Mullin v. Skinner, 90-547-CIV-5-BR.
| Decision Date | 19 November 1990 |
| Docket Number | No. 90-547-CIV-5-BR.,90-547-CIV-5-BR. |
| Citation | 756 F. Supp. 904 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Courtney J. MULLIN, Minnie Kelly Hunt, William G. Hunt, Warren D. Knapp, Cletus A. Waldmiller, Kathryn McCoy, Dailey Longwood Canady, Albert N. Wells, and Sunset Beach Taxpayers Association, Plaintiffs, v. Samuel K. SKINNER, Secretary of the United States Department of Transportation, Thomas D. Larson, Administrator of the Federal Highway Administration, The Federal Highway Administration, Thomas J. Harrelson, Secretary of the North Carolina Department of Transportation, William G. Marley, Jr., North Carolina State Highway Administrator, The North Carolina Department of Transportation, and The North Carolina Highway Administration, Defendants. |
COPYRIGHT MATERIAL OMITTED
James B. Maxwell, Ruth Ann McKinney, Maxwell & Hutson, Durham, N.C., for plaintiffs.
Eileen G. Coffey, U.S. Atty's. Office, Raleigh, N.C., for defendants.
This is a suit for declaratory and injunctive relief arising out of the proposed construction of a high-rise, fixed-span bridge at the island of Sunset Beach, North Carolina. Plaintiffs are permanent residents of Sunset Beach, nonresident owners of property located in Sunset Beach, a commercial fisherman, and a nonprofit corporation consisting of 500 paid members who are both resident and nonresident land-owners of property located in Sunset Beach. Defendants include state and federal officials and agencies responsible for this bridge project. Plaintiffs allege that defendants have violated the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4331 et seq., the North Carolina State Environmental Policy Act ("SEPA"), N.C.Gen.Stat. §§ 113A-1 et seq., and Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c). They seek to enjoin defendants from letting bids or proceeding with the financing, contracting, or construction of the proposed bridge until defendants have prepared and circulated a full environmental impact statement ("EIS") in accordance with NEPA and SEPA, and have fully complied with Section 4(f) of the Transportation Act. They also seek a declaration that all permits obtained in furtherance of this project are null and void. Defendants deny that they have violated any of these statutes and also argue that plaintiffs' complaint is barred by the equitable doctrine of laches.
The trial of this action commenced on 1 October 1990 and consumed nearly three full days of the court's calendar. During the trial, 13 witnesses were called to testify and approximately 400 exhibits were entered into evidence. Additionally, the parties have submitted pretrial briefs, affidavits, post-trial briefs, and lengthy proposed findings of fact and conclusions of law. The court has considered the evidence and the submissions of the parties and now renders its decision. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, this opinion shall constitute the court's findings of fact and conclusions of law.
Sunset Beach is a small barrier island located on the southernmost border of North Carolina, just north of North Myrtle Beach, South Carolina. It is approximately two miles long and a half-mile wide. The island consists of about 1250 platted lots, of which some 825 are already developed, 525 having been developed in the last 10 years. Each dwelling has its own septic tank, as there currently is no sewer system on the island. The island boasts only fifty permanent residents, though the summer seasonal population approaches 7,500. During the summer months the beach is also populated by daily visitors. Town zoning regulations impose a height limit of 35 feet and restrict development to single-family dwellings, except for ocean-front lots, where duplexes are permitted, and except for portions of the island that have instituted planned residential development (PRD), which has multi-family potential. The island is comprised of environmentally sensitive wetlands on the northern side and sandy beaches on the southern side. A variety of threatened and endangered species can be found at Sunset Beach and birdwatching is one of the principal recreational activities. The only commercial development consists of two small hotels, a grocery store, an arcade for children, a souvenir shop, an ice cream parlor, and a fishing pier and cafe. The Town of Sunset Beach was organized in 1963 by an act of the North Carolina General Assembly. Of the 1900 acres of land within the corporate limits, approximately 1400 acres consist of beaches, marshes, and waterways.
