New Manchester Resort & Golf, LLC v. Douglasville Dev., LLC

• Decision Date: 16 August 2010
• Docket Number: Civil Action File No. 1:09-CV-504-TWT
• Citation: 734 F.Supp.2d 1326
• Court: U.S. District Court — Northern District of Georgia
• Parties: NEW MANCHESTER RESORT & GOLF, LLC, Plaintiff, v. DOUGLASVILLE DEVELOPMENT, LLC, et al., Defendants.

734 F.Supp.2d 1326

NEW MANCHESTER RESORT & GOLF, LLC, Plaintiff,

v.DOUGLASVILLE DEVELOPMENT, LLC, et al., Defendants.

Civil Action File No. 1:09-CV-504-TWT.

United States District Court,

N.D. Georgia,

Atlanta Division.

Aug. 16, 2010.

Adam P. Princenthal, C. Cooper Knowles, Andrew Knowles & Princenthal, Atlanta, GA, for Plaintiff.

Davene Dashawn Walker, Kathryn M. Zickert, Kelley Bowden Gray, Marcia M. Ernst, Smith Gambrell & Russell, Atlanta, GA, for Defendants.

ORDER

THOMAS W. THRASH, JR., District Judge.

This is a Clean Water Act case. It is before the Court on the Plaintiff's Motion for Partial Summary Judgment [Doc. 108], the Defendants' Motion for Summary Judgment [Doc. 126], and the Defendants' Motion to Exclude Expert Testimony and Report of John Vermont [Doc. 136]. For the reasons set forth below, the Plaintiff's Motion for Partial Summary Judgment is DENIED, the Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, and the Defendants' Motion to Exclude Expert Testimony and Report of John Vermont Exclude is DENIED.

I. Background

The Plaintiff New Manchester Resort & Golf, LLC owns 309 acres of land in Douglas County, Georgia. The owners had intended to build a golf course, resort, and conference center on their property. But they have not built those things yet, and their property remains minimally developed. The Plaintiff purchased its property from New Manchester LLC in 2003. The Defendants Douglasville Development, LLC and Sweetwater Investment Properties, LLC own 1,442 acres of land adjacent to the property of the Plaintiff. They have developed, and continue to develop, substantial parts of their property. They have built subdivisions, parks, and retail space as part of a new mixed-use development called the Tributary at New Manchester. The Defendants also purchased their property from New Manchester LLC in 2003.

An unnamed tributary (the "Stream") of Sweetwater Creek originates on the Defendants' property and flows into the Plaintiff's. After it enters Plaintiff's property, the Stream flows into a series of wetlands and then into Sweetwater Creek. Sweetwater Creek in turn flows into the nearby Chattahoochee River. The Plaintiff says that the Defendants have discharged "sediment-laden storm water" from their property into the Stream. (Compl. ¶ 13.) Although the Defendants have a permit to discharge storm water, the Plaintiff says that the Defendants violated the permit's conditions by failing to maintain best management practices, violating Georgia's in-stream water quality standards, and ignoring monitoring and reporting requirements. The Plaintiff also says that the Defendants placed fill material into the Stream and the wetlands. The Defendants do not have a permit to place fill material.

The Plaintiff asked the Defendants to stop the discharges and fix the damage to the Plaintiff's property, but the parties were unable to resolve their dispute. On October 23, 2008, the Plaintiff sent the Defendants an intent to sue letter. ( Id., Ex. A.) On February 25, 2009, the Plaintiff filed this Clean Water Act case against the Defendants. The Plaintiff asserts Clean Water Act claims for violating the conditions of the storm water discharge permit (i.e., failing to maintain best management practices, violating Georgia's in-stream water quality standards, and ignoring monitoring and reporting requirements) and for placing fill material without a permit. See 33 U.S.C. § 1311. The Plaintiff also asserts state law claims for nuisance, trespass, and negligence. The Plaintiff seeks relief in the form of a permanent injunction, civil penalties, compensatory and punitive damages, and attorney fees.

