Ecos, Inc. v. Volpe

No. C-352-D-72 (M.D.N.C. February 20, 1973)

Even though federal funds have not yet been received, an injunction is granted against construction of a proposed expressway segment until the project is reviewed at public hearings and an impact statement prepared. The segment is part of the larger expressway where federal funds have been expended, and is thus subject to the National Environmental Policy Act. The injunction does not apply to other segments of the expressway already under construction, because the costs of delay would outweigh any prospective benefits.

Counsel for Plaintiffs
Jerry W. Leonard
115 1/2 West Morgan Street
Raleigh, North Carolina 27603

Roger Smith
Durham Life Building
Raleigh, North Carolina 27602

Counsel for Defendants
R. Roy Mitchell, Jr.
Nye & Mitchell
401 First Union Bank Building
Durham, North Carolina 27701

James B. Richmond Assistant Attorney General
P.O. Box 629
Raleigh, North Carolina 27602

William L. Osteen U.S. Attorney
P.O. Box 1858
Greensboro, North Carolina 27402

[3 ELR 20304]

Gordon, C.J.

ORDER

The plaintiffs in the complaint filed in this cause request the Court to enter an order enjoining the defendants, their agents, employees and successors, and all persons acting in participation and concert with them, from taking any further steps toward construction of the East-West Expressway in Durham, North Carolina, until the determination of this action on its merits.

This cause came on for hearing on January 30, 1973, on the plaintiffs' motion for a preliminary injunction. The Court having considered the presentations of counsel at the hearing, briefs of counsel, and the entire official file makes the following findings of fact and conclusions of law:

1. The Durham East-West Expressway is a four-lane controlled access highway which if completed as proposed, will extend from an interchange with existing I-85 on the west side of Durham easterly and southerly through Durham to a proposed interchange with the North-South Expressway, then along the U.S.-70 Connector to an interchange with existing U.S. 70 east of Durham, a total distance of 9.2 miles.

2. A section of the expressway, 1.7 milesin length, lying in the area between Chapel Hill Street and Alston Avenue and in the vicinity of the main downtown business district of Durham, is complete and has been open to traffic since February, 1970.

3. Another section of the East-West Expressway, 1.9 miles in length, from Alston Avenue southerly and easterly to the U.S.-70 Connector and the North-South Expressway is under construction as part of a 4.1 mile segment of highway which includes a part of the North-South Expressway extending into the Research Triangle Park to connect with Interstate 40. This 4.1 mile segment is almost complete and is scheduled to be opened to traffic in February, 1973.

4. Another section of the highway approximately 0.8 miles in length running northerly and westerly from Chapel Hill Street to Erwin Road is now being constructed under a contract executed October 10, 1972, between the North Carolina State Highway Commission and the defendant Nello L. Teer Co.

5. The North Carolina State Highway Commission, with the prior approval of the Federal Highway Administration, has acquired a few parcels of right-of-way in the proposed location for the remaining sections of the East-West Expressway between Erwin Road and the interchange at I-85. Otherwise, this segment is in a stage of preliminary engineering.

6. Substantially as now proposed, the East-West Expressway has been a high priority part of transportation planning for the City of Durham since September, 1959. On April 30, 1963, the East-West Expressway was presented at a public hearing substantially as it is presently contemplated. The transcript of this hearing indicates substantial public support for the need of the facility and its proposed location and there was little, if any, opposition voiced. This location was recommended by the State Highway Commission to the Bureau of Public Roads, who approved it subject to any minor changes that might be indicated during the final design of the highway. In 1964 the City of Durham and the State Highway Commission, with the approval of the Bureau of Public Roads, entered into a contract with a consulting engineering firm to develop a comprehensive long-ranged thoroughfare plan for the Durham urbanized area. The thoroughfare plan developed by the consultant after consultation with the responsible officials, confirmed the importance of the East-West Expressway and designated it as the top priority need in the entire thoroughfare system. The report stated, "this major full control of access facility is vital to the efficient operation of the Durham thoroughfare system. The need of this facility has long been recognized by those persons responsible for the thoroughfare planning for Durham." On December 7, 1967 this long-ranged Durham thoroughfare plan was presented at a public hearing during a special evening session of the Durham City Council held for this purpose. Again, substantial public support for the need of the facility and its location was expressed and there was little, if any, opposition. On January 2, 1968, the City Council adopted the Durham thoroughfare plan as a guide and basis for the future development of the street and highway system in the Durham urban area provided that this adoption did not constitute specific approval for any design standard or specific alignment recommended by the consultant nor to fix the exact location, width or extent of access control, all of which would be subject to further action by the City Council and the State Highway Commission.

