SEPTA filed a lawsuit Thursday against Tullytown in lower Bucks County, alleging that the tiny Borough has tried to impose unlawful local taxes, fees and regulatory costs on the transit authority’s rehabilitation of Levittown Station.
Despite the name, the station is located in Tullytown, a small Borough of 2,000 residents that is almost engulfed by surrounding Levittown. Amtrak owns the station but doesn’t use it. Instead, Amtrak leases it to SEPTA as a stop on the Trenton regional rail line. Federal law exempts Amtrak from state and local taxes, as well as certain commuter authorities that could have handed over commuter rail operations to Amtrak back in the early 80’s, i.e. SEPTA.
But that didn’t stop Tullytown from demanding a $105,000 building permit for the station rehabilitation project last week. That requested fee was a bridge too far for SEPTA, who filed a federal lawsuit on Wednesday at the Eastern District of Pennsylvania in Philadelphia.
SEPTA is seeking a preliminary injunction against Tullytown to prevent the Borough from continuing to interfere with the Levittown Station project, plus attorney’s fees.
In its complaint, SEPTA alleges that it has already paid $166,000 to the Borough and Tullytown consultants for inspections and related costs, even though SEPTA was under no legal obligation to do so. SEPTA also alleges that unnamed Tullytown officials threatened to “shut down” the project, fine SEPTA contractors and double the permit fee, which SEPTA has refused to pay, to $211,000. The complaint estimates that the delays have cost SEPTA $100,000 in additional inspection and engineering fees.
According to Borough solicitor Mike Sellers, that’s because Commonwealth law requires Tullytown to review all building plans and inspect the worksites.
“Our job is not to rubberstamp,” said Sellers. “It’s to review for a quality plan that addresses all legal requirements and [make sure] they are also safe.”
SEPTA wants to construct a new station building, high level platforms, pedestrian overpasses over Route 13, and new ramps to make it compliant with the Americans with Disabilities Act. SEPTA also plans on 70 new parking spaces. In total, SEPTA has budgeted $37 million for Levittown Station. Construction was supposed to begin last year and wrap up in 2017, but has been delayed by this dispute.
The Borough hasn’t decided yet whether they will fight SEPTA or simply concede, stop the reviews and inspections and “hope for the best,” said Sellers. Tullytown has until March 22nd to file a response.
“If they want to say federal law trumps our ability to our job, then we have to decide whether we want to spend good taxpayer money fighting that,” said Sellers.
If Tullytown decides to fight, they will need to prove to the court either that federal law doesn’t actually cover building plan reviews and inspections, or that SEPTA has already waived its exemption rights.
Like the local tax proscription, Federal laws also exempts Amtrak property from local building or zoning laws, but state laws require municipalities to review blueprints for safety. Because Amtrak still owns Levittown Station, SEPTA’s lawsuit argues, Tullytown cannot enforce its regular building permit requirements against SEPTA.
“Under the plain language of 49 U.S.C. § 24902(j),” SEPTA’s lawyer’s write, “the Borough has the same authority to impose local regulation as it would on a federal enclave, namely none.”
By paying the Borough fees already, SEPTA arguably “waived” its right to ignore local zoning laws and fees. In other words, by paying fees it was not obligated to pay before, SEPTA voluntarily subjected itself to Pennsylvania law and Tullytown’s ordinances, and now shouldn’t be allowed to go back to being exempt now just because the authority changed its mind.
Whether SEPTA gave such a waiver depends on whether the waiver was theirs to give. There isn’t a lot of case law on this question, but SEPTA’s legal memo points to a 5th Circuit case out of Texas that says “no.” Statutory rights affecting the public interest are not unlike Sixers tickets: No matter how hard you try, you can’t give them away.
In a statement, SEPTA Board Chairman Pasquale T. Deon said the authority simply wants to “move the Levittown Station project forward and deliver the improvements our riders and the public deserve, while remaining good stewards of the taxpayers’ money.
“A lot of hard work went into making this project a reality. By taking this action, we hope to reach a resolution that best serves our customers, the taxpayer and the public – and one that allows for the safe and efficient completion of construction.”
Sellers said the Borough remains open to resolving the matter amicably with SEPTA.
SEPTA is represented by Buchanan Ingersoll & Rooney, a Pittsburgh-based firm with a large office in Philadelphia.