfies an agency's documentation requirements under the National Environmental Protection Act (NEPA), 42 U.S.C. §4332Q)(C), 7cffect to the unambiguously expressed intent of Congres.” Id. at 842-43, To decide whether Congres has addressed the precise quetion at issue, a reviewing court applies “the traditional tools of statutory construction." Fin, Hlanning Ass'n v. SEC, 482 F.3d 481, 487 (D.C. Cit 2007) (quoting Chevron, 467 U.S, at 85 n.9). analyzes “the text, structure, snd the overall statutory scheme, as well a the problem Congress sought to solve.” Jd (citing PDK Labs. Inc DEA, 362 F.3d 786, 796 (D.C. Ci, 2004); Sierra Club v. EPA, 294 F.3d 155, 161 (DC. Cit 2002). When the statute is clear, the text controls and no deference is extended to an agency's interpretation in conflict with the text. Chase Bank USA, N.A. w. McCoy, 131 S. CL 871, 882 e010, the statue is ambiguoss or silent on an issue, a court proceeds tothe second step ofthe Chevron analysis and determines whether the agency's interpretation i based on 8 _pemnssible construction ofthe statute, Chevron, 467 U.S. at 843. Under Chevron Step 2, court determines the level of deference duc tothe agency's interpretation ofthe law it audministers. See Mount Royal Joint Venture, 477 Fd at 754. Where “an ageney enunciats its {nterpretaton through notice-and-comment rule-making or formal adjudication, [eours} give the ageney’s interpretation Chevron deferetce.” Id at 754 (iting United Sates». Mead Corp., 533 USS. 218, 230-31 (2001) Thats, an agency's interpretation that is permissible and reasonable receives controlling weight,” id, “ever ifthe ageney’s reading differs from wht the court believes isthe best statutory interpretation,” see Nar'l Cable & Telecomm, Ass'n v. Brand X Internet Servs, 548 U.S. 967, 980 (2005). Such broad deference is particularly warranted when the regulations at issue “concer[] a complex and highly technical regulatory program.” Thomas isn interpretation is permissible and reasonable if itis not arbitrary, capricious, or manifestly ‘contrary tothe statute. Mount Royal Jaint Venture v. Kempthorne, 477 F3d at 75, 18Leferson Univ. , Shalala, $12 U.S. $04,512 (1994) Gotemsl quotation marks and ettion omitted), 2. Arbitrary and Capricious Review DDIBC contends thatthe Coast Guat’ refusal to proces the Twin Span pest aplication was arbitrary, capricious, and natin accord with the lw in violation of§706(2XA) ofthe APA. See Tourus Records, Inc. v. DEA, 259 F.3d 731, 736 (D.C Ci. 2001) The basic legal tenets her are also longstanding and clet, In determining whether an action was arbitrary and capricious, a reviewing court “mst consider whether the [agency's] decision was based on a ‘consideration ofthe relevant factors and whether there has been a clear evor of judgment.” Marsh v, Or. Natural Res. Council, 490 U.S, 360,378 (1989) ternal quotation marks and citation omitted). Ata minimum, the ageney must have considered relevant data and articulated an explanation establishing a “rational connection between the facts found andthe choice male” Bowen v. Am. Hosp. Ass'n, 876 US. 610,626 (1986) (internal quotation matks and citation omit); se alto Pub. Citizen, Ine, v. FAA, 988 F.2d 186, 197 (DC. Cit. 1993) (The requirement that agency ation nol be arbitrary or capricious includes a requirement thatthe agency adequately explain its result) ‘An ageney ation usually is arbitrary or capricious if te ageney has relied on factors which Congres has nt intended it to consider, entirely filed to consider an important aspect of the problem, offered an explanation fr is decision that ris counter fo the evidence before the agency, or isso implausible that it could rot be ascribed to a difference in view or the product of agency experts. “Motor Vehicle Mj. Ass'n of US, Ine, State Farm Mt Auto. ne. Co, 468 US. 29,48 (1983), the Supreme Court has explained, “the spe of eview unde the ‘arbitrary and capricious” standard is narrow anda cour is not to substitute its judgment for that ofthe iragency.” 1d, Rather, agency ation is normally “entitled to presumption of regularity.” Citizens 19 Pres. Overton Park, Ine v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other ‘grounds by Califano v, Sanders, 430 US. 99 (1977). D. Jurisdiction and Venue ‘This Court has federal-quesion jurisdiction unde’ 28 U.S.C. § 1331. Venue is proper under 28 US. § 1391(€\(1) MIL ANALYSIS Federal Defendants have moved to dismiss Count IV of the Second Amended ‘Complain, arguing that DIBC has failed to challenge final ageney action. DIB opposes and ‘moves for summary judgment, alleging tha the Coast Guatd's denial of a navigational permit ‘was arbitrary and capricious final agency action or, inthe altemtive, constitutes agency aetion unlawfully withheld [Because DIBC has inchuded Count IV as one of ts theores for immediate injunctive relief, see Mot, for Prefim. Inj at 26-31, the Court adresses both the request for preliminary injunctive relief and the merits of Coun TV. As desribed below, DIBC's request for prciminary injunctive rele wil be dened for lack of ixeazble haem. With respect to Count IV, the Cust wil grant Federal Defendants" Motion to Dismiss and deny DIBC’s Motion for Summary Judgment. ‘A. Preliminary Injunction DDIBC contends that immediate judicial intervention is required to preserve the status quo in the “race” betwoon the proposed Twin Span andthe proposed goveramen-ovmed NITCIDRIC, Pls, Reply to Mot. for Prefim. In. (Dit 151] at 2 fthe Coast Gard grants the [NITC/DRIC a navigational permit, it wil have proved the last federal approval needed for that ‘unlawful bridge, and will have catapulted the NITC/DRIC ahead of the Twin Span in what the 20[US] State Department itself described asa ‘race’ between the two projects”). Federal Defendants oppose DIBC's motion for preliminary injunctive elie, arguing that DIBC's claims ate not ripe for review or fil to satisfy the requirements for preliminary injunctive reli ‘Canada also as expressed its concem that “[DIBC’s] Motion actually seeks a declaratory judgment and injunetion against Her Majesty the Queen in Right of Canada andthe Windsor Detroit Bridge Authority... because an order blocking the [NITC/DRIC] Bridge from any advancement, and a declaratory judgment on any alleged Special Agreement, will afet all Defendants equally.” Canada Opp'n fo Mo, for Prelim. Ij, [DKt, 148) a (On April 30, 2014, DIBC offered the testimony of Matthew Moroun, Viee Chairman of both DIBC and CTC, Mr. Moroun testified that if the government constructs the \NITCIDRIC bridge, DIBC will not be able to secure funding for the Twin Span project because there is no economic justification for two addtional bridges based on curent trafic projections. ‘Thos, Mr. Moroun elaborated on his declaration, which stated that, "[bly preventing DIBC and CTC from building thie Twin Span, Defendants ae causing DIBC and CTC to suffer harm right now in ways that are difficult to measure but are nonetheless real.” Mot, for Prelim. In Declaration of Matthew Moroun (Moroun Decl) [Dt 143-5} $10. A district court may grant a preliminary injunetion "Yo preserve the relative postions ofthe parties until atrial on the merits can beheld.” Univ of Tex». Camenisck, 451 US. 390, 395 (1981). An injunction is an equitable remedy, a0 is issuance falls within the sound discretion of the district court. See Hecht Co. v. Bowles, 321 US. 321,329 (1944). To obtain a preliminary injunction, the movant must establish that (6) itis tkely to sucveed on the merits a(©) itis likely to suffer ireparable harm in the absence of preliminary relief (6) the balance of equities tips in its favor; and (© an injunction isin the publi interest. Winter v. NRDC, ne, $55 US. 7,20 2008). The D.C. Circuit has further instructed that “the ‘movant has the burden to show tha all four factors... weigh in favor ofthe injunction.” Davis Pension Benefit Guar. Corp., 571 F-3d 1288, 1292 (D.C. Cit, 2009). Whether DIBC will suferireparable harm absent an injunction is an important issue, particularly because the central purpose ofa preliminary injunction isto maintain the relative positions of the parties pending a final determination on the merits. See Dist. 50, United Mine Workers v.In'l Union, United Mine Workers, 412 F.2d 165, 168 (D.C, Cir. 1969) (“The ‘usual ole ofa preliminary injunction sto preserve the status quo pending the outcome of| litigation”), Ifthe Coast Guard grants the NITC/DRIC navigational permit, it would disrupt the status quo insofar as both bridge proponents are currently awaiting Coast Guard approval, The parties dispute whether a navigational permit isthe last regulatory barier before constuction of the NITCIDRIC, but the Coast Guard does not seriously dispute its willingness to issue @ navigational permit tothe government-owned bridge Upon close cxamination, the Cour finds that DIBC’s contentions are unduly speculative and, therefore, insufficient to justify preliminary injunctive relief. DIBC's inability to obtain private capital if goverument bridge is perceived fo be ahead oft presents areal and ‘imminent harm, but the degree ofthis harm is not clear. Mr. Moroun avers that DIBC will suffer iereparable harm ifthe Coast Guard “prevents” DIBC from building the Twin Span. See Moroun Decl. 410. On this record, the Court cannot reliably determine whether the Coast Guaed will 2issue a navigational permit othe NITCIDRIC. The Coast Guard has not issued a decision onthe [NITCIDRIC permit application, and DIBC knows neither he substance nor the result of any forthcoming recommendation. See Mot. for Prelim. I., Declaration of Heather King (King Dec [Dkt. 143-4] 17 [Coast Guard] Commander Pavilonis explained that was is understanding thatthe Cleveland office had finished its review ofthe NITCIDRIC application, and was ‘ahout to" send its recommendation to Coast Guard headquarters” emphasis added); 44,4 8 (tating hat Plain counsel “elie tat the Coast Guard's decision reguding the .NITCIDRIC application may be iosminent”), ‘Moreover, DIBC offers no evidence tata navigational permit would make the constuction ofthe NITCIDRIC inevitable or imminent. Both the Twin Span and the [NITCIDRIC are embroiled in significant legislative mancuverng and funding negotiations that rust be resolved before construction oftheir respective bridges can begin. At the preliminary injunction hearing, government counsel represented that Canada will buy the necessary land in Michigan and fund the entire NITC/DRIC project, because of opposition tothe expenitur in the Michigan legislature, This alleged financial arrangement cold prompt the Stat of Michigan or ite citizens to contest various aspects f the NITC/DRIC pejet, including wheter the Sate of Michigan can exercise eminent domain to condemn private property when a Forcign government sas purchaser, This concem is heightened by the fact that iti unclear whether CCanads or the State of Michigan will pay for a U.S. Customs Plaza for the NIT legal or practical issues unrelated to actual construction of the NITCYDRIC are foreseeable, and these issues could lead the Coast Guard to doubt whether the State of Michigan can aequte the necessary property rights. Such doubt and speculation significantly undermine DIBIC's claim of inroparable harm, 23DIBC ocevpies tenuous financial position because ofthe proposed consruction ofthe NITCIDRIC bridge. DIBC intends to build the Twin Span to divert cuenta and retain coll evenue while the Bridge Company performs restorative work on the Ambassador ridge. DIBC contends that fits prevented from building the Twin Span, the Coast Guard will have destroyed DIBC’s statutory right to maintain the current Ambassador Bridge, DIBC's argument transcends mere economic arm, a the Bridge Company contends tht “[b]y preventing Plaintiffs rom improving ther bridge crossing for her actual and prospective customers, Defendants are harming Plaintiffs competitive positon in away that is impossible to measure, bats nonetheless real and