Appendix — Triangle Improvement Council v. Ritchie

Supreme Court brief1971

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9 SUPREME Cou U. Ee ee ’ to.

a5 APPENDIX

°.

a ‘Supreme ( Court of the Utited States ie .

st _ OCTOBER TERM, 1970

No. 712 | sa é, \"" = Beare

_ TRIANGLE IMPROVEMENT Counc, ET. AL,

ate _ PETITIONERS, be ie a es

3 ;. 87. ; : vai a . ee , wD | ie

' WILLIAM 8S. RITCHIE, COMMISSIONER, .

* STATE ROAD COMMISSION OF THE STATE OF |

— _ WEST VIRGINIA, ET AL, ~ ee

ee ) ’ BESPONDENTS. Ses oe

"Ow PBTTTiog 7OR A WRIT OF CERTIORARI 10 THE UNITED STATES. eae

Z "COURT OF APPEALS FOR THE FOURTH. OnIGUID eee.

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“it PETITION FOR CERTIORARI FILED SEPTEMBER 17, 1970 St Dea

Os, CERTIORARI GRANTED DECEMBER 31,1970.

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pee er by Defendants, Ritchie, J rs, et al. cee he 24a - ae

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| Order Denying Rehearing an bane’ With Dissenting Re deny Es 4

“Opinion ate SE ids alia tcgek eee : f--

e . Order Denying Motion hac tecseuaen tag ae 71a f

| Dissenting Opinion ‘ en : 7A oe ae ae

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Porras ns Fan THE Sourners Dismnicr OF West Vitiorsta"

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Own, Acsiox No, 68- sist cH

~TPRIANGLE Liapeobinckios Counen: a non- n-pgofit pieantenti

ges et aa

~ - States and FRANcts C. TURNER; Indivfiually’ and as Di-« :

me created and organized under. the. nny of the Staté =)

igs West: Virginia, as an individual, by and i in behalf’ of its

officers and’ members, Wituiam. §. PRESTON, CLARENCE

SMitH, REGINA McLenvoy, Jupy Ecxurs; Henry t.

: Haynes AND: Lesur. BrapsHaw; and KeriqH Krxear,

. Tennis Hocans* ‘Hheese- Bayes; Katte Dzax, SEDALIA

“Haynes, and baci ‘Day, as individuals,; ‘

. we ‘Individually’ and on behalf ‘of ~ others’

ROA ep rca ars similarly situated;

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fis -0 ; rf a

issioner, State Road Commission, of

\the Staté of Wes Virginia; O: R, Conan, Dire yr: of the ; :

Right of Way Division, State Road Commission of the

. Ststate of West Vir ginia, Rumer H. Tipson, May or of the

ee Nak leston, West Virginia, Tue City oF CHARLES-

ton, West Virginia, a city corporate and body. politic;

the Crry CouNcIL oF THE CrTy OF CuaR.esfon, the corpg-

rate board of that city; ALAN S. Boyp, Individually pnd

as secretary. of Transportation. of the United States ;

Lowetz K. Brinn, Individually and as . Administrator |

‘af the Feder al Highw ay Administr ation of, “the U nitéd seit

-rector of the Bureau of sia Hoods at the United

_ States. . : @

1968

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“Ya. ne -

Order granting leave to Plaintiffs to file and prose- |

‘gute action witheut prepayment of costs and direct- |

“ing Clerk to issue summans ‘ete.

Filed Complaint , : INAS

Filed. Pétition ‘to. Proceed i in ‘viene eae

Filed Affidavit in support of petition to proceed |

in forma pauperis

Filed Marshal’s returns on summons 8

> &?

Filed Notice of Motion of U.S. with carbon copy of

motion attached and certificate of service

Filed. Motion of defendants, Alan S. Boyd indi-

. vidually ,and as Secretary of Triysportation of

U. 8. Lowell K. Bridwell, individually and as 44d-

ministrator of the Federal Highway Administra-

tion of U.-S. and Francis C. Turner, individually

- and as Director of Bureau of Public Roads of U.S.,

for an extension of time ‘to file answer to avn A 4,°

1969. ,

Ordet, time ‘within which above ‘named Acfendants

to answer is extended to and including April 4, 1969

Order granting M. R. dlamill, Commissioner, State

- Road Commission of W. Va., and O. R. Colan, Di-

rector of Right of Way Division State Road Com- °

mission of State of W. Va. extension of time to an-

swer, ete., until April 4, 1969.

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Relevant noes Entries —

‘

’ Filed motion of City of Charleston, ét al; for exten-

sion of fime to file answer - extended, to April 4,

1869. * ce 8 + ys )

Order oxiendinig time for defendant, City of.Charles. ' |

_ ton, et al, to file answer to ‘April 4, 1969," 6

Filed pltfs’ motion & notice ‘of motion for témporary

restraining order, «’ a

Filed supplemental Notice % -

Filed Response of Asst. U. S. Atty. to motion of.

plaintiffs for a temporary,’ restraining order, with

affidavit and certificate of | serv ice attached, _

Filed’ Motion, of Aggt. U. s: Atty, to quash and

suppress . with Noticé of motion, certificate of ser-

vice and ‘Kiait attached, 3 )

Filed Mottoy of Asst,-U. 8. Atty. to dismiss com-—

“*plaint, with Affidavit; exhibits (A thru E, K & O at-

tached; F; G, H, I, J separate), Roties of Motion

‘and certificate of kervice

‘Filed plgintiff’s exhibits Nos, 1 thea a

Filed response ‘and answer “of State Road Com- -

“mission to plaintiff's motion for temporary restrain-

ing order, with exhibits 23 & 24 aftached, & exhibits

1 thru 22 and 25 ‘separate

Filed motion to dismiss on behalf of ieee”

M. R, Hamill, et a! with" affidavits attached.

Filed motion to quash and suppress subpoenaes

served upon Williang 8: Ritchie, O. R,.Colan, Don

Rude, Jack Samples,’ Joseph S. Jones and M. R.

(Cy) Hamill, with affidavits

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‘Relevant Docket Entries

Filed Motion. of defendants Ehiter H. Dodson, .—

Mayor, and City of ¢ ‘harleston, to be dismissed ‘as

parties. defendant

_ Filed Notice of Taking of Heposition by pltff. .

Filed motion of U.S. not to depose George L.Ham

non until after hearing of 4/1/69;‘with notice of

- motién and certificate of service

Filed motion of defendants, William S. Ritchie,

W. Va. State Road Commissioner, et al. to sup-

press and quash subpoena and motion pa protec-

tive order under rule '30{b) with notice of motion

_ and certificate of service attached.

Filed pltff’s notice ef taking deposition of Joseph

S. Jones

' Order, motion to quash subpoena duces. tecum

served on Geo, L. Hannon sustained ; motion for

‘temporary restraining order denied; motion to dis-

miss City of Charleston denied; hearing on- mo-

tions to dismiss by varions defendants and hearing y

‘-on evidence on motion for gretiananrs injunction

both set for 4/1/69

Order quashing notices to take deposition of.O. R.-

Colan, George L.’ Hannon and Joseph S. Jones in

accordance with Rule 30(b) FRCP

Filed plaintiffs’ Motion for Production of Docu-

ments by defendant William S. Ritchie, State Road

Commissioner with Affidavit of John L. Boettnet,

Jr. in support of motion

1969

3-24,

.? Ja . uf :

* Relevant Docket Litries_

of the United States, and Francis C. Turner, Admr:

of the Federal Highway Administration and Acting

Filed plaintiffs’ Motion for Production of Docu-~ .

ments by John Volpe, Secretary of Transportation

Director of Bureau of Public Roads of U. s., with»

_ Affidavit in-support of motion.

Order doling plaintiff's motion td amend com-

plaint .. a HF fae

Filed Motion that plaintiffs be permitted to present

all issnes and theories of: law tendered .in~their

complaint, with certificate of service

- ‘Filed plaintiffs’: Motion to Aisond ‘Goaiing to-

, Show Jurisdiction, with certificate of service

_ Filed Motion to Quash the Motion for Produetion

‘of Documents on behalf of U. S. z

Filed motion for order directing subpoenas ad -

testificandum be issued without payment of costs, °

with affidavit attached.

Order directirig Clerk to issue. subpoenas ad testi-

ficandum without payment of costs for- ‘persons

nained in motion

- Filed plaintiffs’ motion for preliminary injunction

_ with affidavits attached. ‘. ey

Filed Notice of “Appearance of. Michael Davidson

as an additional counsel for the plaintiffs.

*Filed Joint & Separate answers of-Elmer H. hdl

Mayor of Charleston, et al

Pie.)

1969 .

4-23

| + — Relevant Docket Entries .

ta ad ‘ ’

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Filed reporter’s transcript. of: proceedings of April:

3, 1969. (Court's remarks) |

Order granting plaintiffs additional time in. which

to submit. supplemental memoranda to and includ;

ing May 5,’ ‘19692

Filed motion of plaintiffs for an extension of time.

“to file. supplemental memoranda

£28 | 2Order, plaintiffs’ motion for production of dacu-

- $99

denied, and motion to-amend to include > jurisdiction ~~

ments denied; motions to quash subpoenas _ duces

tecum! served by the plaintiffs granted ; motion. of

plaintiffs for permission to present all issues and °

theories of law tendered in their complaint, denied.

Order, ‘moti ns’ to dismiss complaint denied, ‘motion ‘

for preliminary injunction on behalf of plaintiff

__under. ler. Administrative Procedure Act, Title 5, USC

~ 701 et seq. is granted; furthér ordered that. all

briefs in support of respective positions be filed -

on or before April 23, 1969.

Filed Answer of defendants John Volpe, individ-

ually and as Secretary of. Transportation of the

United States; Francis C. Turner, individually and

as Administrator of the Federal Highway Admin-

istration of the United States, and the Acting

Director of _the Bureau of Public Roads of the .

United States

Filed Answer of Defendants, William S. Ritchie,

Jr. Commr. State Road Commission, O. R. Colan,

Director of Right of Way Division, State of West

Virginia, with certificate of service —

_@ "Ta.

220, Ces Bae Docket Entries

1969

\ % 3.

{ 7-18 |

7-80 ,

Filed 3 pple ey Opinion of 1 ‘Court *-

Order: dismissing case from docket

Filed Plaintiff’s’Motion, to receive, additional evi--

dence and alter or amend: findings ‘of “fact and

judgment or for a new trial:

8-20 Filed. plaintiff's exhibit No. .C in open. Court

- 8-22

8-25 |

8-25

9- 2

Order denying motions. of © plaintiffs to alter or

amend findings of fact and judgment for new trial

‘Filed application of plaintiff for leave to appeal

in forma pauperis with affidavit .

Order permitting plaintiff to appeal i in forma pau-

peris; ete. ,

8-25 Filed plaintiff’s Notice of Acne:

8-26

Mailed ee: of Notice of Appeal to counsel

Filed carbon’ ‘copy of plainiit's request for Tran- i

script

Mailed photo copy ot plaiititrs request for Tran- *

seript to counsel of record

Filed. plaintiffs’ motion for an ‘injunction sini

appeal |

Filed motion of plaintiffs for an extension of time

‘to file ‘record-on appeal

Order granting an extension of time to transmit

record on: appeal to October 24, 1969

Filed Stipulation of counsel that Clerk shall tem-

porarily retain record and transcript for use of |

1969

102f

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"10-24

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9-2

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"Relevant Docket Entries” > ee

parties i in preparing appellate papers, pursuant a. <

. Rule Ti(f). ofsFRAP _ -

Filed “appellasit’s certification that’ record, ‘inclading :

» the transcript and all necessary exhibits i is complete :

. for purposes éf the appeal.

Mailed certified « copy of stipulation of Oct: 13; ap-

pellant’s-eertification of record and docket entries

jae wa ag Tack, U. S. Court of Appeals at Richmond.

Filed -original copy of Court Reporter’s certified

_ transeript of trial to Court on April 2nd and 3rd,

1969.

Order Fo whiten ee order of 8/25/69 ee ourti:

fication of Court that appeal-‘taken by the. —

tiffs is not frivolous, ete. .

Mailed«eertified copy of order to Administrative

Office of U.S: Courts.

Filed Opiniéa of Fourth Circuit Court of Appeals |

_ (judgment of this Court affirmed).

Filed certified ‘copy ‘of order of, Fourth Circuit

‘Court of Appeals staying mandate pending applica-

‘tion of appellants in Supreme’ Court for writ of .

certiorari.

Entered order of Fourth . Cireuit Court of “Appeals ©

rescinding order staying. mandate pending applica-

tion of appellants in Supreme: Court for a writ of

certiorari.

Entered order of U.S. Court of euaise for the’

Fourth Circuit (judgment of this Court affirmed).

4 .

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’

ie Bakes Complaint? _

) ( Title Omitted i in Printing. )

Plaintiffs allege as follows:

—s

1. The jurisdiction and authority of this court are in--

voked under Title 28 U.S.C. §¢ 1331(a), 1361, -1343(3) and/

(4), 2201 and 2202 and Title 42 U.S.Cx §$1981, 1982, 1983

and 2000( d); to obtain declaratory judgment and injunctive

_ relief. Plaintiffs contend that the acts of the defendants in

planning, adopting and approving the routing simultaneous”

- Interstate’ Highways 1-64 and I-77 through the Triangle

‘District of the City of Charleston, West. Virginia, are con-

trary, to the laws and Constitution of the United States.

2. The matter in controversy oxisnade $10,000. exclusive

of costs and interest arises under Federal :Law as will

' more fully appear m subsequent paragraphs | of : oe

3. This is’a dine: action brought by the plaintiffs on

behalf of themselves and on beha#f of all others similarly

affected by the acts of defendants. complained of herein.

Plaintiffs are citizens of the United States and of the State’.

- of West Virginia ‘and all of whom have a personal interest —

in the particular area of the City of Charleston known as -

’ the Triangle. All of the plaintiffs named and represented

herein, have a ‘substantial “interest in preventing the

threatened destruction of or. irreparable injury to. the

Triangle, its community, businesses, social institutions and.

residential areas caused or threatened to be caused ‘by the.

defendants in constructing or permitting to be constructed —

a section of the Interstate Highway System through that

, particilar drea:.. 3 «

(a) without procedural comigliones with toteeai abit

utes and regulations relating to public hearings: eon-

cerning proposed routes of Interstate Highways, and

| Complaint eee - \a

(b) w ithout giving éénetderation to the economic and

social aspects of ‘the routing of the Interstate Highway

as required by federal- statutes and ‘regulations, and .

implications of the proposed routing of thé Interstate

4 Highway through thé ‘Triangle, and -—

. P 5 : . °

nes (a). without due process of law, and ° -

| . (a w ithout compliance with bailar al statutes and regu-

if _ lations relating to the relocation of displacees. |

This j is a proper class seitans under rule 23 of the Federal.

Rules of Civil: Procedure. Plaintiffs represent a class. of |

¢ persons who are similarly injured by reason of the wrongful —

~ acts of -defendants complained of-herein. There are com- :

"non « questions of law and fact and the claims of the named

‘plaintiffs: are typical. The class is so numerous that joinder |

of all members is impracticable and pursuit of individual —

remedies is economically infeasible. Many ‘persons within

the class are not aware of their rights nor. are they in a

financial position to assert them: Relegation of these claims

to individual litigation would result in an unreasonable.

multiplicity of suits and a corresponding burden on the

courts. A class action is far superior to all other methods

for fairly and efficiently adjudicating this controversy. The

"representative parties will fairly protect the interests ae

(sae the class which-plaintiffs represent, .

4, The Triangle is the curtioulie i area. af the City a

| Charleston, West Virginia bounded generally as follows:

7. On the North by Dryden. Street, on the East by Capitol

Street, on the South by Washington Street and on the West

by the Elk River. The Triangle is predominantly Negro.

The. inhabitants have developéd a social‘and economic cul-

SMEAR ER LATE ETO AE SD

« aoe - te $ lla ph

| Complaint

. ture. which is: indigenous and unique to ‘that | | particular hie

group. The physical community as well as the culture of ~

the inhabitants of the Triangle will be blindly destroyed by ~

__ , the ‘proposed’ “‘construetion of a section of, the Interstate - Bie:

es Highway (1-64 and I- 77): through that area, because of the .

ceagog wes and taking of substantial land for’. rights- of-

| way. g ;

3D. This is a proceeding for Neclicatees judgmisnt, tem-

. porary restraining order, preliminary and permarient in-:

junction to restrain the: defendants individually or acting *!

in concert, their agents, servants, employees, attorneys, suc-

cessors and all persons participating. with’ them, from pro-

_” ceeding with the implementation of plans for the construc- |

-- tion of a segment of the I-64, 1-77 Federal Interstate High- .

way System in and through the Triangle District i in that —

the choice and approval of that ‘routing was — illegally:

and unconstitutionally. —

- * 6, Plaintiff Triangle fics: Osaneit is a non-- .

profit corporation, incorporated under the laws of the State ©

of West Virginia; with its offices located in the Triangle at

the John F. Kennedy Center, 201 Donnally Street, Charles-

ton, West Virginia, It is a citizen’ participant organization ©

dedicated to the development and improvement of-the.Tri-

__angle community, and ‘has as its existing. and present. pur-

pose the preservation of that. community as a vital residen-

tial and business area. The essential goal of the Triangle

Improvement Council is to prevent the eradication and ex- .

tinction of a viable. Negr'o community and to provide for its .—

. future and growth by the; installation of housing, business

and recreational facili rind Plaintiff William S. Preston of

is its President, and plaintiffs Clarence Smith, Regina Me- -

Lendon, Judy Eckles, ‘Henry C. Haynes and Leslie Brad-|

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* : eo Oo ; ; bs

"Complaint

‘shaw are respestiv ely its vice- preatdent Secretary, assistant _

er etary, treasurer, and financial secretary. .

fF Plaintiff Keith: ‘Kincaid is a Negro resident of the

Triangle. He resides in and oper rates the Keith Hotel which

is located at‘@09 Christopher . Street. ./ The present align-

“ment of simultaneous 4, 1-77, willr esult 1 in the taking of

~ this property as well as “the destruction of a substantial part ©

~ of the community in which Mr. Kincaid, resides.