The parties have filed a number of motions that are ready for decision by the Court. The Defendants move for summary judgment as to all of the Plaintiff's claims. They say that (1) the Plaintiff lacks constitutional standing to assert its claims, (2) the Plaintiff's intent to sue letter failed to provide notice of all of its claims, (3) there is insufficient evidence that the Defendants violated their permit conditions, (4) an administrative fine by a local government agency precludes the Plaintiff's Clean Water Act claims, (5) a drainage easement and restrictive covenant precludes the Plaintiff's state law claims, and (6) there is insufficient evidence of damages. They also move to exclude the expert testimony of John Vermont. The Plaintiff moves for summary judgment as well, but only as to the Defendants' liability under the Clean Water Act for violation of permit conditions.

II. Summary Judgment Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show thatno genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Discussion

A. Standing

To satisfy the constitutional requirement of standing, a plaintiff must show injury in fact, traceability, and redressability. The plaintiff must show that:

(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The plaintiff bears the burden of showing standing, and it must do so with respect to each claim. Id. The purpose of the standing inquiry is to ensure "that a plaintiff has a sufficient personal stake in a dispute to render judicial resolution appropriate." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153 (4th Cir.2000). The Court will address each element separately.

1. Injury in Fact

The Plaintiff says that there has been concrete and actual damage to its property. Its evidence includes testimony from Richard Whiteside, the Plaintiff's biology expert. Whiteside conducted a bathymetric survey of the Plaintiff's property in October 2008. (Expert Report of Richard W. Whiteside.) He found that the property had "received recent sediment deposition of approximately 2,834.5 cubic yards." ( Id., at 4.) This "rate of sedimentation [is] greater than the wetland can assimilate" and may undermine the health of the wetlands on the Plaintiff's property:

Q. All right. And what's the practical effect of getting sediment in there that is more than can be assimilated?

A. Well, you've get [sic] a lot of things that can happen. Number one, you got poor water quality. You get increased turbidity, sedimentation, which can then in turn smother aquatic inspects [sic], other aquatic forms, aquatic eggs, fish eggs, salamander eggs and so forth, that basically you reduce and damage the food chain.

(Whiteside Dep. at 86-87.) Whiteside also looked at the cost of cleaning up the accumulated sediment. He found that the cost of removing the sediment and restoring the wetlands "is estimated to be approximately $980,000." (Expert Report of Richard W. Whiteside, at 5.) Whiteside's testimony about sediment accumulation, the health of the wetlands, and clean up cost is sufficient evidence of injury in fact to the Plaintiff's property.

The Defendants "acknowledge that customarily the existence of [sediment accumulation] and a removal cost would establish standing." (Defs.' Reply Br. in Supp. of Their Mot. for Summ. J., at 14.) Theysay, however, that this case is different because the Plaintiff is a corporation. They say that, as a corporation, the Plaintiff must also show that:

(1) its members would otherwise have standing to sue in their own right;

(2) the interests at stake are germane to the organizations' purpose; and

(3) neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit.

(Br. in Supp. of Defs.' Mot. for Summ. J., at 24.) But that standard only applies to representational or associational standing. That is not what the Plaintiff is asserting. It is asserting standing based on an injury to itself. Cf. Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy."). The Plaintiff owns the property that is directly affected by the Defendants' discharges, and it says that its property-not someone else's-has been damaged. The Plaintiff, therefore, does not need to make any showing regarding its members' standing or the corporation's purpose.

The Defendants also say that a corporation cannot have recreational, aesthetic, or environmental interests. See Citizens Coordinating Comm. on Friendship Heights, Inc. v. Washington Metro. Area Transit Auth., 765 F.2d 1169, 1173 (D.C.Cir.1985) ("Though a corporation is a person for some purposes, we would be most reluctant to hold that it has senses and so can be affronted by deteriorations in its environment."). Even assuming that is correct, corporations surely have property and economic interests, and the Plaintiff has shown an injury to those interests. See 13A...