eparable.” Mot. for Prem. Ij at 38 (citing Bayer HealthCare, LLC v. US. Food & Drug Admin, 942 F. Supp. 24 17,26 (D.D.C. 2013). In Bayer HealthCare, the Court found that a dug manufacturer would suffer inrepaable harm if a ess expensive drug with the same efficacy entered the market, 942F Supp. 2d a 25-26. This Court, relying in pat on the imminent decline in Bayer’ marketshare, price erosion, loss of customer goodwill, and loss of research and development funding issued a temporary retaining order vacating FDA’s approval of competing dug product. M227. Unlike Bayer, however, the Coast Guard has not engaged in any final agency ation that would pose an imminent or immediate threat to DIBC's market share. Even ite Cost Gard were to issue a navigational permit to the NITC/DRIC, tis not certain that DIBC would suffer any immediate harm or impact. DIBC concedes in briefing tha ireparable harm would occur upon ‘construction of tie NITCIDRIC. See Mot. for Pelt. Ina 24 (ootng that constuction of the NITCADRIC will prevent Plaintisfrom exercising their statutory franchise rights). But constriction ofthe NITCIDRIC is by no means imminent or inevitable; instead, the bildng of the proposed government bridge qualifies as the sort of potential but uncertain injury that 4precludes preliminary injunctive relief. See Wise. Gas Co. v. FERC, 758 F.24 669, 614 (D.C. Cit. 1985) (“njunctve relief “will not be granted agains something merely feared as lable to ‘occur at sme indefinite time." (quoting Connecticut v. Massachusetts, 282 US. 660, 674 (1931). Since the movant beats the hurden of demonstrating ll four fuctos, see Davis, 571 F.3d at 1292, the Court will deny DIBC's Motion fora Preliminary Injunction for lack of inceparable harm. 1B. Count tv ‘Count IV involves a dispute between the parties as to whether DIBC is requited to acquire an ar rights easement over Riverside Park before the Coast Gust issues a navigational permit for the Twin Span. For purposes ofthis litigation, the Court attempted to bring the Coast Guard and DIBC to resolution by ordering DIBC to resubmit is application fora navigational permit and ordering the Coast Guard to process the application “at least until the Coast Guard decides whether an Environmental Assessment and Finding of No Significant Impact would satisfy the National Environmental Protection Act, 42 U.S.C. § 4321, ef seg," without respect to ‘whether oF not [DIBC] owns land or sir rights” to build the Twin Span, See Onde in Furtherance of Settlement [Dkt, 60] a In response tothe Court's Order, the Coast Guard identified “two obstacles” to permit issuance: (1) the Michigan State Histor 1 Preservation Office (SHPO) had requested ‘more information related to the impact ofthe Twin Span on historic esourees, i, the eighty= "The National Enviconmental Protection Act (NEPA) requites agencies to prepare a detailed, compretensve environmental impact statement (EIS) ia proposal constitutes a “major Federal ‘cton{ ] significantly affecting the quality ofthe human environment.” 42 US.C. §4332@)C). However, an ageney may fist issue an Environmental Assessment (EA), whichis a shorter and less-detaled document, o determine whether an EIS is required. Uf, based on the FA the agency finds that an EIS isnot required, the agency may issue a “Finding Of No Significant Impact” (FONSD, which fulfills NEPA's documentation requirements, See TOMAC v. Norton, 433 F.3d 852, 857 (D.C. Cir. 2006),year-old Ambassador Bridge, and (2) EPA had expressed concoms regarding he Twin Spa's ar ualty impacts, See Fed. Del Opp'n to EA/FONSI Processing [DKL 66] a4. Aer working ‘with both agencies, the Coast Guard reported that “both the SHPO and the EPA agrecd that an EA/FONS! may be appropriate" and each agency recommended aditional public notice and comment, 1d. EPA has confnned in writing thatthe Twin Span “will nt cause or contribute 19 Violation” ofthe relevant ar quality standards, which resolves EPA's outstanding regulatory issues with the Twin Span. Pls. Reply to MSI, Ex. 16 (Aug. 22,2012 Leter from EPA to Coast Guard) [Dkt. 110-1 5] 482. SHPO also has confirmed in writing that it needed no further consultation and that “the curent [Memorandum of Agreement to preserve the Ambassador ridge] is sullicieat o mitigate impacts fom the proposed redesign." Fed. Defi. Opp'nto EAFONSI Processing [DI 66], Ex. A Gly 28, 2012 SHPO Email) [Dkt 66-1} a2 ‘Accordingly, the Coast Guard found that a FONSI may be appropriate, but recommended a notice and comment period. Despite the Coast Guard's conclusion that a FONSI would satisfy NEPA and that ¢he Twin Span would not impermissibly itnpact histori sources the Agency continued to insist that te reglations bart from issuing a navigational permit to DIBC because DIBC could not demonstrate that it owns the necessary property interests, i, an ar ight easement over Riverside Par, Having failed to sete ths mater, the parties resumed briefing on legal motions inthis case, As discussed below, the Court finds that the Coast Guard's decision to return the ‘Twin Span permit aplication is ripe for review, but thatthe Coast Guard has profered reasonable interpretations of is enabling statues and 33 CER, § 115.05,1. Ripeness ‘The Administrative Procedure Act conditions judicial intervention on the issuance of fina agency decision. 5 U.S.C. § 704 (Agency action made reviewable by saute ad inl agency ation for which there sno other adequate remedy in court are subject jul review") see Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm'n, 324 Bd 1726, 731 (DC. Ci. 2008) (I there was no inal agency ation hte theres no doubt that ‘sppellant would lack a cause of action under the APA"). The Coast Guard argues that it as not {ssuod final decision on DIBC’s pemit application, and thas, tere hasbeen n0 action subject to challenge under the APA. For agency ation to be considered “fnal," two conditions must be satis. First, the ation “must mark the ‘consummation’ ofthe agency's decisionmaking process—it sst not be of a merely tentative o interlocutory nature." Benet. Spear, 520 US. 154, 177- 178 (1997) (intemal ci fon omited), Second, the ation “must be one by which “ights or obligations have been determined,’ or from which “legs consequences willow.” Ia 178 (voting Port of Boston Marine Terminal Ass'n. Rederakticbolaget Transatlantic, 400 US. 62,71 1970). Judicial review only extends to administrative ations in which both conditions have been met, Sew Cir for Ao Safety & Pub Citizen, ne, w. Nat'l Highway Trafie Safety Admin, 452 B34 798, 807-11 (D.C. Ci. 2006), ‘An agency's denial of permit application can be just as inal a decision ranting a permit, “To detemine Finality, cours must decide “whether the agency's position is definitive and whether thas a ditectand immediate effect onthe day-to-day busines of the panties challenging the action. Her Majesty the Queen in Right of Ontario v EPA, 912 F.2d 1525, 1531 (D.C. Cir. 1990) (quoting Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 435-26 (D.C. nCit. 1986) (internal alteration and other istion omitted). “The inquiry seeks to distinguish a tentative agency poston fot the situation where the agency views its deliberative process as suffcinty final o demsand compliance with its announced postion. 1 (intral quotation marks and citation omitted) “The record shows that the Coast Guard inialy tated DIBC"'s permit application as “complete” see Pls. MSS at 12, but now isis that it was incomplete ecanse the Coast Guard relied on DIBC assurances that the Bridge Company would acquire an sr rights easement cover Riverside Park. Due to DIBC’s fire to acquire an ar ights easement, the Coast Guard ‘ctumed the Bridge Company's “incomplete” aplication in 2010, and then informed DIBC and the Court in November 2012 that i could not complete its processing of the navigational pennit forthe same reason. “The Cour finds thatthe Cost Guards decision to return DIBC's permit pplication constiued final ageney action. While the Coast Guard didnot issue a final decision inthe binary sense. a grantor denial ofthe navigational permit, is decision o return DIBC’s ‘permit application cannot be described a interlocutory. Instead, th Coast Guard has decided ‘ith finality that DIBC mast secure an air rights easement to recsive a navigational permit for the Twin Span, This determination has concusively established the Coast Guard's postion that IBC must purchase an at rghts easement over Riverside Park before the Agency will issue 8 ravigational permit, Because the Coast Guard's return of DIBC's “incomplete application imposed areal delay and cos on the Bridge Company se Pls. Prelim, ln Hearing Ex. 17 {offering $5,000,000 to the City of Detroit for an ar eights easement immediately adjacent tothe ‘west side ofthe Ambassador Bridge), it sa decision “from which legal consequences... flow.” Bennett, 520 US. at 178 (internal quotation marks omitted). ‘Thus, the relevant inquiry isnot 8‘whether the Coast Guard has fnlly decided DIBC's permit application, but rather, wher it thas announced a position that requires immediate compliance from DIBC in ender to continue the regulatory process. On this record, ther ca be no dou thatthe Coast Guard has announced such a position, Asa result, Cunt IV ofthe Second Amended Complaints ripe for {tial review under 5 U.S.C. § 704 2, Stanory Authority (On the merits, DIBC contests the Coast Guard's theory thatthe Agency's “Necessary Primary Authority” regulation, 33 C.F, § 115.05, requires applicants to obtain all oceasary property sights before the issuance of a navigational permit. Fst, DIB argues that Congress never provided the Coast Guard ois predocesors with statutory authority to impose ditional regultory burdens on international bridges. Ia the altemative, DIBC argues thatthe Coast Guards application of 3 CHR. § 11505 tothe Twin Span is abitrary apricious, or otherwise not in accordance with law, These arguments prompt a Chevron analysis ofthe Coast iar interprets n of ts statutory authority. Ifthe Coast Guard has statutory authority to opt repultions on international bridges, the second question is whether the Coast Guard has proffered a reasonable interpretation ofits oven regulation. The Cour begins with the sattory inuiy ‘Asa threshold matter, the partes contest which state provides the bass for 33 CER. § 115.05. While DIBC argues that the "Neseasary Primary Authority" regulation was promulgated under the 1946 General Bridge Act, which applies only to domestic bridges, the Coast Guard counters that the egultion represented pre practices for all bridges and was published to comply with requirements of the Administrtive Procedure Act. »‘Tae War Department issued rules governing the navigational permit application process in September 1946, As stated ints Federal Register noice, the War Department ‘published its rules concerning navigation as required by the Administrative Procedure Act, ‘which had been adopted three months earlier in June 1946 Pursuant tothe provisions of section 3 of the Administrative Procedure ‘Aet of June 11, 1946 (Public Law 404-79" Congress), the following rules describing the organization ofthat part ofthe Comps of Engineers, War Department, concemed with the administration of laws for the protection and preservation of navigation and navigable waters of the United States, and rules of practice and procedure and substantive rules adopted in connection therewith, are hereby stated and published forthe information ofthe public.) 