Fort Story -- Its Future? v. Schlesinger

Fort Story — Its Future? v. Schlesinger

No. 74-232-N (E.D. Va. August 7, 1974)

The court issues an injunction prohibiting the U.S. Navy from awarding contracts for the construction of a 600 unit housing project at Fort Story on the Virginia seashore until a NEPA impact statement has been filed. The project is a major federal action which will significantly affect the human environment, and the Navy's determination that an impact statement is not required is therefore arbitrary and unreasonable. Plaintiffs, who are residents of a nearby city, have standing to maintain this action since the project and its residents will adversely affect the ecosystem of an adjoining state seashore park which plaintiffs use for recreation, and will place greater demands on the already overburdened municipal services and facilities in plaintiffs' city. Plaintiffs are required, however, to post $3,000 bond.

Counsel for Plaintiffs
William H. King, Jr.
McGuire, Woods & Battle
1400 Ross Building
Richmond, Va. 23219

Counsel for Defendants
Edward R. Baird, Jr. Asst. U.S. Attorney
P.O. Box 60
Norfolk, Va. 23501

[4 ELR 20820]

Hoffman, J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. STIPULATED FACTS

1. The Navy's Project, NAVFAC Specification Number 05-73-1218, is a plan to construct 600 row-type, multi-family, four and five bedroom housing units on approximately 81 acres of land at Fort Story, Virginia. Fort Story is comprised of approximately 1400 acres, is owned by the United States Government and is under the direct control of the United States Army.

2. Fort Story occupies the tip of Cape Henry and is bounded on the north by the Chesapeake Bay and on the east by the Atlantic Ocean. The City of Virginia Beach lies to the south of Fort Story, with Seashore State Park, a state park of the Commonwealth of [4 ELR 20821] Virginia, lying immediately to the west. The 81 acres contemplated by the project for housing are located in the southwestern portion of Fort Story.

3. The cost of the project is estimated to be approximately $15 million.The contractor is required to complete all design and construction work under the contract within 720 calendar days after the date of receipt by him of notice of award. The project is a "turnkey project" meaning that the builder, in his discretion, plans and designs the structures and their location on the project site, plans and executes all site clearing, and builds and completes the project, all within the general requirements of the specifications set forth in the bid proposal. The anticipated population of the project is approximately 3,000 persons.

4. The project is a major federal action.

5. A Candidate Environmental Impact Statement (CEIS) was prepared in September, 1973 for this project, by Sauders, Cheng and Appleton, Envior/Earth Ltd., an independent environmental consulting firm retained by the Navy for this specific purpose.

6. The CEIS was reviewed by the Chief of Naval Operations Environmental Impact Assessment Review Panel on November 25, 1973, pursuant to Navy OPNAV Instruction 6240.20 "Policy regarding an assignment of responsibilities for the National Environmental Policy Act and Environmental Impact Statements." That panel determined by a vote of 5 to 4 that the filing of an Environmental Impact Statement with the Council on Environmental Quality was not required

7. On March 15, 1974, the Navy issued by public notice an invitation to building contractors to submit proposals for the construction of the project on a turnkey basis at Fort Story, Virginia.

8. On March 18, 1974, the Virginia Beach City Council passed a unanimous resolution stating that the Council was "unanimously opposed to . . . the construction of 600 units of housing by the United States Navy [at Fort Story] but are not opposed to the location of said housing at some other appropriate site and are willing to work with the United States Navy to locate a suitable site . . ."

9. On March 20, 1974, Peter W. McDavitt, Special Assistant to the Assistant Secretary of the Navy, submitted a negative declaration stating that the Navy had found the project did not require an Environmental Impact Statement.

10. On March 25, 1974, the Navy issued a request for proposals on the project, which was accompanied by the project's specifications and other related documents which taken together are known as the Bid Proposal. Proposals were initially due on May 17, 1974. Thereafter the deadline for submission was extended to May 31, 1974.

11. On May 29, 1974, all defendants were notified by telegram that this action would be instituted.

12. The final date of submission of bids was May 31, 1974.

13. Suit was filed in the above styled case on June 6, 1974.

B. FINDINGS OF FACT

1. Plaintiffs Joseph C. Hogan and Ann H. Kiehl are taxpaying residents of the City of Virginia Beach, Virginia. Plaintiffs use the facilities of Seashore State Park for recreational purposes.

2. Plaintiffs Hogan and Kiehl have children in the Virginia Beach City school system. Some of those children are in temporary classrooms and the school system as a whole is above capacity in student enrollment.

3. Plaintiffs use the highways of Virginia Beach, including Shore Drive and Atlantic Avenue, which will be directly affected by traffic generated from the project.

