Petition filed to stop asphalt plant

A local attorney has filed a petition in Cannon County Chancery Court asking that the new asphalt plant off John Bragg Hwy. be ordered to shut down.

The case will be heard at 11 a.m. Monday (Aug. 27) at the Cannon County Courthouse.

The petitioner, Nathan Luna,is seeking an injunction and temporary restraining order compelling Hawkins Asphalt Paving, LLC, to immediately cease operations of the asphalt plant located at 849 Bradyville Road, Woodbury, TN 37190.

Luna submitted the following information in the petition to the court:

I. Facts

Approximately six months prior to the filing of this action, the Respondent (Hawkins) constructed an asphalt plant (hereinafter referred to as the "structure") at 849 Bradyville Road, Woodbury, TN 37190. The Respondent's structure was constructed within one thousand feet (1,000') of Highway 70 South between Murfreesboro and Woodbury and exceeds thirty-five feet (35') above the ground line. Specifically, Respondent's structure sits approximately forty-one feet (41') above the ground line.

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) and is classified as a Class II Rural Road. This scenic highway designation, along with the placement of Respondent's structure, prompted the filing of the underlying cause of action. On or about August 3, 2018, while this cause of action was pending, Respondent began operations without regard to the allegations set forth in the filing of this cause of action.

II. ARGUMENT

Petitioner (Luna) would show that Courts have approved a four-factor test when determining the standard for granting a preliminary (or temporary) injunction. See Mosry v. Colson, 2006 Tenn. App. LEXIS 544, *36-*37 (Tenn. Ct. App. 2006). These factors include (1) the threat of irreparable harm to the plaintiff if the injunction is not granted; (2) the balance between this harm and the injury that granting the injunction would inflict on defendant; (3) the probability plaintiff will succeed on the merits; and ( 4) the public interest.

1. Threat of Irreparable Harm and The Balancing Test

Petitioner submits that the threat of irreparable harm, as well as the subsequent balancing test, are factors more favorable to the Respondent upon a short-term, temporary injunction.

2. Probability of Success on the Merits

Petitioner submits that the probability of success on the merits in this matter are as set forth in the facts as stated supra. Petitioner would show that it is apparent that the Respondent is in violation of the Scenic Highway Act of 1971. Petitioner would show that Respondent commits a class C misdemeanor for each day the structure is in violation of the Act.

3. The Public Interest

Petitioner submits that the public interest in upholding the laws equally to all citizens, including corporate entities, is the most important factor for the Court's consideration. Specifically, Petitioner submits that Respondent is blatantly and openly committing a criminal offense without regard for the consequences prescribed in Tenn. Code Ann. § 54-17-112.

Petitioner submits that unless the Respondent is immediately prohibited and restrained by this Court from operating the structure, its action will result in an immediate and irreparable harm by permitting a corporation to intentionally fail to discharge a specific duty imposed on them by criminal law pursuant to Tenn. Code Ann. § 39-11-404.

Petitioner submits that unless the Respondent is immediately prohibited and restrained by this Court from operating the structure, its action will result in an immediate and irreparable harm by violating the general objective of the criminal code, to wit: unjustifiably and inexcusably causing harm to individual, property, and public interest for which protection through the criminal code is appropriate.

Petitioner submits that unless the Respondent is immediately prohibited and restrained by this Court from operating the structure, its operation will chill the public's interest in the equity of the law by holding a corporate entity to a higher standard than a non-corporate citizen.

Policy of great corporations is just as subject to the restraints of the law as the whims of individuals. Norman Whaler, Jr. v. Melville Corp., 1985 Tenn. App. LEXIS 2787, *9 (Tenn. Ct. App. 1985). The law is the law; and, as such it is applicable equally to great and small. Id. at *10.

WHEREFORE, Petitioner requests that this Court make specific findings of fact that due to the probability of the success on the merits, as well as the public interest, it is appropriate to grant a temporary injunction to enjoin and restrain Respondents from operating the asphalt plant located at 849 Bradyville Rd., Woodbury, TN 37190 until the final hearing in this matter.