11 Fed, Reg, 177A-806, Section 3 of the APA required federal agencies to publish their existing rules after the APA became effective on September 11, 1946. Administrative Procedure Act, ch, 324, §3, 60 Stat, 238 (1946); see also Urban A. Lavery, The Federal Register Official Publication for Administrative Regulation, Be, Its Historical Background and Is Present-Day Meaning for The Practicing Lawyer, 7 F.R.D. 625, 626-27 (1948) (“During the ealendar year 1946 alone (when the ‘Administrative Procedure Act” ofthat year requied republication of all, existing Agency Rules and Orders) more than 22,000 documents were published in “The Federal Register. (citation omited). The rales published by the War Department “intended to show what the Department requires and haw the Department acs in a given type of ease." 33 CER. § 209.110 (1946), Thus, the Part 209 regulations publicized pre-existing rules and practices adopted and followed by the War Department in reviewing applications and approving bridges over navigable ‘waters, including both domestie inter-state bridges and intemational bridges. In discussing its Part 209 regulations, the War Department stated that “abridge canaot lawfully be constructed across any navigable waterway ofthe United States until 20legislative authority has been obtained and the plans have been approved by the Chief of Engineers and the Secretary of War" 33 CER, §209.120((1) (1946) (emphasis added). In its section on “General polices on isuance of pemit,” 33 CER. § 208.30, the War Department advised that "the decision a5 to whether a permit will be issued must rest primarily upon the effect of the proposed work on navigation,” but that “in cases where the structure is unobjcctionable fom the standpoint of navigation but ( State or local authorities decline to give their consent forthe work, ts nat usual forthe Department actully tissue a penn 1d § 209.330(@). The War Department also warmed that" Jn cases ofconficting property rights the Department canna undertake to adjudicate rival claims.” 1d § 209.330(b). Ther is no indication thatthe War Department rules distinguished between domestic and inteational ‘bridges, both of which had been subject to the same approval process under the 1906 Bridge Act. IBC argues thatthe only statue that canbe read to authorize a regulation like Regulation 115.05 is the General Bridge Act of 1946, which granted discretion tothe War Department to impose any conditions relating tothe maintenance and operation of interstate domestic bridge structures, See 33 US.C.§ 525(b) The Court disagrees. While the language of ‘congressional delegation has changed, iis clear that the 1906 Bridge Act contemplated expert, ‘oversight and, more importantly, that the War Department had adopted internal practices to cary ‘outits responsibilities under the 1906 Bridge Act, which formally published a “regulations” afer the APA was adopted in 1946, Sze 1906 Bridge Act, ch 1130, § 1,34 Stat. 84 (1906) (granting authority to approve plans, specifications and the proposed location for brides). ‘White the matters not entirely free ftom doubs, the record indicates tha the regulations published by the War Depart in 1946 represented practices that applied to domestic and iemational bridges. 31“The Coast Guard inherited reles governing navigational permit applications from the War Department. See 32 Fed. Reg. 5611 (reciting the delegation of authority fom the ‘Seeretary of Transportation tothe Coast Guard and stating that the Coast Guard would continue {neffect all prior orders, determinations, rules, and regulations). Ths delegation of authority listed the statutory authorities by which the Coast Guard would oversee bridges, including the 1906 Bridge Act and the General Bridge Act of 1946. Using its delegated rulemaking authority, the Coast Guard reorganized and revised the prior regulations and published regulations eating to bridge permits at 33. CER. Parts 114 and 115. Compare 33 CPR. §§ 114.01-115.70 2013) with 33 CFR, §§ 209.110-209,520 (1946). Given this stautory history, the Court finds thatthe “Necessary Primary Authority” regulation was promulgated under the authorities of both the 1906 Bridge Act, which applied to domestic and international bridges, and the 1946 General [Bridge Act, which applies only to domestic bridges." Asa result the Court proceeds toa ‘Chevron analysis to determine whether 33 CFR, § 115.05 is reasonably authorized under that statutory enactment IBC contends that, “[e}ven if Regulation 115.05 was intended to implement the ‘War Department's powers to grant navigational permits under the 1906 Bridge Act to Congressionally-approved, international bridges, there is no way to read that statute as authorizing the regulation." Pls. MSI at 40 (emphasis in original). The Coast Guard insist that 33. CFR, § 115.5 is authorized under the Agency's stattory authority to regulate the plan, specifications, and location of bridges. "To bolster its authority to issue 33 CFR. § 115.05, the Coast Guard erroneously relies on the authority granted tothe Commandant o “seve rules, orders, and instructions, not inconsistent ‘with law, relating othe organization, internal administration, and personnel ofthe Coast Guaed” I4USC. § 632 (1949), This statute allows the Commandant to establish rules for the internal ‘operations ofthe Coast Guar it docs not authorize the Commandant to engage in rulemaking afeting the public or, more directly, with regatd to bridges 2‘The 1906 Bridge Act prohibits the construction of any congresionally-authorized bridge until the plans and specifications for its construction, together with such drawings of the proposed construction and such map of the proposed location as may be required for a foll understanding of| the subject, have been submitted tothe Secretary of War and Chief of Engineers for their approval, nor until they shall have approved such plans and specifications andthe location of such bridge and avvestory works. 1906 Bridge Act, ch. 1130, § 1,34 Stat 84 (1906). DIBC argues that this language "says nothing about the authority ofthe agency charged with granting that permit to do anything other than assess the ‘plans and specification,” and to ensure thatthe proposed bridge shall not “unreasonably obstruct the fee navigation ofthe waters over which itis consited." Pl. MSP a 41-42 (cing 33 U.S.C. § 491) (emphasis in original). In other words, DIBC contends that he Coast Guard is foreclosed from relying on rfes that concern any topic other than navigbility See dat 42 ("Ther is simply no statutory text inthe 1906 Bridge Act that canbe read 9 suthorize the agency... t require] tht permit applications must demonstate ‘primary authority’ asa condition for obtaining a permit under the Act). The Coast Guard counters that the “primary authority” requitement in 3 CFR, § 115.05 falls within the Coast Guar’ statutory authority to consider the “laction” of bridges. ‘The statutory text doesnot unambiguously dictate a foreclose either paris’ interpretation. The 1906 Bridge Act provided that even congressional) authorized bridges were subject to War Department review ofthe “plans and specifications” and the “proposed location’ while also requiring War Department “approval” See 1906 Bridge Act, ch. 1130, § 1,34 Stat. $84 (1906). What the 1906 Bridge Act didnot state clearly is whether these matters were designed to interact, such that the plans, specification, and proposed locations were factors forreceiving War Department approval. Moreover, the saute is ambiguous as to how the “proposed tcaton” shouldbe defined, While that em could be read to require notice of a proposed location so that any effect on navigabilty coud be analyzed, it coud also be inverpreted as requiring definite location upoa which the proponent has legal sight o build so that a navigability assessment is reserved for bridges ‘hat are likely tobe constructed. The Court finds thatthe 1906 Bridge Act is ambiguous, particulary onthe latter point, and therefore considers whether the “Necessary Primary Authority” regulation is a reasonable interpretation of the Coast Guard's statutory authority. ‘Where “an agency enuncate its interpretation through notice-and-commentrule- ‘making or formal adjudication, [courts] give the agen:y’s interpretation Chevron deference.” ‘Mount Royal Joint Venture, 477 F.3d at 754 (citing United States v. Mead Corp., $33 US.218, 230-31 (2001). The “Necessary Primary Authority" regulation was not promulgated through ‘otice-and-comment rulemaking in 1946, However, ‘particular deference” is owed to “an agency interpretation of longstanding’ duration.” Se» Barnhart v. Walton, 535 US, 212, 220 (2002) (quoting North Haven Ba. of Bd v. Bell, 456 US. $12, 522 n.12 (1982). An agency's ‘interpretation that i permissible and reasonable receives contrlling weight, Moun Royal Joint Venture, 477 P34 at 754, “even ithe agency's reading differs from what the court believes is the best statutory interpretation,” see Natl Cable & Telecomm. Ass'n, 545 U.S. at 980, ‘The Coast Guard and is predecessor, the War Department, have interpreted the 1906 Bridge Actas authorizing proof of “Necessary Primary Authority” for intemational and domestic bridge builders. 33 CFR. § 115.05 specially provides that [if the law of the State requires a license for oF approval of the bridge from a constituted State agency, a copy of such license or approval will be required and may be acepted as evidence of the Primary authority, I there is no State regulation of bridges in “navigable waters, the necessary primary authority may be that ranted in the charter of a corporation, ofthe authority inherent in the ownership af the land on which the structure is laced. Special are wil he taken that Federal appraval isnot granted when there is doubt of the right ofthe applicant to construct and utilize the bridge. 33CER.§ 11505. In other words, 33 CFR. § 115.05 permits the Coast Guard to consider ‘State approval or, in the altemative, some charter or land ownership sufficient to find thatthe proponent would actually beable to construc abridge at the proposed location. Regulation 115.05 does nt strictly require “Necessary Primary Authority" i the sense of some authority that isa snout to congressional approval. However, the exercise of judgment and expertise i ‘what Congress contemplated when it charged the War Department withthe as of approving individual bridge specifications. See Cnty. of Los Angeles v, Shalala, 192 F 3d 1008, 1016 (D.C. ix, 199) (Where... Congress enacts an ambiguous provision within a statute entused to the agency's experts, thas “implicitly delgated tothe agency the power to fil those gaps." (voting Nat'l Fuel Gas Supply Corp. v. PERC, 811 F.24 1563, 1569 (D.C. Ci 1987). The ‘Coast Guard has provided a reasonable interpre ton of the 1906 Bridge Act, which allows itto approve the plans specifications, and locaton ofa proposed bridge, Whether local property rights are considered prt of the “plan,” “speciation,” o “locaton, the 1906 Bridge Act suthories the Coast Guard oinerpret these terms as patos authority to approve applications for navigational pemits. Therefore, the Court concludes that Congress provided the Coast Guard with statutory authority to condition navigational permits on the acquisition of necessary property rights. 