- barbershop.at 503 Court Street it the Triangle. The buil@& =

i ing in which Mr. Hogans maintains his bar bershop has al-.

"+ ready been taken by the State Road Commission and will |”

ae destroy ed to provide a part of the land ri®cessary for

~ the construction of simultaneous ‘1-64, 1-77.

9. Plaintiff Robert Buyes, ‘fis wife, Pauline and: his

three teen-age children are Negro residents of the Friangle.

. .The family home at 711 Young Street which is owned by.

Mrs. Bayes w ili be taken to make way for the Interstate

Highw ay I-64, I-77 and their community will also be sub-

“stantially damaged by its construction. :

10. Plaintiff Katie Dean is a Negro who resides a

' 203% Bullitt Street in the Triangle.” She was pfeviouSly

required by the State Road Commission to -move: from @

residencé on. North Rand Street which was in the path

of the proposed Interstate Highway. She now fears the —

injury. and upset ‘to the Triangle which will. result from

the building of simultaneots I- y 1 i z.

me ee ‘Plaintiff Sedalia Haynes i is a os iiaidont of the

Triangle. She is a tenarft in,a dwelling unif at 712 Young

_ Street. Mrs. Haynes has only recently learned that she* -

will have to move because the house in which she liyes ~

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mae to he ‘demolished asa part @P clearing ‘is ‘way for: the

7 ete aa: Heghway.

| 12. Plant? ff Lillian Day is a Abit te Seaitent of the

Triangle. She rents an apartmeyt at A 1 Summers Street,

which hes in the path of 1-64, I-77.

je 18. Defendant, _M. R. Hamill ‘is the Cominissioner of ©

ee the Staté Road Commission of the State of West Virginia ;

the officer charged with the responsihiltty- of s Supervising, canes

the planning, construction, ‘reconstruction, repairs and 7

maintenance of State roads and hibhways-axd the acquisi- |

tion of rights- -of-way necessary for ‘the construction for -

‘such roads and highways and further, with ‘the duty of

planning the Stage’s part in any propesed or contemplated |

‘ system of interstate roads, Chee Virginia CovE Sections,

“1T2A- 8, 17-2A-17 and 17-4-4). a ein

14. Defendant, 0. R. Colan i is the Director of the Right

of Way Division of the State Road Commission of The

State of West Virginia; the officer charged witly the ré-

Sponsibility of. advising ‘the Commissioner as to the plan- »

ning, ‘purchasing or-otherwise procuring of real properties

necessary for the Wnstruction of State oF interstate roads

15, Defendants City of Shaztesion, Elmer H. ‘Podson |

and City Council: are the corporate governing body and |

. elected, officers ‘representing the, citizens-of the ‘municipal,

; “area of: Charleston, Kagawha. County, West Virginia.

These municipal defendants ‘are charged with the sensitive

representation of the desires and best interests of the

* constituents, residents of the City and‘relating same to

_/State and: Federal officials: whose conduct threatens the

safety and well-being of those constituents,

,-g°-%. oa

Complaint

(16, Defdtdant, Alan S. Boyd is the Secretary of the

* Dep&rtment of Transportation of the United States; the

officer possessed with the ultimate power and authority

over the approval of expenditures of federa] monies for

the construction of Highways in the Interstate Highway

System and in any other matters relating thereto.

* 1% Defendant Lowell K. Bridwell is Administrator of

the Federal Highway Administration and Defendant Fran-

cis C. Turner ig the director of the Bureau of Public

Roads of the United States. Both are heads of ‘agencies

under-and_resppnsible to the Department of Transporta-

tion foy,review and recommendation of acceptance or re-

. jection of proposed Interstate Highway routes, and serve

in a study.-and advisory capacity to that Department in

_ matters rélating to the design, engineering cost, social and

economic considerations whith bear on proposed construc-

tion of Interstafe Highways.

18. Pursuant to federal statute, Title 23°U.S.C. §128, thé

State Road Conimission of West Virginia held a so-called — 7

“public hearing” on June 10, 1 e Charleston Civic

‘Center in Charleston, West Virginia. ing was

inadequate and was neither within the letter nor the spirit

of statutory requiréments. Citizens and groups of citizens,

particularly the plaintiffs herein,.were not given a fair

opportunity to participate.in the- decision making ee

because :

{A) Notice of thé “public hearing” was iindeasele ' in

that it failed to inform citizens of the Triangle and.

‘of the’ Kanawha Valley generally of the existence,’

nature, purpose and potential affects of such hearing,

and

| wy

"4 5 l5a

_ Complaint

(B) The: ‘scope of the hearing was too+large because .

_it involved the discussion of over ten individual plans

for the construction of an excess of 45 miles of Inter-

state Highway, and

_ courage citizen ‘participation i in thap the scope Was too

great (as alleged in [B] above), the discussion was.

too technical in nature to elicit lay testimony, and its

length was oppressive and inhibiting, and

(D) The hearing was premature in that~it did not

provide detailed inférmation as to specific loca 9)

and design of the highway, and

(E) The hearing was not made a proper forum for the

discussion of the social and racial‘factors involved in

the projected destruction of the established Triangle

community. i

19. Absent the requirement of; a public hearing, there is -

a duty imposed on defendants to inquire into thé potential

adverse social effects of the construction of an Interstate

Highway. Defendants-must have known and did know of

the social detriment which would result from the taking

- of, substantial area from the Triangle> Negro resi-

dences will be déstroyed, Negro businesses will be taken,

urban renewal programs are inhibited, the community will

be substantially reduced in size with a consequent increase |

in population density andthe Negro citizens have already —

and will further be made to. feel oppréssed and helpless.

Defendants have at all times failed to adequately weigh

the sociat costs of building ‘the simultaneous I-64, 1-77

Interstate Highwsy. — the Triangle.

7 ©)

Oy. .

l6a

Complaint

nes

20. By implementing the’ proposed construction of I-64

. 177 and by the expenditure_of State and Federal funds

therefor, tHe defendants liave and will be responsible for

acts whieh are racially discriminatory and in violation of |

‘the rights secured to plaintiffs and the class they repre-

sent by the Equal Protection Clause of the Fifth and Four- |

teenth Amendments to the United .Sfates Constitution.

The disproportionatel§ adverse result to the Negro com-

munity of: the Triarigle is capricious and arbitrary and

cannot be reasonably justified.

21. Defendants, by ‘their acts in proposing, adédpting or

acquiescing in a routing of the simultaneous 1-64 and 1-77

Highways through the Triangle, without giving meaning-

ful consideration to the views of those adversely affected,

- are responsible for the destruction of a well-established

and stable community. By so doing, defendants are taking ©

property without due process of law in violation of the

rights of the plaintiffs and the class which they-represent _

as are securéd by the Fifth and Fourteenth Amendments

to the United States Constitution.

22. Chapter V of Title 23 U.S.C. and the administrative

regulations adopted pursuant thereto by the United States

Department of Transportation (Federal Highway Admin-

istration, Bureau of Public-Roads Instructional Memoran-

dum 80-1-68 on relocation assistance, effective August 23,

1968) provide that no federal funds shall be forthcoming

to any state which does not provide for comparable, decent,

safe and sanitary housing for those displaced by an inter- -

state highway. Over five hundred persons in the. Triangle

will be displaced if 1-64 and I-77 continues to be con-

structed in the present path. State Road Commission de-

‘

17a i ‘

Complaint

fendants will not, have not and’ cannot: follow the federal

.directorates for relocation and as a result, irreparable

harm has and will continue to result to residents of the

Triangle who are in the path of the Highway.

23, Defendants M. R. Hamill, State Road ‘Commissioner.

, and successor to Burl Sawyers and O. R. Colan, Director

of the Right of Way Division of the State Road Commis-

' sion have endorsed and adopted, the decision to route the

simultaneous I-64 and 1 77 Highway through the: Triangle

and are responsible for its implementation and construc-

tion. In so doing, these defendants have acted and will

continue to act arbitrarily, capriciously and unlawfully in

that they have failed to recognize the inadequacies of the

publie hearing of June 10, 1964, and have failed to take

into consideration the social, environmental and- human

factors necessary for a decision which is representative of

the public interest, and have and will continue to deprive

* plaintiffs. and the group which they represent their rights —

as guaranteed by the Constitution of the United States, ‘

and have and will continue to fail to provide the, requisite

relocation assistance to affected persons in the Triangle. |

24. Defendants Crry or Cuarvestox, its Mayor Ecmer H.

Dopsox, and its Crry Covnci have acted arbitrarily, capri- |

ciously- -and_jp_violation_of their duties and obligations as ©

representatives of the residents of the Triangle community

in that they have at all times acquiesced and cooperated in

. the proposed routing of I-64 and I-77 and: have refrained

from the use of the considerable powers of persuasion avail-

able to them in behalf of residents of the Triangle; and this

done with full knowledge that the proposed Highw aye con-

struction was illegal and unconstitutional. .

ee RE ENE TS ee a ae a

Te...

ne hy fo

; 18a

raate Complaint”

25. Defendants Avan S, Bovyn, Secretary of Transporta-

tion, Lowerf’ K. Brinweit, Federal Highway Administra-

“tor, and Francis C, Turner, Director of the: Bureau of

Public Roads’ by. adopting and endorsing. the decision of-

the State Road Commission with respect to the proposed |

highway location and by approving the expenditure of

federal monies therefor, have-acted arbitrarily, capriciously

and unlawfully in that they have failed to recognize.and

disapprove Of the acts egmplained of in paragraphs 18

through 22 above which are in violation of the Federal-Aid

Highway Act and the Constitution of the United States.

26. If defendants are permitted to continue to act in

- accordance with the proposed plan for the construction of

the described link of the Interstate Highway through the

Triangle community in the City of Charleston, irreparable

harm will result to the plaintiffs and to the class of persons

in whose behalf they sue.- Defendants’ acts are continuing —

and ongoing and the only immediate and effective temedy

available to plaintiffs is the temporary restraining order’.

and injunctive relief sought, as the progressive process of

letting bids, acquisition of rights of way and other acts

necessary to” the implementation of the present plan serves -

to compound the degree and irreparability of the injury.

The granting of such relief and the resulting delay in the

implementation will not seriously or gubétantially preju-

dice any rights of the defendants.

‘Wuereror:, plaintiff respectfully pray that upon Repos

of this Complaint:.

I. That this Court assume \e jurisdiction of this cause.

Il. That this Court determine that this is a proper class

action, under Rule % of the Federal Rules of Civil Pro-

cedure.

19a |

“Complain

_ I. That this Dente issue a teniporery restraining order

_ pending the final hearing and determination of this cause,

restraining the defendants, their agents, servants, employ-

ees, attorneys, successors “and all: persons and agencies in‘ ,

active concert and participation with them from proceeding

_ with or otherwise implementing the construction of the ~

‘ section of interstate Highway I-64 and I-77 through the

Triangle community of Charleston, West Virginia; and

from expending or otherwise obligating any State or Fed-

eral funds therefor; and from letting any further bids or

pursuing any existing contracts and from purchasing or

attempting to purchase any right-of-way properties until

further order ‘of this Court. 7,

IV. That this Court advance thig/cause on the docket and

cause it to be heard at the earliest convenience. Further,

that the defendants and each of them be required:to show

cause why the temporary restraining order hereinbefore

prayed for should not be made gua ies injunction.

V;. That.this Court enter a declaratory judgment pursu-

ant to Title 28 U.S.G. of §42201 and 2202 and Rule 57 of

' the -Federal Rules of Civil Procedure to the effect that:

(A) The public hearing held pursuant to Title 23

U.S.C. 128 was-not within the spirit and letter of Fed-

eral laws and administrative regulations as alleged

in paragraphs 18 and 19. of this complaint, and

( B) That the proposed routing of the Interstate High-

way 1-64 and 1-77 through the- Triangle community =~

deprives plaintiffs and the class-of persons whom they

represent their rights as secured by the Equal Pro-—

tection and Due Process Clauses of the Fifth and

’

ee Oe -

20a

Complaint

Fourteenth Amendments to the United States Con-

stitution, and © ,

"(C) That adequate vdisiaties ‘of dasianies | in the Tri-

*- angle has not, will not and cannot be provided by the

State Road Commission as required nd —— statute,

VI. That this Court enter temporary et _ Permanent :

injunction : = :

(Ay Restraining. the defendants, their agents, servants,

employees, attorneys, successors and ‘all persons and

agencies in active concert and participation with them’

from proceeding with or otherwise implementing. the

presently proposed routing of the Interstate Highway

I-64 and I-77 through the Triangle or any part thereof

-and ftom substituting any plan‘which in any way dis-

criminates against the residents of the Triangle, and

(By Requiring the defendants to select an alternate

route for the Interstate Highway I- 64 and I-77, which

in no way prejudices the substantial interests or the .

constitutional rights of the plaintiffs and the class of

persons they represent, and ~ .

date of federal statutes and regulations governing pub-

lic hearings on proposed interstate highway routes.

VII. That this Court grant such other, ‘additional or

_ alternative relief, as may: seem necessary and equitable.

VIN. ‘That ‘this Court grant the plaintiffs their costs

herein.

21a

_ Complaint

By CouNSEL

THE Leca Aw Society OF - CHanzesron

/s/ A. ‘Aww MacQuess, Il a

| A. Andrew, MacQueen, III

v, + [sf Joan L. Borrrnen, JR.

John L. Boétfner, Jr.

/s/ Donatp D.‘ Saxton, Jr.

Donald D. Saxton, Jr.

702% Lee Street

Charleston, West Virginia

Or Counsin:

E.R. McClelland Cries ee ceeN

Herman G. Canady, Jr.

Ronald E. Wilson °

Ronald G. Pearson

Donald L. Hall

- Tom Lytton :

The Legal ‘Aia Society of Charleston

702% Lee Street °

Charleston, West Virginia

(Jurat omitted in printing.)

a eo

a Answer by the Defendants, John Fe al,

: (Title Omics in Printing.) cid ae

In response to the plaintiffs complaint, the defendants,

‘John Volpe, individually, ands Secretary of Transporta-

: tion’ of the United States ; and the Acting Director of the

- * tion of the United States; Francis CQ: Turner, individually, —

and a Administrator of*the Federal Highway Administra-

.Bureat of Public Roads of the United States, _— as

follows :- a °

First DerEnde oon

nw“

ie The plaintiffs: herein lack standing to maintain this

action. |

2. This Court lacks jurisdiction over the subject, matter

of this action since this court is committed to the urireview-

.. able discretion of these upeenaaata,

3. This ction is barred’ by laches. ..

Fad

4. ‘This Court lacks sie pa ee ae over ‘these

‘of West Viegas. | hs es

o The complaint fails to state a claim upon which relief

can be granted. ;

Seconp DEFENSE

: _ defendants and venue is ~~ in the Southern District :

1. Bhe defendants deny each and every atlegatios con-

tained. in. paragraphs 1, 5, 19, 20, 21, 22, 23; 24, 25 and 26

of the plaintiffs’ complaint. :

2. The defendants lack information sufficient to ov a

belief as to the truth of the. allegations contained i in para-

23a

“Saito by the Defendants, John Volpe, et al.

vie graphs 2; 3, 4, 6, A 8, 9, 10, 11 and 18 of the plaints

* complaint. i : |

3. The defendants deny each and every allegation con-

‘ tained in paragraphs 13,.14, 15, 16 and 17 except they ad- :

| mit that there are official positions similar to those named

aoe paragraphs 13, 14, 15, 16 and 17.

: 3

4, The iefeidiats ‘deny each and every sliegation con,

tained i in paragraph 18, except they admit: that pursuant to—

23. U.S.C. $128, the State Road Commission of West ve

- ginia held a public hearing on June 10, 1964, in the Charles-

| ton. Civic. ‘Center, Charleston, West Virginia. ; i

Gunevone, the dctewAdinte demand that the action be -

_ _/@ismissed and the plaintiffs pay their costs herein expended.

“a 3 "+. Origitial Signed by . _

_Cuartes, M. Love, III

. Charles M. Love, III |

Assistant United States Attorney

(Certificate of Service Omitted in Prititing.)

. 24a

Answer of the Defendants, William S. Ritchie, eG et al.

(Title Omitted in Printing.) 3

| Comes -now the defendant, W ‘liam ‘ 8. Ritchie, ws

oe Commissioner, State Road Commission of the State

" -West Virginia, successor to M. R.*Hamnill, i)

~ State Road Commission. of the: State of’ West Virginia;

and ‘substituted as defendant in place and stead of the «

said M, R. Hamill in the above, styled matter, and O, R..

