Smith v. City of Cookeville

• Decision Date: 29 August 1974
• Docket Number: No. 74-10-NE-CV.,74-10-NE-CV.
• Citation: 381 F. Supp. 100
• Parties: Cordell SMITH and wife, Fannie Smith, v. CITY OF COOKEVILLE, a municipal corporation, et al.
• Court: U.S. District Court — Middle District of Tennessee

381 F. Supp. 100

Cordell SMITH and wife, Fannie Smith, v. CITY OF COOKEVILLE, a municipal corporation, et al.

No. 74-10-NE-CV.

United States District Court, M. D. Tennessee, Northeastern Division.

August 29, 1974.

Joseph L. Lackey, Jr., Nashville, Tenn., for plaintiffs.

John H. Poteet, Cookeville, Tenn., Charles H. Anderson, U. S. Atty., Nashville, Tenn., for defendants.

MEMORANDUM

MORTON, District Judge.

Plaintiffs Cordell Smith and Fannie Smith own a tract of land in Cookeville, Putnam County, Tennessee, which is being condemned by the City of Cookeville for use in the Cane Creek Improvement Project, a proposed conservation and recreation development. Defendants are the City of Cookeville, Tennessee, and Bethel Newport, City Manager; the Putnam County Soil Conservation District; the United States Department of Agriculture, Earl Butz, Secretary of Agriculture; and the United States Department of Housing and Urban Development, James T. Lynn, Secretary of Housing and Urban Development.

Plaintiffs seek to enjoin further construction of the Cane Creek Improvement Project, and they allege jurisdiction pursuant to 5 U.S.C. § 701 et seq. and the National Environmental Policy Act (NEPA), Title 42 U.S.C. § 4321 et seq., and the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq. Specifically they allege that no environmental impact statement as required by § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), has been filed by the defendant federal agencies to this action and that they have not been offered relocation benefits in conjunction with the condemnation of their property. Plaintiffs have standing to bring this action. See Environmental Defense Fund v. Tennessee Val. Auth., 468 F.2d 1164 (6th Cir. 1972).

Background

A study of the Cane Creek basin was made by the Soil Conservation Service (SCS) of the United States Department of Agriculture, for the Hull-York Lakeland Resource Conservation and Development Project, which was created under the authority of the Food and Agriculture Act of 1962, 7 U.S.C. § 1010, and the Bankhead-Jones Farm Tenant Act, 7 U.S.C. § 1011. The project was approved by the Secretary of Agriculture in 1965, and the study conducted in 1966. The Hull-York Lakeland Association proposed, as a result of the study, that the Cane Creek watershed be developed for flood control and recreation.

A water resource survey was conducted in the Cane Creek watershed under the Appalachian Regional Development Act of 1965, 40 U.S.C. § 101 et seq. The purpose of this study was to inventory water and related land resources in an effort to achieve full development potential of the economic and social environment of the watershed area. From this survey came a 1967 SCS report outlining a level of development which included a multiple-purpose dam for flood control and recreation.

In 1968 the City of Cookeville was designated as eligible for federal assistance under the Demonstration Cities and Metropolitan Development Program (Model Cities), 42 U.S.C. § 3301 et seq., and in 1970 the City of Cookeville submitted a five-year comprehensive program to the Secretary of the United States Department of Housing and Urban Development (HUD). The Model Cities Program provides local governments with grants which may be used to share costs with other state and federal programs in projects which serve the objectives of the Model Cities Program. The project plan, Exhibit C at page 7 provides:

"A five year Model Cities Comprehensive Program for Cookeville was submitted on May 8, 1970. The focal point of this plan is to improve the depressed, low-income, under privileged and poverty stricken area in the western limits of Cookeville. The major portion of this area of Cookeville is in the project measure improvement area. The Model Cities Act provides grants to assist local entities of government to cost share with other State and Federal programs in projects or facilities for improvement of education, housing, sanitation, water, recreation, community facilities and law enforcement." (Emphasis Supplied)

Exhibit C at page 13 provides:

"Recreation: Farm ponds and a few private lakes are the only source of water-based recreation within the project measure area. Cookeville is located near the center of a triangle connecting three large Corps of Engineers reservoirs. They are Dale Hollow, 40 miles north; Center Hill, 25 miles south; and Cordell Hull, 25 miles west.