3 BORK § 11505 ‘A separate but related inguity is whether the Coast Guard has advanced a reasonable interpretation ofits own regulation. An agency's interpretation ofits own regulations 35is entitled to deference when it“refleci{] the agency's fair and considered judgment on the ‘matte in question." Auer v Robbins, S19 US. 452, 462 (1997); accord City of Dania Beach v. FAA, 628 F.3d $81, 87 (D.C. Cit. 2010) (noting that an agency's interpretation of ts regulation is “entitled to deference so long as it reflects the agency's fur and considered judgment on the ‘matter in question, not just litigating postion” (emphasis in original) (intemal quot ‘marks and citation omitted)), DIBC argues that, even i the Coast Guard regulation is authorized by statute, the Coast Guard hasbeen arbitrary and capricious in its application ofthat regul to the Twin Span navigational permit. DIBC further contends thatthe Coast Guard's interpretation ofits own regulation as requiring the acquisition of ll necessary property rights i inconsistent with the Agency's past practices. The Coast Guard responds that DIBC cannot challenge Regulation 115.05 because the Agency has not issued final decision on DIBC's navigational permit application. However, as discussed above, the Coast Guard's retum of DIBC's permit aplication constituted final ageney action, See sypra 26-29, Since the Coast Guard's ogulaton is within the scope ofits statutory authority, the Court considers DIBC's as- applcd challenge to 33 CFR. § 11505 IBC alleges thatthe Coast Guard has neglected to apply Regulation 115.05 in ‘he Same manner to other bridge proposals, Specifically, DIBC alleges thatthe Coast Guard ranted navigational permit forthe Peace Bridge in Bufo, New York, despite the proponent’ failure to hold all necesary property rights and “heated opposition” tthe bridge cxpansion from the Cty of Buffalo, Pls, MSI at 1-52. The Coast Guard responds thatthe Cour should disregard the Ageny’sdevsion regarding the Peace Bridge because “elach agency decision is unique wit is own analysis and administrative record.” Fed, Defs. Opp'n to (MSI at $0. The Coast Guard also counters thatthe Peace Bride is distinguishable because the 36proponents ofthat bridge—the Buffalo and For Erie Public Bridge Authority—was established bythe New York state legislature asa public benefit corporation. Ld. In contast, DIBC isa private enty with no power of eminent domain. ld. at 51; see also Fed. Defs. Notice of Supp. ‘Auth at 525 (*Plaitfs no longer possess powers of eminent domain, and they need to sail the requirements of 33 CIR. § 115.05." “The Coast Guar’ ditnction between public and private entities is persuasive as it explains why the Cost Guard may express doubt a oa private proponents ight to build a bridge, while appearing to overlook similar deficiencies in government applications. The Coast Guard's distinction between public and private entities also explains the Agency's contrary approach to DIBC's fst aplication for @ navigational permit in the 1920's fer he Ambassador Bridge. While DIBC contends that its predecessor, ATC, had not obtained lhe necessary property rights when the War Department issued navigational permit forthe Ambassador Bridge, a tht time, DIC was treated a a quasi-governmentalenlity that possessed certain powers of eminent domain. Derot int'l Bridge Co. v. Commodities Export Co, 760 NW. 24 565, 568-69 (Mich. Ct, App. 2008) (describing a Michigan law that provided that bridge companies had “the powero condemn any and all al estate. doemed necessary forthe purposes of suk corporation”) (ting Detroit nl Bridge Co. v. Am. Seed Co, 249 Mich, 289, 296 (Mich, Sup, Ct, 1930) ut see Commodities Export Co, v Detroit Intl Bridge Co, 695 F.3d 518, 527 n.7 (6th Cir. 2012) (holding tha, while DIBC “appears tobe inthe habit of unilaterally condemning land that it doesnot own,” the Bridge Company must be treated asa Private entity lacking authority to condemn land). On this record, the Court finds thatthe Coast Guard has not applied 33 CER. § 115.05 in an arbitrary and capricious manner, To the contrary, the Coast Guard's application of Regulation 115.05 hinges on a public private 37distinction that concems an applicants authority to condemn land to obtain necessary property rights, Inthe absence of contrary evidence, the Coast Guard aconably presumes that a State ‘an exercise eminent domain to condemn any private property rights to construct a bridge, ‘whereas private enites must prove property ownership. The Cour finds that this i a teasonable interpretation of Regulation 115.05. [kis no great leap fom the principles anticulated bythe War Department in 1986 to the Coast Guard's “Necessary Primary Authority” regulation, which provides tht “s}pecil care will be taken that Federal approval isnot granted when there is doubt ofthe right ofthe spplicant to construct and utilize the bridge.” 38 CER. § 115.05. The Court canot find thatthe Coast Guard’s interpretation of 33 CER. § 115.5 is arbitrary, capricious, or otherwise notin accordance with law. The objections of local authorities to selling land from Riverside Pak'® to IRC fit within the scope of the War Department’ rules under the 1906 Bridge Act. Without an air ight easement over Riverside Park, there is ‘doubt ofthe right of [DIBC] to construct" ‘within the meaning of 33 CFR, § 115.05, DIBC’s exclusive focus on the ttle of 33 CER § 115.05—Necessary Primary Authority--ignores the substance ofthat regulation and its intended effect. The egulation doesnot require competing primary authority in a sense that ‘would rival congressional authorization. Soe Fed, Defs. Notice of Supp. Auth. at 6 (noting that the Bridge Permit Applicaton Guide “distinguishes between the legislative authority required and the primary authority required to enable construction ofthe bridge” (emphasis in original); "The Detot City Council has resolved thatthe City acquited and improved Riverside Pare with grans from dhe Natural Park Service Land Water Conservation Fund and the Michigan Natutal Resources Trust Fund. Therefore, “the State of Michigan and the Federal Government ‘would have to give permission forthe sale, and there has to be a substitution of ike parkland er the Park cannot be sold.” See Fed. Defs. Opp'a to Mot. for Prelim. In, Ex. 15 (Apr. 30, 2009, Letter for Cty of Detoit to Coast Guard) [Dt 149-15] at 4. Whether this statu affects “sir rights” over Riverside Park i not atisve here. 3«sce also id, Ex. 5 (Coast Guard Bridge Permit Applicaton Guide) [Dke. 157-5 at 13 (providing that, in cra cases, 33 CHER. § 115.05 wil be satisfied where the applicant provides “an ‘extrac from the carter and evidence of sufficient ea estate interest to allow construction of the ‘ridge (emphasis added). Moreover, the War Departments predecessor rules cautioned that, “im eases where the strctue is unobjectonable feom the standpoint of navigation but when State ‘or local authorities decline to give their consent tothe work, isnot usual for the Department actually to issue a permit” 33 CER. § 209.330(2, DDIBC further contends thatthe Coast Guard has been arbitrary and eapricious in applying 33 CER. § 115.05 toa congressionally-authorizedintematonal bridge. See Pls, MSI 849; Pls, Response to Fed. Defs, Notice of Supp. Auth at 1 (arguing thatthe Government has failed to show "Regulation 115.05 ... ever being applied to any international bridge—Iet alone ‘bing applied ina way that required the applicant to show ‘primary authority"... by ‘demonstrating ownership of every single possible propety right or easement that may be needed to build the proposed bridg.”). The Coast Guard responds that, in many cscs, the applicant submits proof of property onmership, which resolves the issue of compliance under 33. CFR $115.05, However, whenever there is doubt of an applicant’ ability to obtain al of he necessary property sight, the Coast Guard contends that it Yllows upto determine how 33 CER § 115.05 wil be satisfied. DIBCs contention that there tno precedent for the Coast Gard refusing to issue navigational pent to an ntemational bridge under 33 CFR. § 115.05 rises the Const Guard's central argument namely, that there has racy been occasion forthe Jssue to arise because most international bridge proponents eter obtain the necessary property rights before permit issuance or have the power of condensation, The Coast Guard contends that, where a bridge proponent lacks the necessary property rights, the issues are roslved. 39through informal processes far short of tigation. Fed, Defi. Notice of Supp. Auth, a 67. IBC has not presented any facts that cast doubt onthe Coast Gunes assertions. The Coast (hares not been arbitrary and capricious in its application of33 CARR, § 115.05 t DIBC. Finally, DIBC argues that, tothe extent the Coast Guard can rue some «ditional primary authority to construct a bridge, that requirnent must he stisied by DIBC's charter. See38 CER. § 118.05 (there be no Sat egulaton of bridges in navigable waters, the necessary primary authority maybe tha granted in the charter ofa corporation...” (ermphass added). The Coast Guard has rejected this approach on the ground tha “the agency needs information relating to DIBC's authority to build its proposed bridge in the location in hich it proposes before it can engage the gars of public process and governmental sproval.” Fed, Defs Opp'n to MSI a 49 (emphasis added). DIBC offers na explanation sto why the Coast Guards insistence on a navigational permit application ted to a specifi locaton is sxbivrary and capricious, Ass result the Cou find tha the Coast Guard has proffered a reasonable explanation as to why DIBC’s charter doesnot satisfy 33 CER. § 115.05, See Motor Vehicle Mfrs. Assn, 463 US. at 43 ([T]he agency must examine the relevant dats and articulate a satisfactory explanation for its ation including a “rational connection betwen the fats found and the choice made. (quoting Burlington Truk Lines v, United States, 371 US, 156, 168 (1962)). The Court concludes that the Coast Guard has proffered a reasonable interpretation of its own regulation 1V. CONCLUSION For the reasons st forth above, DINC’s Motion for a Preliminary Injunction, Dit. 143, wil be denied for lac of ireparale harm. Federal Defendants’ Motion to Dismiss Count 1V, Dit. 92, willbe granted and judgment will be entered in fivor of Federal Defendants onCount IV. DIBC’s Cross-Motion for Summary Judgment on Count IV, Dit. 96, will be denied. DIBC's Motion to Take Judicial Notice, Dt. 114, and Motion for Order Requesting Oral Argument, Dt. 121, will be denied as moot. A memoralizing Order accompanies this Opinion. Date: May 30,2014 pear ROSEMARY M, COLYER United States District Judge 4ATTACHMENT 2Fst Naru Bas fe lo Vesna Aviat, Sure 1650 ‘Bercy, ion 18263535 Pro Si32eess0 THI vor Dene [is Dena September 20, 2011 abl E, Opsommer ‘Michigan House of Representatives State Capitol P.0. Box 30014 Lansing, MI 48909-7514 Re: Federal and State Legal Restrictions on Sale of Riverside Park to Detroit International Bridge Company ‘Dear Representative Opsommer: ‘This leter is sent in response to your written request, dated August 16,2011, for futher information conceming legal impediments to any transfer of the City of Detoit’s Riverside Park to the Detroit International Bridge Company. "The Land and Water Conservation Fund A&t “The Land and Water Conservation Fund Act, (LWCFA"), 16 US.C. 460 1-1, et seq, was enacted to provide funds to assist in the development and preservation of outdoor recreational resources. (See 16 U.S.C. 46014.) The LWCFA is administered by the National Park Service. ‘The LWCFA provides tnt where property is acquired or improved with LWCFA funds, it may not be converted to non-ecteational use. Instead, such lands are to be used in perpetuity for public reereational purposes. See, generally, L & WCF Grants Manual, §660.3, Attachment B, Part IB, ‘Under very narrow circumstances, the National Park Service may authorize the ‘conversion of LWCFA parklani to non-reereational uses, To request such a conversion, the srantce mast substitute land of equivalent fair market value and “reasonably equivalent ‘usefulness and location.” 16 US.C. §4601-8 (6)(3) ‘According to LWCEA regulations, NPS will only consider approval of conversion if all ofthe following prerequisites are met: (1) All practicaaltematives tothe proposed conversion have been evaluated. (2) The fair market value of the property tobe converted has been established and the_ Fast Ninos. Buca 0 Wecowan Avene, Su 1650 Dernot Mice 40225-585, Prone sigezastss0 TVS rv ceDemeer Be stiess05 Le Dexse WET property proposed for substitution is of at least equal fair market value. 