Colan, Director of the Right of Way. Division, State Road «

C ommission ofthe State of West Virginia and for answer

to the.C omplaint filed herein says as follows:

gf ,

Said defendants deny each and every Allegation con- |

tained in said Complaint except as are herein. spevifically

| admitted.

IL,

Said defendants neither admit nor deny the allegations

contained in Paragraph I of, said’ Complaint in regard to

invoking the jurisdiction and authority of this Court and -

.. demand strict proof of the jurisdiction of this Court. Said

. defendants deny plaintiffs’ contention of activities, contrary

to the laws and. Constitution of the United States.

TI.

Said defendants deny the allegations contamed. in Para-

graph 3 of said Complaint that the action was brought

by the plaintiffs on ssc of other similarly’ ‘affected by.

felt

1 ava Cente

ba athieenda

“¢ P : ‘ ’ PRcely ; ‘ ”

’ P ¥ or a4 é : ‘ . .

; 25a he te

" a” 5 5 os : A : 4 ia .

. _ Answer c of the Defendants, William 8: Ritchie, SK et ta

the. acts. of the defendants; that all ‘the plaintiffs have a

personal interest (within the meaning of the law): in the

particular area in the City 21 Charleston known as the

' Triangle District; that all. the plaintiffs named have a-

a substantial interest | in preventin the threatened destruc-’

tion of or irre parable injury to t ‘Triangle. ‘District, its

community, business, social institutions and residential

vareas (said defendants alleging i in this regard that there

‘is no threatened destruction amd none caused or threatened

‘to, be caused by the defendanits i in constructioning or permit-

ting to. be constructed a section of the » interstate reesei

system through that particulgparea), 1 4

Said defendants likewigeeny that there was not es :

‘ cedural compliance w vith Federal statutes and regulations ”

relating to-public hearings concerning proposed routes of '

interstate highways ; ‘further deny that no ‘consideration

was given to the economié and social aspects, of the routing

' of the inferstate highway insofar as the same was required ae

by the then existing ‘Federal ‘statutés and regulations ;

further deny that the routing. was without proper regard

--*to the discriminatory racial implications of ‘the proposed woe

_ routing of the’ interstate highway - through. the Triangle

and in this regard say that they were, guilty of no dis- °

criminatory racial implications in the routing through the. __

-Triangle™ “area; and deny that action of. said defendants

in so. routing said interstate highway was without due .

“process of law; and further deny that their action in so ©

routing the interstate highway and. any action taken pur-

suant thereto has failed to comply: with Federal statutes

and regulations relating to relocation of displacees:

Said defendants further deny that this is a proper class

action under Rule, 23. of -the Federal Rules: of Civil :

. Answer of the Defendants, William S. Ritchie, Jr., . al.

Procedure and deny each and-cyery allegation siakaliiais

‘in said Complaint which attempts to bring said Complaint

within the requireménts for a proper class action. Defen-

dants further specifically deny that’ a classaction is far

superior to all other methods for fairly and efficiently

adjudicating this controversy and that the representative

parties will faitly protect the interests of the class whieh

plaintiffs’ represent. '

; ars _ ®

IV.

Defendants admit the allegations contained in Paragraph

4 of said Complaint in regard to the geographical bound-

ar@s of “the Triangle” but deny that the inhabitants of .

the area enconipassed by the alleged geographical. bound- -

aries are predominantly negro. These defendants also deny

- that’ the inhabitants of that area have developed a social

- ‘and economic culture which ia indigenous and unique to

that particular group ‘and- -dény that the physical com-

munity, as well ag the culture of the i@habitants of the

Triangle will be blindly destroyed by the proposed con-

struction-of_a section of the interstate highway through ~

that area because of the condemnation and taking of ‘sub-

stantial land for rights of way, and «specifically deny that

1-64 goes through said area.

Although denying the right to bring such action, ——

defendants admit the allegations con in Paragraph 5

of said Complaint except that t deny that-the choice .

and approval of that routing as made made ill egally and un-

. . 27a = .

Answer of the Defendants, William S, Ritchie, Jr., et al.

constitutionally and move the Court that such allegation

be stricken from the Complaint as being conclusions of law

with no allegations of facts to substantiate the same.

oe) |

These defendants do not have sufficient information upon

which to form an opinion as to the truth or falsity of the

allegations contained in Paragraph 6 of plaintiffs’ Com-

plaint and therefore must deny the same.

_ VIL.

These defendants, upon. information and belief, admit -

‘A o t

he individuals named in Paragraph Numbers 7, 8, 9,

| 10, 11 and 12 reside in the Triangle area at the addresses -

set fofth in said paragraphs and admit that the ‘properties —

located at the addresses set forth in said Paragraph Num- .

bers 7, 8, 9, 10, 11 and 12 lie in the path of the. proposed

interstate construction through the “Triangle area”, “but .

deny that said interstate highway is “simultaneous 1-64,

I-77” and say that only I-77 goes through the Triangle area

and deny the allegations and innuendos contained in said

paragraphs in regard to the destruction’ of a substantial

part of the community if said allegations infer any sort

of destruction other. than that of physical property.

Defendanty, to the contrary, allege that their actions, are

to the benefit of the plaintiffs ag a class and rather than

destroying the community in a social sense are improving

the community and the actions are a benefit not only to the

plaintiffs herein but to the other citizens of the City of

Charleston and the State of West Virginia as well.

‘ *-* 28a .

" Answer of the Defendants, William S. Ritchie, Jr.,et al.

é be °

VILL.

Said defendants ‘admit, that at the time of the filing -

of the.Complaint, tlie said M. R. Hamill was the Com-

mission¢r Of the State Road Commission of the State of

West Virginia and admit the othér allegations contained

, iy Paragraph 13.of said Complaint in regard to the duties

and responsibilities of the Commissioner of the State Road

Commission of the State of West Virginia and further

says that the said W illiam S. Ritchie, Jr., is ~ successor

to the said M. R. Hamill.

° -

These defendants admit the allegations contained in

Paragraph 14 of the’ plaintiffs’ Comp)aint

Said defendants, upon information and belief, admit the :

allegations contained in Paragraphs 15, 16 and 17 of plain-

‘tiffs’ Complaint in regard to the names of the various .

defendants and their official titles as-of the date of the

filing of the Complaint, but neither admit nor deny the

allegations.of said paragraphs in regard to the respective

obligations, duties and responsibilities of the other de-

fendants named in this proceeding.

XI.

_ , These defendants admit that a ‘public hearing was held

in the Charleston Civie Center on June 10, 1964 pursuant ,

29a

Answer of the Defendants, William S. Ritchie, Jr., et al.

to the provisions of 23 U.S.C.,.4 128 and deny the allega-—

tions of Paragraph 18 of plaintiffs’ Complaint that the

same was a “so-called public hearing” and denies each .

and every other allegation contained in said Paragraph 18.

These defendants admit of no duty imposed upon. them

to inquire into the potential adverse social effects of the

construction of an interstate highway at the time of the '

locating and authorizing of the fwo interstate projects in

question. These defendants further deny that they must

have known or did know Of the‘ social detriment which .

would result from the taking of substantial land area from

the Triangle and say in this regard that it is impossible

‘to know of something which does not exist and alleges that «

no social detriment has or will result from the taking of

substantial land area from the Triangle. It is admitted

that the business buildings and the residence buildings of

negroes wiil be destroyed and taken and say that the same —

is true of the business buildings and the residence buildings

of any other race, creed or color which are within the path —

of the proposed interstate highway. It is denied that the —

Urban Renewal Programs are inhibited’in any way and

denied that the “community” will be substantially reduced

in size with a consequent increase in population density

although admitting certain land areas will be devoted to

highway construction but plaintiffs’ allegations presup-

poses that all of the residents of the Triangle community

are somehow bound and obligated to remain within the

geographical confines set forth in Paragraph 4 of their.

Complaint, which allegations are-without any basis, either

30a |

- Answer of the Defendants, William 8. Ritchie, Jr., et al.

- factually or speculative. These defendants deny that they

have’ at all times failed to adequately weigh the social costs

of building the interstate highway through the Triangle, -

and again deny thaf said interstate highway is “simulta-

neous I-64 and 1-77.” |

’

*XIIL.

These defendants deny each dnd every allegation con-

tained in Paragraph 20 of plaintiffs’ Complaint.

XIV.

‘These defendants deny “the allegations contained in :

"Paragraph 21 of the plaintiffs’ Complaint.

XV. eee

These Jelindenke deny: the allegatjons of Paragtaph 22

in that the’ same dges not correctly recite the provisions

of Chapter V, Title 23, U.S.C. and the Federal Highway

_ Administration, Bureau of Public Roads Instructional

' Memorandum 80-1-68, and leaves the inference of the_re-

quirement of “providing” comparable, decent, safe and

sanitary housing for displaced persons, which inference

is denied. Thése defendants deny that over five hundred

persons in ‘the Trianglewill be displaced if 1-77 continues ~

to be constructed in the present path and again deny that

1-64 goes through the Triangle area, These defendants °

also deny that they will not, have not and cannot follow the

federal directorates for relocation and as a result, irrep-

arable harm has and will continue to result to residents

of the Triangle who are in the path of the highway, and

| 3la 3

Answer of the Defendants, William S. Ritchie, Jr., et al.

in this regard allege that the State Road Commission of’

_the State of West Virginia has in the past, can now, and

will in the future comply with all éxisting regulations and

directorates. concerning all persons: displaced by interstate

highway projects throughout the State of West Virginia.

as well as those persons residing in the geographical area

in the City of Charleston commonly referred to as “the

Triangle.” /

XVI.

These defendants deny that they, as officials of the State

Road Commission of the State of . West Virginia, have

endorsed and adopted the decision to route the simulta-

neous I-64 and I-77 highway through the Triangle and are

responsible for its implementation and construction, but

admit these allegations insofar as they’ ‘pertain to. I-77.

However, “defendants. deny each and every other allega-

tion contained in Paragraph 23 of plaintiffs’ Complaint.

- XVIL.

These defendants feel that they are not in position to

either admit nor deny the allegations contained in Para-

graphs’ 24 and 25 of plaintiffs’ Complaint in regard to

allegations relating to other defendants in this proceeding, —

but upon information and belief and from these defendants

- contact and association with the defendants named therein,

their agents, servants, employees and other officials allege

. that none of the named defendants have acted arbitrarily,

eapriciously and unlawfully in any manner or respect.

5 .

32a

Answer of the Deféndants, William 8. Ritchie, Jr., et al. it

XVIII.

These defendants deny each and every allegation con- |

tained in-Paragraph 26 of plaintiffs’ Complaint.

Wuererore, these defendants demand that plaintiffs’

Complaint be dismissed, that their prayer for relief be

denied, that these defendants ‘recover their costs in their

behalf expended. oe 7

‘ Wii S. Rircuiz, Jz.,, Commissioner,

State Road Commission of the State of |

West Virginia; 0. R: Coxan, Director,

. Right of Way Division, State Road Com-

‘mission of the State of West Virginia.

By Counsel , ae

/s/ Stasuey E. Preiser ~

' Stanley E. Preiser

Preiser, Greene & Hunt

1012 Kanawha Boulevard, East

P. 0. Box 2506

Charleston, West Virginia 25329

; | 7 .

' (Jurat Omitted in Printing.)

. . 33a

.The Joint and Separate Answers of

Defendants Elmer H. Dodson, et al.

(Title ‘Omitted: in Printing. )

Come new the defendants, Elmer H. Dodson, Mayor of

the City of Charleston, West Virginia; the City of Charles-

ton, West Virginia, a city corporate and body politic; the «

_City Council of the City of Charleston, the Corporate Board

' of that city, and for joint and separate answer to the com-

plaint herein filed do say: :

ode

Said deféndants, Crry oF CHARLESTON, Piece H. Doveom

- and Crry Councr, admit that they are the corporate gov-

erning body and elected officers representing the citizens

of the municipal area of Charleston, Kanawha County,

West Virginia.

Defendants, City of ‘Chstlnitens, its ney ‘Elmer H.

Dodson and its City Council deny that they have acted |

arbitrarily, capriciously and in violation of their duties -

and obligations as set forth in Paragraph 24 of the com-

plaint filed herein.

Ill

The defendants, City of Charleston; its’: Mayor, Elmer -

H. Dodson and its City Council neither by state-law nor

City Charter have-#My authority for the location of a

state highway within a municipality.. West Virginia Code,

17-2A-8, places the responsibility and authority for the

location of highways on the State Road Commissioner.

. All allegations and averments set forth in the-complaint -

nO brine ei either specifically admitted or specifically

;

. The Joint and Separate Answer of

Deyname Elmer. H, Dodson, et al,

denied are here and now denied as ; fully, and buniitetaty .

as though each were dealt with separately.

And now having fully answered, defendants. pray hence

- to be dismissed with their costs.

Perret) Pee eet eee

Elmer i. Dodson, ea of the

City of Charleston, The City

Council of the City of Charleston |

“Es Duffy oie

_ °* -. City Solicitor -

ito ‘City of Charleston

B. Duffy Horan

City Solieitor

. City Building, .

. Charleston,. West Virginia’

Sia

30a

- Opinion’ of District Court

[314 F. Supp. 20]

‘In THE District Court oF THE Veus Srares

. For THE SourHern ‘Distaicr. oF WEsT VIRGINIA

| AT CHaRLEstoN: |

“CA \ 68-183 CH

. . .

SBN RA GARE AL IEEE IT LS TGR IAT DER OTH ET CEI BY

. : <e a

TRIANGLE Intenovemeyt Covson,-a a non-profit organization

created and organized under the laws of the State of

West Virginia, a as an individual, by and in behalf. of

its officers and members, Wi1am S. PRESTON, CLARENCE |

‘Smiru, Recra McLenpon, Jupy Ecx.es, Henry C.

‘Haynes, and Lestiz BrapsHaw;. and Keira Kincan,

Tennis Hocans, Ropert Bayes, Katie Dray, SEDALIA ~

Haynes and Liuian Duy, as individuals,

Individually and on\behalf of all others ; | fy

similarly situated, ZS -.

\ ‘ Plaintiff's, :

Vs. 4 : . > H 4

2 SST RMIT

LEER NFP RPT

Wruuam §. Rrrcuie, Commissioner, ‘State Road Commis- — é

-sion of the State of West Virginia; O. R. Conan, Di-- |

rector of Right of Way. Division, State-Road Commis-

“sion of the State of West Virgnia; E:mer H. Dobson,

Mayor of the City ‘of Charleston, West Virginia, Tue

City or Cuar.eston, West Virginia, a city corporate

and body. politic; the Crry Councm or THE City oF

. CHaRLEsToy, the corporate board of that city; Jony .

Vourz, individually and as Secretary of. Transportation -

. of the United States; Lowet, K. Brwwe, individually

and as Administrator of the Federal Highway’ Admin- -

istration of the United States and Frances C. ‘TURNER,

-individually and as Director of the. Bureau’ of Public

Roads of the United States, .

ERO GEN See WEBLO gna, pe were qN8 ee POA MPALAT os eS

iéfendianis.

LIA MT

Opinion of District Court |

MemoranDUuM Orryton

This. Miva involves the location of a niall segment

of the Federal Interstate and National Defense Highway

System as it is presently planned in a section of Charleston;

West Virginia. The highway segment in question pene-

trates what is known as the Triangle area of Charleston

which is populated predominantly by low-income families

of the negro vace. The disputed routing was approved in |

' August 1964, and plaintiffs herein seek declaratory and —

injunctive relief against further steps for eonstraction. of |

the highway as presently routed.

Plaintiffs are a group of residents and citizens of the |

Triangle. area and a local civic improvement association

known as the Triangle Improvement Council (hereinafter

TIC): The defendants include highway officials of the

_. United States Department of Transportation (Federal de-

fendants) and the State Road Commission of West Vir-

ginia (State defendants), and additionally, the City of

Charleston, West Virginia, and its City Council and Mayor

(Municipal defendants). The.court . recognizes -that since

this action was commenced : certain personnel changes in -

the high ‘levels of federal and state governments have re-

sulted in different individuals being appointed to positions . :

- occupied by certain of the original defendants. ‘Specifically,

. William 8. Ritchie is now the Commissioner of: the State

Road Commission of West Virginia and John Volpe is

now the Secretary of Transportation of the United States.

ie Although Mr. Ritchie and Mr. Volpe-have not. been formally

_ substituted as named defendants, the court recognizes such

-@ substitution to be proper and accordingly makes such 3

substitution, pursuant to R. 25(d)(1), F.R.C.P.

The prime: bases of the action are the alleged failure

- of the state and. federal defendants to comply with the

nei, 9s Rat ree

. se ‘

37a "

Opinion. of District Court

- relocation provisions of the Federal Flighway Act- of 1968,

Pub. LL. No. 40-495 (Augus! 23, 1968), 23 U.S.C. Sections.

601-511, and’ the alleged violation by, the defendant’ of

' plaintiffs’ . constitutional rights under the Fourteenth .

Amendment. In addition, plaintiffs alleged a failure by the

defendants to comply with the public hearing requirements

of the federal statutes relative to’ the route selection for

the interstate highway system in Charleston, . ©

= After an earlier. denial.of a motion by plaintiffs for-a——__——

temporary:restraining order, an evidentiary hearing was —

“held on April 2 and 3, 1969, on a motion by plaintiffs for a‘

preliminary injunction,and motions to dismiss filed by the

_, Various defendants. The court being of the opinion that::

the allegations relative to the public hearing requirements

were, based upon affidavits and exhibits submitted at the . ”

: hearing on the’ temporary restraining order, plainly ‘with-

-, out merjt, restricted the evidence in the proceedings on

‘April 2 and 3 to the allegations relative to relocation; i.e.,

(1) failure, to -comply ‘with the statutory ‘provisions and

. (2) the constitutional. equal protection question raised by...

plaintiffs relative to the relocation: procedures,

Since this: action was filed on December 3, 1968, a sub-

stanfial number of motions, orders, ete. have ‘been con-

sidered by the court and disposed of as follows.

