UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FAIR WOODS HOMEOWNERS
ASSOCIATION,
Plaintiff-Appellant,

v.

FEDERICO F. PENA, SECRETARY,
DEPARTMENT OF TRANSPORTATION,
Secretary, in his official capacity as
Secretary of the U.S. Department of
                                                                 No. 95-1155
Transportation; RODNEY E. SLATER,
in his official capacity as
Administrator of the Federal
Highway Administration; DAVID R.
GEHR, in his official capacity as
Commissioner of the Virginia
Department of Transportation,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-94-1297)

Argued: September 27, 1995

Decided: January 3, 1996

Before MURNAGHAN and WILKINSON, Circuit Judges, and
BEATY, United States District Judge for the Middle District of
North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Andrea Carol Ferster, Washington, D.C., for Appellant.
Robert Joseph Black, UNITED STATES DEPARTMENT OF
TRANSPORTATION, Washington, D.C.; Mark Steven Paullin,
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellees. ON BRIEF: Helen F.
Fahey, United States Attorney, Jeri Kaylene Somers, Assistant United
States Attorney, Alexandria, Virginia; James S. Gilmore, III, Attorney
General of Virginia, Catherine C. Hammond, Deputy Attorney Gen-
eral, J. Steven Sheppard, III, Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Fair Woods Homeowners Association ("Fair Woods") main-
tains a development of residential townhouses in Fairfax County,
Virginia. In 1994, the Virginia Department of Transportation
("VDOT") began construction of a partial cloverleaf interchange at
the intersection of U.S. Route 50 and the Fairfax County Parkway.
This interchange would bring highway traffic within 100 feet of
homes in the Fair Woods development.

Fair Woods brought this action in the United States District Court
for the District of Columbia against Defendants Federico Pena, in his
official capacity as Secretary of the Department of Transportation
("DOT"), Rodney E. Slater, in his official capacity as Administrator
of the Federal Highway Administration ("FHWA"), and David R.
Gehr, in his official capacity as Commissioner of the VDOT, for
declaratory and injunctive relief. Fair Woods sought a declaratory

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order that the DOT, FHWA, and VDOT had failed to study the noise
impact of the Route 50 interchange and possible noise abatement
measures as required by the Federal-Aid Highway Act ("FAHA"), 23
U.S.C. § 109 and the National Environmental Policy Act ("NEPA"),
42 U.S.C. § 4321 et seq. Fair Woods also sought to enjoin construc-
tion of the interchange until the agencies complied with the FAHA
and NEPA.

The district court entered a temporary restraining order on Septem-
ber 12, 1994 barring construction of the Route 50 interchange. The
court then granted Defendants' motion for change of venue and trans-
ferred this matter to the United States District Court for the Eastern
District of Virginia. That court dissolved the restraining order after
concluding that construction of the Route 50 interchange would not
cause Fair Woods irreparable injury since noise barriers could later be
installed between the interchange and the development.

After a hearing, the district court granted summary judgment for
the DOT and FHWA. The district court also granted VDOT Commis-
sioner Gehr's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
From this order, Fair Woods appeals.

I.

On April 27, 1981 the FHWA and VDOT completed a draft
environmental impact statement ("EIS") for the Fairfax County Park-
way which proposed six different alignments for the thirty-five mile
highway between Reston and Fort Belvoir, Virginia. After several
public hearings, the Virginia State Highway and Transportation Com-
mission ("Commission") gave location approval to one of the align-
ments for the parkway on September 24, 1981. The Commission's
approval only specified the location of the parkway and did not
address specific design features such as interchanges.

The Fair Woods Homeowners Association was incorporated on
October 6, 1983. Fairfax County required the developer of Fair
Woods to dedicate thirteen acres for a right of way for the proposed
parkway. (J.A. at p. 321 & 358.) At least one Fair Woods resident was
aware of the proposed parkway when he bought his house in 1984.
(J.A. at p. 449.)