8) The property proposed for replacement is of reasonably equivalent usefulness and. Tocation as that being converted, (4) The property proposed for substitution meets the eligibility requirements for L&WCF assisted acquisition. The replacement property must constitute or be part, of a viable reevation ara, (5) Inthe case of assisted sites which are partially rather than wholly converted the unconverted area must re mein receationtlly viable or be replaced as well (©) Allnecessary ecordination with other Federal agencies has been satisfactorily complished .. (1) ‘The guidelines for environmental evaluation have been satisfectorily ccmpleted and considered by NPS during its review ofthe proposed 6(1)2) action (8) State intergovernmental clearinghouse review procedures have been adhered to . (©) The proposed conversion and substitution are in accord with the Statewide (Comprehensive Outdoor Recreation Plan (SCORP) and/or equivalent recreation plans. See 36 CER. § 59.300) ‘The National Park Service possesses broad authority to seek coercive remedies against LWCF grantees who violate the act. See L & WCF Grants Manval, §660.3, Attachmest B, Part TC end $675, gan Natural Resources Trust Fund Act Like the Land and Water Conservation Fuid Act, the Michigan Natural Resources Trust ‘Pune Act ("MNRTFA"), codified at MCL 324.1901, et seq., was enacted to acquire lard or rights in land for public ecteational purposes and to develop public recreation facilities. See MCL. 324.1908 (1).Past Nene Baton {60 Woocmnnn Av Sus 1650) Denn, Meca 26853 Prov Sigzziedss0. TTY vor Denar oe sibeess08 Ear Dawa mera. ‘The MNRTFA is administered by the Michigan Natural Resources Trust Fund Board of Trustees ("the Board”), and the Grants Management Office of the Department of Natural Resources ("DNR"). The Board has promulgated writen policies elatingto the MNRTFA, Bbard Policy 98 provides: “Property soquired or developed with Michigan Natural Resources Trust Fund (MNNTR) assistance, inclnding both State and local projects, shall be reteined and preserved in its natural state including development needed to provide for outdoor public recreation use as st forth in the MNR'TE application. Property acquired or ‘developed with MNTRF assistance shall not be wholly or partially converted to other thi public outdoor recreation use without the approval ofthe Department ‘of Natual Resources (DNR) and MNRTF Board and the implemertation of smitgation measures approved by the DNR and the Board, ‘The Board shall adopt ‘procedures that futher define and delinete the implementation of this policy.” ‘The Board has sdopied Policy Implementation Procedures for Bostd Policy 94.1, which sae attached. Prohibited conversions include the following: = “Leasing or othe wise granting control of all ora portion ofthe MNRTF-assisted project area to another entity,” "The sale or transfer (including trading, giving away or granting permanent ‘agements) to lands or rights in land within the MNRTF-asssted project area to smother entity = "Permanently closing all ofa portion ofthe MINRTF-assisted project area to the public.” Policy Implementation Procedures for Bosrd Policy 94.1 also provides that “For project _areap that have also received grant assistance under other programs, such asthe Lang and Water ‘Conservation Fund, the most stringent of the program requirements will govern ny proposed Application of Land and Water Conservation Fund Act and Michigan Natural Resources “Trust Hund Act to Kaverstde Fark. Riverside Park was acquited and improved with funds provided under both the Land and ‘Water Conservation Fund Act and Michigan Natural Resources Trust Fund Act. Therefore, the CCity cannot sell the park to another entity, such asthe Detroit Internationa! Bridge Company, or allow the park tobe used for purposes other than publi recreation, such as the erection of a privately-ovmed bridge. Ifthe City were to sell Riverside Park or permit to be vsed forthe construction of a privately-owned bridge, this would expose the City to potential sanctions byBsr Nevo Bre x 60 Vooowern Ave, Sore 1650, Darna Monon 82365535 Puonesioeaeasso Fret (Grvror Detar Pac haanessos a Dense veeaM.coW ‘both the federal government and the State of Michigan, ‘Under certain circumstances, a grantee of LWCPA or MNRTBA funds may request approval ftom state and federal authorities to convert property to non-icreational purposes. Hoviever, this would be problematic in the present case for several reatons Fist, as noted above, the grantee must substitute land of equivalent fair market value and “reasonably equivalent usefulness and location.” Riverside Park, is, as its name indicates, ocated on the Detroit River, which greatly increases its market value. Few ~if any riverfront parcels exist of reasonably equivalent size and value, having teasonably equivalent usefulness, which ae located in the same general area. = Second, under LWCFA regulations, the National Pazk Seevice will only consider 'spproval ofa conversion if “All practical alternatives tothe proposed conversion have boon evaluated.” Arguably, there are practical altematives to the use of Riverside Park to constmct an additional bridge to Canada, because another Potential site the New Intemational Trade Crossing ("NET site, has been identified to serve this purpose. ~ Third, conversion of LWCRA/ MNRTFA parkland mast be consistent withthe ‘Statewide Comprehensive Outdoor Recreation Plan (*SCORP"), Michigan's SCORP (which is available on-line) evidences a strong commitment to not only "maintaining the amount of LWCFAJ MNRTFA parklan¢, but increasing public ‘outdoor opportunities inthe state. In particular, Michigsn’s SCORP recognizes ‘that maintaining outdoor public recreation opportunities fr residents of urban ‘communities, such as Detrit, is an important priority. Michigan’s SCORP notes: ~ “Urban Opportunities ‘An important case for targeted action is restoring or enhancing. impaired outdoor recreation resources in urban environments, Urban residents often have bome the burden of pollution, and nearby potential recreational environments such as urban Waterfrents have been less than desirable recreation sites. The growing movement for greenways, walkable ‘communities and restoration of degraded urban natural resources ‘9 provide quality outdoor recreation opportunities represents a priority resource conservation issue in Michigan's SCORP.” (Michigan SCORP, 2008 2012, page 71, emphasis added.) “The conservation of natural resources was rated ae the most important of all the priorities of the 2003-2007 SCORP by voters and local parc and recreation agency administrators in our statewide surveys for the 2008-Fer Neos Buns fe eb vcore Aveo, STE 1850 Berar, Micon 8236-3598 Prone Sigaonasso FIV, Cry oF Dero Pax 312405505 [ew Denar Soamarna.oy 2012 SCORP. Natural resource based recreation brings all into close contact with nature and provides a compelling rationale and commitment to conservation, These opportunities need to be expanded and given priority in urban areas.” (Michigan SCORP, 2008 2012, page $1, emphasis added.) “The supply of recreational lands and facilities is not always readily aocessible for much of the state's population and visitors, withthe ‘majority of public land in the northern two thirds of the state where 15 percent of the population eside. However, restoration of urban environments coupled with developmen renovation of outdoor recreation Tacilities in or near population centers is feasible and can provide significant outdoor recreation opportunites fr the majority of the state's population, Land acquisition by local an¢ state agencies in and near uzban ‘reas also provides increasingly valued idands of green space.” (Michigan ‘SCORP, 2008 2012, page 9, emphasis added.) - Fourth, zequests for conversion of LWCFAJ MNRTEA parkland are committed to the discretion of state and federal authorities. The Michigan Department of "Natural Resources (MDNR) hes already indicated its desire that Riverside Park continue to be used for public recreation purposes. In a 2009 letter tothe City (Gee attached), MDNR noted tht Riverside Park was acquired and maintained with LWCEAJ MNRTFA funds, and that asa condition of receiving these grants, the City committed to “keeping Riverside Park cpen and available for outdoor public recreation.” The letter went on to acknowledge that a conversion request could be Bled, bat that “The Department would prefer the City 9 operate and maintain the facilities for the purpose for which these grant opportunities, provided assistance forthe development of Riverside Park.” ‘The leter’s author concluded by stating: “Look forward to seeing Riverside Park available forthe public recreation uses that it was originally intended to provide.” = Fifth, the transfer of Riverside Park to DIBC forthe construction of a privately- ‘owned bridge would be contrary to the City’s Master Pan of Policies (‘the Master Plan”). The City's Master Plan shows Riverside Park as “PRC” - Recreation, and ‘cxpresely includes the following in its “City-wide Policies for Parks, Recreation and Open Space: :DOCALITGANBRANEORLTRECSST WEDsr Nano, Boas fe et Wooowan Ave, Sere 1650 emery, Moca 48226595 Pome siga34e6950°TTYIT (avon Dera Fux 31372405505 [aw Denar GOAL 4: Protect and utilize the riverfront as an open space and recreational area, Policy 4.1: Require development projects to include public acoess along te riveriront Policy 4.2: Proteet and maintain existing parks and other public spaces along the riverfront. (Emphasis added.) ‘A formal amendment tothe City’s Master Plan would be necessary for any change: ‘inland use. The Municipal Planning Act P-A. 285 of 1931) spells out the steps for master plan amendments, which inclode public heatings, and require :municipaltes to notify and seek comments from neighboring juristctions, the ‘county, the region, and any registered public utility company, railroad, or other ‘government entities regarding the municipality's proposed amendieat of revision of an existing master pan. = Sixth, only the grant recipient, the City of Detroit, may request conversion of Riverside Park to non-tecreational uses, and this decision would be within the iseretion ofthe Mayor's office, based on an analysis of multiple considerations relating tothe best interests of the citizens ofthe City and other public policy factors. While the City’s positon could change at some point inthe fatue, at the present time, there is no plan by the City to initiate this process. (Noxeover, even ifthe conversion of Riverside Park were initiated and approved by state and local authorities the actual ransfer of Riverside Park would have to be spproved by the Detroit City Council, There is no evidence tha the Detroit City Ceuncil supposts the transfer of the Park to DIBC at this time.) ~ Seventh, even if the both the Mayors office and the Detroit City Counc were 10 determine that it was inthe best interests of its residents and consistent with broader public policy to trnsfer Riverside Park to DIBC to construct a privetely- ‘owned bridge, and that all ofthe requirements for such a conversion existed, this isa multi-year process. Tt would be improper to make decisions related tothe [ITC Project based on the assumption that Riverside Park can be transferred to the Detroit Intemational Bridge Company unless and until this process has been initiated and complete, 1m summary, both the Land and Water Conservation Fund Act and Michigan Natural Resources Trust Fund Act would prohibit the City of Detroit from transfering Riverside Park to the Detroit Intemational Bridge Company or allowing th park to he used for the construction of.age Nene Buta ‘60 Woop Avot, Sue 150 Demon Mise 48226-3508 Drowesiganeesso. TSI Pox slsz24e05 a privately-owned bridge at this time. The City could request approval of such a conversion from ‘state and Jocal authorities, but the City has no plan at this time to initiate this process, andthe ‘conversion rocess and approval ofthe transfer would be problematic for multiple reasons in this instance in any event. Please contact me if you have any other questions regarding this matter. "CoB Deohe Bie B. Guabo Senior Assistant Corporation Counsel Direet Dial (813) 237-3052 E-mail: gaabe@ detroitmi.gow IocRLMOAABEMIRHOLTRECSS.FDPOLICY IMPLEMENTATION PROCEDURES FOR BOARD POLICY 94.4 PROCEDURES FOR BOARD POLICY 544 CONVERSIONS OF THE UNRTF PROJECT AREA #47 Proper acquis er dovloped wit Wchigan Natu Resouces Trust Fund (NTF) ‘2sestance, nung both Sate ad loa procs, hale reanod ad presen ts ‘ature tae cung cevolopmers.nescd to provid for outor publ recreation ise a6 sat form intro nT appleaion. Property acqured or developed vtn MNT? asstance shal note whol or pata converted eter han pub outdoor rcreton ue witout the {approval ofthe Deparment of Natl Reeouoes (ONE) and MNRTF Board ai he implementston of miigaten moasires approved ty the ONR and te Board. The oad shall ‘pl procedures thet futher deine and cesnoat he Irlemrtatn of is peboy. (10-19-24, Srunded Tai, 24nd SEZ) 4) Definition of Conversion Conversions inaude al he follwing 4. The adton ofan pu or prvte facies ther than outdoor erection tiles and {aclesoeupport ctdoor creation wit the Machlgan Netra Rosourooe Tet Fund (NRF projet oa. Ths inausea the alo of alla over, rai, centy ‘contr, ionsipage hal, and indoor rcretn facies. 