Mountainbrook Homeowners Ass'n, Inc. v. Adams

• Decision Date: 31 July 1979
• Docket Number: No. A-C-79-106.,A-C-79-106.
• Citation: 492 F. Supp. 521
• Court: U.S. District Court — Western District of North Carolina
• Parties: MOUNTAINBROOK HOMEOWNERS ASSOCIATION, INC., a non-profit North Carolina Corporation; William Pfeiffer and wife, Leigh Pfeiffer; Herbert Moore and wife, Loretta Moore; Walter W. Rule, Jr., and wife, Nancy Rule; and Charles A. Martin, Senior Warden, St. Luke's Episcopal Church and Dan Wall, Junior Warden, St. Luke's Episcopal Church, Plaintiffs, v. Brock ADAMS, Secretary of the Department of Transportation of the United States of America; Carl Bowers, Acting Administrator of the Federal Highway Administration; Thomas W. Bradshaw, Jr., Secretary of the North Carolina Department of Transportation; Billy Rose, Highway Administrator, Division of Highways, of the North Carolina Department of Transportation; Earl McEntire, Division Engineer of the 13th Highway Division of the North Carolina Department of Transportation; and H. C. Reed, Jr., Project Engineer, Division of Highways, North Carolina Department of Transportation; Asheville Contracting Company, Inc., a North Carolina Corporation and Baxter H. Taylor, Defendants.

492 F. Supp. 521

MOUNTAINBROOK HOMEOWNERS ASSOCIATION, INC., a non-profit North Carolina Corporation; William Pfeiffer and wife, Leigh Pfeiffer; Herbert Moore and wife, Loretta Moore; Walter W. Rule, Jr., and wife, Nancy Rule; and Charles A. Martin, Senior Warden, St. Luke's Episcopal Church and Dan Wall, Junior Warden, St. Luke's Episcopal Church, Plaintiffs, v. Brock ADAMS, Secretary of the Department of Transportation of the United States of America; Carl Bowers, Acting Administrator of the Federal Highway Administration; Thomas W. Bradshaw, Jr., Secretary of the North Carolina Department of Transportation; Billy Rose, Highway Administrator, Division of Highways, of the North Carolina Department of Transportation; Earl McEntire, Division Engineer of the 13th Highway Division of the North Carolina Department of Transportation; and H. C. Reed, Jr., Project Engineer, Division of Highways, North Carolina Department of Transportation; Asheville Contracting Company, Inc., a North Carolina Corporation and Baxter H. Taylor, Defendants.

No. A-C-79-106.

United States District Court, W. D. North Carolina, Asheville Division.

July 31, 1979.

Long, McClure, Parker, Hunt & Trull, P. A. by Robert B. Long, Jr. and David E. Matney, III, Asheville, N. C., for plaintiffs.

Adams, Hendon & Carson, P. A. by George Ward Hendon, Asheville, N. C., for Asheville Contracting Co. and Baxter H. Taylor.

James B. Richmond, Sp. Deputy Atty. Gen., Raleigh, N. C., for state defendants.

Harold M. Edwards, U. S. Atty., Asheville, N. C., for Federal defendants.

MEMORANDUM OF DECISION

WOODROW WILSON JONES, Chief Judge.