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The FHWA approved the final EIS for the parkway on May 18,
1984. The EIS indicated that the noise level from the parkway at the
Pender United Methodist Church, a location near the Fair Woods
development, would be seventy-one decibels which is a noise impact
under FHWA regulations. (J.A. at p. 197.) The EIS contained a map
which listed all the sites along the parkway where noise barriers were
planned to be constructed. The Fair Woods development was not
included among the proposed sites.

On July 17, 1987 the Commission's successor, the Virginia Com-
monwealth Transportation Board, approved the major design features
of the parkway including a partial cloverleaf interchange at U.S.
Route 50 which borders the Fair Woods development. Construction
of the parkway was completed in 1988, but construction of the Route
50 interchange was postponed because of a lack of funding.

In 1993 the VDOT published the list of communities affected by
the parkway which would receive noise barriers. (J.A. at p. 417.) The
FHWA and VDOT denied Fair Woods's request for noise barriers
because they found that the development was not"`planned, designed,
and programmed' at the point of public knowledge" which was the
date the parkway received location approval in 1981. (J.A. at p. 405.)

On February 5, 1994 the VDOT notified Fair Woods that the
agency intended to acquire a portion of the development's land for the
interchange. The interchange included two cloverleafs which would
bring the parkway within 100 feet of the Fair Woods development.
Fair Woods filed this action on September 20, 1994 to halt construc-
tion of the interchange.

In response to this litigation, the VDOT conducted a study of the
future noise impact of the Route 50 interchange on the Fair Woods
development. The VDOT found that the noise levels would range
from fifty-seven to seventy-one decibels which is considered a noise
impact under FHWA regulations and requires the consideration of
abatement measures. 23 C.F.R. part 772, Table 1. The FHWA
reevaluated the EIS on the parkway in consideration of the VDOT's
noise data and concluded:

          Mitigation is not appropriate in the case of Fair Woods,
          because the responsibility for noise impacts rested on the

                    4
          Fairfax County authorities, and the developer, who was fully
          aware of the Parkway and located Fair Woods with that
          knowledge. It would not be a proper expenditure of Federal-
          aid highway funds to provide mitigation of noise impacts for
          Fair Woods.

(J.A. at p. 470.)

II.

Fair Woods brought this action against the FHWA and VDOT
asserting that the agencies had violated the FAHA and NEPA by fail-
ing to study the noise impacts and consider noise abatement measures
for the Route 50 interchange. The FAHA provides the following, in
pertinent part:

          The Secretary . . . shall not approve plans and specifications
          for any proposed project on any Federal-aid system for
          which location approval has not been secured unless he
          determines that such plans and specifications include ade-
          quate measures to implement the appropriate noise level
          standards.

23 U.S.C. § 109(i) (1990). The NEPA requires, inter alia, that all fed-
eral agencies prepare a detailed statement of environmental impacts
when proposing a major federal action which significantly affects the
quality of the human environment. 42 U.S.C. § 4332(C) (1994).

The district court, in its record order, found that Fair Woods's
claims under the NEPA were barred by the equitable doctrine of
laches. The district court stated:

          I am going to deny [Fair Woods's] motion for summary
          judgment, grant the defendants' motion because I am satis-
          fied from this record that in 1981, after many years of pre-
          liminary planning, there was an adequate point of public
          knowledge. The community was put on sufficient and ade-

                    5
          quate notice that this particular highway, not only this spe-
          cific alignment but with specific interchanges, was going in.

(J.A. at p. 508.)

III.

The invocation of the doctrine of laches lies within the sound dis-
cretion of the district court and will be reversed only if clearly errone-
ous. Potter Instrument Co., Inc. v. Storage Technology Corp., 641
F.2d 190, 191 (4th Cir.), cert. denied, 454 U.S. 832 (1981). Laches
is an affirmative defense which requires the defendant to prove (1)
lack of diligence by the plaintiff and (2) prejudice to the defendant.
White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990), cert. denied, 501
U.S. 1260 (1991). Lack of diligence is shown when"`the plaintiff
delayed inexcusably or unreasonably in filing suit.'" Id. (quoting
National Wildlife Federation v. Burford, 835 F.2d 305, 318 (D.C. Cir.
1987), reh'g denied, 844 F.2d 889 (1988)). An inexcusable or unrea-
sonable delay occurs only after the plaintiff discovers, or with reason-
able diligence could have discovered, the facts giving rise to its cause
of action. White, 909 F.2d at 102.

