Matthews v. United States

• Decision Date: 19 November 1981
• Docket Number: Civ. A. No. 80-16-ATH.
• Citation: 526 F. Supp. 993
• Parties: Peggy J. MATTHEWS, Plaintiff, v. UNITED STATES, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

526 F. Supp. 993

Peggy J. MATTHEWS, Plaintiff, v. UNITED STATES, et al., Defendants.

Civ. A. No. 80-16-ATH.

United States District Court, M. D. Georgia, Athens Division.

November 19, 1981.

COPYRIGHT MATERIAL OMITTED

H. Glen Willard, Jr., and H. Bruce Jackson, Atlanta, Ga., for plaintiff.

Eugene A. Epting, Athens, Ga., William C. Lanham, Atlanta, Ga., Bernard E. Namie, Macon, Ga., for defendants.

OWENS, District Judge:

Plaintiff in this case challenges the Corps of Engineers' authorization of the placement and operation of a condominium-style boat dock as a part of a commercial marina on Lake Hartwell in Hart County, Georgia. This district court has jurisdiction of this action under 28 U.S.C.A. §§ 1331(a), 1346, and 1361 and 5 U.S.C.A. § 702 (Administrative Procedure Act). A non-jury trial was held in Macon, Georgia on January 13 and 14, 1981, following which the parties submitted briefs on the relevant issues. This opinion constitutes the court's findings of fact and conclusions of law in accordance with Rule 52, Federal Rules of Civil Procedure.

FINDINGS OF FACT

Lake Hartwell, located in the Piedmont Plateau region of Georgia and South Carolina, is owned by the United States and is under the administration of the Army Corps of Engineers. In June, 1965, the Corps of Engineers executed a thirty-year commercial concession lease (Lease No. DA-09-133-CIVENG-65-163) to Tugaloo Development Corp. for 14.10 acres of Hartwell Lake shoreline or "collar lands;" in September, 1973, this lease was assigned to defendant Harbor Light Marina, Inc. (Harbor Light). The lease specifically authorizes Harbor Light to furnish facilities and provide and maintain docks for privately-owned boats, to service and care for privately-owned boats, to sell gasoline and oil, and to rent boats and transport passengers for hire, all for the benefit of the boating public. Defendants Warren and Sidney Moore are officers, directors, shareholders, and managers of Harbor Light Marina, Inc.

The main Harbor Light Marina complex consists of six large docks containing multiple boat slips which, with the exception of Dock "D-1," are provided to the public on a Corps of Engineers approved rental basis. In December, 1978, Warren Moore and the other individual defendants, who until that time were renting boat slips in the main marina complex, completed the construction of a large condominium-type boat dock designated "Dock F," which is located some three-fourths of a mile around the shoreline from the main marina complex and adjacent to plaintiff's property and lake house. Plaintiff thereafter brought this suit alleging, inter alia, that the location of Dock "F" adjacent to her property has caused a diminution in the value of her property and that the large houseboats anchored at Dock "F" obstruct her view of the cove in which her property as well as Dock "F" are located, and of the open lake beyond.

The proposal to construct a condominium-style boat dock in the area leased to Harbor Light Marina to be financed, constructed, owned, and maintained by private individuals rather than by Harbor Light Marina was first submitted to Warren Moore in late 1976 by several of the individual defendants. Warren Moore approved of the proposal, a "Dock F Association" was formed by eleven interested individuals including Warren Moore, and construction plans for the dock were drawn up by contractors hired by Dock F Association. The proposed location of Dock "F" was in an area adjacent to private property owned by Harbor Light Marina, Inc., and the individuals in Dock F Association purchased a piece of that property designated Lot "C" for use in connection with the dock. Plans for the construction and method of ownership and operation of Dock "F" were submitted to the Corps of Engineers through Warren Moore and Harbor Light Marina, Inc., as required by the terms of the commercial concession lease between the Corps and Harbor Light. In November, 1977, the Corps of Engineers approved the construction and location of Dock "F" and its operation on a condominium basis with ownership in the eleven individuals in Dock F Association.

It is stipulated that the construction of Dock "F" began in April, 1978, and was substantially completed in June, 1978, with the final installments of permanent fixtures for telephone and electric lines being completed in January, 1979. The total cost of Dock "F" was approximately $20,247.93, this entire amount being paid by the eleven individuals owning slips in Dock "F." In addition, each individual owner was required to pay the sum of $50 into an escrow account for maintenance and repair of the dock and for utilities. Ten percent of these amounts, or approximately $2,080, was paid to Harbor Light Marina which reported this amount as income from slip rental. (Deposition of Warren Moore, p. 53). Of that ten percent, 3% or $624 was paid to the United States under the lease (Affidavit of Fred Allen), leaving a total profit to Harbor Light Marina of approximately $1,456.

