Isle of Hope Historical Ass'n, Inc. v. U.S. Army Corps of Engineers

• Decision Date: 29 May 1981
• Docket Number: No. 81-9051,81-9051
• Parties: 11 Envtl. L. Rep. 20,675, 11 Envtl. L. Rep. 20,679 ISLE OF HOPE HISTORICAL ASSOCIATION, INC., Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS and Isle of Hope Marina, Defendants-Appellees. Summary Calendar. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 215

646 F.2d 215

11 Envtl. L. Rep. 20,675, 11 Envtl. L. Rep. 20,679

ISLE OF HOPE HISTORICAL ASSOCIATION, INC., Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS and Isle of Hope

Marina, Defendants-Appellees.

No. 81-9051

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

May 29, 1981.

Walter C. Hartridge, John Gregory Odom, Savannah, Ga., for plaintiff-appellant.

Kenneth C. Etheridge, Savannah, Ga., Anthony Liotta, Acting Asst. Atty. Gen., Kay L. Richamn, Dirk D. Snel, Appellate Section, U.S. Dept. of Justice, Land and Natural Resources Div., Washington, D. C., for Corps of Engineers.

John G. Kennedy, Don Smart, Savannah, Ga., for Isle of Hope Marina.

Appeal from the United States District Court for the Southern District of Georgia.

Before HILL, FAY and ANDERSON, Circuit Judges.

PER CURIAM:

The judgment of the District Court is AFFIRMED based upon the Order, in the nature of a memorandum opinion, entered on November 14, 1980 and appended hereto.

IN THE UNITED STATES DISTRICT COURT FOR THE

                         SOUTHERN DISTRICT OF GEORGIA
                               SAVANNAH DIVISION
                ISLE OF HOPE HISTORICAL       ]
                ASSOCIATION, INC.             ]
                                              ]
                               Plaintiff      ]
                                              ]
                                              ]
                       V.                     ]       CV480-15
                                              ]
                                              ]
                UNITED STATES ARMY CORPS      ]
                OF ENGINEERS and ISLE OF      ]
                HOPE MARINA                   ]
                                              ]
                              Defendants      ]
                                  __________
                

ORDER

This case is before the Court pursuant to provisions of the Administrative Procedure Act, 5 U.S.C. §§ 702, 703, and National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Plaintiff, Isle of Hope Historical Association, a corporation organized under the Georgia Nonprofit Corporation Code, seeks revocation of certain permits issued by the defendant, Corps of Engineers of the United States Army to the defendant Isle of Hope Marina. Plaintiff also seeks recall of a document styled Final Environmental Impact Statement on Department of The Army Permit Application By Isle of Hope Marina April, 1978, for additional findings and analysis consistent with certain objections it offers against the present report.

Two hearings have been conducted in this Court with respect to the present case. On October 14, 1980, the Court entertained oral argument from all sides on plaintiff's motion for a Temporary Restraining Order preventing the defendant Marina from proceeding with construction under the permits here at issue until the merits of the dispute could be addressed. Finding that the plaintiff did face potential irreparable injury in the absence of injunctive relief and that a proper showing for such relief had been made, the Court entered a temporary restraining order October 14. This order enjoined further construction by the Isle of Hope Marina, while allowing some measures to preserve work that had already been carried out. At this time the Marina was first made a formal party to the litigation, and a second hearing on the merits of plaintiff's claim was scheduled for October 29, 1980. An accelerated briefing schedule was also ordered to facilitate this hearing.

On October 29, the Court entertained extensive oral argument from all sides. The Court also received written submissions from the parties both before and after this hearing. Upon consideration of these arguments and the relevant supporting exhibits now before the Court, it is my opinion that the plaintiff has failed to make out a showing that the Environmental Impact Statement here challenged is deficient in any of the particulars which plaintiff has pointed to, or that the permits at issue were not properly granted.

I therefore conclude that the temporary restraining order now in effect should be dissolved, and that preliminary and permanent injunctive relief should be denied. The bases for these determinations are outlined below.

