Suit seeks removal of asphalt plant

A Cannon County resident has filed a lawsuit in Cannon County Chancery Court seeking the removal of an asphalt plant on John Bragg Hwy. (Highway 70 South) which is still under construction.

Nathan Luna, an attorney who lives on Bradyville Road near the plant, filed a petition on Tuesday (June 5) seeking the removal of the asphalt plant, which is almost completed but has yet to open.

"In 1971, the Tennessee Legislation passed the Scenic Highway System Act," Luna said. "Essentially the purpose of the act is to conserve the natural scenic beauty along designated scenic highways. On May 8, 1991, after construction of Highway 70 South was completed, the legislature classified the portion of Highway 70 South from Murfreesboro to Woodbury as a scenic highway and more specifically a Class II Rural Road.

"Under the Scenic Highway System Act, if a county contains a Class II Rural Road, the exposed portion of building constructed on property located within 1000 feet of the scenic highway shall not exceed a height of 35 feet above the ground level of the highway," Luna added.

Luna estimates the current structure is about 200 to 300 feet from Highway 70 South.

Named as respondent in the lawsuit is Hawkins Asphalt Paving, which is based in Wartace, about 18 miles from the proposed new facility. Work on the new plant on Bradyville Road began last summer.

"They (Hawkins) have 30 days from the time they get served (which occurred Tuesday afternoon) to file an answer and determine whether they accept or deny and then there is a discovery phase where we request any discovery and they can request any discovery from us," Luna said.

Luna said he did extensive research before deciding to file the lawsuit.

"I did not file this lawsuit on a whim," he said. "I understand this is going to effect Hawkins Paving and as someone who is pro business I do take that consideration very seriously. It is not my intention to put anyone out of business. I have agonized over this, I have researched this. If this is something that someone shows me a law where I am wrong, and shows me that construction of that paving plant is not in violation of the Scenic Highway System Act, then I will be the first one to admit I am wrong. However, based on my research, until someone shows me a law that allows the paving plant to be there in its current form, then I will go forward with this lawsuit.

The exact wordage of the suit is as follows:

PETITION FOR DECLARATORY JUDGMENT

Nathan Luna (hereinafter referred to as the "Petitioner"), for his cause of action against Hawkin's Asphalt Paving, LLC (hereinafter referred to as the "Respondent") states as follows:

PARTIES AND JURISDICTION

1. Petitioner is a citizen and resident of Cannon County, Tennessee residing at 679 Bradyville Road, Woodbury, TN 37190.

2. Respondent is a Tennessee limited liability corporation whose principal place of business is located at 5040 Highway 64 E, Wartrace, TN 37183. Chris Hawkins is the registered agent for Defendant at the same address.

3. Petitioner is a state official with standing to bring this action pursuant to Tenn. Code Ann. § 54-17-112(c). Specifically, Petitioner is a State of Tennessee Notary Public elected by the Legislative Body of Williamson County, Tennessee at its July 2014 meeting. A copy of Petitioner's certificate is attached hereto as Exhibit-One.

4. This Court has jurisdiction over this matter pursuant to Tenn. Code Ann. § 16-11-101. Venue is proper pursuant to Tenn. Code Ann. § 20-4-101, et seq., this being the County in which the cause of action arose and in which both the Petitioner and respondent reside and/ or have their principal place of business.

FACTUAL ALLEGATIONS

5. This cause of action arose upon Respondent's new construction of a Mix Asphalt Paving Plant (hereinafter referred to as "structure") located at 849 Bradyville Road, Woodbury, TN 37190.

6. Upon information and belief, Petitioner would show that Respondent's structure was constructed within one thousand feet (1,000') of Highway 70 South between Murfreesboro and Woodbury.

7. Upon information and belief, Petitioner would show that Respondent's structure exceeds thirty-five feet (35') above the ground line on property located above the level of Highway 70 South.

8. Petitioner would show that the portion of Highway 70 South from Murfreesboro to Woodbury was designated a scenic highway in Tenn. Code Ann. § 54-17- 114(a)(2)(W). Petitioner would show that this provision was enacted on May 8, 1991 after construction of Highway 70 South was completed.

CAUSE OF ACTION

9. Petitioner incorporates the averments set forth in paragraphs one through eight as though set forth verbatim herein.

10. Respondent's structure is in violation of the Scenic Highway System Act of 1971.

11. Pursuant to Tenn. Code Ann. § 54-17-1 lS(a)(l):

The exposed portion of buildings constructed or erected on property located within one thousand feet (1,000') of a scenic highway shall not exceed a height of thirty-five feet (35') above the level of the highway on property located below the level of the highway, or a height of thirty-five feet (35') above the ground line on property located above the level of the highway.

12. Public Act of 1987, ch. 30, § 2 provides that the provisions of the statute quoted in paragraph 11' ___ apply only to counties containing Class II rural roads as specified in Tenn. Code Ann. § 54-17-114.

13. Pursuant to Tenn. Code Ann. § 54-17-114, Highway 70 South between Woodbury and Murfreesboro is a Class II Rural Road.

14. Pursuant to Tenn. Code· Ann. § 54-17-112, the penalty for a violation of the Scenic Highway System Act of 1971 is a class C misdemeanor that constitutes a separate offense for every day the structure is in violation of the Act.

15. Pursuant to Tenn. Code Ann. § 54-17-104, Petitioner's damages include, but are not limited to, the degradation of the natural scenic beauty, as well as the deprivation of an attractive environment to enjoy the scenic beauty, along Highway 70 South.

WHEREFORE, the Petitioner prays as follows:

I. That a summons be issued and served upon Respondent as required by the Tennessee Rules of Civil Procedure;

II. That the Court enter an order declaring Respondent's structure to be in violation of the Scenic Highway System Act of 1971;

III. That the Court enter a permanent injunction ordering Respondent to remove the structure located at 849 Bradyville Road, Woodbury, JN 37190 within thirty (30) days from the final hearing in this matter;

IV. For any other equitable relief required by the laws of this state.