There is an urgent need for a water-based recreational development located within close proximity to the west portion of the Cookeville city limits. A model cities comprehensive plan of development recognized this need and recommended to Cookeville that it be given a higher priority. The Cane Creek water-based recreational development will be within walking distance for the 1,500 people living within the focal point of the model cities area of development.

The social and economic aspects of this depressed, low-income, under privileged, and poverty stricken area will not allow their enjoying one of the large Corps of Engineers recreational complexes.

In addition, the need for a recreational development in the Cookeville area is part of the statewide comprehensive recreation plan prepared for use by the Land and Water Conservation Fund Act of 1965."

Exhibit C at page 19 states:

"The basic facilities to be installed on the 19-acre recreational area will include picnic areas, roads, parking, sanitary facilities, water and lighting utilities, shelter, landscaping, and fencing."

Of the project's estimated cost of $1,000,000, flood prevention measures comprise approximately $260,000 and recreational facilities about $550,000.

The City of Cookeville and the SCS discussed the feasibility and need for a water based recreation area and a flood control project on Cane Creek, and the city expressed an interest in sponsoring a Resource Conservation and Development Project. The Putnam County Soil Conservation District likewise became a sponsor of the project, and in 1971, the sponsors, with primary assistance from the SCS, prepared a Project Measure Work Plan for Flood Prevention and Water Management on Cane Creek, Putnam County, Tennessee. The Cane Creek Improvement Project Measure Work Plan proposed that a multi-purpose dam be built to impound the waters of Cane Creek in a 56 acre lake. A recreation area would be constructed adjacent to the lake.

Funding for the project was to be provided by the City of Cookeville and the SCS. The SCS was to utilize federal funds allocated for resource conservation and development projects, and the City of Cookeville was to supply the major part of its share of the cost from its Model Cities program grant from the federal government.

It was further determined that the proposed project was in accordance with the Tennessee Statewide Outdoor Recreation Plan as developed by the Tennessee Department of Conservation.

Prior to February, 1974, the Cookeville city dump was located in an area adjacent to Cane Creek, but by 1971, the city began to look for a new site due to the inavailability of land for expansion around the existing landfill. A selected site was approved by the Tennessee Department of Public Health and was purchased by the Putnam County Quarterly Court in July, 1973. Use of the old landfill was discontinued in February, 1974, and Cookeville has secured technical assistance from the TVA and SCS in attempting to effectively close the site.

Statutes and Regulations

I. The Uniform Relocation Assistance and Real Property Acquisition Act.

Title 42, United States Code, Section 4625.

(a) Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person on or after January 2, 1971, the head of such agency shall provide a relocation assistance advisory program for displaced persons which shall offer the services described in subsection (c) of this section. If such agency head determines that any person occupying property immediately adjacent to the real property acquired is caused substantial economic injury because of the acquisition, he may offer such person relocation advisory services under such program.

(b) Federal agencies administering programs which may be of assistance to displaced persons covered by this chapter shall cooperate to the maximum extent feasible with the Federal, or State agency causing the displacement to assure that such displaced persons receive the maximum assistance available to them.

(c) Each relocation assistance advisory program required by subsection (a) of this section shall include such measures, facilities, or services as may be necessary or appropriate in order to—

(1) determine the need, if any, of displaced persons, for relocation assistance;

(2) provide current and continuing information on the availability, prices, and rentals, of comparable decent, safe, and sanitary sales and rental housing, and of comparable commercial properties and locations for displaced businesses;

(3) assure that, within a reasonable period of time, prior to displacement there will be available in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the families and individuals displaced, decent, safe, and sanitary dwellings, as defined by such Federal agency head, equal in number to the number of and available to such displaced persons who require such dwellings and reasonably accessible to their places of employment, except that the head of that Federal agency may prescribe by regulation situations when such assurances may be waived;

(4) assist a displaced person displaced from his business or farm operation in obtaining and becoming established in a suitable replacement location;

(5) supply information concerning Federal and State housing programs, disaster loan programs, and...