HALL CTY. HISTORICAL SOC., INC. v. Ga. Dept. of Transp., Civ. No. C77-100G.
| Decision Date | 07 March 1978 |
| Docket Number | Civ. No. C77-100G. |
| Parties | HALL COUNTY HISTORICAL SOCIETY, INC. and W. L. Norton Agency, Inc., Plaintiffs, v. GEORGIA DEPARTMENT OF TRANSPORTATION, Thomas D. Moreland, Individually and as Commissioner of Georgia Department of Transportation, Brock Adams, Individually and as Secretary of the United States Department of Transportation, and United States Department of Transportation, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
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Furman Smith, Jr., Atlanta, Ga., David A. Fox, Harmon T. Smith, Jr., Gainesville, Ga., for plaintiffs.
Stanley F. Birch, Jr., Gainesville, Ga., for plaintiff-intervenor W. L. Norton Agency, Inc.
Arthur K. Bolton, Atty. Gen., Roland F. Matson, Asst. Atty. Gen., Atlanta, Ga., for defendants.
Robert J. Castellani, First Asst. U. S. Atty., Atlanta, Ga., for Federal defendants.
O'KELLEY, District Judge.
This is a civil action for declaratory as well as preliminary and permanent injunctive relief pursuant to (1) the National Environmental Policy Act of 1962, 42 U.S.C. § 4331 et seq. hereinafter "NEPA"; (2) section 4(f) of the Transportation Act, 23 U.S.C. § 138 hereinafter "section 4(f)"; (3) the Federal-Aid Highways Act, 23 U.S.C. § 128; (4) the National Historic Preservation Act, 16 U.S.C. § 470 et seq.; and (5) applicable Georgia law. In two counts, plaintiff Hall County Historical Society hereinafter the "Historical Society" seeks (1) to enjoin the defendants from proceeding with a portion of a federal-aid highway project in Gainesville, Georgia, hereinafter "the project" known as "the Green Street extension," and (2) both a judgment declaring the federal defendant's delegation of its NEPA responsibilities to defendant Georgia Department of Transportation hereinafter "GDOT" illegal and void and an injunction restraining such illegal delegation of NEPA responsibilities unless and until the GDOT repudiates and rescinds a certain "Memorandum of Understanding." Plaintiff-intervenor, the W. L. Norton Agency, Inc. hereinafter the "Norton Agency", seeks relief substantially similar to that sought in count one of plaintiff's complaint and, in addition, specific performance of an alleged agreement with defendant GDOT or, in the alternative, damages and other appropriate relief from defendant GDOT as a result of defendant GDOT's alleged breach of said agreement. Subject matter jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1343, 1361, 5 U.S.C. § 701 et seq., and upon principles of ancillary jurisdiction. This action is presently before the court on (1) the defendants' motions to dismiss the action under rule 12(b) of the Federal Rules of Civil Procedure for lack of standing, lack of subject matter jurisdiction, and laches; (2) the plaintiff's and the plaintiff-intervenor's requests for preliminary injunctive relief pursuant to rule 65 of the Federal Rules of Civil Procedure; and (3) the motion of defendant Thomas D. Moreland to dismiss him as an individual defendant.
This action arises from a highway project funded and developed under the Federal-aid highway program for the improvement of approximately .877 miles of U.S. Route 129 within the City of Gainesville, Georgia. Under the Federal-aid highway program the federal government generally does not build highways. Rather, it administers a grant-in-aid program to assist the states which are responsible for highway design and construction. Consequently, each step in the development of a particular project normally consists of a state request for approval and a federal response thereto, which is governed by compliance with the applicable statutory and regulatory requirements. Thus, the project in question logically involves the actions of both state defendants, the Georgia Department of Transportation and its Commissioner, Thomas D. Moreland, and federal defendants, the United States Department of Transportation and its Secretary, Brock Adams.
As originally conceived in 1965, the Gainesville project was designed primarily to create a Central Business District bypass for the purpose of improving traffic flow and reducing congestion in the City of Gainesville by diverting traffic from the Central Business District portion of U.S. 129 to an upgraded and widened Sycamore Street. As proposed at a public location hearing held on July 14, 1966, the Gainesville project was to extend 0.76 miles along Sycamore Street from Summit Street to North Green Street.