The island of Sunset Beach is separated from the mainland by a narrow portion of the Intercoastal Waterway and marshlands. These wetlands are crossed either by boat or via the existing one-lane, pontoon, swing-span bridge which was initially completed in 1961 and was most recently renovated in 1984. The bridge has been described as the only one of its type in North Carolina. It is 506 feet long and consists of a 115-foot movable span which includes 30-foot ramps at each end that fluctuate with the tides. The bridge has 18-foot wide approach spans and a 14-foot wide roadway on the movable span, which generally accommodates only one-way traffic. Traffic figures show that an average of 2000 vehicles per day crossed the bridge in 1984; an estimated 4700 will cross the bridge in 2006.
In a closed position, the pontoon bridge provides no vertical clearance for waterway traffic. When the movable span is opened to allow waterway traffic to pass, roadway traffic at either end of the bridge must wait several minutes until the span is back in place. In 1980 there were 6,522 bridge openings delaying 61,229 vehicles. Traffic lights at each end of the causeway leading to the moveable span control the safe movement of traffic across the bridge. When the bridge opens for boat traffic, vehicles are stopped on both sides by electronically controlled gates. The administrative record does not contain a single report of an automobile accident caused by the bridge, though a handful of boats have collided with the bridge over the years.
Just to the west of the island side of the bridge is a boat landing, where up to twenty vehicles can place boats into the water. It is accessible at both low and high tides and is the only one at Sunset Beach. Aside from this facility, the nearest public boat landing accessible to residents of Sunset Beach is located two beaches away at Holden Beach.
In 1979, the North Carolina Department of Transportation ("NCDOT") proposed to replace the pontoon bridge. Federal monies provided under the Federal-Aid Highways Act, 23 U.S.C. §§ 101 et seq., were initially to constitute 75% of the funding, though that figure was later revised to 80%. In June 1979, NCDOT, United States Department of Transportation, and Federal Highway Administration ("FHWA") circulated a letter to various state and federal agencies soliciting comments on proposed alternatives then under consideration for the replacement bridge. The response from the National Marine Fisheries Service ("NMFS") stated that inadequate information was provided to make specific recommendations, but that, in any event, dredging and/or filling in wetlands in open waters should be avoided. The Natural Heritage Program within the North Carolina Division of Parks and Recreation recommended that a field study be conducted to determine the status of the American alligator, knobbed whelk, and venus' flytrap, endangered and threatened species known to exist on the island.
On 11 July 1979, a summer biological intern with the NCDOT prepared a thorough ecological assessment of the bridge replacement project. The assessment noted the presence of herons, storks, pelicans, ducks, geese, and other waterfowl nesting in the marshes along the coast of Sunset Beach. The assessment also addressed the inherent, aesthetic qualities at Sunset Beach:
Unlike most parcels of coastal land in North Carolina, the marshes have until recently been considered wastelands and have not been commercially developed. Thus these vast stretches of marsh grass with their large assemblage of wildlife still afford a rare and beautiful look at relatively unspoiled nature. North Carolina is one of the few eastern states blessed with large and numerous marshlands, and it is unquestionable that these valuable habitats are worth preserving for future generations as an ecological, educational, and esthetically valuable resource.
The assessment also addressed the impact dredging would have on the environment at Sunset Beach:
Dredging an access canal along the proposed alignment for navigation purposes of floating construction equipment will result in some primary impacts. Canals of this type intercept and carry-off freshwater drainage to the bay, lower the water table in the immediate vicinity, create a need for disposal sites, and represent a loss of marsh habitat. From an ecological standpoint, this type of construction is considered the least desirable. ...
On 2 October 1979, a public meeting was held at the Sunset Beach Town Hall to receive public comment. The NCDOT's news release announcing the meeting stated that "of special concern is the environmental sensitivity of the area." Approximately 25 people attended the meeting. The most vocal support was for improvement of the existing bridge, rather than replacement. In response to comments from both state and federal agencies and the public, ten preliminary bridge designs were prepared and five were studied, ranging from low-level drawbridges to a high-level, fixed-span bridge. A "no-build" alternative was also considered.
On 11 October 1979, a sociologist at NCDOT analyzed the social impact of replacing the pontoon bridge with a high-level, fixed-span bridge:
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