' Except for extensions of time within which to file an-

- swers, no formal action was taken in this proceeding until |

- March 5, 1969. Prior. to that time, however, certain col-

lateral “side agreements” were made between counsel rela- —

tive ‘tothe’ matter. of interstate highway progress in the ©

Triangle area. Disagreements eventually arose relative to .

the breadth and import of the “side agreements, ” and on

_ March 5, 1969 plaintiffs moved the court for a temporary

restraining’ order which would have effected a cessation

- of all interstate highway activity ‘in the Triangle. area.

: a

= .

my. ee per iees CRE

EG SN NE IO EET RE TS

PI CES TY

2 : = e .

POS: GS a Spe RE EA SRL TS Ne mommeay ayy PRINT

- . . — : *s

HORRY Tr “oF

bale

. >

—— ee ee

Opinion of District Court

Certain broad subpoenas duces tecum wéte also issued

on that date, directed to federal and state highway officials.

On March 10, 1969, 4 hearing on the motion for the

temporary restraining otder was held. At that time, mo-

tions to quash the subpdenas duces tecum whieh had been

issued were filed and argued. As ‘a result of that hearing,

the court was of the opinion that injunctive relief would

' irreparably hinder the interstate highway program and

_that the subpoenas duces tecum were Overly broad and

oppressive. Accordingly, a motion for a temporary re-

straining order was denied and the motions to quash the

~ subpoenas duces tecum were granted. .

On March 10, 1969, motions to dismiss the complaint were .

filed on behalf of the federal defendants, the state defen-

dants, and the municipal defendants. These motions were

supported by certain affidavits and. dxhibits. At that time,

the motion to dismiss the municipal defendants was denied,

and other dismissal motions were held in abeyance, and a

hearing on the dismissal motions and on a motion for a

preliminary injunction was set for April 1, 1969. An order

reflecting the March 10 actions of the court was submitted

by counsel and was entered on March 21. |

_On March 13, the plaintiffs caused more subpoenas to be

issued for certain federal and state highway officials’ for

the avowed purpose of taking the depositions of those

officials. The state and federal defendants moved to quash

the new subpoenas, alleging oppressivenéss and lack of

time to comply therewith prior to the April 1 hearing.

A hearing on the motions to quash was held‘on March 17,

and the court, being of the opinion that the motions were

well taken, granted them and thereby quashed the sub-

poenas. An order reflecting this action was a on

March a.

_ a hohe

-instructed the defendants to bring all relevant material 'to /

_ to prepare for the hearing with that in mind, and so present -

39a

Opinion of District Court ‘

On March’ 24, plaintiffs moved the court to be permitted

"> to amend their complaint in order to allege jurisdiction

under the Administrative Procedure Act, 5 U.S.C, Sections

701 et. seq. The court was of the opinion that this motion

was tardily made, and it was denied by order of March 28.

Also on March 24, the plaintiffs filed motions for pro-

- “duétion of certain documents alleged to be in the possession

of federal and state officials. The defendants, on March

28, moved that the motions for production be qnashed by .

the court, The court heard these motions on March 29, and

being of the opinion that it would be overly burdensome

to require their production on such short notice prior to

the hearing on this matter, denied the motions for produc- —_/

tion and granted the motions to quash. However, the cogrt /

the scheduled hearing, in order that plaintiffs and the court

might have the benefit of it: In addition, the hearing date ==

was set over until April 2 in order to accommodate l

for the state defendants, An order reflecting these

was entered on April 28. « . J he !

Prior to March 29, the court had met informally with :

counsel for the various parties, at which time counsel were , ;

advised that the court considered any challenge to the

highway routing decision to be barred by laches, and that

the court was of the opinion that the only allegation of

possible merit made by plaintiff related to the displacee

relocation assistance program being administered by the

State of West Virginia. Counsel were accordingly requested

a aa

etal

only evidence which related to the relocation assistance

program.

On March 29, plaintiffs filed a formal written motion

. with the court to the effect that they be permitted to present ©

400

" Opinion of District Court

evidence at the scheduled hearing on all the issues and

theories of law embodied'in their complaint. Such motion *

was denied, in accord with the court’s previous decision

to restrict evidence at the hearing to that which. was

material and relevant to the relocation issue. The denial

of that mgtion was reflected in an order entered subsequent

to the hearing, on April 28.

On April 2 and 3, the evidentiary hearing was held rela-

tive to the various dismissal motions and to the motion for

‘a preliminary injunction which had been formally filed by

plaintiffs on April 1. At the conclusion of the presentation

of evidence, the court denied the various dismissal motions

and the motion for a preliminary injunction. Counsel there-—

upon agreed to submit the case to the court on the record

as then developed for decision on its merits. It was further

agreed that ‘briefs on the merits of the case would be sub-

mitted by April 23, which date was subsequently changed,

on plaintiffs motion, to May 5. In addition, the court-re-

considered its ruling relative to.the denial of plaintiffs

motion to amend its jurisdictional allegations. The order

denying them the ‘right-to allege the Administrative Pro-

cedure Act, 5 U.S.C. Sections ‘701 et. seq. as a basis for

jurisdiction in this proceeding was vacated and the motion

to amend was granted. An order reflecting the court’s

actions on all of these matters was ¢ntered on April 29.

By May 8 all defendants had filed answers in this matter,

counsel had filed briefs with the court on the merits of the

case, and the case was submitted for final disposition.

Bacxorounp Discussion

" In 1956, the Congress of the United States provided for

the construction of the extensive Interstate Highway

4la

Opinion of District Court ©

System. "The statutory -bases for the ‘program were the

Federal-Aid Highway Act of 1956 and the Highway

Revenue Act of 1956. Numerous amendments have since

been made to the original statutes, and, in 1968, the reléca-

‘tion assistance provisions were greatly expanded: Prior to

1968, however, much had transpired relative to the routing

of the interstate system in the Kanawha Valley and -

Charleston, West Virginia, area. en:

Charleston was planned as the hub,of the interstate

system in West Virginia, and three inthrstate routes will

converge on the Charleston area. Interstate Route ‘77,

running north-south from Cleveland, Ohio to the south-

. eastern United States, and Interstate Route 64, running

east-west from coast to coast, both come through the .

Charleston area. The third Interstate Route, I-79, enters

the Charleston area from the north, beginning at Erie,

Pennsylvania, and-terminating at Charleston. é,

Extensive planning, research, public discussion, and con-

troversy was necessarily attendant upon the routing of

these highways in the Charleston area. The record indi-

cates that public hearings relative to these routes were held

in Charleston on March 29, 1960 and June 10, 1964, and

transcripts of these hearings have been submitted to the

court. Prior to the 1964 hearing, numerous studies were

made relative to the routing, the most important of which,

‘ the so-called TAMS study, was completed in early 1964.

The proposed system recommended by the TAMS study

was discussed at the 1964 hearing, and, along with nine

alternate routes, was portrayed by maps, herial photo-

graphs, anid numerous exhibits. At the time of the 1964.

hearing, the State Road Conimission of West Virginia had

indicated no preference among the suggested routes and it

emphasized that none would be chosen until a study of

_ Opinion of District Court ae ye

developments at the hearing was made along with ether

relevant data.

Considération of the’ interstate system routing in Kana-

wha County and Charleston was concluded in August of

- 1964, with final approval of the Bureau of Public Roads

being given on August 31, 1964. As approved, the routing

of 1-77 and 1-64 (primary designation of the highway is.

I-77, secondary designation is 1-64, and is hereinafter re~

ferred to as I-77) penetrates the Triangle area of Cliarles- -

ton. No protest from the plaintiffs in this action relative

to that routing was made until December 3, 1968, when

this action was filéd.

Construction of the interstate Mabe ay ‘ann through

the Triangle area involves two interstate projects of the

State Road Commission, These two projects are designated

I-77-3(66)100 {hereinafter Project A) and 1-77-3(67)98

(hereinafter Project B). The evidence indicates that each

of these projects involves part of the Triangle area, and

while all of the Triangle area affected by the interstate

system is located within the confines of these two projects, ~

the entire area encompassed by these projects includes

areas outside the Triangle. ©

The evidence indicates that the ete of Public Roads,

in addition to approving the routing of the highway, is

required to make certain step-by-step authorizations of.

funds to be utilized in the projects. such as surveying,

abstracting titles, acquiring rights-of-way, and various

other aspects of the highway construction. In this regard,

the two subject projects were in the right-of-way acquisi-

tion and displacee relocation stage when this action was

commenced. The actual dates on which authorization for

right-of-way acquisition was given were, according to the

testimony at the hearing, as follows:

) —_, _|

Opinion of District Court

1.» Paosect A—(four separate authorizations)

. (a) April 19, 1966 |

(b) September 22, 1966

‘ (d) May 23,1967 .-

2. Prosecr B—November 30, 1966

It is apparent, therefore, that complete authority for right-

of-way acquisition in the Triangle ‘area had been given by

- May 23, 1967, and had been in effect over a year prior to.

the enactment of the 1968 Highway Act: _—

At the time of the approval of the routing in’ question

by the Bureau of Public Roads, ‘the applicable statutory

provisions relative to displacee relocation assistance was

‘ 93 U.S.C. Section 133. Compliauce with that statute, en-

acted in 1962 in Pub. L. No. 87-866, was required before a

state could participate in the federal financial assistance ©

available for highway construction. Plaintiffs do not allege

that the state defendants were not complying with Section

133, but contend thet the provisions of 23 U.S.C. Sections

501-511 (Pub. L. No. 90-485), which repeals Section 133

now“apply and are: not presently being met by the state

defendants. As noted, the new relocation assistance provi-

sions (Sections 501-511) were enacted August 23, 1968, over.

a year after the last anthorization for right-of-way acquisi-

tion was given the West Virginia State Road Commission

by the Bureau of Public Roads.

The record in this case fails to indicate any seliiiatate

from the plaintiffs herein prior to the institution of this

action relative to the highway Jocation in thé Triangle area.

mee Opinion of District Court

The record does, however, indicate that State Road Com-

mission officials met with TIC members and Triangle area

residents in 1965 and discussed the impact that the inter-

state would have on that area. None of the questions raised

in this action were raised at a_i atte

, Tue Routine Dei .

: hi noted shove, the routing of I-77 through the Triangle ~

area was approved by the federal authorities August 31,

1964. Prior to that time, on August 20, 1964, the State

Road Commission of West Virginia had finalized its deter-

‘mination of the manner in which the interstate system in

Kanawha County ‘and Charleston should be routed. The

record in this action indicates that the State’ s routing.

. determination complied with the federal statutory | and

regulatory requirements in effect at that time. They had

made a comprehensive study of the matter! had held open

and well-advertised public hearings, and had, as ‘adminis-_

trative officials must do, made the decision on the interstate

routing. The federal government which. pays for 90 per-

cent of theTost of interstate highway construction approved

the state action. The endorsement by the federal authori-

ties of the state’s routing decision is strong evidence that

the: proper procedure ne highway. planning and routing

had been followed.

Furthermore, it is undisputed that the plaintiffs herein

sat on their alleged rights for over four years until the

interstate program was well into the right- of-way i acquisi- *

tion stage before seeking any judicial review of the ad-

‘ ministrative determination. I am accordingly of the view

that the doctrine of laches precludes review of that deci- _

sion at this late date, and that the only-question of possible

a ~?

> whedct

45a

Opinion of District Court

merit raised in this instance relates to the displacee reloca-

- tion- procedure relative to those persons living in the 1-77

corridor in the Triangle area.

Of further relevance on the question of undue delay by.

plaintiffs in bringing their action is the testimony’ by

federal and state officials relative to the effect injunctive

. relief might have upon the entire interstate highway pro-

gram in Charleston. The evidence indicates that such relief

might delay completion of the system by as much as five.

years, would cause comprehensive new planning procedures

to be initiated, would result in an additional financial

burden of staggering proportions, and could result in a

complete cessation of the flow of federal interstate highway-

_ aid funds into this area of West Virginia. ,

THE Revocation Questions

- As noted above, the displacee ‘relocation assistance pro-

visions relied upon by the plaintiffs herein were enacted. |

into law on August 23, 1968. Pursuant to its provisions, the -

Bureau of Public Roads issued Instructional Memorandum |

(IM) 80-1-68 on September 5, 1968, with an effective date

of August 23, 1968.

‘In the two highway ae neers which affect the Tetangle

area, a substantial number of persons required relocation

-housing. Evidence presented at the evidentiary hearing

indicated the following number of persons in Projects A and

' B either had been or were to be relocated, as.of February

28, 1969.

In Projects A and B—as of February 28, 1969

‘ Project A _ Project B - Total }

To be relocated 380 496 876

Had been relocated © 913 401 , 1,314

/ .. 2190

Opinion ‘of District Court .

Of these totals, however, not all-are or were within the

. confines of the Triangle area as such. The figures for the

Triangle area itself were as follows:

' In Triangle area—as of February 28, 1969

Seis Project A. Project B * Total

To be relocated 104 180 © - 284

Had been cyt ‘Not - - Not Not

'- relocated ._ * presented presented _—_—sipresented

The number of persons who had not been relocated from

Projects A and B in the Triangle area as of August 23,

1968. (the enactment date of the Federal-Aid. Highway Act

of 1968, and BPR IM 80-1-68) was not presented. Accord-

ingly, the number of persons relocated since August’ 23,

1968 was not determined. om

- Prior to consideration of whether the relocation program

- of the State Road Commission gomplies with 23 U.S.C.

Sections 501-511 and BPR IM 80-1-68 is the question of °

whether those relocation provisions are at all applicable.

in “he present controversy. Plaintiffs contend that the

relocation provisions apply but are not being complied with,

and, in fact, cannot be complied with; while defendants —

contend the relocation provisions do not apply to displacee

relocation in Projects A and B in the sujject area; and,

in any event, the State Road Commission’s @splacee reloca-

tion program would satisfy those provisions.

Jupro1aL Review

The. plaintiffs allege jurisdiction in this court on the

basis of federal civil rights statutes, 28 U.S.C. Sections ~

1981—1983, 2000(d), federal questions raised, 28 U.S.C.

-Section 1331(a), suits against officers and employees of

ITS BL 1 eNO St" AERO RG PAGER KA ne

fe) moh Khe,

47a

Opinion of District Court

the: United States, 28 U.S.C. Section. 1361, the Adminis-

. trative Procedure Act (APA), 5 U.S.C. Sections 701—706, ‘

and declaratory judgment statute, 28 U.S.C. Sections 2201

— and 2202. a

Without making a detailed analysis of sii of these ‘il

dictional allegations, I am satisfied that judicial Tgyiew

of agency action pursuant to the federal highway program

. may be had. Road Review League v. Boyd, 270 F. Supp.

650 (S.D. N.Y. 1967). Thére is nothing in the federal

statutes which indicates that Congress intended to im-

munize the Bureau of Public Roads from judicial scrutiny

of its acts. As was stated in the recent case of Western

Addition Community Organization v. Weaver, 294 F.Supp.

‘433 (N.D. Calif. 1968), which involved reloéation of urban

renewal displacees (at 442): @

“* * * The test for judicial reviewability, however,.

_ is not, as contended by defendants, whether the statute

- provides-for~tt, but whether the statute precludes it.

Federal administrative action is subject to judicial.

review unless the’ _—, itecllf, precludes such review: oe

Westers Addition cites. “Abbott bibasatnten v. todo,

- 387 U.S. 136 (1967) as authority for a basic presumption

that judicial review is available to one suffering legal wrong ;

because of agency action, or adversely affected or aggrieved

by agency. action. It points out that this rule has been rein-

forced. by the Administrative Procedure Aah. Judge Swei-

gert stated i in Western Addition (at 442):

_ “When no other remedy for judicial review is pro- -

vided, persons suffering legal wrong because of ad-

ministrative:action or otherwise adversely affected or _

aggrieved by it within the meaning of a relevant stat- |

| 48a

Opinion of District Court

ute, may proceed under the ‘Administrative Procedure —

Act (5 U.S.C. Sections 701, 702, 784) except to the

extent that statutes preclude indicial review or agency

; action is committed to’ agency discretion "BY. law.”

-“*,

In this tnatanion, as in Western Addition, there is To-atat |

“ute precluding judicial review. I am accordingly of the.

. view that the administrative dévisions involved in this

matter are judicially reviewable under the Administrative

.Proeedure Act, 5 U.S.C. Sections 701- 706.