7. The funding for the development of the East-West Expressway has been involved, but it has always been recognized that its development would be in stages as funds from various sources, city, state and federal, became available. The funding for the preliminary engineering for the original concept was 36% federal and 64% state for a total cost of approximately $450,470.00. As to the section lying between Alston Avenue and Chapel Hill Street, the preliminary engineering and right-of-way was funded 50% federal, 30% state and 20% city for a total cost of approximately $2,218,600.00 (the city's portion having been raised by a bond issue approved at an election); and, construction, grading, drainage and structures and paving was funded 50% federal and 50% state for a total cost of approximately $4,732,520.00. As to the section between Alston Avenue and the U.S.-70 Connector, preliminary engineering and right-of-way from Alston Avenue to the south city limits of Durham was funded 80% state and 20% city for a total cost of approximately $1,000,000.00; preliminary engineering and right-of-way from the south city limits past the U.S.-70 Connector interchange into the Research Triangle Park was funded 100% state for a cost of approximately $901,831.20; the construction, drainage, grading and structures from Alston Avenue to the south city limits is funded 50% federal and 50% state for a total cost of approximately $2,033,826.00; the construction, grading, drainage and structures from the Durham city limits past the U.S.-70 Connector into the Research Triangle Park is funded 90% state and 10% federal for a total cost of approximately $1,242,000.00; and the paving, signing and guardrail installation from Alston Avenue past the U.S.-70 Connector into the Research Triangle Park is funded 50% federal and 50% state for a total cost of approximately $2,630,892.00.

8. As to the section between Chapel Hill Street and Erwin Road, right-of-way, preliminary engineering and construction is funded 100% state for a total cost of approximately $4,690,000.00.

9. As to the section between Erwin Road and I-85, preliminary engineering now in progress is funded 100% state for a cost of approximately $80,000.00 and as to the remaining development of this section it is the present intention of the State Highway Commission to apply for Federal funding to an extent not yet determined for a total estimated cost in excess of $28,000,000.00.

10. The State Highway Commission, purportedly to comply with Section 4 of the North Carolina Environmental Policy Act of 1971 (N.C.G.S. 113A-4), Section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. § 4332(2)(5)), Section 4(f) of the Department of Transportation Act of 1966 and Section 138 of the Federal Aid Highway Act of 1968 (23 U.S.C. § 138), prepared a draft Environmental § 4(f) Statement on the entire Durham East-West Expressway. This statement was prepared after prior consultation beginning in July of 1971 with various public agencies having special expertise and officials of those institutions most likely to be directly affected, such as Duke University, the Veterans Administration Hospital, the Durham City Schools, McPherson Hospital, and the City of Durham.

On June 1, 1972, this statement was circulated among approximately 34 state, federal and local agencies having expertise, or special interest in the project, including the plaintiff, Ecos, Inc., for their comment with the request that their comments be made by July 17, 1972. Fifteen ofthese agencies, including the plaintiff Ecos, have made written comments on the draft statement. Except for those of Ecos, Inc., the comments were favorable as to the need for the project and its location. The adverse comments related largely to possibly narrowing the width of the right-of-way and control of traffic on the highway in order to minimize noise and effects on the atmosphere.

11. As to the section between Chapel Hill Street and Erwin Road, approximately 0.8 miles in length, there was no adverse comment relating to the need for the facility nor to its location, except those of the plaintiff Ecos, Inc. This section of the highway lies south of and runs in a generally east-west direction is close proximity to the right-of-way for the Southern Railway.

