Parkview Corp. v. DEPARTMENT OF ARMY, ETC., 78-C-530.
| Decision Date | 13 September 1978 |
| Docket Number | No. 78-C-530.,78-C-530. |
| Parties | PARKVIEW CORPORATION, Plaintiff, v. The DEPARTMENT OF the ARMY, CORPS OF ENGINEERS, CHICAGO DISTRICT, Lawrence F. Coffill, acting district engineer, Chicago District, Defendants, v. The CITY OF NEENAH, a Municipal Corporation, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
DiRenzo & Bomier by Howard T. Healy, Neenah, Wis., for plaintiff.
Joan F. Kessler, U. S. Atty. by Charles H. Bohl, Asst. U. S. Atty., Milwaukee, Wis., for The Department.
James B. Gunz, City Atty., Neenah, Wis., for defendant.
DECISION and ORDER
This action is before me on the plaintiff's motion for a preliminary injunction.
For purposes of this motion, the following facts appear to be uncontroverted. Since 1968, the plaintiff corporation has owned land in the Lake Edge Park Plat adjacent to Lake Winnebago located in the city of Neenah, Wisconsin. The city has installed sewer and water lines and other improvements to lots in the Lake Edge Park Plat, and the plaintiff has developed and sold homes in the area since 1968.
In April, 1977, the plaintiff requested that the city install sewer, storm and water mains and other improvements to the remaining lots in the plat. The city's contractor began making the requested improvements in the summer of 1977. In September, 1977, the Wisconsin Department of Natural Resources and the Army Corps of Engineers (COE) ordered the city to stop making the improvements because some of the construction involved the placing of fill in a "wetland area" in violation of state and federal law.
Thereafter, the city removed some of the fill and other materials complained of, and the Wisconsin Department of Natural Resources upon a subsequent inspection found that there no longer was any fill located below the "ordinary high water mark" of Lake Winnebago in violation of the Wisconsin statutes and department regulations.
However, the COE in October, 1977, and March, 1978, determined that the fill and other improvements constructed by the city in the platted roadways of Glenayre and Skyview Drives were placed in a wetland area in violation of federal law. The roadways in question were made to provide access to the several lots owned by the plaintiff, and the sewer and water lines and other improvements provided utility services to the lots.
In March, 1978, the COE ordered the city to remove the improvements. In July, 1978, the city common council voted to comply with the COE's order, and the city advertised for and received bids from contractors for removal of the fill and improvements. Thereafter, the plaintiff commenced this action to forestall the planned removal operations.
The plaintiff's complaint asserts five causes of action. The first seeks injunctive relief; the second alleges a failure to comply with administrative procedures claimed to be applicable to the COE's actions and seeks judicial review; the third also seeks judicial review, alleging that the COE acted in excess of its authority; the fourth seeks declaratory relief finding that the COE acted beyond its jurisdiction; and the fifth seeks damages.
The present motion is for a preliminary injunction restraining the city and the COE from removing the fill and other materials from Glenayre and Skyview Drives. By letter dated August 29, 1978, the city informed the court that it does not oppose the issuance of the preliminary injunction requested by the plaintiff. The stated reason for its position is that the city "cannot reasonably comply with the request of the U.S. Corps of Engineers unless and until the issues raised in Parkview's complaint are decided on the merits." The COE opposes the motion and has filed a brief and affidavits supporting its position.
The prerequisites for granting a preliminary injunction were set forth in Fox Valley Harvestore, Inc. v. A. O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir. 1976). The plaintiff must show (1) that it has no adequate legal remedy and will suffer irreparable harm if the injunction does not issue; (2) that the threatened injury to the plaintiff is greater than the harm the injunction may cause the defendant; (3) that the plaintiff has at least a reasonable likelihood of success on the merits; and (4) that the public interest will not be disserved.
I am satisfied that the plaintiff has no remedy at law adequate to prevent the harm that will occur to it without an injunction, and the COE does not argue to the contrary. The marketability of the plaintiff's lots is likely to be adversely affected by the removal operations, and the plaintiff will be deprived of its use of the land. The COE has made no claim that the requested injunction will have any effect adverse to its interests. Although the COE asserts that the public interest will be disserved if the...
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Parkview Corp. v. DEPARTMENT OF ARMY, ETC.
...plaintiff's motion for a preliminary injunction enjoining the defendants from removing fill materials on Glenayre and Skyview Drives. 455 F.Supp. 1350. My decision was based on two points. First, on the record before me at that time, I was uncertain as to whether the COE had the authority t......
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USI Properties Corp. v. EPA, Civ. No. 80-2329.
...favor of the propriety of an initial determination by this Court on agency jurisdiction it cites the cases of Parkview Corp. v. Department of Army, 455 F.Supp. 1350 (A.D.Wis.1978) and P. F. Z. Properties, Inc. v. Train, 393 F.Supp. 1370 (D.C.1975). At the outset we note that it is undeniabl......