: Sranpinc oF ‘PLarntirrs :

Prior. to any consideration of the merits of this matter,

brief review should also be given to the question of whether

the parties bringing this action have standing to challenge

the actions of the defendants. As:it was put by the Su-.

preme ‘Court in its recent consideration of the standing” :

, problem, Flast v.. Cohen, 392 US. 83, 99 (1968) :

- & * &.* Tn other. words, Rnek standing i is olacéd j in

_ dssue in a case, the question is whether the’ person

whose standing is challegged.is a. proper party to re-

quest an adjudication of a particular issue and not ~

whether. the issue itself is justiciable.* * *”

Title 5 U.S.C. Section 702, the section of the Administra-

tive Procedure Act —/, to' the “right of review,” pro- ;

_ vides. that :

“A person sufferin onal wrong because of “agency

action, or adversely affected or aggrieved by agency

action within the meaning ‘of a relevant statute, is ©

entitled to judicial review thereof.” =~ °

‘

- 49a

ieee Woes Opinion of District Court —

' person is “aggrieved” if he asserts a personal interest

: . lin al a.

‘Under this section, the Supreme Court. has held that a

which the “relevant statute’ was designed . to--protect.:

‘ Hardin v, Kentucky Utilities Co., 390’ U.S. 1 (1968). The

relevant statute involved here, which is the Federal High-

way Act of 1968, particularly the relocation assistance

previsions contained therein, clearly was intended to pro-

‘tect persons such as the plaintiffs in this matter.

Several recent cases have allowed litigants who wére

- situated similarly to the plaintiffs herein standing to chal-

_lenge government projects, particularly Scenic Hudson Pre-_:

servation Conference v. Federal Power -Comm., -354' F.2d

- 648 (2d Cir. 1965), Nashville: I-40 Steering Comm. v. El-

* lington; 387 F.24.179 (6th Cir. 1967), cert. denied 390 US.

921 (1968),) Norwalk CORE. v. Norwalk Redevelopment .

Agency, 395. F.2d 920 (2d Cir. 1968), and Wegfern Adai-

tion Community Organization v. Weaver, supra. In addi- '

tion, the Supreme Court has given a broadened scope to

the Administrative Procedure Act in Hardin v. Kentucky

Utilities Co., supra, and Abbott Laboratories v. Gardner,

supra. These cases would appear to have rejected the

view expressed in such cases as Green-Street Association, °

v. Daley, 373 F.2d 1 (7th Cir. 1967), and: Johnson v. Re-

. development Agency of Oakland, 317 F.2d 872 (9th Cir.

'1963), which would deny relocation displacees the standirg

_to challenge governmental action relative to them.’ — |

In the light of the authorities cited above, I'am of the

“yiew. that under the broadened scope of the Administrative —

Procedure Act, the plaintiffs in this matter would. qualify

-as sufficiently “aggrieved” ‘under a- “relevant statute” tc

permit this court to proceed -with consideration of the

merits of their claims. — . .

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9 — . 50a oi ‘ ‘ i ES

Ries - Opinion of District Court-.

_ Tue StaTuToRY Quesrios z

As was previously stated, the basic question i in this whole ,

: matter turns largely upon the applicability of the’ displacee

relocation provisions of the 1968 Highway “Act to the par-

ticular segments of 1-77 which penetrate the Triangle area

of Charleston. Plaintiffs, of course, assert that the provi-

sions apply, while the defendants assert that they do not ‘

apply. An éxamination of the statute itself, and’ the. ad-

ministrative interpretations ‘of it: (IM _ 80-1-68), is appro- —

priaté to determine which of, the’ parties should prevail

_ on this issue. yf

. Ih 23 U.S.C. Section 502, relating ig “ Aseurandes of ade-

| quate Telocation assistance program,” it, is provided that:

“The Secretary shall not approve any project under

_ section 106 or section 117 of this title which will cause -

the ‘displacement of any person, business, or farm’

operation ‘unless he receives. satisfactory ‘asrurances

from the State highway department that—

(1) fair’ and reasonable relocation and other pay-

.ments shail’ be afforded to displaced persons in ac-

‘cordance with sections 505, 506 and 507 of this title;

-() relocation. assistance programs offering the ser-

vices, described in s@ction 508 of this title shall be

. fforded ‘to displaced persons; and °

' (3) within a reasonable period. of time prior to dis-

‘placement’ there will be available, to the extent that

can reasonably be accomplished, in areas not gen-

_ erafly less desirable in regard to public utilities and

public and comfimercial facilities and at rents or prices

within the financial means of the families and in-

‘

Bla x ae ay

Opinion of. District Court .

ps dividuals displaced. decent, ‘safe, and sanitary dwel-

lings, as defined by the Secretary, equal in number’ «

to the number of and ‘available to such displaced fami-

lies and individuals and reasonably accessible to’ their

- places of employment.” ~—*

agg 3 eae Me gee

The two statutory sections cited in the first sentence of - °

Section 502 provide for the submission of certain plans,

specifications, and estimates for federal-aid highway proj-

ects to the Secretary. of Transportation by the state high-~

way department. Those necessary to be subinitted. are to ~

: be such @#s the ‘Secretary may require,’ and his approval

of them is deemed to place a contractual obligation upon

the federal government.

‘In the instant case; ‘thé testimony. of the Secretary’s, rep-

resentatives was clearly to.the effect that the West- Vir-

ginia State Road Commission had mplied with all fed-

eral requirements relative to right-of-way acquisition in _

Projects A and B in the Triangle area. In fact, as noted

above, authority for right-ofiway acquisition in Projects

’ A and B was given by. the federal government in 1966 and’

1967, with the final authorization being given on beater 23,

1967." .

In 23. a C. Section so4(), the 1968 Highway Act pro-

vided. that:

“Any. project agreement with a State highway de-

partment executed before the date of enactment of

this chapter with respect to property “which has not

been acquired as 6f the date of enactment of this

chapter under any such program shall be amended

ingade the cost of providing the payments and ser-

ribed in section 502 with respect to such

eet | easyse Var

—

re é

o2a Rpt actA SP eet ¥

3 4 H d

, |. . , es.

Opinion of District Court eo

In the Instructional “Memorandum- 7M 80-1- 68) which ©

ay)

“o.

the Buréau of Public Roads issued pursuant ‘to the reloca-

: tiqn provisions of the 1968 Highway Act, the following

provisions relative to. applicability werdset forth i in para-

_ graphs mh etsy, ‘and 5b: y

b. Tlie provisions of this memorandum are ‘ap: ®

plicable to the following :

(1) All Federal- aid highway, projects authorized +

after August 23, 1968, involving. rights of ;

“ewhich are occupied by an individuak, family, busi-

ness, farm operator, or nonprofit, rganization.

(2) All F ederal-aid highway projects @uthorized

- 6nor béfore August 23, 1968, on which individuals, ;.”

families, businesses, farm operations, and nonpr®

fit organizations have not been displaced.

‘

a + 7 x«~

‘b. The or assurances are not required where

_ authorization to acquire’ right-of-way or to com-

mence construction has been given prior to the

issuance of this rifemorgndum. The State will pick |

up ‘the sequence at whatever point it may be in the

acquisition program at the time of issuance » of this

re: - AN

With specific agen to the W rest Virginia State Road *

Commissiot’s efforts in this: area, the testimony of both -

federal and, state. employees indicatés.to me that ani ‘active

.and continuing displacee rélocation assistance program has

been and is being carried out. It appears that such a pro-

»" @

le right-of-way, acquisition was given long before the 1968% : tl

Opinion of District Court *

gram was in effect. even prio ta exiactinent of. the 1968

Highway Act. In any event, the West Virginia Road Com-

mission personnel ‘in authority in- the area of relocation

assistance, and the personnel in. “the West Virginia office _

of the Bureai of Public Roads, interpreted the statutory .

and regulatory language to mean that the relocation re- — =,

quirements of the 1968 Act weré not applicable to the pa@r-

‘ticular projects here. in question since final authority fdr -{e

Act was passed: In. particular, they felt that the correct.

‘position relative to applicability of the 1968’ Act Was set |

forth in paragraph 5b of IM 80-1-68, to the effect that: .° ..| .

’

: e

“The above assuraicés.are not required where au-

thorization to acquire right-of-way or’ to commence

constructson has been given prior to the issuance of

- this memorandum. The Sate will: pick | up the sequence ~

_ at whatever point it may be in the acquisition program

at the time of ‘ issuance of this memorandum. 13

- The’ daomtiadied cabs that even if there is a question /

as to whether the assurances were or were. not required

in this instance, the agency’s construction of the applicable.

statutes and regulations should be given, considerable

_weight and not be overturned unless plainly incorrect. They

cite ‘several cases in support of this position, including

Udall v.-Taliman, 380 U.S. 1 ide! wherein Mr. Chief

‘ Justice Warren-stated (at 16) :- oot

“When faced with a Sellen of statutory constru ;

"tion, this Court shows great deference to the-iritey-

pretation given the statute by the officers or agenty

charged with its admintstration, ‘To sustain the C

mission’s oe of this ‘statutory term, we need

”

Opinion of District Court. .

not. find ‘that its constriction ‘is the only reasonable |

_ Bne, or even that it is the result we would hayg; -redthed

had the question arisen in the first instance in judicial .

a proceedings.; Unemployment Comm'n v. Aragon, 329°

U.S, 143, 153. See also,.e.g., Gray v. Powell, 314%.S.

.. 402; Universal Battery Co. v. United States, 281 U.S. -

§80, 583. ‘Particularly is this respect due when the

' administrative practice at stake ‘involvés a contem-’

poraneous construction of a statute by the men charged.

. with the responsibility of setting its machinery” in

* iffotion, of ‘making the parts work. ee and .

"smoothly while they: are yet*untried and new.’ Power ©

Reactor Co. ¥. Electricians, 367 U.S. 896, 408. When _ .

the constructidn of an administrative regulation rather —

- than a statute is in issue, deference is even ihore clearly.

‘in order. . y ai <3 lh

‘Since this involves an inbebpratiiion of an adminis: Ny

“trative ‘regulation a court, 1 must necessarily look to.

the administrative construction ‘of the regulation if _

the meaning of the words used is in doubt... . The

or ultimate criterion is the administrative interpreta-

tion, which becomes of controlling weight unless it is

plainly *erroneous or inconsistent. with the regula-

- tion.’ Bowles v. Seminole Rock Co., 325 US. 410,

413-414.” :

aos y an, - .

*, ‘ - GS “at

I am ‘convinced .that this is a valid summary, of the low

in this area. I am further convinced, after analyzing the

statutory provisions, their Jegislapive history, and the. in-

structional memoranda issued pursuant theretogsthat Con-

‘gress could not have intended that projects authorized

and approved several ‘years prior to the enactment of the

1968 statute were to be subject to: inflexible and strict

aa A” £ : e 3 re eo _ da” i

. Opinion ¥ District Court

. ~w. AYP

compliance. therewith. The adminjstrative agency. did not .

- give it such, an interpretation, and I am. of the opinion

- that the agency’ S dotermination had 2 heneas basis and _

: should not be’ ‘disturbed;

In any évent, aiden of federal and state highway

‘ officials, especially ‘that; of the State’ Road Commission °

. Director-of Right-of-Way acquisition, O..R. Colan, indicates -

to me that the authorities are making a sincere effért to

, integrate the provisions of the relocation assistance en: -/

visions ofthe 1968 Highway Act into its program. ‘Respon- «

- sible public officials at both the federa] and state levels ~~

testified forcefully and credibly that_the~ West - Virginia’,

State’ Road Commission’s- displacee relocation program

relative to the two projects affecting the Triangle area is in

compliance with the provisions of the 1968 Act in a practical,

if not a format manner, even though such compliance i is net

’ legally required. They assured the court that displacement.

_ would be conducted at a slow pace in order that appropriate .

replacement housing could be ‘found, and that. no one will

_. ‘be displaced unless suitable (i.e., decent, safe, and sanitary)

- and lawful relocation housing i ts available, and’ further that

___teloéation assistance payments iia by. &/ ‘statute |

_ would be. made in “all cases.

As mentioned above, this testimony indicates the is

defendants have determined that the West Virginia atifhori-

ties fan meet, are meeting, and will continue to meet“the

: requirements of the: regulations and statutes in ts

tion program. As the case law indicates, such a defermina-

tion: is entitled to great weight and should be’ confirmed:

if premised on rational grounds.“ As many es, including

Western Addition Community Organizatton Vv. Weaver,

supra, and. Road Review’ League v. Boyd, supra, indicate,

courts should not Seeing ce the administration of ere:

se > 4h a

_% : . o ae |

ree

try

P ;

. > é . é

; |

peerage iene: ak ct CREST, primes deca ees ARNO eye

. \ . > ‘ . ~

. ° . ° . :

“ ;

Sho Batre

lO i

‘4 “Opinion of ie Co oak

and far: reaching, fetiGfal prograiis, but.upon appropriates

judicial _review: should determine only whether the agency °

__-administertug the. program is in. substantial compliance

; with the applicable statutes and regulations. at a tee eee .

i should also reiterate. that the evidtence shows that as

of:Februaty 28, 1969; Onl ya284 pérsons were residing i in the: - |

I-77 corridor in Projects A and B in the Triangle area of

Charleston, West Virginia. It can be logiéally assumedithat eg

that number has been somewhat reduced in the period that’ |

p& elapsed since February. In considering injunctive Leet

lief. this court should, of necessity, weigh its possible bene-

ficial effect upon this group o Triangle residents against ; Se

‘its pdtential disruptive effect upon the program - of the

-state And federal authorities charged with the responsibility

of building east-west and ‘north-south interstate: highway 2

corridors through West - Virginia and the nation. The

federal ‘nd state officials have assured the court that the

persons residing i in the inter$tate corridor in the Triangle

will be dealt with in. a manner that comports with thé |

federal statutes and regulations, and*I must assume that the /

highway officials gave these asswrances in good faith. The /

Res “evidence certainly supports such an an_assuntftion on aad

part. heath Cont 2 ' ; a IS

‘Tue CoxsmruTiowat Quaerios Sates

‘Plaintiffs further: allege that: even’ siiming that the

" State Road Conimission’s relocation program is lawful int ;

other respects, it is being unconstitutionally admmistered

insofar as it affects negro citizens residing in the I-77 cor-

ridor in the Triangle area. They allege that the dislocation

‘of negroes.into a “racially closed” housing market-existing ~

in Charleston constitutes a denial of equal protection of .

S vo ye . : } fo" @ By ; nd ae Sec

RS SES ens Cae o7a na

pie oe 5 et zP

_ Opinion of District Cour

; ye laws. Seentihed by: the ‘Rilasienie Amendment, to the as

‘Constitution of the United States; = Pte a

Without discussing this allegation ji in depth, I refer again .

to the representations made by the state and federal de- ~

fendants to; the court. They have assured the-court that

*the Telocation. program gan- be carried out in- complete |

ae - compliance. with existing law and that no racial discrimina- -

, tion will be practiced in the ‘conduct. of the program.

Furthermore, I am satisfied frofh ‘the evidence that the

* subject, ‘displacees from the 1-77 corridor in the Triangle.” :

’ area can obtain housing within the. range of their economic ..

“y means without racial discrimination which would: be of such

‘a nature as to. raise federal constitutional problems. It is

clear that their greatest problem relative to housing. is the

basic lack of the financial] means to secure such in many. |

areas of Charlesfon.. Many others, of all races, are faced

oe with a similar problem, but this i is not the result of invidious

- racial discrimination.

_ The evidence indicates that sdctinstis relocation honintng,

on an open racial basis, will be available in the ‘Charleston

area for ail orderly relocation of the displacees from the

interstate highway corridor.. I am satisfied that this evi- _

‘ dence is accurate.. Even should no housing be available’

for dislocatees in the private hougfhg market, the evidence

clearly demonstrates that there is ample. public’ housing

| in the Charleston: area "to accommodate the limited number

‘> ofin ividuals remaining i in, the I- 5 cgyridor i in the Triangle

- are ;

raft Ocal evidence preserited at: the heating on this

matter suggests that some individuals in the subject cor--.

- * ridor have refused offers of sf tisfactory and. lawful reloca-

-*tion housing, unhappily in an attempt to further and im-

prové the posture of this lawsuit. In at leayf one instance

* such refusal was at the request of counsel for plaintiffs .

pA ATES OA PRA SE IR ea MTN RS a ITE

ose

. ,

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SFQ x

IRCCS aA

Se SWRI of WIENS

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reat

QPEL 4, BAPTA SAGE 2 pee.

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wy Pons ye aR ea nk RS aS a ca penne RLAY NUBIA F

Sa kege e Opinion of District Court "9

‘or- their associates. This. casts some: shoei on the sin-

cerity of .the challenge plaintiffs have made to the. reloca- 7

: an tion effort, and indicates that their primary objective is

~ to block the interstate route which \ was: finalized some five

“years ago.. ae}

Finally, it should’ ‘be noted that the al hans spe- ;

cifically disavowed that’ ‘there .was any .basie or specifié

_-racially. discriminatory_purposé on the part of defendants

in the routing of I-77 or in the relocation of the’displacees f

“in that reuting. ‘There has been no showing that the lo- .

cation of this kighway affects citizens .of the negro race

"more adversely. than it affects. others in: similar’ econdiniv

““eireumstances. That sufficient housing is available ‘in the

Charleston area to, permit lawfyl relocation. of all dis- .

placeeé, without regard. to race, ‘is ine to distinguish _

this case from the basic decision relied: uport.by plaintiffs, fs

' Norwalk CORE v.:Norwalk Redevelopment gency, supra,

In that case the court ruled that a cause of action. was stated .

when the plaintiffs alleged that the authorities were not ».

even attempting to assure relocation for non-whites to the :

‘same extent as: they. were for whites. In the present case

f <

-, 3 “We do not statihicd plaintiff's sebatiiational argument. to Be

’ ‘that defendants must end discrimination in the Norwalk open hous- .

ing market through the relocation plan, or even that defendants -

must find integrated housing for. those displaced by the Project.