Background

The present action involves a planned expansion of boat repair and maintenance facilities operated by the defendant Isle of Hope Marina, on the Skidaway River, Isle of Hope, Chatham County, Georgia. The Marina and its predecessors date back to the late 19th Century, when the area also included a small amusement park, and other public recreational facilities. Reflecting the traditional use of this area the Chatham County Zoning Code adopted in 1962 classified the area occupied by the Marina as "T-B" (tourist-business), while classifying the surrounding area "R-1" (residential) to reflect the presence of private homes, many of which also date from the late 19th Century. The plaintiff, Isle of Hope Historical Association, Inc., is a nonprofit corporation made up of owners of residential property in the immediate vicinity of the Marina, including certain of these homes of some historical or architectural significance.

In 1974, the defendant Marina began taking legal steps to gain necessary permits for a significant expansion of its facilities. The Marina planned construction of several covered docks and two straddle crane piers for removing vessels from the water to permit hull repairs. A corrugated steel structure was also to be built to enlarge and improve repair facilities at the Marina. On February 4, 1974, the Marina filed application with the defendant Corps of Engineers for a permit (0 74 OYN 002851) to allow the proposed improvements in docking facilities. A second permit (074 OYN 003004) was requested July 24, 1974. Public notices were issued regarding both these requests within about thirty days of the applications.

Subsequently, interested Federal, state and local government agencies were advised of the permit applications. Most of these parties made no objection to the proposed work. However, some administrative accommodations were necessary. The State of Georgia required that a permit be obtained from the Georgia Marshlands Protective Agency because the improvements would involve filling of lands between high and low watermarks which are owned by the state. After some initial objection, permits were obtained and notice of this approval given to the Corps.

On October 31, 1974, the Corps specifically requested, as part of the comment process, that Chatham County, the local government having jurisdiction over the Marina, advise concerning "the relationship of (the permit request) to any zoning actions or other functions under the purview of the local government." Defendant Corps of Engineers' Exhibit 1-12. Chatham County officials advised by a letter of November 11, 1974 that "the plans were inspected by the Chatham County Building Official and the Zoning Administrator and found to be in compliance with existing county requirements." Corps Exhibit 1-15.

On July 30, 1975 the Savannah District Engineer approved an environmental assessment and executed a "statement of findings" requiring development of an Environmental Impact Statement (EIS). The EIS was ordered because the Marina permit requests were viewed as highly controversial even though they did not amount to "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). After two years in preparation, the Draft Environmental Impact Statement (DEIS) was completed and made available for public inspection in April 1977. The DEIS was also submitted to and subsequently approved by the Environmental Protection Agency.

On May 18, 1977, the Corps of Engineers held a public hearing on the DEIS. Following this hearing and receipt of other comments, a final EIS was completed. Comments were also entertained with respect to this document. Of particular significance was a letter of August 31, 1978 in which parties substantially similar to those comprising the present plaintiff offered objections closely resembling those now before this Court. In response to these comments, the Corps again asked Chatham County to examine the project in light of zoning and other appropriate considerations. Corps Exhibit 1-32. Again the Corps was advised that the project was in conformity with Subsequently, plaintiff filed a suit in Chatham County Superior Court to enjoin issuance of building permits for the Marina. Plaintiff also objected to the Marina's request for extension of its Marshland Protection Agency permit. After a hearing in December 1978, the State Board of Natural Resources affirmed extension of the permit issued to the Marina. In December 1979, plaintiff's prayer for injunctive relief based on zoning regulations was denied by Superior Court Judge Frank Cheatham. ¹ The present suit was filed on January 22, 1980 to challenge the sufficiency of the EIS.

county policy. A "response and clarification" to the comments followed. Corps Exhibit 1-33. Finally, in November 1978, the permits were approved and issued.

Plaintiff's Objections

Plaintiff has presented in oral and written form four somewhat over-lapping objections to the EIS at issue here. Plaintiff contends first that the EIS contains a "fatal defect" in that it fails to discuss and analyze inconsistencies between the Marina expansion plan and zoning and land use policies in Chatham County. See 40 C.F.R. § 1502.16(c). Plaintiff makes specific reference here to a "professionally-printed, 35 page official document of that authority (the Metropolitan Planning Commission) pursuant to a request of the Chatham County Commission." The document, Land Use Element Chatham County Georgia, 1977, suggests that development of the Marina "should be limited to the area presently zoned for this use." The report is not specifically discussed in the EIS. Plaintiff also makes particular reference to an apparent slight encroachment of the proposed Marina expansion into land zoned "R-1" by the county. Both these facts, plaintiff contends, amount to inconsistencies with local land use...