Town of Matthews v. United States Department of Transportation

No. C-C-76-211 (W.D.N.C. March 29, 1977)

The court enjoins acquisition of land and construction of highway improvements pending preparation of an adequate environmental impact statement (EIS) under the National Environmental Policy Act. Plaintiff has standing to bring this suit under City of Davis v. Coleman, 5 ELR 20633 (9th Cir. 1975). The evidence and 23 C.F.R. § 771.10(e) amply support the contention that the project is a major federal action significantly affecting the quality of the human environment for which a full EIS is required. Defendants were thus mistaken contending that a negative declaration under 23 C.F.R. § 771.11 is sufficient compliance with the requirements of the Act.

Counsel for Plaintiff
Hugh G. Casey, Jr.
Casey, Daly & Bennett
700 Law Bldg., Charlotte NC 28202
(704) 376-7461

Counsel for Defendants
Keith Snyder, U.S. Attorney
P.O. Box 132, Asheville NC 28802
(704) 258-2850

James W. Richmond, Special Deputy Attorney General
Justice Bldg., Raleigh NC 27602
(919) 829-3377

[7 ELR 20339]

McMillan, J.:

The Town of Matthews, North Carolina, plaintiff, filed this action seeking a restraint against the acquisition of land and construction of improvements to North Carolina Highway 51 through and in the vicinity of the town pending compliance with the National Environmental Protection Act, 42 U.S.C. § 4331 et seq.

Jurisdiction exists under 28 U.S.C. § 1331(a).

The plaintiff has standing to bring the suit, City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (9th Cir. 1975).

The plaintiff seeks restraint of the construction of all four sections of the proposed highway project which, in substance, is the improvement and widening of Highway 51 between Interstate 77 on the west and N.C. 27 on the east. The Town of Matthews has consistently taken the view, and citizens of the community have testified at the public hearings on the project, that the proposed improvements will cause substantial environmental impact in the form of increased traffic congestion, destruction of residential neighborhoods, unnecessary destruction of trees and shrubbery, increased noise levels, more traffic accidents, pollution of the atmosphere, interference with drainage and water courses, and changes in the character of the neighborhoods affected. Also, they point to the fact that the Reid house in Matthews is located on the route and that no consideration has been given to the potential damage to this historic property.

The evidence amply supports the contention of the plaintiff that the project is a major federal action significantly affecting the quality of the human environment as contemplated in 42 U.S.C. § 4332(C).

No environmental study has been made; instead, the defendants take the view that the situation calls for only a "negative declaration," and that they have satisfied their obligation under the law by preparing such negative declaration.

A negative declaration is authorized by 23 Code of Federal Regulations § 771.11, only

when the studies and coordination demonstrate that implementing the proposed action will not have a significant impact upon the quality of the human environment of a magnitude to require the processing of an EIS.

Section 771.10(e) reads as follows:

The following are examples of types of actions which ordinarily have a significant effect on the quality of the human environment.

(1) An action that has more than minimal effect on properties protected under section 4(f) of the DOT Act or section 106 of the Historic Preservation Act.

(2) An action that is likely to be highly controversial on environmental grounds or with respect to the availability of adequate relocation housing.

(3) An action that is likely to have a significantly adverse impact on natural, ecological, cultural or scenic resources of national, State or local significance.

(4) An action that (i) causes significant division or disruption of an established community or disrupts orderly, planned development, or is determined to be significantly inconsistent with plans or goals that have been adopted by the community in which the project is located, as determined by a responsible official(s); or (ii) causes a significant increase in traffic congestion.

(5) An action which (i) is determined to be inconsistent with any Federal, State or local law or regulation relating to the environment; or (ii) has a significant detrimental impact on air or water quality or on ambient noise levels for adjoining areas; or (iii) may contaminate a public water supply system.

The evidence in this case amply demonstrates the probable application of § 771.10(e)(1) and the obvious application of § 771.10(e)(2), (3), (4) and (5).

Despite the negative declaration there exists a fully researched environmental impact statement filed December 20, 1976, which sheds further light on the case. That EIS was prepared for a parallel route or "connector" originally planned for the gap between I-77 and N.C. 74. In that statement, after full study, these same defendants concluded that the proposed improvements to Highway 51 would be obsolete and inadequate because of traffic volume after 1980; that a four-lane road in the same corridor [7 ELR 20340] would be obsolete after 1985, and that the route through the Town of Matthews would place heavy burdens on alternate routes and streets in the town neither designed for nor capable of handling large traffic volumes. It thus appears that a study of a parallel route which has been done as a serious environmental impact statement substantially corroborates many of the contentions of the plaintiff.

IT IS THEREFORE ORDERED:

1. That part 2 of the proposed project involving the improvements in the section of Highway 51 between its intersection with Providence Road or Highway 16 on the west, and Independence Boulevard or Highway 74 on the east, proceed no further in either land acquisition of other activity until an environmental impact statement has been prepared and approved, and pending further order of court.

2. That if so moved plaintiff's counsel may tender fuller proposed findings of fact and conclusions of law in support of this order.