Those ‘are ar ts, we need. not consider until they are Re as ie

priately put to;

- “What een euatas alleges, ; ip etibihininns: is that ‘in plan:

ning. and implementing the Projeet, the local defendants did not

- -assure, or even attempt to'assure, relocation for Negro and. Puerto

Rican displacees’in compliance with the Contract to the same ex-

tent as they did for whites; indeed, they intended through the com-

bination of the Project and the rampant discriminatign in. rentals ~*~ _

ro and Puerto. *

in the Norwalk housing mo ket to drive many Neg

Ricans, out of the City of Norwalk. The argument that proof of

thesé allegations would make out a case of violation of the equal

protection clause. _ We agree. ” (395 F. 2d at sista

&, eA

“the ‘eyidence that. ‘all st acai groups are eager provided. Te,’

“Jocation assistance on- the same basis and to the same extent

‘precludés,: ‘in my view, “any valid” constitutional speetion,

_ oD {pis | facet of this controversy. - : : oe

‘I conclude that plaintiffs’ allegations. relative. to the re-

| 6 lodation assistance program on both the e, statutory and con:

" stitutional grounds are without merit; ha pane Oe

| : ‘defendants are entitled tq judgment” on the issues and ¢he

f complaint : ‘should be dismissed. This opinion will be filed —

as my findings of fact and conclusions of law-on the issueg——_—— —

presented, and counsel may ‘submit an appropriate order ico

incorporating this 6 dition. by reference therein. \ :

eas Sani Men \ a? Jony, A. Frio, JR. ¢ ee

pos Sree oe

ates Ve Jenn: A: Frew, JR. fe oe

agi United States, Distgict Judge

\? nf ° : ‘

” e y : : . t or a

: Cok. =

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60a .

Order @f District Court’

In tHy District Court or THE Unirtep. Staves ~ « ;

For THE Sournesn District or Wesr Vinornia

a At CHARLESTON

- CA 68.183 CH

_ Taiancie Improvement Councu, a non-profit organization

created and organized under the laws of the State: of

. West Virgirlia, as’ an individual, by and in behalf of

_¢ its officers and members, Wiu1aM 8. Preston, CLARENCE ,

- Smiru,. Recisa McLenxvon, Jupy . Eckxes, gy

Haynes, and Leste Bravsuaw; and Keira Kinc

Tennis Hocans, RKoserr Bayes, Katie Dean, Sepa

Haynes and Lintian Day, as individuals, ,

Individually: and on behalf” of all others

similarly situated, ~ ; e

Plaintiff's,

- ve.

Wasa 8. Revcuw Commissioner, State Road Commis- -

sion of the State of West Virginia; O. R. Cotay, Di-

rector of Right of Way ‘Division, State Road Commis.

sion of the State of -West Virgnia; Ecmer H.: Dovsox,

. Mayor of the City of. Charleston, West Virginia, THe

City or Cuantestgy, West Virginia, a city corporate

and body politic; the Crry Councu. or THe City or

CuarLeston, the corporate board of that city; Joun

Vovre, individually and as Secretary of Transportation

.of the United States; Loweit K. Batowex, individually

and as Administrator of the Federal Highway Admin-. -

istration of the United States and Frances C. Turner,

individually and as Director of the Bureau of Public

Roads of the United States, .

Defendants.

o wile . °

ap ‘ie Order of District Court “

- ORDER

ao %.

NP his. day came the parties by their attorneys aud for.

Othe reasons set forth, i in this Court’s Memorandum Opinion,

dated July 2, 1969, which Memorandum is hereby incor.

porated and made a part heréia, it is Onverepby this Court

that defendants are entiéled to judgment on the issues and

‘ the complaint should be dismissed. r,

Accordingly, it.is Oxperep that tie’ complaint be dis-

missed and that this matter be removed from the docket

of this Court.

To all of which plaintiffs ‘ mae. object and except

‘

Pi , Senin

- ‘Os, »

bi /s/ Jouy A. Freo, Jr.

pa +" ‘United States District Judge ©

‘/s/ Joun Bogrryer . seas

Counsel for Plaintiffs

/e/ L. Aux Hust °

‘Counsel for Defendants, - } ,

- William S. Ritchie, etc., and ; ‘

QO R. Colan, a :

_/s/ W. Warkes Urrtow ©

Counsel for Defendants

Vo'pe, Bridwell and Turner’

/s/ B. Durry Horan

Counsel for Defendant Dodson

- and for Defendants City of-

Charleston and The City Council

of the City of Charleston ~

Holy 38, 1969 >

TALE ET te ee a “

TRS

oe ete

' Notice of Appeal

(Title Omitted in Printing.) |.”

Notice is hereby given that the Triancte Improvement

Councn, et al., plaintiffs*named above, hereby appeal to

"the United States Court of Appeals for the Fourth Cireuit

. from the order giving judgment to deferfdants and dis-

missing plaintiffs’ complaint ; entered in this action, on, the

18th day of July, 1969.

* ° ‘ sitet.

Disko: 8-25-69 |

/s/ Joun L. Boetrrer, Jr.

* . -* — John L. Boettner, Jr.

ae Counsel for Plaintiffs .

° a Charleston Legal Aid Society —

7024 Lee Street | |

‘Charleston; West Virginta ae

| : : 7 ws

Order of Court of Appeals’

Unirep States Court or Apprats

For THE Fourrn Cmcvuir P

No. 14,033 PE

TRIANGLE Improvement Councn, et al.,

Jeng | _ Plaintiffs-Appellants,

-yersns

-° Wrouas S. Rircuiz, Commissioner, -

State Road Commission of the State of |

West Virginia, et al., . ,

Defendants-Appellees.

On Appeal from the United States District Court for the

Southern ‘District. of West Virginia.

Onper

_ Appellants have moved to require the federal defendants

(the Secretary of Transportation, the Federal Highwey

Administrator, and the Director of Public Roads) to pro-

duce a memorandum of the Secretary regarding new relo-

cation policies. Upon consideration of appellants’ motion,

appellees’ response, and appellants’ reply, the court is of

. — F A

“y hee -

(pone arereea:ss * —

: = ? Per of

7 64a -

a . | ah

® : Order of Court of Appeals ‘

the opinion ‘that, the tae should be furnished: to coun-

sel and marle a. part of the record in this appeal. -It is SO

ordered. ; ; ° |

, Ts) CLEMENT 1. HaynswortH | |

Q °. ; Chief Judge, Fourth? Circuit

‘ /s8/ Smo -E. SoszLorr | ‘

| United States Circuit Sadi’ .

ae ar “ °

‘S sf Hensear S. ‘Bounty

United States Cireuit Judge

eee } ate A True Copy, Teste: |

| Samuei W. Phillips, Clerk

By Beverly M. Newell’ is .

Deputy Clerk ot

ee es as

aa tite _ Apr 8 1970

SAMUEL W. Purups i

Sodas ‘ Cuzax

DT eee

“i

65a

Opinion of Court ‘of Appeals.

[429 F.2d 423)

Uxrred Srates Court oy APPEALS

For’ THE Fovsrn Crecurr

No. 14,033

Trance iurnovengat Covet, et al.,

| Plointif'e-Appeliants, ‘

.- versus | j

Wu S. Rircuie, Commissioner,

State Road Commission of the State of

West Virginia, et al.,

-Defendants-Appellees

Appeal from the United States District Court for the ~

Southern District of West Virginia. ."

John O. Field, District Judge.

(Argued May 6, 1970. Decided May 14, 1970.)

Before Bryan and Craver, Cireuit J udges and Jonzs, Dis-

———

~ Michael Davidson (Jack Greenberg, John Boettner, A..An-

_ drew MacQueen, III, Thomas J. O’Sullivan, Peter M. Col- —

lins and Steve Young on — ) for Appellants, wr. Walter

. t ; 664

Opinion éf. Court of “Appeals ;

Appellees, ten = hy

Per Curiam ; ete . " At aC

We affirm on the opinion of the district ert, —

F.Supp. —— satiate ouly 2, 1969).

| Affirmed.

ae Fleischer, Attadigy. Diesitinue of. Justice, (William -

. D. Ruckelshaus, Assistant Attorney General, Alan S. Ro- -

fr: senthal, ‘Attorney, Department of Justice, Wade H. Bai- . ~

lard, United: Siates Attorney, L. Alvin Hunt, Stanley E. -

. ‘Preiser-and Preiser, Greene, Hunt & Wilson on brief) for

‘ -“

Pee aa Gee?

a , : <

: Southern District of West Virginia.

- adjudged i this Court that the Salyers of of the said Die-

West Virginia, and was argued by counsel.

67a

ete elf

Judgment of Court of Appeals

' . UNITED STATES COURT OF APPEALS

For THE ‘Fourri Crrcuir

- ° No. 14.033

TRIANGLE ImPRovEeMENT Counmcat, etal;

? '. Plaintiff-A ppellants,.

versus a

WiuuaM S. Rircuiz, ‘Commissioner,

State Road Commission of the tate of

West Virginia, et al,

Me Oia a Defendonts-Appell "aes:

: ——e.,

Mppedl from the United States District Court for ‘the’

This cause came on to be heard’ on the theord. tien the °

United States District Court for the Southern District of

On consideration whawenlt it is ‘now + hes poar re and

4 y; S : 68a : é Rae ae ay

Judgment of Court of ppeals

trict Court appealed from, in 1 this cause, be, ‘and the same -

is hereby, afirmed. Eke \ oe Nei te obese

Save W. Puitiirs

Clerk

. Ads “y Fruzp ee

: “May 14,1970

. ‘Samvuee W. Pures ee

- Clerk e | ° ; oe

Weer True Copy, Teste

ae Samuel W. Phiilips, Clerk:

: By Wima ‘Upsuur

een Deputy Clerk .

(szau) : , way ‘< ‘

: , 2 :

\ niN

_ &

. Judge.

69a

ee 3 Order ‘Denying Rehearing’ | in Bene With

_ ‘Dissenting. Opinion a

‘UNITED STATES COURT OF APPEALS ~

For THE Fourra Cmeurr:

"No. 14,033

: —

Tatancty. Inrnoveiten ee et -al.,

Plaintifs-Appéliants, |

G3.

versus P

Wut S. Siete, Commissioner, “6 ives

ggrecte| Road Commission of the State of

|. West. Virginia, et al., »

pireeee, Apeion,

Appeal from the United States’ District Court for the

Southern District of West Virginia. John O. — District

ORDER Dewyina REHEARING IN Bane Wirn -Disdaweira

/ Opinion By Sopetorr AND Winten, Crecurrt. JupGEs.

Jury 14, 1970. ae |

’ Before Bryan and Craven, Circuit _Judges . and JonEs, a

District J nudge: :

‘4 Michael Devideou (Jack Greenberg, John Boetiner;‘.A. ”>

Andrew MacQueen, III, Thomas - -J. O'Sullivan, Peter M.

Collins and Steve Young on brief) for Appellants, and

~ Ballard, United States Attorney, L. Alyin Hunt, Stanley E, *

Preisexyand Preiser, Greene, Hunt & Wilson on. brief ) for

“ne Apps. . & ie eg 7 |

> 1

wf %

t ; x : :

‘ tae &

“ : as

o. sf

_ deere _'

4 oe

ry ‘ *

by : De : é °

, ; e eg ;

ap of

Walter i. Fleischer, Attorney, Department of Fastinn:

ms William D. Ruckelshaus, Assistant Attorney General, Alan

| ey ent

rie Order Denying ‘Rehearing im ‘eae With. eae |

¢ Dissenting Opinion dea re ae |

S. "Rosenthal, -Attorney, Department. of Justice, ‘Wade H,

| "= ‘ ae

| eo | .

S Tas | 3 hk.

2 Order Denying Motion for Reconsideration & ~

UNITED ST aires COURT OF APPEALS , 9

. = . For oe Vavarn Circuit or Pat

: : : i

Thies IMPROVEMENT teeaiai et dl.,

| Apes = : - Plaintiffs-Appellants, as

versus

Wim S. Rircuiz, Cisidajnekonsr:

State Road Commission of the State of

a Virginia, eta,

_°Orper Denyine Morton siveoeeea oa coca

— consideration of the motion filed by the plaintiffs- :

appellants, Triangle Improvement Council, et al., for re-

consideration of the opinion of this court announced on

it is:

: /s/ Aupert \V. obi

S,. ans United States Circuit Judge

_ /sPJ. Braxton Craven

: “United States Circuit Judge.

vy Wéoprow Ww. JONES:

“/

FILED ae oe

Jut141970’ - . i he eta

Samuzn W. Purtirs -’ RE Red Leer eA Meee”

Clerk Ae har

Defendasits- Appellees

May 14, 1970, affirming the decision of the District-Court,

- United; States Circuit [sic] Judge a

ie eerie that the said motion be, ar and it is hereby, denied.

oO ; ng

72a ;

p- Dissenting Opinion |

Judge Sobeloff would grant the petition for rehearing,

along with J judge Winter:

Sopeorr, Cireuit Judge, dissenting from the denial of a

rehearing en banc: — Circuit —_ joins in

this opinion. | .

In. light of the cryptic treatment given this appeal by

- the‘panel which decided it, I feel constrained briefly to set

forth the issue; the panel’s rationale, andthe reasons for

my disagreement.

tthe appellants are sealliaite of Charleston, West Vir-

ginia’s black ghetto, known as the Triangle, who will shortly

be pprooted from their hémes to make way for the con-

struction of an interstate highway. They have now aban-

doned their futile efforts to halt or divert the fead. Their

sole objective atthis point is to assure that when displaced

they. will_be able to obtain adequate replacement housing,

as ‘guaranteed by federal law.

The plaintiffs’ concern arises from a critical housihg

situation in Charleston. According-to one study—they cite,

standard housing is only sparsely available for poor people

generally, and hardly at all for poor blacks.’ The problem

of an ever shrinking housing supply has been grossly ag-

gravated by a serjes of public projects, including highway

construction, which have extensively eliminated housing |

facilities and continue to do ‘80.

_ Despite informal promises made to jin by state and

federal. dfficials. that adequate housing will be available,

the appellants are seriously apprehensive that when the

time comes for them to move there will be nowhere to go

! Additionally, ain memoranda of the, federal t-of-way

officer support this contention. ee ”

<= ,

;

‘T3a

' Dissenting Opinion . ;

- except to substandard, inferior quarters. It is for this

reason that they demand that the state authorities comply

fully with the federal requirement to submit a detailed,

_ eomprehensive, relocation plan. Such a study, they say,

’ will demonstrate that contrary tq the representations of

defendants, there are gross deficiencies in the housing

potentially available to displacees. If the survey does sup- _

‘port their claims there will be time before displacement toy

take steps, in conformity with federal law, to alleviate the

The defendants assert that adequate replacem sing

will exist, yet they reject the necessity for an analysis that

would definitely test, either to contradict or corroborate, .

their assertion.’ The sole issue on this appeal is whether

*In response to is litigation the state authorities prepared a

of the proposed replacement housi erred to in the plan is

either above the financial eligibility of the displacees, not

for an orderly relocgtion ‘of the di from the inter-

» od highway sorrldor.” The plaintiffs the finding and,

moreover, point out that it is not up to us, nor was it for the -

District Court, to weigh the validity of the state's relocation pro- -

gram. Under the 1968 amendments, which the tiffs insist are

74a

Dissenting Opinion

federal law requires sulmniccion of a detailed relocation

2 as insisted by appellants.

In 1968 Congress recognized the predicament of poor

persons whose homes are destroyed to make way for a

highway, with no provision of alternative accommodations.

Thus the Congress passed extensive amendments to the

Federal-Aid Highway Act to provide for the “prompt and

equitable relocation and reestablishment of persons” dis-

placed by federal highway programs. 23 U.S.C. § 501.

Theretofore tio duty was owed to displaged persons save

‘to furnish them information. 23 U.S.C § 133. The cold

‘administrative indifference to the plight of those left with-

out roofs over their heads mounted to the level of a na-

tional scandal. Under the new provisions, enacted to alle-

viate the inequity the Secretary may not approve a highway

project unless he receives “satisfactory assurances” that,

‘inter alia, prior to displacement, there will be available in

adequate number and within the financial means of dis-

placed persons “decent, safe and sanitary dwellings.” 23

US.C. § 502.

. What constitutes “satisfactory assurances” has been de- «

fined by regulation. They may not be merely vague or

general promises. Instead, the statute the regulations

adopted pursuant thereto make mandatory a plan of re-

location which describes the methods and procedures to be

used and specifies detailed data concerning the replacement

housing to be provided. There must also be a report prob-

ing relocation problems, analyzing other public programs

affecting the availability of housing, furnishing informa-

tion on concurrent displacement caused by other agencies,

estimating the time required to accomplish the plan, and

demonstrating that the plan is adequate “to carry out a

- timely, orderly and humane relocation program.” IM-80-1-

a it i I A

75a

Dissenting Opinion ;

68-(7) (b).? It is this nonmaiatinn of ial and fact

that eriables federal officials to review the —. to deter-

mine whether

. [t]he State’s relocation plan is realistic and is adequate

to provide orderly, timely, and efficient relocation of

displaced individuals arid families to decent, safe, and

sanitary housing with minimum hardship on those af-

fected. IM-80-1-68-(5)- (a).