[3 ELR 20305]

12. After public advertisement, the State Highway Commission awarded to the defendant Nello L. Teer Co. on October 5, 1972, a contract for grading, fencing, drainage, structures, paving and signing of the section of the East-West Expressway between Chapel Hill Street and Erwin Road for a contract price of $2,826,207.15, the contract to be completed by November 1, 1974. As to this section, virtually all the right-of-way, consisting of some 105 parcels of land, was acquired by the State Highway Commission with state funds prior to July 7, 1969, and all persons in the right-of-way had been relocated under its Relocation Assistance Program by January of 1970. All of the homes, business buildings and other structures located on the right-of-way had been torn down and removed. In the bulky contract, there are lengthy specific provisions designed to minimize harm to the environment during construction. Since the contract has been let, clearing and grubbing of the right-of-way is estimated to be 80% complete and all trees have been cut down. Much of the steel for the bridges has already been cut. If the contract is stopped the damages will be susbtantial, several thousand dollars per day.

13. Prior to bringing this action, the plaintiffs sought an injunction against the state defendants in state court to stop construction between Chapel Hill Street and Erwin Road on state environmental grounds. This relief was denied.

14. The plaintiffs do not contend that there would be any specific environmental harm caused by the completion of the highway but contend that they are entitled to relief against further construction pending the thoroughgoing review of the entire highway required by the environmental statutes.

15. Much of the work on the East-West Expressway had been completed prior to January 1, 1970, the effective date of the National Environmental Policy Act of 1969. Nevertheless, the application of federal law to this segment would not, in the judgment of the Court from the record now before the Court, be a retroactive application of the federal law requirements for it has been held that the environmental laws are applicable to all major federal projects until such project has reached the stage of completion where the costs of abandoning the project or altering the project clearly outweigh the benefits derived from an application of the laws. Also, even though the construction of the segment in question between Erwin Road and Chapel Hill Street is being constructed with 100% state funds, the segment is still a part and parcel of the East-West Expressway where substantial federal funds have already been expended and are proposed to be expended and thus must be controlled by applicable federal procedural requirements. Even so, from the information before the Court now it appears and the Court so finds, that the costs of altering the location of the segment between Erwin Road and Chapel Hill Street, a distance of approximately 0.8 miles, clearly outweigh any benefits that might be derived from enjoining the continuation of the project pending compliance with the federal requirements set out in Paragraph 3 below. Through compliance with the procedures and requirements in Paragraph 3 below, environmental improvements may be developed which can be implemented at the already established location of this segment.

16. As to the segment between Erwin Road and Chapel Hill Street, the plaintiffs have not sustained the burden of showing that they are likely to prevail on the merits or that irreparable injury will follow if injunctive relief is not given or that the public interest will be served by granting the injunctive relief.

17. As to the segment between Erwin Road and the interchange at I-85, only a few parcels of right-of-way have been acquired, and this segment is in the preliminary stages of engineering with the terrain unmolested. The defendants as to this segment should now be enjoined.

Upon the foregoing, it is

ORDERED:

1. That the plaintiffs' motion for a preliminary injunction be, and it hereby is, denied as to the segment of the East-West Expressway, 0.8 miles more or less in length, running northerly and westerly from Chapel Hill Street to Erwin Road.

2. That as to the segment of the East-West Expressway between Erwin Road and the Interchange at I-85 the defendants, their agents, servants and employees, and all acting in concert with them, are hereby restrained and enjoined from taking any steps leading toward construction of this segment until each and every provision of the laws referred to in Paragraph 3 hereinafter have been complied with in full.

3. The defendants will proceed to expedite and comply with the requirements for a public hearing under 23 U.S.C. § 128, as amended, and Policy and Procedure Memorandum 20-8, 34 F. Reg. 727, 23 C.F.R. App. A, as amended, and thereafter prepare and file the final environmental impact statement in compliance with § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), and § 138 of the Federal Aid to Highway Act of 1968, 23 U.S.C. § 138, and Policy and Procedure Memorandum 90-1, 23 C.F.R. Pt. I, App. A, 1970, as amended, and § 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(a)(C).