The Plaintiffs alleged that the Defendants have violated the National Environmental Policy Act, hereinafter referred to as "NEPA", 42 U.S.C.A. Section 4321 et seq., and the rules and regulations promulgated thereunder, brought this action seeking both preliminary and permanent injunctive relief. Specifically, the Plaintiffs allege that the Defendants have failed to comply with the provisions of the Environmental Impact Statement, hereinafter referred to as "EIS" relative to the disposal of the excess or waste rock taken from the Beaucatcher Mountain cut in connection with the construction of Interstate Highway 240, hereinafter referred to as "I-240" through the City of Asheville, North Carolina. More specifically the Plaintiffs seek the following injunctive relief: (1) a preliminary injunction against Brock Adams, Secretary of the Department of Transportation of the United States and Carl Bowers, Acting Administrator of the Federal Highway Administration, hereinafter referred to as the "Federal Defendants," halting all payments to the State of North Carolina on the Beaucatcher Mountain project until the provisions of the Environmental Impact Statement are fully complied with; (2) a preliminary injunction against Thomas W. Bradshaw, Jr., Secretary of the North Carolina Department of Transportation, Earl McEntire, Division Engineer of the 13th Highway Division of the North Carolina Department of Transportation and H. C. Reed, Jr., Project Engineer, Division of Highways, North Carolina Department of Transportation, hereinafter referred to as the "State Defendants," halting payments to the Asheville Contracting Company, the contractor for the project until the provisions of the Environmental Impact Statement for the project are complied with fully; and (3) a preliminary injunction against the Asheville Contracting Company, and Baxter H. Taylor, hereinafter referred to as the "Private Defendants," stopping the disposal of the waste rock on the lands described in the complaint. The Plaintiffs also seek a permanent mandatory injunction against all Defendants requiring the removal of all waste rock from the lands described in the complaint.

The Plaintiff, Mountainbrook Homeowners Association, Inc. is a non-profit North Carolina corporation whose membership consists of homeowners in the Mountainbrook Subdivision located in Chunns Cove section of the City of Asheville near the highway project in question. The individual Plaintiffs are homeowners in the same subdivision and the St. Luke's Episcopal Church, represented by its Senior and Junior Wardens, owns church property near the highway project.

The primary purpose of the Federal-Aid highway project in question, which has been designated by the State as Project 8.1901410, I-240-1(6)6 and funded by the Federal Highway Administration as its Project F-34-1(6), is to complete the freeway loop system which constitutes the basic framework for the entire Asheville highway network. The project was designed to provide access from Interstate 40 to Asheville's central business district and since this city is located in the heart of the mountains of western North Carolina it was necessary to go around, over or through mountains in order to build the highway. Beaucatcher Mountain which guards the eastern entrance into Asheville like the Rock of Gibraltar guards the entrance into the Mediterranean Sea had to be dealt with and the highway officials were confronted with the problem of going through the mountain with an open cut or tunneling through with a six lane tunnel. The debate raged for more than ten years when both the State and Federal highway officials agreed upon an open cut. Those opposed to a cut through the mountain formed the Beaucatcher Mountain Defense Association and instituted suit in Federal Court contending that the highway officials had failed to comply with "NEPA" and the Federal-Aid Highway Act, 23 U.S.C.A. Section 128 et seq. Specifically the Association contended that the Environmental Impact Statement was inadequate. The Court found the Statement to be adequate and refused injunctive relief and the work continued.

The contract for the cut was awarded to the Asheville Contracting Company and the work is now nearing completion. The cut required the moving of large quantities of rock some of which is being used in the construction of the roadway and the surplus or waste being disposed of by storing it on lots owned or leased by Asheville Contracting Company or Baxter H. Taylor, President and chief stockholder of the contracting company. The Plaintiffs own land adjoining these lots upon which the waste rock has been deposited and they contend that these deposits are unsightly and decrease the value of their property. They specifically contend that the Defendants have not complied with the "EIS" prepared and filed by the State and Federal highway officials prior to the commencement of the work.

The Defendants deny any wrongdoing and contend that they have complied with the "EIS" and will continue to do so until the project is complete. They move to dismiss for lack of jurisdiction, that the complaint fails to state a cause of action and that the Plaintiffs do not have standing to bring and maintain this action.

The Court heard all motions in Asheville on May 16, 1979 and after consideration of the pleadings, briefs and arguments now enters its findings and conclusions.

Congress declared the National Environmental Policy of this Nation when it enacted in 1970 the National Environmental Policy Act, 42 U.S.C.A. Section 4321 et seq. The declared policy is set forth in Section 4331, as follows:

(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resources exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may —

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

Responsibility of each person to contribute to preservation and enhancement of environment

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

In Section 4332 the Congress authorized and directed that

". . . all agencies of the Federal Government shall — . . .

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human

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