‘Approval by the Secretary is necessary at two junctures

of a project; first before right-of-way acquisition and then

. again before actual construction. 23 U.S.C. §,106; Policy

and Procedure Memorandum 21-5. Rights-of-way for the

projects involved in this case were authorized in 1966 and

1967. However, there has yet to be final approval of the

construction phase. Thus it would seem that the above

described requirement of a thorough plan must be fulfilled

before construction in the Triange may proceed.

* IM-80-1-68-(7) (b) provides -

The State highway department, prior to _ proceeding | with -

right-of-way negotiations and/or construction shall furnish the

following information for review and approval by the division

engineer :

(1) The methods and procedures by which thie needs of every

individual to be displaced will bé evaluated and correlated

with available decent, safe, and sanitary housing at reasonable

rents or prices and readily accessible to his place of anpley-

ment.

_ (2) The method and procedare by which the State will

assure an inventory of currently available comparable housing

which is decent, safe, and sanitary, including type of building,

state of Seine chop number of rooms, needs of the person or fam-

ily being displaced (based on standards outlined in paragraph

13i), type of eget armen proximity of public transportation

and commercial shopping areas, and distance to any pertinent

social institutions, such as church, community facilities, ete.

.The use of maps, plats, charts, ete.,-would be useful at this

stage.

= |

——_eee 4

MOLE NG aia AE. , ee

Sey ORE wd) Se os Be lh

eer 4 ) Dissenting ‘Opinion

76a ;

The defendaats, however, argued that the 1968 amend-

ments do not apply to any project in which any approval

of the Secretary (either for acquisition or for construction )

_ was obtained prior to 1968, ‘Thus, since acquisition author-

izations were obtained in 1966 and“1967, the argument ran,

the new relocation provi isions- are inapplicable here. De.

fendants s based-their interpretation on a Department of .

Transportation regulation providing that °

assurances” are not required where authorization: to

acquite right-of-way or to commence construction has

been given prior to the issuance of this memorandum.

[September 1968]. IM -80-1-68-(5)_ (b).

The plaintiffs jis that this rine of the statute,

resulting in the disregard of the 1968 relocation amend-

ments in respect to 1970 displacements, is inconsistent with

the plain statutory language, the legislative history, as

well as other Department of Transportation regulations. eo

The District Judge accepted the defendants’ view. In

doing so he relied on Udall v. Tallman, 380 U.S. 1 (1965), -

which held that courts should show “great deference to the

interpretation given the statute by the officers or agency

charged with its administration” and should sustain those

interpretations unless unreasonable, Accordingly, he found

that “the agency’s determination had a rational basis and ~

should not be disturbed.” This holding a panel of this

court embraced in its one-sentence | affirmance “on the

‘opinion of the District Court.”

. However, subsequent to the opinion of the District Court -

the federal authorities issued new guidelines. These dec-

larations, a policy directive of thé Secretary of Transpor-

“ Dissenitin 9 Opinion

tation’ and an uisadondeaitiens memorandum of the Federa}

Highway Administration,’ reveal that federal regulations

no longer subseribe to the view of limited applicability of...

the 1968 amendments.’ Rather, the new policy makes clear

that, as interpreted by the Department of Transportation,

the amendments pertain to all approvals: of construction,

even when projects have been previously authorized. Ac-

_ eordingy, since an appellate court “must apply the law

in effect at the time it renders its: decision,” Thorpe v..

Housing Authority of the City of Durham, 393 U.S. 268,

281 (1969),° then precis¢ly for the reasons the District

Court (and then the panel) accepted the now discarded

interpretation, this court is — to adopt the more,

recent view. rian A

It remains to inquire why this cou thas not acted on

these developments. The initial pariel opinion, adopting

the reasoning of the District Court, logically-cannot serve

- to answer this question because the new administrative

regulations came after the opinion below. . The opinionless

order r denying a rehearing provides no further elucidation.

It is therefore nectstary to set out the panel’s view as I

_ infer it to be. There i is, of course, no dispute within the

court that the appellants’ position on the applicability of

* the 1968 amendments has.now become the law and that

comprehensivé relocation. plans are required before con-

struction can be approved. Rather, my brethren seem to

think that the new regulation, expressly recognizing the

‘Memorandum of Rinhaes of’ Department of Transportation :

Implementation of Replacement Housing Policy, January 15, 1970.

* 6 Federal Highway Administration Circular Memorandum: Re-

location. Te apna merited of Replacement Housing, Mareh

27, 1970. .

* It was on this Beery that a separate panel of this court, con-

the federal defendants, who had resisted, to produce the Memo-

randum of thé neil

78a

Dissenting Opinion.

plaintifés’ rights under the: 1968 amendments, has somehow

* eliminated the need for relief. Their position apparently

is that there is no reason to suppose that the new policy

will not be applied to the Triangle and, accordingly, ap-

pellants’ claim is thus mooted, at least for the time being.

I cannot subscribe to this expectation. The question is

anything but moot. The defendants have consistently taken

the position, both before and during the litigation, that

‘the state authorities need not submit and’the federal offi-

cials need not review, a formal relocation plan. They have

continued to press this contention on appeal in spite of

the policy change of which they were awéte. Moreover,

they have been less than forthright in the course of ‘this

' litigation. They resisted, without justification, producing

the very memorandum of the Secretary that announced the

new position and did not supply it until ordered to do so -

by the court. Under these eircumstances I cannot think

,-—that court- ordered relief would be superfluous. On the con-

trary, the defendants’ refusal to accord the plaintiffs’ their

-- rights cries out for redress.

Nor do I perceive any justification for the cavalier treat- _

ment accorded the appeal and the petition for rehearing.

Even if injunctive relief is not appropriate this court

should not, by its silence, permit any possible implication

" that the obligations on the defendants have not been altered

since the District Court’s order. As I understand. it, the

affirmance is based on confidence that the defendants will _

perform their duty, not that they have none to fulfill. When

the court acknowledges. the duty but without explariation

does nothing to enforce it, the decision will be read by

some as a holding that there is no duty. At the very least

- the court should have explicated its rationale-to underscore _

the obligation and prevent misreading. Its failure to do so

constitutes serious error.

Se “tT

79a

_ Plaintiffs’ Exhibit No. 9

U.S. DeparRTMENT OF TRANSPORTATION

FeperaL Highway ADMINISTRATION

_. Bureau or Pusuic Roaps

Wasuinecton, D.C. 20591

West Vircrx1a :

PF psi Catia January 23, eS

CrrcuULAR Memorawpum ‘TO: Resioual Federal Highway.

Administrators arid Division

Engineers 7

From: F. C. Turner, Director of Public Roads

39-20 Washington, D. C.

- Supsecr: Relocation Advisory Assistance Services _

" The Federal-Aid Highway Act of- 1962 inaugurated a new

administrative o responsibility for Public Roads—that of

‘monitoring ’a requirement for all State highway depart-

ments to give satisfactory assurance that: relocation -ad-

visory assistance shall be provided for the relocation of

families displaced by acquisition or clearance of'rights-of-

way for any Federal-aid highway. As a follow -up action, —

Congress directed (Re: Section 12, Federal-Aid Highway

» Act of 1966) that a study be made of the current highway . |

relocation assistance program and ways to improve the

‘service. As you know wé, with the cooperation of the States,

_ have completed the study for Congress. The July 1967 re-

port was transmitted to you with my September 14 circular

memorandum. This report’clearly delineates the nature-and

_ dimensions of the national highway relocation problem.

There continues to be a substantial number of complaints |

to the President, Congress and public news media, which

80a*

oy t

Plaintiffs Exhibit No. 9

indicates: to me- that: we need ‘a reexamine the: . procedures

and practices which are used to meet: the intent of the 1962

Act. This simply means that we,’as highway: professionals, «

_ must increase our attention to the problem. We have cre-

ated a national highway system second to none. We need

‘now to apply. the same initiative and creative imagination

~ to care for the highway displacees. Equal importance must

‘be attached to planning for the relocation of :displacees as —

is done for the highway improvement. By ‘so doing, .we

would in addition to substahtially improving the quality of

current relocation services, materially strengthen public

acceptance of. the highway prograin..

Notw ithstanding- full, or partial; congressional implementa- re

tion of the ten recommendations in ‘the report, it will be |

‘ineumbent on both the States and Bureau alike to give

maximum attention to relocation assistance services in-the

future. While the recommendations, if enacted, will greatly,

facilitate or ease our’task, we are still faced with the relo-

cation of some 168,500 individuals, families, businesses, »

farmers and nonprofit organizations in the erfsuing two

and one-half to.three-year period.

a About 87 percent of those involved will be Lidididesie or

families, who will be displaced- from their homes to make

_ way for new or improved highways. Your. attention is dix

reeted to page 42 of the report for an assessment of the

proportionate amount of welocatecs in ‘your individual

region-div ision(s):

New legislation i is not necessary to immediately feb 3

some of the recommendations made in the above study: For

_ instance, several steps should be taken now to substantially _

upgrade the quality of the State's relocation seyVices: .

Recommendation five, the ee: concept, should

eae DOYLE RT CLA IOLLD LIE A IE ncpae

. 8la :

lee &

Plaintif’s’ Eahibit No.9 --

be implemented partioularly | in an urban area where there, |

is-a ‘large, number of families ‘and businesses to .be dis-

located. The development and/or encouragement to’ con-

struct’ low cost housing, recommendation number six, also

_ may be ‘successfully and voluntarily implemented without

.. new laws in..some’ situations. Recommendation seven re-

emphasizes the adverse affects of inadequate . right- of-way

leadtime practices, which require our continuing attention.

It-is requested that you reevaluate the State’s program, in

‘light of the congressional relocation assistance study, and

discuss your findings with responsible ‘State officials. While .

_ the urbanized States will have a large volume of di placees,

it should be clearly emphasized that rural States have the

- same probems even though: they may not be as great in

-. seop¢. The intent of Congress was not to segregate urban

from rural ‘displacees. Every individual, family, or busi-

ness must receive full and responsive treatment to insure

‘full public acceptance of the highway pragram.

Subsequent. to such a review, T request that you Mvise me

of steps the State intends to take to give maximum empha- :

_ sis_to its relocation assisfance program.

aa 7

_. Mr. Avnet Schofér. / :

NO sao Mery de iar roan, puta Mer. oe .

82a, on

Plajntifs Exhibit No.9 °

| | far 25 1968

Regional Federal Highw ay Administrator

Baltimore; -atsciegi ae

eee ; Be pany

Morris E. Sinica : roe Ne

Division Engineer, Charleston, West Virginia

Relocation Advisory Assistance Service hi eth

~ Mr. Turner's Blue, Chonda Memorandum of January 23,

+1968 requested that he be advised of steps the State intends

- to take to give maximum emphasis to its relocation assist-

anee program. | ‘We subsequently ‘requested ‘that the State

Road ‘Commission ‘re-evaluate its relocation program in

‘light * ‘of the Highway Relocation Agsistance Study with

specific comment regarding the ten recommendations, in-

cluded therein. In addition we requésted their comment on

six additional questions relative to their relocation program.

in Charleston where they are about mid-way through a large |

Phe relocation program.

Attached hereto is the State’s response whigh is salle

planatory. We generally agree with the response, however,

; the following additional comments are offered :

‘ 1, “The State cannot, by virtue of existing law, provide s

any relocation payment to a business if a substantial

portion thereof relocates out of State’ Business moves

are additionally restricted to a°40-mile limitation. Ex- .

“perience indicates that the $3000 limit on business

moves is adequate under the present relocation concept. .

- 2.. We concur with the State’s comment regarding .the

’ need for a relocation plan for — urbayi project. It

-Plaintifie Exhibit No. 9 gs ;

work

would appear that the need for a ‘imal relocation’ plan

locations ‘which w uld. be created by a : given project.

In thé Charleston area the State did secure. valuable a,

information relative ste to be dislocated by a -

_ survey which was a valuable assist i in defining the over:

all problem involved.

our opinion, a complete: relocation plan since it did not

' provide’ information either factual, estimated or pro- |

jected as to ‘the: availability of replacement. housing.

3.°. There appears to be a need for guidelines that would

tend to insure coordination. between governmental

agencies ser ti displacement.

The’ State Road” Cominission has taken some initiative in

coordinating with{other agencies, however, we believe this.

coordinated effort will ‘improve. It also appears that im- .

hone rovement could. be realized if Federal agencies: were bet-:

‘ter. coordinated.

The State Road ‘Commission proposes to enlarge its Reloca--

tion Assistance Section which should greatly 1 — its

overall effectiveness.

; We have: recently completed an Inspection-i -in- Depth davis |

ing relocation assistance, Upon clearance from our Regional

Office ‘we propose to take it up with appropriate State per- ;

' sonnel. . ee |

GBSaundere.e :efe 3/25/ 68.

ee: R/W, Reading: :

t. would not be considered, in ;

aS a —

PM PEP IRE et ese

>...’ Plaintiffs’ Exhibit No. 12

Form FH-121 (4-67)

Uxsrep Strate Gov ERNMENT a -

Memonaxpust

Uv. S. Derartment or Transportation.

/ Feoeran Hichway Apmixistration

Bureau or Pustic Roaps

Date: February 20, 1968

In reply refer to: —

To : Morris E. Monroe /s MEM

Division Engineer, Charleston, W. Va,

Fro : Gerald B. Saunders /s G. B. Saunderg

Division Right-of W ay Office, Charleston, W. Va.

Supsver: Relocation Assistance . . \

Accompanied by Mr. John Wineberg of this office, i met

_ with Mr, Erie Hemphill, Executive Director, Urban Re-

newal Authority, and Mr. Ned Henry, Relocation Director,

to discuss the impending relocation: problem, which we be-

lieve may exist in the Charleston urban area. Mr. Elmer -

Patton, State Central Offieg Relocation Manager, was also

in attendance.

The basic objective of this meeting 1 was to ascertain:

‘1. If there are any definite plans contemplated by °

Urban Renewal which would serve persons dis-

located as a result ghway acquisition.

. If any plans gtong this line have been developed,

when they will be implemented and completed.

85a

Plaintife Bahibie No. 12 -

a A comparison of the Urban Renewal. relocation

- policies arid procedures with those ‘of the State

Road Commission to determine if they are sub-

stantially uniform and if not where major differ-

ences exist,

4. If there are any areas where the Urban Renewal

Authority and the State Road Commission can

refine their respective relocation programs through ;

a. joint coordinated effort.

5. To determine if the Urban Renewal representa-

‘ * tives could provide advice for i improving the high-

- way’relocation p?ogram based upon their past ex-.

perience in the Charleston urban area.

For the most part, it was my observafion that the differ-

ences in the relocation problems of the State Road Com- :

mission and Urban Renewal would not permit a very effec-

tive coordinated relocation program. For example, - the

relocation of people by the Urban Renewal: Authority is

generally restricted to persons of very low income and.

these relocatees are provided replacement housing superior

to that taken. This differs from the highway relocation

program where dislocatees are made up of differing eco-

nomic backgrounds and there is no authority for the State .

Road Commission to construct replacement housing. The

major area of similarity between thé two agencies insofar

as the relocation assistance objective is concerned cepters

around those who will need replacement low cost public

housing.

We discussed the two Pecan Urban Renewal projects’

commonly known as’ the “Government Square Complex”

and the “Triatigle Complex”. These-two projects have not

ys Plaintigs’ Exhibit No. 12

been Soomalty approved. However, the “Triangle” project

has been sibmitted- for approval and the same should be

. fortheoming ‘within the year. It-is Urban Renewal’s esti-

mate that“actual relocations of people, as a result of the

“Triangle” project, will commence in carly 1969 and in- |

volve a total relocation problem of 600 families and indi-

viduals, It is reasonable to conclude that this Urban Re-

newal project will be active during the same time that the

State is confronted with highway relocation and will fur-

ther complicate the total reloc a.éon problem for both,

agencies. ,

In our diseussion’as to how the proposed Urban Renewal

‘ projects might be an assist tv the State in their relocation

problem, it was concluded that it will be of little if any

benefit due in part to the projected completion date which

would fall sometime after 1970.

We also discussed the av vailability of any other sources of

available replacement housing, and it was found that vari-

ous programs have beech instituted. whereby approximately

1600 units should be available at unspecified future, dates.

At the present time, the Urban Renewal representatives

know of only approximately 50 units that are proposed for

construction in the near future. Here again, it was my

observation that even these units will not be available in

time to serve persons dislocated by the proposed Inter-

state highway facilities. The Urban Renewal representa-

tives indicated that they estimated the present tirnover

in available public housing to be approximately 30% of

the total of 800 units. This means thén that there are

_ approximately 240 vacancies in publie housing on 4n ‘an-

nyal basis. I have no support for the fact that this is an

excessive estimate, however, it does appear to be some-

what high, - ~*~ oe aa

2 ' t~

ee ee

P “ 87a

Plaintiffs’ Exhibit No. 0.12

In the event that’ there are vacancies in public nate

highway dislocatees are given priority treatment. Up to

. this point, however, this has not been a major area’ of |

concern since the State has had good results in placing

“people in public housipg units if they are qualified.

