West Augusta Historical and Genealogical Society v. Urban Renewal Authority of Parkersburg, Inc.

No. 73-2062 (4th Cir. January 22, 1974)

The Fourth Circuit Court of Appeals vacates a lower court's dismissal of a suit to enjoin demolition of a county courthouse as part of an urban renewal project until the Secretary of Housing and Urban Development complies with NEPA by filing an environmental impact statement. Under the provisions of Federal Rule of Civil Procedure 15(a), the district court, after finding that the complaint was insufficient to allege standing, should have granted plaintiff leave to amend since the proposed amendment will clarify plaintiff's justiciable interest in this litigation. The case is remanded to the district court.

Counsel for Plaintiff
Richard A. Hayhurst
P.O. Box 1754
Parkersburg, West Virginia 26101

Counsel for Defendants
William R. Pflazgraf
J. Fred Earley
Earley, Bailey & Pfalzgraf
314 Juliana Street
Parkersburg, West Virginia 26101

Larry N. Sullivan County Attorney
Parkersburg, West Virginia 26105

James F. Companion U.S. Attorney
U.S. Courthouse
Wheeling, West Virginia 26004

Wallace H. Johnson Asst. Attorney General
Glen R. Goodsell
Jacques B. Gelin
Department of Justice
Washington, D.C 20530

[4 ELR 20229]

Per Curiam.

Ruling on a motion for dismissal under Federal Rule of Civil Procedure 12(b)(6), the district court held that the West Augusta Historical and Genealogical Society lacked standing to bring an action to enjoin the demolition of the Wood County courthouse as a part of an urban renewal program until the Secretary of Housing and Urban Development filed an impact statement as required by § 102 of the National Environmental Policy Act, 42 U.S.C. § 4332 (1970). At the conclusion of the hearing at which the court announced its oral opinion, it denied an oral motion to file an amended complaint. While concededly the complaint is inartfully drawn, it is probably sufficient to allege standing. However, we need not reach this issue.

On appeal, the Historical Society pressed its right to amend, and counsel for the Secretary, who is the principal defendant, voiced no objection. Although the motion to amend should have been in writing, the district court did not require this formality, but instead, considered and denied it on the merits. Consequently, we believe that objection by the local defendants to the lack of a written motion to amend, raised initially on appeal, should not bar our consideration of its merits.

Federal Rule of Civil Procedure 15(a) provides that leave to amend "shall be freely given when justice so requires." The amendment which the Historical Society proposes will clarify the Society's justiciable interest in this litigation. The case, therefore, presents an appropriate occasion for application of the admonition contained in Rule 15(a). Accordingly, the order of dismissal is vacated, and this case is remanded for further proceedings consistent with this opinion.

Vacated and remanded.