2 ‘Making use of sv exing suc In the project rea for puroese oer than bli outdoor feateston. Shottrm uses (generat tus han ane yaar) awa consisered scomversion, but are condor a projoct nang requiring por Gopariment ct Natal Resurens (NF) ‘pproal pursuant to Board Paley 00-1, Leasing or others granting contol of al ora poton of the MNRTF-aseeted tee area to snoter sy 8) Shore fase (goneraly under oe ye tat have minimal negative Imasct onthe resteationalerresouos protection vauos of project rea and icles 30 ot ‘ansdafed s conversion, but ao svaye conslaared a poet ange requlng rior DNR. ‘spprovalpurcuant to Board Policy 0-1 1) Leases cf he project area or ait forthe purpose having sn enlty opr the project ss of facto on bata of that ecient for outdoor recreation puncees i rol ‘censored 2 conversion, however, fnsng reclris shoud ake te DNF awa of ‘operational eases and provide 3 copy to ONR Gren eanagement ob Hed the projet te. 4 These ortroncer (nang train, gung away o granting permanent essoments) to lands ‘origin and wit the MNFET-aeastou projet reat eos ety, 5, Permarenty closing all ora paron ofthe MNRTF:acsctd projet ae tothe ube, Nor Sexmanent closures are considered a prejet cnange and are sovered by Boar Policy 06st 8. Loss ofpubie access too usefulness ole orton cf the projet area or NNRTF-eesaed {oles a8 «rest of mineral explottion of devlopmont aches may represen a peojct change per Boar Poiey 00-4) ora conversion. While tie rant repent may nt be als to {anol mineral civ when mineral ighs ave cwned by someone eter tan the gran ‘ecbent, they ao required to rigs ary naga impact on the publi oxacoor aration ‘ppomtaies proved by MNRTF aesistanco, 7. Loss of te propery eminent domain. eae warapenart Deputment toa Resouces Revrnorente 28 2»POLICY IMPLEMENTATION PRCCEDURES FOR BOARD POLICY 94.1 2) Mitigation Requirements |, Conversion ofan Acquistion Project Area Comersons of proper cued wth MNRTF assistance shallbe miigated with tho don of non rare roperty thal wae nt n puble ganar ale tne of he 2) Tha Boand may ao ais eserotion sd on a casoby.case bess, conser and approve oho fons of miigaten, including cash repajmont the HNETF, wen fs bosn demonseateta the Bors satisacton tht no vale replacemsrt ropety canbe fund )_Aemative forme of miyaton, etucing cash payment, shal be based on ho [DNR-aporowed appraiged vale ofthe property athe tne of conversion or he rgind avr soi. whichever geste 8, Conversion of e Davelopment Project Area ‘Tha preferred method of migating conversions of properties daveloped with NTE BaiEanc eth saon ane recreation prop 1) The replacers opty Ean const prepay tht es n Publ oinerhip biti nt curren dedestod to rocreaton. ») The Board may ato ats aceon anon a case by-ase basi, cnsir ang approve ater fame of aligaton, ev dl valve of whieh wl usally be based on ‘Be DNR-approved apace val fhe propor et the tme of enversion or the ined award aout, whichever treater. ©) Conversion ofan wit th project aoa that ecototod via lasa, easement, oF {oe agreement hn ie 20-year perio oloning project completion must be riligated. After he es 20 yan, mitgtion sha bo requred al the Boards Gaertn, 3) Impact on MNRTE-Assisted Facilities 10. men conversions of the poet area have negative Impacts on MINRTF-ssssted factlae, any reduction orogs in Usefulness in faaly must be miigated othe Boars’ eaisfaclon. Kligation of facies may inause relocation or rplacement ‘wth facies of similar menetary value and recettion veefnes fang ino ‘oneieration the ago of the fates ard their curent us. Loss of publ access to ff Usafulnase of MINRTF faites thet dos not alee incu a canversion ofthe Projet reals considered project change and is covered by Board Policy 00-1 4) Exomptions to Mitigation Requirements, 1 ‘The Board may, a eee ciselion, consider and approve axemplon requests as pat of conversion proposal When requecod ana approved by tho Beard port the famverion. Upon prov fan exemption the ard may waive the mitasion Tequfementoraporve aemaive rod of mitgation. Exsmtone may al wahla ‘one ofthe fotoing eaten: 8) The aiiton of urdergound uty easomects when thas been demonsteted tothe {alsfacion of DNR Grants Managerrant thal thore wl be no significant impacts on ‘he rreationa or rescues prteoion vals of te projet ares. DNR Grants Wanagement may speave these fypes of exemptions on he Boars beh Deparment a Natret Resources Rev Novamir 2008 aPOLICY IMPLEMENTATION PROCEDURES FOR BOARD POLICY 94.4 5) The ation of pb faites, nung indoor ectaton facies when thas been ‘demenetated to the saletacien cf DNR Grants Management andlor he Board tet ‘aden wi est nan overall gain oc Increaeod bone publ recreation or ‘esouree protection, ONR Giants Management may approve exompters fhe locemert of indoor ecreaton flies onthe Goat heha the scorer oF ‘hese fete does nt npect fhe exstng use of hes, The Board mist approve exompstone fr tho plcament of eter pub faction ©) Sale or vnsfer af a smal parceniage of to projet area to anther unt of {goverment fx publ purposes whan canbe demented oto Bosses Safacon thal the impact one ocratlons andor rsoures protection vahos of the projet area is venti and when any rocsede wl be dedectod to mintanance er develop of th prof ares Sale ors of 3 poton ofthe rooct tes that oly reid MTF “velopment assis, elder posts (ereraly over 20 oot) ancl ‘Bj (eenoal under 980000), when can be domonstaba othe Boar ‘afsfecton thal the mpact on the cuent rerestonal enor rsouresprosecion vais offs rojctares sina and wien any procosce vl bs cated to Inaintonanes er development othe prof ares, ©) Easements grnta forthe purpose of crossing MNRTF-asssed tral, when the funding rece ha writen gulésnes in plac fr evauetng quasi or al ‘xossings ond minimizing thee impacts on al use. Lease agreements that can ba demonstrated to the Board's stefan to have ‘minimal Inpacton the recteatn andlor escuroa protacton vals of Ine peck ‘ates and when any srocede wil be dedcated to mainonance or developer of the Project area, 19) Sake ortanser ofthe project ea to anther alle MNRTF grant repent Sat wi ‘ssume al of he curent grant soreementabiaatins, 5) Requirements for Replacement Property 12 ws To.be opprove,#relacament property must generally bo 5) ofressonsiyesuivslnt or eucarorsoatlon end fer essonasy equivalent oe ‘Supetorracacton andor natal esoures vale 9) witin the grave repent envio ara; 2) cansistont with MNRTE goo sd moet a cunt sppisatoneqérements fr new IPT senision spcatons: Provide fo or be part ofa abe recreation ste nd ©} most al curentenvcnmentl standards and be dermonsoted as sae foe recreateral ise The alu ofthe replacement propery most bo of equal or oestarto he fic market value (F10) of te propty tobe converted, based onthe DNR approved arprateie) of he ‘orveted and substuted paral complete ate tne of conversion ithe cuent FAY ‘ths propery tobe converted ee han the FHV at he tne NRT asics was [ovied, the sutstute perce! must hve ado value at act eal othe olnal FMV. only @ parton of tho projet areas proposed fr convetsion, tis within the Boards Submit a fal oquet for Eoard review, Gant rehients may request Boer review of denials by DNR Grants Management st Fal requests mustnetue al the formation a Section 8 above in adeon to oe of mor caren aprasals ft property tobe corvered andthe repioerent property, {nd any adionlforaion eauested by DNR Gets Mangere sta Final request vile subi by DNR Grants Management sto the Bostdin ‘ring wth asta esermendaon. Gant rps Wl beproviced a copy ofthe sa “rtp and feconeyendon pret request being considered bythe Board and wil Be otied ofthe dato, no and place of te meting at which the Board wil consid the roquest. “The Board may deny or zosept the request a proposed or request macistions, ProlectAgresmant amendments lb executed to ale al spsroved convrsen sed ionoorporte any corltone imposed bythe MNRTF Board as part of he rfigstion seprova ‘The gran ecient wil be required o provide documentation of emplance withthe ronuites miigetonto Dit Grants Wanaporsnt an te tretames estab atte ti of the fal conversion approval, 28, For NR managed inde soquired wih MNRTF asistancs, the Board acknowadges she febowing 8, Indi, acl governments and businesses routinely approschtha DNR to fouio, rade of soak easements across Sia propel and Be ONR i obligated to ‘onal these equess Stato law authofzos he DNR to exchange el land or paral of greater Teoteeion cr ether pub bane and io grant easements of leases whore rate enagent Deparment choral RescuesPOLICY IMPLEMENTATION PROCEDURES FOR BOARD POLICY 84.1, (Any Gomvyance of lad is approved by the DNR only after a subctantl erie of ‘ops fo ensure the tansacton lin he overl pe terest. The DNR has @ ‘ermal press review request to exchange or sl lard ad grant easomens, Incl revi bythe DNR’s Land Exchange Review Commies (LERC), publ comment opportuni, and Dieco’s approval. 4. Tobe commended for aporovl, proposed sales or exchenges cannot reduce oF Impathe resource protection or recreational values of accent cx noarby Sate land, a termined by LERC or the Dect. iat arsgerent Doperinrto Neral Rescues Pat hovanbe 3003 ~Srareor Micwoant DEPARTMENT OF NATURAL RESOURCES (Octaber 23, 2008 Me, Mast Alton Grant Writer City of Det 18100 Moyers Detroit Mi 48285 Dear Ms. Astor: SUBJECT: 28-007C0, Riverside Park Extension “The Deparment of atural Resources (Oepertment is pleased with the recent 36th District Cour docisionroquting thatthe Datot Intemational Bridge Company vacate the portions of Riverside Park that were closédoff rom public use. We are aware that tte DIDC has decked against an appeal othe decision, and, according to news reports, has decided to negotiate wth ‘the cy on use ofthe sito, As s noted in preveus correspondence, the cy has received grant assistance to both aoqure ‘an develop thie sl ftom the federal Land and Walor Conservation Fund (LWCF), the Wehigan Natural Resources Trust Fund (MNRTF) and the state Waterways fund. As a condition of receiving these grarts, the ciy has comitted to keeping Riverside Park open an avaiale fo [publi outdoor recreation. No potion of this slo may be used fo anyother purpose Furthermore, the ccsure of an access site without proper consent with the Department is considered a vilatin ofthe terms of your Waterways agreement vith stale. A copy af the bouncary map outiring the ares committe to these uses Is enclosed, along with copies ofthe Waterways agreements, {the ciy determines that they wish to corvart any portion ofthis property to another use, of convey rights Inthe sropety to another agenoy, the must at requast a conversion of us fom ‘he Department. Unies federal rules, the only acceptable form of miigation fora conversion of LMNRTE or LWCF-assisted propesty is the replacement ofthe lst property wih land of equal ‘ze, monetary apd recreation value, This may also requre the Department to exersse out ‘opti within the Weterways agreement o seek nancial elit on the appaiged value ofthe consiucted facies “The Depariment would prefer the city to operate and maintain the