12 CVS. Scenic NC, Inc., ) Plaintiff ) ) ) North Carolina Department of MOTION FOR TEMPORARY RESTRAINING ORDER. ) Transportation, ) Defendant )

Transcription

1 STATE OF NORTH CAROLINA COUNTY OF WAKE Scenic NC, Inc., Plaintiff North Carolina Department of Transportation, Defendant IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 12 CVS MOTION FOR TEMPORARY RESTRAINING ORDER NOW COMES Plaintiff, by and through counsel, and move this Court for an Order Restraining Defendant from enforcing or giving any effect to the temporary rules revising 19A NCAC 02E and , the subject of the Complaint in this matter, until such time at the Plaintiff s claims in this matter have been fully adjudicated on the merits. In support of this motion, Plaintiff shows the Court the following: 1. This is an action for declaratory and injunctive relief to prevent the North Carolina Department of Transportation from granting selective vegetation removal permits to outdoor advertisers pursuant to temporary rules promulgated with inadequate public participation in violation of the North Carolina Administrative Procedures Act. 2. The Complaint in this action was filed on February 29, Because the Rules Review Commission has granted final approval of these temporary rules, the temporary rules are scheduled to become effective on March 1, 2012, at which time the North Carolina Department of Transportation could begin issuing permits under the new rules. 4. A delay in the effective date of these temporary rules is feasible and required to preserve the status quo pending the outcome of this litigation and to avoid irreparable harm to the Plaintiff. 5. Plaintiff in this case has standing to bring this action and to assert the legal claims herein. 6. The Plaintiff is likely to succeed on its claim that the North Carolina Department of Transportation violated the North Carolina Administrative Procedures Act by failing to make findings as to why following the notice and hearing provisions of NCGS 150B-21.2 would be contrary to the public interest. 7. The Plaintiff is likely to succeed on its claim that the North Carolina Department of Transportation violated the North Carolina Administrative Procedures Act by failing to resubmit the rules at issue in this litigation to public notice and hearing after substantial changes were made to the draft rules. 8. Plaintiff will suffer irreparable harm if the temporary rules at issue in this litigation are allowed to become effective on March 1, The harms Plaintiffs will incur include aesthetic harm. Members of Plaintiff organization are residents of North Carolina who take pride and pleasure in North Carolina s scenic, natural beauty. Trees, especially those alongside roads, contribute to North Carolina s natural beauty and

2 contribute to North Carolina residents sense of place, their sense that they are connected to the place from which they come. The physical, natural beauty of a place contributes to residents and visitors perceptions about what is most important in that place or what defines that place. When trees are removed along roadsides in order to make room for more advertising, residents and visitors gain the sense that commercialism is more important to the place than beauty or the natural environment. 10. NC DOT may, under current rules, grant businesses and individuals permits to remove vegetation up to 150 feet in front of outdoor advertising; the temporary rules at issue in this case concern only permits for removal of vegetation in the area 151 to 400 feet in front of billboards. Thus, businesses and individuals who own billboards are in no danger of losing commercial opportunity due to obstructed billboard visibility because they can apply for permits to remove vegetation up to the 150 foot mark. 11. Under the temporary rules at issue in this case, billboard owners could apply for a permit to remove all vegetation except for native dogwoods and redbud up to 400 feet in front of outdoor advertising. Trees that could be removed under these permits could be decades old and could require decades to return to their height. 12. For these reasons, the potential harms both aesthetic and environmental are significant, while the potential burdens on Defendant and permit applicants of delaying implementation of the new rules is extremely slight. Delaying implementation of the new rules is therefore equitable. 13. Pursuant to the provisions of Local Rules 2.8 and 2.9 of the Wake County Superior Courts, the undersigned has given Notice to Opposing Counsel Elizabeth Strickland from the North Carolina Department of Justice WHEREFORE Plaintiff respectfully requests that this Court grant a preliminary injunction preserving the status quo and restraining Defendant from issuing permits under the temporary rules until after a judgment on the merits in this case. This the 29th day of February Attorney for Plaintiff James P. Longest, Jr. N.C. Bar No Duke Environmental Law and Policy Clinic Duke University Law School Box Durham, NC longest@law.duke.edu Phone: ( Fax: (

3 Verification I, Shelly Green, after being duly sworn, depose and say that I am an Incorporator of Scenic NC; that I am authorized on behalf of Scenic NC, Inc. to make this verification; that I have read the foregoing Motion and that I am familiar with the facts set forth therein and those facts are true and accurate to my knowledge. Shelly Green Subscribed and sworn to before me This the day of February, 2012 Notary Public My commission expires: (SEAL

4 CERTIFICATE OF SERVICE This is to certify that the undersigned has this day served the foregoing Motion for Preliminary Injunction in the above-titled action upon all other parties in this case by: [ ] Hand delivering a copy to the each said party or to the attorney thereof; [X] Transmitting a copy hereof to each said party via fax; [ ] By transmittal to the address indicated below; [ ] Depositing a copy hereof, first class postage pre-paid in the United States mail, properly addressed to: Elizabeth N. Strickland Special Deputy Attorney General North Carolina Department of Justice Transportation Section 1505 Mail Service Center Raleigh, NC ( Fax ( This the 29th day of February Attorney for Plaintiff James P. Longest, Jr.

5 STATE OF NORTH CAROLINA COUNTY OF WAKE IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 12 CVS Scenic NC, Inc., Plaintiff North Carolina Department of Transportation, Defendant ORDER ON MOTION FOR PRELIMINARY INJUNCTION THIS MATTER comes before the undersigned Superior Court Judge upon the Plaintiff s Motion for Preliminary Injunction. Having reviewed the record proper, including affidavits filed herein and the arguments of counsel, it is ORDERED that, for good cause shown, pursuant to Rule 65 of the North Carolina Rules of Civil Procedure, the Motion is ALLOWED and Defendant is enjoined from issuing permits under the temporary rules at issue in this case until a Motion for Preliminary Injunction may be heard. This the day of March Superior Court Judge