The prejudice to the defendant must be a result of the plaintiff's
delay in pursuing its claim. Tobacco Workers Int'l Union v. Lorillard
Corp., 448 F.2d 949, 958 (4th Cir. 1971). A generalized allegation of
harm resulting from the passage of time is not sufficient to show prej-
udice. Equal Employment Opportunity Comm'n v. Radiator Specialty
Co., 610 F.2d 178, 183 (4th Cir. 1979). The defendant, however, "is
aided by the inference of prejudice warranted by the plaintiff's delay."
Giddens v. Isbrandtsen Co., 355 F.2d 125, 128 (4th Cir. 1966). The
greater the plaintiff's delay, the less prejudice required to show
laches. White, 909 F.2d at 102.

Although laches is not a favored defense in environmental cases,
we find its application appropriate here. See Quince Orchard Valley
Citizens Ass'n, Inc. v. Hodel, 872 F.2d 75, 79 (4th Cir. 1989). The
record indicates that Fair Woods received clear notice of the proposed
cloverleaf interchange when the Virginia Commonwealth Transporta-
tion Board gave its final approval for the project on July 17, 1987.
(J.A. at p. 256-7.) By this date, Fair Woods was aware that the FHWA

                     6
and VDOT had decided not to provide noise abatement measures for
the development. We find that Fair Woods's delay in filing suit is
inexcusable and unreasonable.

Fair Woods contends that its delay in filing suit is justified because
construction of the interchange was postponed due to a lack of fund-
ing. This action, however, is based upon alleged violations of the
FAHA and NEPA by the Defendants which occurred when the De-
fendants prepared the final EIS in 1984. Therefore, the temporary
postponement of construction because of a lack of funding could not
affect any interests Fair Woods may have under the FAHA and NEPA
and does not excuse its delay in bringing this suit.

Since we find that Fair Woods's delay is inexcusable and unreason-
able, Defendants do not have to demonstrate the degree of prejudice
required if the delay had been less aggravated. White, 909 F.2d at 103.
But cf. Arlington Coalition on Transportation v. Volpe, 458 F.2d
1323, 1330 (4th Cir.), cert. denied, 409 U.S. 1000 (1972) (action to
enjoin construction of an interstate is not barred by laches when con-
struction "has not progressed to the point where the costs of altering
or abandoning the proposed route would certainly outweigh the bene-
fits that might accrue therefrom to the general public."). The record
indicates that Fair Woods had ample opportunity to contest Defen-
dants' decision not to provide the development with noise abatement
measures. Fair Woods failed to challenge this decision until after the
VDOT executed a construction contract for the interchange. This
action prejudices Defendants by requiring the agencies to reexamine
the environmental data ten years after the final EIS was released for
public inspection and comment.

In addition, "the principles of equity require a federal court to stay
its hand when judicial relief makes no sense." White, 909 F.2d at 104.
Even if this Court granted the relief Fair Woods seeks, its position
would be no different than before it commenced this litigation. Defen-
dants do not dispute that noise from the interchange traffic 100 feet
from the Fair Woods development would adversely affect Fair
Woods. They simply contend that they are not required to pay to alle-
viate this problem and Fair Woods has not cited any authority which
requires Defendants to pay. Further environmental study, therefore,
would be superfluous.

                    7
We find that Fair Woods's delay in bringing suit was inexcusable
and unreasonable and that this delay prejudiced Defendants. Accord-
ingly, we conclude that Fair Woods's action is barred by the doctrine
of laches. Therefore, the order of the district court is

AFFIRMED.

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