facies for which thase grant ‘opportunites provided assistance for the development of Riverside Park, | have enclosed the Post-compltion compliance rues from the LWVCF manual, as wel as a cpy of MNRTF Board Policy 84:1. Both ofthese documents outline the conversion and miigatin respensbitties, ‘The conversion process may run concursntly andthe same pare of replacement land may be used to salty the mitigation eaquirements acon aon P98; oe wotcananeieMs. Mari Alston Page 2 ttober 23, 2008 you have any questions regarding the WCF or MNNRTF long-term commitments, please contact me at he tolephone number or emal address listed Below. you woul tke to discuss ‘ho tems anc responstites related io the Waterways program, please contact Mr. Jason Fleming in our Parks and Recreation Division. His phone number ie 617-241-2054 and emall address is leminaigimchiaan.gov, it you wish to contact ma in wring, my maling adress is: Grants Management, Dopariment of Natural Resources, P.0. Box 80426, Lansing, Ml 49909-7025, | cok towareto seeing Riverside Park avaliable forthe publ recreation wees that was vigil rfended to provide. Sincerely, c bite de tu por Grants Management eh Enclosures 1c Ms. Deborah Apostal, DNR Mr Jason Fleming, DNR. Ms. Lisa McTiernan, DNR— Lwer 4 mete LOCATION MAP FPesundang tap Brversiate Parle WAYNE COONTY= CITY OF DETROIT CITY OF DETROITATTACHMENT 3as DEPARTMENT OF NATURAL RESOURCES (oi May 5, 2015 ‘The Honorable Mike Duggan Mayor of the City of Detroit Goleman A. Young Municipal Center 2 Woodward Avenue Detroit, Michigan 48226-3413 Dear Mayor Duggan: The Department of Natural Resources (DNR) recently became aware ofthe City of Detroit's intentions to convert a portion of Riverside Park fo a non-recteation use. We ‘wanted to make sure you were informed that the park is encumbered in perpetuity for public outdoor recreation under several grant programs administered by DNR. Specifically, the following grants were awarded to the city from the DNR to acquire and develop Riverside Park: ‘+1976 ~ Land and Water Conservation Fund - $807,176 Purpose: Acquisition of 10 acres and the development of parking, roads, boat launch, comfort stations, athletic fields and site amenities. + 1997 ~ Michigan Natural Resources Trust Fund ~ $500,000 Purpose: Renovate seawall, promenade and raiings. + 2010 — Waterways Program - $104,000 Purpose: Dredging, fencing, parking control and comfort station roof and repairs, + 2010 Waterways Program ~ $50,000 Purpose: Design and construction of pies. Converting this land to a non-reereation use, or conveying any portion of i (including air Tights), requires both state and federal approval. We do have a process where the cl, as grantee, can apply to the DNR to convert dedicated park land to non-recreation use. During this process we review, among other things, whether altemative locations for the: proposed use were considered. In addition, replacement land must be identified and evaluated based on market value and recreation value.Mayor Mike Duggan Page 2 May 5, 2015 For more information on this process, or if you have any other questions, please contact (Mr. Steve DeBrabander, Manager, Grants Management Section, Finance and Operations Division, DNR, at $17-284-5930, email debrabanders@michigan.aov, or you may contact me, Sincerely, . Director 517-284-6367 ce: Secretary Sally Jewell, United States Department of interior Mr. Mark Hoflman, Chief Administrative Officer, DNR. ‘Mr. Trevor VanDyke, Logislative and Legal Affairs, DNR. Mr. Ed Golder, Public Information Officer, DNR. Ms. Sharon Schafer, DNR, Me. Ron Olson, DNR Mr, Steve DeBrabander, DNRATTACHMENT 4E $ Woonwaro Ave. sume 1136 Derr, Mina 226, won Omce tnneoermemere Memorandum To: Council Member Raquel Castaneda-Lopez Fron: Alia abe, Cou Liskon AS- Mayor's Offce Deter dune 3,2015 Re: Jeffeson Avene, 2d Sueet Closures, St Anne's Suet Vacation Stats and IBC Zoning/Code Violstions and Fines Enclosed are the following memos: 1) The Law Department's response to Council Member Castaneda-Lopez’s request on the status of Jefferson Avenue and 23rd Street closures and the St. Anne Street Vacation; 2) The Department of Public Work's response to Council Member Castaneda-Lopez"s request onthe status of petition #2900 (request forthe Detroit Intemational Bridge Company (DIBC) to vacate St. Anne Sueet, between Frt St and Lafayette); and 3) The Buildings, Safety, Engineering, and Environmental Department's report on the DIBC’s zoning and code violations which includes in its cover letter the total amount of fines paid to BSEED and the Department of Administrative Hearings (DAR). ‘Additionally, the Detroit Intemational Bridge Company (DIBC) has voluntarily removed all fences blocking Jefferson Avenue between 21st and 23rd, and the street is open tothe public. If you have any questions, please feel free to contact me at 313-224-1163. cae E, Duca, MayonMemoranpum To: Coun Meier Raquel Castifeda-Lpez From: Bruce. Goldman, Senor Assistant Corporation Counsel 3S Dates 23rd Street closures and St. Anne's Steet vacation Below is the Law Departments response to an inquiry from Council Member Castuteda-Lépez regarding the status of Jefferson Avenue and 23rd Street closures and St, Anne's Street vacation: 1, Jefferson Ave. ‘With regard to the portion of W, Jefferson Ave. between 23rd Street and St. Anne's, the City may remove barriers that were temporarily penmitted tobe placed in the public street after the approved time has elapsed. By way of background, shortly afte the 9-11 terrorist attacks, DIBC was allowed by Mayor “Archer to erecta fence running north and south approximately 150' west ofthe Ambassador Bridge for security purposes, This fence enclosed a portion of Riverside Park and closed off Jefferson Avenue. In 2003, DIBC filed a petition for the closure W. Jefferson Ave. between 23rd Street and ‘St. Anne's. On February 11, 2004, the Detroit City Council approved Fettion 1189 and authorized DPW to issue a permit to the Detroit International Bridge Company (“DIBC”) to temporarily close Jefferson Ave, between 23rd Street and St, Anne's, subject to various requirements and restrictions, DIBC was permitted to erect fences and gates, and to install barricades. The permit expressly. provide that all obstructions were to be removed upon expiration. DIBC also acknowledged that it sequired no rights or privileges not expressly stated in the permit, and waived th right to claim «damages oF compensation for removal of any encroachments. ‘The permit expired on February 11, 2009. In May 2009, DIBC was msiled a notice o- remove obstructions from the public right-of-way. When DIBC refused to voluntarily vacate the park and remove the obstructions from the street, the City filed a lawsuit to compel them to do so. ‘The 36" District Court decided inthe City's favor. DIBC appealed and, in 2012, the Wayne County Circuit Court affirmed the lower court's decision, DIBC was to have removed all of its fencing and relinquished control ofthe disputed property (which included Jefferson Avenue). If W. Jefferson Avenue between 23rd Sweet and St. Anne's were still closed notwithstaing the expiration ofthe permit, there is no legal impediment to DPW removing the obstructions. The street is however presently open, any fences betwee 23rd Street and St. Anne's having been removed,2 23rd Street ‘With regard to 23rd Street between Fort Street and I-75, the Hon. Kathleen MacDonald issued an Order in Wayne County Circuit Cout Case No. 01-106546 in 2010 denying DIBCs Motion to have a portion of 23rd Strect vacated. The City was however ord ion reliance on the Court deni "s motion “until the City Council votes orrelet ‘petition to vacate [that portion of 23rd Sree)” On December 10,2010, DIBC submitted Petition 795, seeking to vacate that potion 23% Steet. DIBC owned all of the property bordering the steet requested tobe vacated andthe sttest Ine smut of 2940 0 be eer ‘nd Perms Dvn fis Department etd in Room 0, Clean A. Young Mcp Cver, 2 Wendt Avene Der, Mihm 4226s eta pect fe ets te aninpeton prone a Property Maken inspector on MONTH DAY, EAR. ‘he Depron ieee «Gefen af Cane te osues poi Ay gussets ey bested ying 324 SET) Exiegroma bret foe Secon 9.1 34a 2 coc Bulls and structures shal be requ hae Cette of Complance ised by ‘Bulg bd Say EniperiogDeprtent (Se.9-1-362). 3 EXTENOR Removeal gas, weeds pasts, rows Inco 10s) inceshlghat (Se 08) 4 EXTERIOR Renovepeting pala om exterior ies ofbuiling and epintat (See 91205) 5 ADMINISTRATIVE Secure the reuired ana Ceifctof Compe om hi departent. (te 94-36) 6 ADMINISTRATIVE For comple you ae reque ope psc npeton insane ny exiting volaons.(S229135) SaseNumber Property Lacatlon es: Dessition feeDate __ FecAmouat binczoeeios2 —11100—~—«CONNER CaseNamber _Prneetv Location Bee Deserta KeeDate _ EecAmaut MRcao0s-ni0s6 —1Ni0e CONNER GaxNombec Proper Losaion Fes Dessilan Feels Fes Amount ULMz002-09674—11100——CONNERZONING CLEARANCE CHECK cc Deseiton Fee Date 1 Mises ‘An approved means of ees shal be provded ooo (Lae) MMCz000 364° Due 30 days 53, GaweNumber Prone Losaion se Desroton eels fcc Amount, ‘uuoanen-09708 ‘CONNER 1 Mica ‘Av aproved means of acess sha be proved iro, (Ladies) MME2000 3064 Die 30 ye 503,ZONING CLEARANCE CHECK GeseMamber Props Lecaton ‘Be Decriton FecDale fee Amomt ‘ANNa006OeR7 «MK WABASH LEGALUSE: STORAGE 1 AoMnusrrarive ‘Secwe he reuited anal "Cereal of Caplan” oh epuimet (Se. 81368) 2 ADMINISTRATIVE Fr camplaes you re rue to py the prescribed iepeion enon comping say exiting viotos, (See 9-135) 2)” exrewon ‘eines of nyse as, ‘bah ince sad aay do e310) 4 exterior omvesl proses pnsgowthincsotlo (ony ecshghet Ge mits 5 exrenon enoe wx sig om cro. (9-11) & exterior ‘na aft ligated (209 + extenion env psig som rans eign pi (9120 1 Abwoistearive —_e-sacoe he rted el ceric of Cope” om ee ee Sea 9 AoMIMSTRATIVE Faas 201 ee py pre nec en aot ‘Shp ny ing i 9123) ote Sou ty colt a proce ype man cnr he tSepy aims rr Qe emer sig) 1319. 1 apwnasrearivs Gil eagme ror crap: Sr 135 {2 ADMINISTRATIVE See qe ala of Comps fe pies. 2128) 13 ADMINISTRATIVE Foreoultyon ees p Be pd incon tin eo ying los Ge) ‘SueNamber _ Erzevtaalon Darnton feeble Fersmuit ELvae01-000n 1488 ‘WABASHZONING CLEARANCE CHECK ‘CaseNumber Property Leaton es Deserinon feeDae Fee Amount ANwa00s0;10 «321 MCNICHOLS LEGALUSE: GAS STATION 1 ADMINISTRATIVE: ‘Secure he eure nal "Cereal of Compliance” om his depres. (See 91364) 2 ADMINISTRATIVE For complance you wr reared to pay he rserted nepectnfe, nse o complying ‘ny exiting vats, (S138) 3 EXTERIOR ‘Mail tiling adorns exteor walls In gbod rept. Tock plat walls. (See 1203) 4 EXTERIOR Remove peeing pln rm exterior sree of ulng and rept ate uling (Se 1208) 5 Exelon Roof ania he oon bulgo stra in god ep (Se. 1206 6 Exeioopemble Vehicles iconv storage fnoperatltnlicensed veces (Se 91110). ‘SaseNumber —_feonerty Locatlon ee Deseition feeDale Eee Amount DNGIOII0I87 ——S2I1__-& MCNICHOLS ‘SoseNumber __Proserty Location fs Deserinton eeae _ FeeAmount ‘suu2ooLouw7s 3211 BCNICHOLSZONING CLEARANCE CHECK SweNumbec _ Prosety Location ce escriaon FeeDuls _ FevAmouit DNGIOIeOW=7 7301 HARPER. 1 DAYSALLOWED FOR Days Altwed for Completion 02 Requred Completion Due 012672011 DEMOLITION. 