In 1972 an environmental review of the Gainesville project, as originally proposed, was undertaken in accordance with the NEPA resulting in Federal Highway Administration approval of a document referred to as "Negative Declaration." The "Negative Declaration" was prepared to evidence and support a determination that although the Gainesville project might be considered "a major federal action," it would not have a "significant effect" upon the quality of the human environment.
On January 17, 1973, following appropriate notices in the local Gainesville newspaper, The Times, and in local radio station broadcasts, "a design public hearing" was held in accordance with 23 U.S.C. § 128. Although the notices for the hearing itself described the Gainesville project as extending along Sycamore Street from Summit Street to North Green Street, with a transition area on North Green Street ending 500 feet to the north on Green Street, the Negative Declaration, copies of which were made available at the hearing, made no reference to such a "Green Street extension" for transition lanes and showed the project as terminating at the intersection of Sycamore Street and North Green Street. However, the uncontradicted testimony of Mr. Hal Rives, State Highway Engineer for defendant GDOT, indicates that the possible effects of the Green Street transition lanes were specifically discussed by several individuals who attended the hearing. Subsequently, a design study report on the Gainesville project prepared by the GDOT together with a transcript and certification of the design public hearing and request for design approval were submitted by the GDOT to the Federal Highway Administration. The Federal Highway Administration approved the design on April 9, 1973, and notice of design approval was then published in The Times.
Finally, in 1977, pursuant to the requirements of 23 C.F.R. § 771.11(h), the GDOT conducted a reevaluation of the project as it was altered from the original proposals to determine whether the alterations would result in any substantial changes in the potential social, economic, or environmental effects of the project. The update included a discussion of air and noise quality, traffic projections, historic preservation, and concluded that the project modifications would not result in any significant changes in the project's effects on the environment. The defendants allege that the Federal Highway Administration reviewed the GDOT environmental update and adopted it on June 24, 1977. A $1,198,000 contract for the project was awarded on August 9, 1977, and actual construction began on September 26, 1977.
The Green Street Historic District hereinafter "the District" is a distinct section of the City of Gainesville located along both sides of Green Street from 380 Green Street to the Glenwood Road intersection. The buildings in the District are predominantly Victorian and Neo-classical Revival residences dating from the late 19th and early 20th centuries. Although some of the residences have been adapted to commercial or multi-family uses, the District as a whole has maintained its authentic character and thus continues to be a significant visual and cultural amenity of Hall County and North Georgia. In order to preserve the historic character of the District, a special zoning classification was created by the City of Gainesville, and on August 15, 1975, the District was listed on the National Register of Historic Places. Notice of the listing was published in the February 10, 1976, issue of the Federal Register. The protection of the District has been an ongoing project of the plaintiff, Historical Society.
Pursuant to rule 65(a)(2) of the Federal Rules of Civil Procedure, trial of the action on its merits was advanced and consolidated with the evidentiary hearing on plaintiff's request for preliminary injunctive relief held on December 29, 1977. In the course of the December 29, 1977, hearing, the court stated that the evidence appeared to indicate that a certain city lot occupied by the Norton Agency was situated within the District. Because the project plans at that time called for a physical taking of a portion of the Norton Agency property, this statement from the bench prompted the GDOT to revise the project plans, deleting any physical use of the Norton property, in order to assure that project construction would be terminated outside the boundaries of the District. The Norton Agency apparently received notice from the GDOT of these revisions in the project plans on January 3, 1978. Subsequently, on January 18, 1978, alleging that it had secured an agreement with the GDOT to obtain an earlier alteration of the project plans to provide for a left turn access into its property in consideration for its conveyance to the GDOT of a parcel of said property, and that defendant GDOT has wrongfully attempted to rescind this agreement, the Norton Agency filed an application to intervene in the case sub judice as a party plaintiff pursuant to rule 24(a)(2) of the Federal Rules of Civil Procedure. Based upon the allegations in the proposed complaint of the Norton Agency, the court determined that the Norton Agency had an interest relating to this action, that disposition of this action may impair its ability to protect its interest "as a practical matter," and that its interest was not...
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