4. Plaintiffs are genuinely concerned about the ecological impact of the Navy project on the dune eco-system of the project site, the adjoining marsh and Seashore State Park.Plaintiffs' environmental interests will be directly injured in fact by the construction of the project on the site. These interests are within the zone of interests protected by the National Environmental Policy Act.

5. Plaintiffs will be directly injured in fact by the impact of the project on utilities, highways, schools, and other public services of the City of Virginia Beach. These interests are within the zone of interest protected by the National Environmental Policy Act.

6. Plaintiff Hogan is a director of plaintiff Fort Story — Its Future? Plaintiff Hogan and Waverly L. Berkley, III, President of Fort Story — Its Future? represent the interests of many other citizens of Virginia Beach who are members of the corporation and who will suffer a direct injury in fact from the construction of the project.

7. The 81 acre project site, the adjacent fresh water marsh, and adjacent sand dunes within the boundaries of Fort Story, and Seashore State Park, form one contiguous and interrelated ecologically balanced system.

8. The Candidate Environmental Impact Statement upon which the Navy's Environmental Review Panel based its determination not to proceed with the filing of a full Environmental Impact Statement with the Council on Environmental Quality was erroneous and inaccurate, thus affording no proper basis on which the Review Panel could reach an appropriate determination. Therefore, the actions of the Review Panel were rendered nugatory.

C. CONCLUSIONS OF LAW

1. The Court has jurisdiction of this case under 28 U.S.C. §§ 1331(a) and 1361.

2. The proposed construction of the project by the Navy is a major federal action within the meaning of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2) (c).

3. Individual plaintiffs Joseph C. Hogan and Ann H. Kiehl will suffer a direct injury in fact to their environmental interests, including both their natural and physical environment. Both types of environmental interests are within the zone of interests protected by the National Environmental Policy Act. The individual plaintiffs have standing to sue.

4. Fort Story — Its Future?, represents the interests of many citizens of Virginia Beach who will suffer direct injuries in fact to their environment. The non-profit corporation, as representative of these individual members, has standing to sue.

5. The Navy's unilateral decision that the project will not significantly affect the quality of the human environment, based upon an incomplete, inaccurate and erroneous Candidate Environmental Impact Statement, was an unreasonable and arbitrary decision. Such an unreasonable and arbitrary decision cannot be allowed to stand and must be overturned by the Court.

6. The defendants proposed housing project is a major federal action which, under the record presented to this Court, significantly affects the quality of the human environment within the meaning of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2) (c).

7. Plaintiffs will suffer an immediate and irreparable injury in fact and irreparable loss if the injunction is not granted.

ORDER

In accordance with the Letter Opinion of the Court filed July 19, 1974, and Findings of Fact and Conclusions of Law entered August 7, 1974, and incorporated by reference herein, and deeming it just and proper to do so, it is adjudged and ordered that:

1. Plaintiffs have standing to maintain this action, and the motion of defendants to dismiss for lack of standing is hereby overruled;

2. The defendants proposed construction of 600 housing units at Fort Story, Virginia, is a major federal action which, under the record presented to this court, significantly affects the quality of the human environment and therefore, pursuant to the mandate of the National Environmental Policy Act of 1969, defendants are hereby preliminarily enjoined from awarding any contract for the construction of such housing project, but without limiting the defendants from awarding a contract for design, until such time as the Navy has prepared, filed with the Council on Environmental Quality and reviewed commentary submitted thereon in accordance with the guidelines of the Council on Environmental Quality, 38 Fed. Reg. 20550-20562 (Aug. 1, 1973), of a full and complete Environmental Impact Statement; reserving the right to the defendants and their successors in office to move to dissolve this preliminary injunction after a proper review by the Navy Review Panel if, after such review, the Panel finds that a full Environmental Impact Statement should not be prepared and filed with the Council on Environmental Quality.

3. At such time as the Navy's review of all comments on its Environmental Impact Statement by affected federal, state, local and private bodies is completed, and if the defendants at that time [4 ELR 20822] determine to proceed with the construction of the project, the defendants may apply to this Court to dissolve this injunction;

4. The defendants shall inform this Court and plaintiffs of all material actions taken by the Navy with respect to the subject matter of this action, including but not limited to the date, time and place of any consideration of the environmental impact of the project by the Navy's Environmental Review Panel, the submission of a full and complete Environmental Impact Statement to the Council on Environmental Quality, and any comments on the Environmental Impact Statement received by the Navy from any federal, state, local or private body; and

5. Within five (5) days of the entry of this Order, plaintiffs shall post bond in the amount of $3,000.00 with the Clerk of this Court.

6. Both plaintiffs and defendants object to the Court's refusal to adopt their respective proposed Findings of Fact and Conclusions of Law.

Let the Clerk send copies of this Order to all counsel of record.