Since under the terms of the commercial concession lease only Harbor Light Marina could construct docking facilities, the defendants thought it was necessary as a matter of formality that Harbor Light Marina issue bills of sale for the slips in Dock "F" to the eleven individual owners. These bills of sale purport to pass title to the eleven individual defendants, and provide that Harbor Light is authorized to expend funds from the escrow account as may be necessary for repairs on Dock "F" and to pay insurance and utility bills, but "if and only when" the individual owners fail to do so. The bills of sale provide further that the sale of Dock "F" is made subject to the terms of the commercial concession lease. While Harbor Light Marina, Inc., as a matter of form remains ultimately responsible to see that the owners of Dock "F" do not violate the terms of that lease, in reality, Harbor Light Marina, Inc., itself has had little, if any, involvement in the planning, construction, operation, or supervision of Dock "F."

Dock "F" is located approximately three-fourths of a mile around the shoreline from the main marina complex and is not visible from the main marina. Lot "C," which the members in Dock F Association paved for use as a parking lot, is adjacent to the shoreline to which Dock "F" is moored and provides access across public "collar lands" to Dock "F." At least two of the parking spaces constructed for Lot "C" actually extend onto public collar lands. The public has no access to Dock "F" other than by boat or by walking along the public shoreline. At one time "Private Property" or signs containing a similar message were posted on or around Dock "F," and were removed only after protests by Corps officials. Dock "F" is used exclusively by the eleven individual defendants or their invitees. No public services or facilities such as a boat ramp, restrooms, food, fuel pumps, or other such services are associated with Dock "F." The individual owners of Dock "F" can normally obtain such services offered by the marina only by travelling to the marina by boat or by car. No security protection is provided for Dock "F" by Harbor Light Marina.

Warren Moore testified at trial that he spoke to plaintiff in 1976 regarding the possibility of a dock being built in the area near her property, and she objected. She was given no further notice by Warren Moore, the Corps of Engineers, or any of the individual defendants of the proposed construction of Dock "F." Plaintiff first saw the dock around either the last weekend in June or the first weekend in July, 1978, by which time construction of the main structure of the dock was substantially completed. Plaintiff testified that she visited the lake only on weekends, and that she had been absent from the lake for four weeks prior to the date she first noticed Dock "F." Even assuming that plaintiff may have seen some activity on Lot "C" in preparation for construction of the dock, such activity would not be inconsistent with the building of a home on Lot "C" and would likely not have been such as would give her notice of construction of a dock at that location. Soon after noticing Dock "F" plaintiff obtained an attorney who notified the Corps of Engineers of plaintiff's objections to Dock "F" and who, from July, 1978, through November, 1979, attempted to resolve the matter with the Corps of Engineers directly and ultimately through the office of Georgia Senator Nunn. Those avenues being unsuccessful, plaintiff filed this suit on March 6, 1980.

Plaintiff's property abuts an area of shoreline included within the commercial concession lease to Harbor Light Marina and begins approximately ninety feet from Lot "C" toward the landlocked end of the cove. Plaintiff purchased her property in June, 1974, through Warren Moore from Harbor Light Marina, Inc. Plaintiff's property was a part of a multi-acre parcel of property adjacent to and behind the public shoreline under the commercial concession lease and owned by Harbor Light Marina, Inc. through Holiday Land Company, a related entity also owned by Warren and Sidney Moore. At the time plaintiff purchased her lot, Warren Moore had initiated plans to develop a portion of the property for residential purposes with the hope that the public would be eager to purchase homes on Lake Hartwell near I-85. With this idea in mind he employed a surveyor to mark off approximately seven acres into proposed lots and on two of these lots he constructed model homes for view and inspection by the public. One of these homes is that purchased and presently owned by plaintiff.

A plat attached to the deed from Harbor Light Marina, Inc. to plaintiff designated her property as Lot "A," being a plat only of that particular lot, and the deed itself contained a restriction limiting the use of the lot to residential purposes only. (Plaintiff's Exhibit 3). In 1976 plaintiff purchased an additional lot adjacent to Lot "A," this...