2 MDEQNOTIFICATION 24 HRMDEQNatiaton ‘SweNunber _ Prosety Location se Declan FeDate Fee Amount ‘Uunnons omZONING CLEARANCE CHECK Sue Number Property Losalon Fee Deseo EeeDate Fee Amount AnNaOOeOIoTO 9415 MICHIGAN 4 AbMnusTeaTive ‘Secure pri rom te City of Datos ulng Sate nghceing Deparment (eWeek und Remove of Bulag: (See, 31-10) ‘GureNomber otc Lacaton Fee Desrinlon EeeDae Fes Amaunt DNG2NIe019e «HIS MIGHIGAN Sasetues Faust Lesa os Decttion Feebate _ FosAmoont MMRC3007-0635 9415 MICHIGAN ‘GaseNumbee __eoaertyLasation ce Desrpion Fee Fee Amgent SLUROLIE9 945 MICHIGAN ‘Case Number erty Loca Bes Descrinion Hecate FesAsinent ‘uae 0887 MICHIGAN GawNumber _ Proserty Lact inom HesDuis Fer Amount, ULsnMs2s75 9s MICHIGANZONING CLEARANCE CHECK amber __Pronertv cation ee Destin feeDate Fee Amount ‘anenmneacs 21d CHARLEVOTX LEGAL USE: FACTORY 1 ApMnasteaTive 2 EXTERIOR 3 EXTERIOR 4 ADMmNIsTRATIVE ADMINISTRATIVE ‘Ser permits fom he City of Deis Bulag & Safety Engineering Deparment fo. Demos Se. 9-110) ‘ASS Maintain al accessory structs (tached fncs) fn oud conon News East rsimeet, (ee 915407) [ASS Manan al buildin indo screener wal nen ra tel sing ‘Binoged ising (See 91-205), Sear the requed aaa "Cerfee of Complince from ths eparen. (Se. 9-360) For compliance your reared py he prescribed spect en adlion 9 comping ny existing voto, (59-138) SueeNumber Property Lacaton ee Deseriaton eee Foe Amount ness ‘CHARLEVORR ‘GoseNumber ——_Peoosry Lsaion ee Deseo Seeder Fer Amount MReaetesio 1216 CHARLEVORX CoeNamber Property Lasation Fee Deserinon eoDatr Fee Amount PRneecaws? 1214 CHARLEVOIX Suse Number _ Prosertv Losatlan es Doscrltlon FeeDate Fes Ameunt ‘uuezonsone2 12141 CHARLEVOIX 1 Mie, Condon ‘ACoveror wi Ce Salty Tet shal be coed, (ORD 307HA SHH See 5.2) 2 Mise, Condon 3 Miz. Conon x Eetor Technology Ine. 4628 St Asin Det Mt 48207 err eat asa be resid ob in good physi conon (ORD 568 Sec 1.1 ASME AIT 1999 8208)ZONING CLEARANCE CHECK SoseNumber Property Kesalon es Dexroon SceDale Fee Amount ‘Awna0oco9e22 3820 WJEFFERSON LEGAL USE: TRUCK TERMINAL 1» ADMINISTRATIVE ‘Secure he required anal Certifies of Compliance fom hi depres. (Se. 9-136) 2 ADMINISTRATIVE For campllance yo re require ope the presrbedlaspeton en ation 1 complying ay exiting vats. (ee 9135), 3 ADMINISTRATIVE Sree the roped aa “Certo of Compliance” fm his deparen. (See 9-1-60) 4 ADMINISTRATIVE For compas you me requ 1 pe th prescribed laspection en don to complying ‘ny eigen. (ee 91-38) 7 5 EXTERIOR Maia bute ricer eof ny oli ie (Ub, tog, id fabs) a cen sf sear, aan edn (S=9-1-01) 6 EXTERIOR Remove alg, weeds, plans, growth excess 10 (ea) ces highat_ (See S09 Gass Number Rennes Lasaton ee Decxtoa eeuale fee Amount MRCz0N8-12399 3510 WJEFFERSONZONING CLEARANCE CHECK ‘SoseNumber Property Laaton Fre Descrotlon Fae Dute Fee Amount LEGAL USE: RETAIL, 1 ADMnusTRATIVE (2014) Secure he eure anmal "Ceri of Comps” fam is doparnen. (Se. S360) 2 ADMMsTRATIVE {G0L4) For compliance you re required to pay the prestied nspeton k,n eon to ‘amplyng ny existing Welatons. (See 9-139) 3 Ober Rep detective lt Moor su sy dor which nt posivey nen (See 91310) SumeNuaber — Beogerty Location es: Deserintion ScoDule Fee Amount Brvaowe0023 3400 WFORT ELenoe-e3%s 3400 WORT 1 ASIS-SPECIAL NOTICE Prove cy approved plans tobe on he jb st, 2 ASIS-SPECIAL NOTICE Provide pei for ve ional rough espection, oe temporny sve 250 ap 8200 bation pane, 30 ka rnsfrme, LS eeu, ond 12 ight tres Ml Code Ries Pat Sec. 8-19 Conplinnce date 3109 3 ASIS-SPECIAL NOTICE Provide pet fo wo 200 amp mai services, 2 80 amp dsribton pans, 90 225 wap \ftttion panes 10k and two 30k wore to 200 amp ctson pen ‘ctvo 10 mp disteton pants the eal eis en. SumNonber Prove Lasaion Fee Dexrtion __EeeDats Fee Amount 41 ASIS-SPECIALNOTICE Proven peor wo 1200 amp services. No sional upestons awed GuseNumber _ Prosety Location ee Desrintion Secale Fee Amount MEczoos.00179 3400 WFORTZONING CLEARANCE CHECK ee Decigton _—EceDats_FosAmaunt Ga Number Property Losaion Fos Destrinon cents Fes Amount PLMDoOe-oMst M00 WFORT 1 Properly provide ot waterto Provide jot (Jeol ater inthe amount ad presse speed inthe code (TO. URINALS) (6043 607.1, 2006 MPC) » (COMPLIANCE DATE 462009) 2 rope Ilaion Provide rope till of ) Water closet (Babb, YLavatary( WLandy wb (X Sink @ Sou sie of ling at main erase Whoa ab (ter «(Section #0, 2106 MPC (COMPLIANCE DATE 42009) 3. REINSPECTIONREQUEST REQUEST REINSPECTION. CaeNumber Propet Lsaion Es Declan Hecate FeeAmount ULemeen Me WFORT Sime Number Property Lesation ee Deseinion EsoDais __fetAmount ULeaon7 3400 WFORT GeeNumber Property Lesson FeeDate ‘UuMamst2678 M00 WFORT 1 Adin ‘Necesaryarangemens sl be made er inspection of combustion qupmnt subject 0 laspectnMhigan Mecansl Code 20001045 (De in 30 Dye) 2103‘ZONING CLEARANCE CHECK SaseNumber _ ProsertyLecaton ‘ee Deseritlon SseDate Fee Amosnt MEczoes-o02 3450 WFORT SuseNumber Props Lesion Bee Desrintlon EeeDate Fee Amount ‘GomNember front Lécatlon Fee Design esDats For Amount ecaias-oness 3450 WORT Gore Number Property Lcation Fee Desrntion esDale Fes Amount MRCIOOLONBD MS WFORT 1 Balding Pemit-ASIS _Subitapplieation and secre emlon permit fr al bling dealished win tempera ol za res. (Gane 2003, Se 103.1) 2 Balding Permit-aspeton Cal for mpecion pon compe, On 290, Se, 12-11-43. SuseNumber __ PromertyLaaton MRCz08-11 MSO WFORT ee. Deserinon FesDule fee AmowatZONING CLEARANCE CHECK CoeNumber PaomsctyLocation Bee Deserition 1 Bailing Peomit-Renoslons You me proceeding renovations without te benefit ofa bullng permit. You srry Creed total wor unl ch mea plans nd specs ar said, nd ‘proved by tis doors the eure bailing permit spelled for and otsind anda te to proceed sie (Ord2908 211271) 2 Bullng Pemlt-lspection Cal or spect upon compliance (Ord 200 See BAT) GoveNumber _Provery Locaion ce Dein Eeeate —_ FesAmount binczooomis 3480 WFORT 1 Bullding Pemmk-ASIS Submit aati and secre the eure pei or Amex Pein stat 850 permit ak been ed forth onsrsto. (Gud 2901 Se, 2-116; MBC 2006 105.1) 2 —-Bulling Pemit-ASIS Cal fo reured ispeion upon compe. (Gn 290 1-114 MRC 2008 1083.10) ‘GrseNumbee Property Lacation Bes Desc HeeDale _FcAmeunt MRCIeeno SD WFORT 1 Bulking Pemit-AS1S Sami pletion and seu hs eure permis as per ode CORD 290H 1211-6. 2—Bllding Permit-ASIS Make provion where requed for retin and nate to ajacent properties ms pr code MBCO12 93307 3 Buiing Pemnit-ASIS Slop work ul seh ve the oqo per hae been sued as per Code (QHBC2012 See 15,152, 1593 See 105.1) 4 Bailing Pemit-AS1S Provide fo soifieton and preeen wo dacet propre a eed by Code (@nBc2012 Se. 307.1)ZONING CLEARANCE CHECK Sam Number — Pooperty Losaion ee Dexciation Fee Date Fee Amount ELeor0ns Ses PORTER. 1 ASIS-SPECIALNOTICE Secu an edtonl pet or tn temp Fats, Part 8 See. 80-19 ‘SuseNumber Property Location ee Dexccotion FcoDats Fat Amount ELeo7-04ss4 «0s PORTER 1 ASIS-SPECIAL NOTICE Propel support ow otge bles sovethe cellng nh south wes comer, SuseNumber _ Froect Laation Fee Desriton Sexbele _FerAmount Mace am PORTER ‘SaeMumber __frictetasatin _‘Ese Devcon Ese Dats Eas Ameunt RczOISo1059 se PORTER ‘SueNanber _ Promty econ Hse Deseinon Haue _FeeAnoen Payneesen0s as)‘ FORIER SawNumber —_ Proery Laaion se sserinon Fede FeeAmouat PRV2007-OI0® 30 PORTERZONING CLEARANCE CHECK Coxe Number Property Losaton Res Dscrntion HeoDaic Fes Amovat ‘ANN20OL0955°—«720.—«WFORT LEGAL USE: ELEVATOR SALES SERVICE 1 ADMINISTRATIVE. Secret reuired eaval "Cerin of Compliance” om is deparmen. (Sex. 4368) 2 ADMINISTRATIVE For comin ou ae reqled o py the presred npn fe, anon complying. 5 eng laos, (89-135) ‘Coe Number Property Lacaon Fes Descintion Fate FeeAmovnt DNcm0s701 2720 WFORT.ZONING CLEARANCE CHECK SaseNumber _ Promerty sation Eee Descrinton FeDate Fer Amount ENcn0e2.0086 a4 WFORT 1 OVERNIGHTLANE ‘No over oh ln clare allowed, ‘CLOSURE 2 USEOF ADJACENT CURB Use of adjacent ce ne ojo se perted aa ine when wrk In pres. LANE 3) RIGHT-TO PLAN ‘The iy reserves the sight evew and modi these specealon aed equ neceeay ADIUSTMENT. _ajusiments wp cos othe Cy 4 PLATEALLOPENING.__Pheall peings when wok ota popes. 5 RESTORETOCITY SPECS Convatoria restr fil width of rndway, ars sed utes upon completion of Work the iy of Darok specications. 6 MMUTCD ADVANCE SIONS Conair must isl aver lanefedenrin/tour sgn ascording to curent MMUTCD. 7 NOMATERIALDEBINS ON Conractr mast et sore material orders on Right of Way when wok nln Bis Row 8 CITYENGINEERING-DPW All wock will eofom o Ciy Englacerng DPW sand pciain or pving sed SPECS, ‘meat. 9 TRAFFIC specs. “Tali specfaions ar anached to nd applic tts pet. Tri spesifeatons mast eves worker ta ies, 10 Misc. Mainin tafe on St Ne, W. Fort nd W. Layee St al ines, ABUTTING PROPERTIES Malnuin sees to sboting proper el tines, Sue Namber Prone Loeation Fes Desriton FeeOale — FasAmoxnt Mmezoee14693 2744 WORT ‘Svenumbec __Eemrvtecion re Dien aetna neanieanss m4 WFORT GeseNumbec Property Losatlon Eee Desriton EeeDale Fac Amount PRYRIO:007 «744 WFORTZONING CLEARANCE CHECK SueNumber — Pronert Lesaton ‘ee Descoton FeeDalc Fer Ameunt ‘Ansz00005515 3901 WJEFFERSON LEGALUSE: FACTORY 1 ADMINISTRATIVE. (Call and eke umagements for your equine ispctn. (ee 91-38) 2 ADMINISTRATIVE ‘Secu the read anal "Cerifet of Capac” for hs eprint, (Se. 91-26) 3 ADMINISTRATIVE For complies you are requ to pay the reste spectin fee, n aio complying fy exiting vidatons. (See 9-139) 4 tmeror-tnpecton ‘Make argeens wid he Buliigs an Suey Deparment fr iter net (Se. S353). s coc uid and ices shal be requir fe a Cerin of Compliance ised by Dulding and Safety Engineering Deparenen (See 91-60) © Inpecon Fee Reged For eemplacs, You ar required 0 py the prescribed iepcen e. 7 ADMINISTRATIVE: Calli make erangeoens for you requ ftir pet. (See 9135) 5 ADMINISTRATIVE Secure the requed anal "Ceri of Campin” fom is deparen. (Sex 91363) 9 ADMINISTRATIVE Fr comliane you are required to pay the prescbed inspection fe, natn to coalyng any eigen. (See 3-135) GuseNumber Property Lsaton ‘Bee Descriotlon ‘FeeDals Eee Amount ‘ULMz00606736 3601 WAJEFFERSON 1 As ‘Ue ens reured:. No person shal use or ese ob sed any reiprting ese or ampere we i sbject to biennial nopectan without ft ering ue eee fom the department Ord 390-1, Se, 7S ‘GuseNunber Prong Leeaton Fes Desrinfion fecDatc Fes Amount ‘ULM00¢06737 «3801 —-WAJEFFERSON 1 Abin Cerin of ue required: No peo hal coca to be wed ay ga baring ol ‘unig equpe: which subjected oie iaspecon wien tt seurng cence Sorsurh we fom th department. Od. 3904, Se. 718 SODAY VIOLATION NOTICE (62409). GuseNanber _ Prooerty Losaton ‘Eee Destioton ecules Amount UULD00806r35 3901 WJEFFERSON 1 Adina ‘cerifeate of use required: No person shal se or ene a be used any a amin ri ‘ani equipment which ie ubjecedo binnaliepecon wit et sering cere {orsurh se fom be deparnent. Ord. 3904, See. TLS SD DAY VIOLATION NOTICE (249).ZONING CLEARANCE CHECK Cee Number Property Lectlon Bes Destoton Feciate Fee Amoun BLU2OU-OWT 29 WJEFFERSON ‘SaeNumber _ Proserty Location Fee Dsatnton KeDate Fee amount DNGIorOz000 —-8129.—_-WJEFFERSON 1 DAYSALLOWEDFOR Days Allowed for Compelon_15_, Requted Compson Dae DEMOLITION sno SenNumber Prosertv Location e:Pessration feDae _ EesAmosnt ‘veo2011-0067 —«#129—-WJEFFERSON 1 OPENINGSLESSTHEN'E Openings, within eight ft fom grade, sal be properly mere sgl designed oF "ed in maser of sir epperace wih he sound exer src, segue by fea 9-11.10 of he Dat Cy Cal. 2 SNOWREMOVAL, ‘Sinead maaan aly nding oth al etry or and any pb idee ‘joining tes of sas eid by sen 1-133 of te 1984 Deo City Code, 3 DEAD TRECALIMES. ‘Catan eoveall ded or cen te lnk wor tiery mn remove rm he Drees as rege by Seton 1113.2 ofthe 1964 Deo Cay Code. 4 LITTER, DEBRIS, TRASH, Remove cet paring, er, Li or ny sll Was atest hel set ore DUMPING ‘nz pling to ined, ny mal riers, hie ave been dleredio ie ‘ling erecta neaalatinn ony pte fe exer teat the Bung ‘sire poe, per acon 9.1113 of he 1984 Deva ly Cade 5 CONTACT PERSON Visayas on ese ofthe aca! propery a oie stereo the wens which Posten Inesiesthe mead lepine number of cl pana be abated in he eve ‘mergeneyof ober ence oh property require by seten 81-5, ofthe Dero iy Ed 6 REGISTRATION Regier te vacant property al bin th Cereaton of Rita fr Vacant Pope as require by scien 91-0) othe 1984 Deol City Code 7) OPENING MORE THANS —‘Allopen operings, reer ten ight et above grade, fo be secu ina approved Peer ‘nant locadingphoood pane olor sini tthe rounding etre, as que ‘yceton 1-111 fhe 1984 Dero City Code 5 FOUNDATION sina the fenton semen cel, or rmwlpacesina sound sd weight conation, eqontso sport and protect gin the ety of rodent oer sina ina ling Stren rue by 911135 a te 1988 Deol Cy Code 9 GRAFFITE Remove afi marks, o lating fom eter sues (Se. 9-1-1110).