It is my opinion that our major area of éoncern lies with

these people who have income over and above that which -

would qualify them for public. housing and desire to rent. ’

_ More specifically, this area would be defined as families

_ with, average annual incomes of from $5,000 to $7,500 as

.. year and who do not want to, or cannot,-buy their own

home, Urban Renewal and public housing is of little, value

to our relocation problem i in these cases, and I have reason

to believe that the private housing market is about sat-

urated présently. . oy

It was agreed that a meeting would be set up in the near

future to discuss the availability of proposed low cost

rental property since there are several public and private

programs endorsed -by the City under Federal Housing. °

Administration regulations in this regard. It is expected

that the State Road Commission, Urban Renewal, the City

of Charleston, Federal Housing Administration and Bureau

of Public Roads will be in attendance. I believe this meet-

ing will, if nothing else, emphasize ‘the need for closer

coordination between the State Road Commission . and

‘other. agencies, particularly in the “Triangle” area where

the State Road Commission and Urban Renewal will be’

- encountering a common relocation problem in the not too

. distant future.

ss: Reading, R/W(2), GBS

GBSaunders :pgj :2/20/68

88a

Plaintiffs: Exhibit No. 12

Form FH-121 (4-67)

Unitep SrAtes GovernMENT’

Memoranpum

U.S. Department or TRANSPORTATION

_ Fepera Hicuway ApMinistRaTION

"Bureau OF hae Roaps

Dass ¢ February 26, 1968

In reply refer to .

To _ : Morris E. Monroe /s Morris E. Monroe —

: Divisionngineer, Charleston, West Virginia

From. : Gerald B. Saunders /s G. B, Saunders

_ Division Right-of-Way Officer,

° Charleston, West Virginia

Sunsuct: Relocation Assistance, Charleston Utban Area

A’ further detailed | review has. been accomplished relative

to the State’s Relocation Assistance Program in the Charles-

ton urbah area. This report will include various statistics

which, in some cases, are-estimates; others are. accurate as

of mid-February. For purposes of clarification and ease of:

understanding, this report is broken down into three basic

parts: “ i

1, Summation of the relocation problem.

2. Extent of replacement housing — for —

_ families.

3. Conclusion.

: Plaintiffs’ Exhibit No. 12

Summation or Revocation Proptem

There exists approximately 950 families to be dis-

located in the Charleston area. Approximately 550 of

this number are located in Charleston proper and 150 .

presently reside in the South Charleston area. The

' remainder are located north and east of Charleston

proper. It is estimated that the majority of the reloca-

tion will tdke place in 1968, 1969 and be completed in,

+ early 1970. The relocation work- load wil! therefore re- -

_quiré locating replacement housing for approximately

_ 400 to 500 families per year based upon an estimated

future projection. In the report of February 19, 1968,

it was pointed out that two urban renewal projects are

being finalized, one of which (Goverment Square Com-

plex) is in Washington for approval.. These two proj- .

ects call for acquisition to be underway in the near

future. They require the relocation of approximately

750 families and individuals. Additionally, the City of

Charleston will be relocating some families as a result

of housing becoming unsafe and not considered suitable:

for further human habitation. The number in this

category is unknown, however, it appears reasonable to’

conclude that 60-75 such cases will be involved an-

pero’ or 120-150 for a two—two and one half year

It therefore ‘ade reasonable to estimate the following —

dislocatéons :

SRC O50 + 1968—1969—1970

UR. —756 1969—1970—1971

City —120 1968—1969

Total’ 1,826

' 90a

Plaintiff's’ Exhibit No. 12

Logically, the next question involves locating replacement

housing. It would appear that the followi ‘ing points are

appropriate’ in this regard:

1. The City does not face a definite timetable for re-.

location. In other words, they ¢an defer relocation

until replacement housing can be ldcated.

2. Urban Renewal replaces housing and therefore a

substantial number of their dislocatees can be re-

housed in newly constructed units,

3. The State Road Commission basically has to find’

replacement housing provided by either private

and/or public sources over which they have no firm

_.. control. They additionally ate confronted with a

. time problem during which period all relocation i is

| scheduled to be accomplished. ;

The av erage price Tange of housing to be acquired by the

State Road Commission in Charleston falls between $14,000

to $15,000. In Charleston Proper, approximately 63% of

the relocatees are tenants and 35% are owners. An est!

mated family income in the West Side falls. in the $5,000-

$6,000 range. -.-

AVAILABLE “ha Hovsine

The. below listed statistics were. dev eloped through con-

sultation with State Relocation personnel and are indica- ;

tive of findings of mid- February 1968.

Sate—Hovsineo

Multiple Listing Service has 162 houses in the $10,000 to

$20,000 range; 43 in the $20,000 to $25,000 range; 245 over

$25,000 and 8 under $10,00. The State, one other’

‘sources, has found:

> (oe > «(is

Plaintiffs’ Exhibit No. 12°

‘1. 50 houses under $10,000.

2, 86-houses between $10,000 to $25,000

The number of housing units located by the State is con-

cluded to be somewhat high, possibly by 20%. ‘The priority

listing provided by the-Federal Housing Administration

indicates only one house is currently available, with 4 on —

a preliminary listing that will be available in _the near

future.

; ; . t

‘ Housing for sale is summarized below:

58 - Under $10,000 ee :

291 = $10,000—-$25,000 = chee

245° > Over $25,000 le

"9594 Total

“Excluding a maximum of 5 under FHA control and~

_ others not available for reasons $ being under con-

struction, éte.

y RentaL Units. AVAILABLE

The State Relocation Offices have av ailable the following re,

rental units:

Number of Bedrooms peers Units

1 Se. es

2 24 ;

x 3 12 ;

4 5

- Total units available ; 61°

*Excludes newspaper listings which normally average

20 units.

Ne E

92a

Plaintiffs’. Exhibit No, 12-

Price Range. | ‘Number of Uhits

Under $40 per Ra CER ae A

. $40—$60 per month - 4 21.

_ . $61—$80 ‘per month St 16 :

" $100—$125 per month See: . :' -10-

' Over $125 per mont Se oe : 5 -

Total Units c ; > 61

The location of available ioplpoenent rental property falls

by number i in the following categories: —

‘Charleston proper and immediate suburbs -53 tinits ;

, Outside: Charleston area and within 5 miles. 8 units:

- Total AR TS | | | fe 61 units

, The oatienael number of available units, carjenty tinue

broken down as to sale and rental property.

. Housing for sale - "600 res

7 “Rentals ake: ~~ 81 units

Total 681 ‘units

*The above rental includes. approximately 80 units

that are listed in the local newspaper... oes,

The economic situation of persons to .be relocated by the

State Road Commission is portrayed below based. ‘upon a

State survey with 77% reporting. | ®

1 on

“gs

93a

Plaintiffs’ Exhibit No. 12

Faiily Income. (Annual) " Number Percent:

| Ledettan $3,000 296 - 26% ”

3,001- 4,000 5 “7 Oe .

4001-5000 §°. 133 1% -

_” 6,001- 7,000 - Liye 62: 6%

-\ 7,001-.8,000 "s ee. 7%

-.g'901-10,000 Seremeedeiis =e,

~10,000-12,000 ee "2%

' Over 12,000 Sohne “28 2%

Uncommitted ‘ ao ee 23%

The ‘above i is hesed upon 1, 142 families whi: was the total

number involved in the Charleston area, a number of which

have already been. relocated and no longer constitute any- -

problem. - : :

\Conciusion

It appears that the relocation ssoiehiii in the Charleston

- area, insofar as the State Road Commission is concerned, |

could become critiéal in the not: too distant future due .

‘primarily to the apparent lackof rental property in the

$60—¢90 per month price range, The available replace- -

ment ‘housing in this area is being depleted and no-new

sources are available at this time. In,the event that Urban.

Renewal secures approval for their proposed- project(s),

the overall relocation problem | will be further complicated.

A meeting (not scheduled) is proposed with FHA, Urban

Renewal, City of Charleston, State Road ‘Commission and

Bureau of Public Roads representatives attending, The

‘ . purpose is to ascertain the status of any proposed: *publie

and/or private low rent housing to be constructed under

: 94a" |

Plaintif'’ Esti No. 12

”

FHA itil! Several such penny have been con-

- sidered, however, it ‘does not appear that any: noticeable

-amount will be smilie in time to. benefit State Road

Commission displacements.

The State Relocation personnel have worked continually |

| in an attempt to minimize the problem. The fact that they

have secured a substantial number of listings from. sources.

. other than newspapers, real estate firms, etc., indicates

ve that they are attempting to provide assistance. This report

‘is not intended in any way to criticize the State’s efforts

even though the required eer | are not always completed —

to the desired degree. | My nee =

believe we are-now in a . position tn present the overall

problem to our Regional personnel when they visit this

office, which should be forthcoming . within the next few

weeks. If they “eonsider the situation serious, it would -

appear that the only possible solution centers around future ~

authorizations for the State Road Commission to acquire —

ee. :

ee: Reading, R/W-2, CBS

‘GBSaunders :pgj :2/26/68

| 95a

- Plaintiff S Eahibit No. 12 poe aA 3 .

| Form FH-121 (4-67)

Unrren Srares GovERNMENT

‘Memoraxpum_

-U. S, DEPARTMENT OF i rahinuniaacay 2

FEDERAL Hicnway ADMINISTRATION |

; 8 cid OF Pustic Roaps

Dare: March 6, 1968

To - ; Me, Morris E. Monroe. ‘s/ “Morris ED Maree —

: Division Engineer, Charleston, West Virginia i |

Prom °: Gerald B. Saunders. s/ G.B. Saunders ;

= a Division eee, officer, Charleston, - West -

Virginia |

Sunsecr: Relocation Assistance — Charleston Area.

A meeting was held i in 1 the City Building, March 4, 1968, )

with- the following persons attending: eae

“ Ted Wilding —_ City -

Wayne Zunigha — — City .

wt ames’ Haught ° * Director Federal Ho ap dec

' istration

Elmer’ Patton — Chief ‘Relocation’ Ad visor, ‘State

La rare ‘ . Road Commission - 7

William Halt — Assistant Division Engineer, Bu-

eee ~-. yeau of Public Roads “" |

* @, B. Saunders - | Division Right-of-Way Officer, Bu-

a Res reau of Publi¢ Roads ~ _

* . -

Plaintiffs’ Exhibit No. 12

Mayor Dodson sat in on a portion. of the meeting.

The purpose, of this meeting was to:

1; Establish an accurate estimate of persons to be .

displaced durthg 1968.

2. Ascertain the extent of replacement housing avail.

able for dislocatees,

—_—

3. Genetally discuss the various governmental pro-

grams and/or action that will cause displacement.

i It was concluded that the er displacements would

; likely oceur in 1968%, ;

State Road Com-

_- mission J 475 (includes Cépitol Complex)

- Urban Renewal 100 .

Cae. a | |

4 Total 725

Mr. Haught stated that approximately 625 low-rent units

would be available in 1968 as a result of Federal Housing

Administration programs. These would all be under a rent

supplement . -program’ a ld provide efficiency, one,

-two and three’ —— . Rentals were estimated as

follows: ©" °

Efficiency — $85 5 permonth ~* |

-’ One Bedroom . eee .+* . 8.

Two Bedroom — $120-135 ah Pe 2

: Three Bedroom $160 | a SO

‘The. project locations are already established with sponsor-

ship achieved. The sites are identified with the —-

number’ of units as follows:

97a .

’ Plaintiffs’ Exhibit No. 12 -

Hilltop - ' 150 Units

Hanna Road: 250 Units

AME Chureh ““ — 225 Units

He was very optimistic that these units would be estab- |

lished this year without any difficulty.

He further stated that similar programs would bé under-

taken in the future which would provide additional housing ,

_ if funds are allocated.

Sonie comment was offered on a new program identified -

as BMI (Below Market Interest). Units for this program

would’ be supplied by the mobile home industry and placed

on small lots. The total expenditure would amount to

approximately $4,000 per unit, including land and living

quarters (furnished). Profit was estimated at $500 per

unit and $1,000 per acre would be allowed for land (includ-

ing utilities). Sponsorship, including land, has been

secured for 184 units with-fund allocation being the re-

maining ‘obstacle. ‘

A likely objection to the 625 units of low-cost rent upple-

ment housing scheduled for completion this year may in-

volve. their location. The projects are to be located in

- remote areas, some distance from the city proper. Most

of the Interstate dislocatees are close in, with no trans-

portation problem. - ‘

It is further anticipated that some resistance will be en-

count@red because of the rent supplement feature which

detracts from the ee attituds of persons who will

need replacement housing. » - .

It appears that the Federal Housing Adnisiitnatin pro-

grams wil] provide the only source of replacement housing

PO PPO eer Ss

. . ¥

: : o ,

re. PETE OEE EERE ee I gm Pes teen eee” al v

Plaintiffs’ Exhibit No. 12

in the area, ,The existing private market, partsaly in

low to m@lerate priced rentals, is being depleted primarily .

by Interstate acquisition. It also appears that future au-

thorization for acquisition will be affected unless the

Federal Housing Administration programs are instituted

in the very near future. .. oi

‘The advantages of future progress meetings were recog-

nized to periodically evaluate the local housing ‘problem. .

The Urban Renewal representatives indicated that they

had no objection to working with the State Road Commis-

sion, exchanging information, elc., when they become in-

99a

| -- Defendant Ritchie’s Exhibit No. 1

- .-4:77-3 (66) 100

- . and

1-77-38 (67) 98

‘Triangle Area Relocation Program Plan

+ TRIANGLE Prosect Report

_ For the purpose of.this report it will be necessary to

establish geographical boundrie¢_which are affected by

Interstate projects 1-77-3(67)98 and 1-77-3(66)100. The

area in question is bound by Washington Street, Capitol

Street, Piedmont Road and Elk River (See Exhibit I).

An analysis was made on the needs of the individuals

and families to be displaced. by the two Interstate projects.

_ A survey was also made of available housing in the area

meeting the requirements of decent, safe, and sanitary,

and the heeds and requirements of the persons to be af-

fected were then related to the available housing giving

consideration to rents, properties for sale, and places ac-

cessible to employment. 4

__ As a part of The State Road na ae s continuing

relocation program the inventory of available decent, safe,

and sanitary housing within the price or rent range of

. these families and readily accessible to their places of |

employment will be maintained during the relocation proc-

ess. The State Road Commission will maintain personnel, .

to meet the families to be relocated to assist them in find-

ing such decent, safe and sanitary housing available through

suryeys as more ndgracegnd set forth on Form R/W

12.12.

The Triangle Area (as set out-in Exhibit I) has ap-

’ proximately 2,000 residents. The proposed Interstate High-

‘way improvements will ultimately result: in the displace-

ment of approximately 300°of these individuals, .As of

= ops

Defendant Ritchie’s Exhibit No. 4

today approximately 17 of these households have moved

there are 116 individuals remaining and approximately 59

families.

Local, State and Federal agencies were contacted as to”

any projects which might be contemplated in the triangle

area, The- West Virginia Water Company has already

displaced approximately 243 individuals or (81) families.

The displacement was for a new water filteration site.

The selected site has been challenged however; the Watér

Company contends thatthe selection was -predicted upon

extensive engineering studies which dictated the advis-

abilit? of this particular-location, it should be noted also

that the Triangle Improvement Council has petitioned the

City of Charleston to rezone the property for residential |

‘use in order to provide for more housing in the area.

This parcel has been cleared for approximately 24% years.

The Urban Renéwal Authority is presently completing

plans for a project which will also create, at least initially,

a significant number of displacements in the Triangle Area.’

It is conteniplated that the Urban Renewal will acquire the

majority of the property in the Triangle not taken for the

proposed Water Site and Interstate facilities. The north-

eastern boundry of the Urban Renewal Project generally,

coincides with the southwestern Interstate right of way

line. The Urban Renewal project in the Triangle area

will ultimately displace approximately 1,500 or 619 house-

. hold units, The Government Square project will ultimately

. displace 130 households.* Based on past experience relo-

- cation for the highway. will be completed or substantially

completed prior to any significant displacement for the

Urban Renewal project. :

In summary, the proposed highway project considered

alone will have a moderate affect upon the local Triangle

* Under Renewal information obtained from Mr. Miles of Charles.

ton Urban Renewal Authority.

OY oe Ot

Defendant Ritchie's Exhibit N 64—~ |

‘

’

Area and little affect on the entire local community, Con-

sidered collectively with the proposed Urban Renewal proj-

ect the result in effect will be substantial as the entire

Triangle Area will be completely transformed.

The estimated amount of lead time required for this

project is 16 months from February 28, 1969. There will.

be adequate personnel in the local District office to carry

out a timely, orderly, and humane relocation program.

No person lawfully occupying real property on this project

shall be required to move without at least 90 days written

notice. Relocation assistanée,will be provided exclusively”

by The State Road Commission of West Virginia on all

Interstate projects. :

Of the approximately 175 households remaining in the

Triangle Area, 166 are tehants and approximately 9 are

owner occupants. Of the above — 116 are indiv iduals

and 59 are families.

The 166 tenants pay an average rent between $45.00 and

$50.00 a month. The average rent of available units on the

private market is approximately $90.00 per month. This-.

would tend to indicate that. the majority of the tenants

in the Triangle Area would be eligible for supplemental:

payments not to exceed $1,500.00. The $90.00 4 month is

based an approximately 80 private listings which were

secured from Real Estate Brokers, Banks, Newspaper,

and generally canvassing the Charleston area. These 80

listings would be available on any given day. Theoretically,

as soon as one is rented ‘another similar unit will become

available. During two (2) years of extensive relocation in

Charleston, the number of available units has not change

substantially. The 80-units we are considering are units..5

which with a supplemental payment will be within the

financia] means of the individuals being displaced, most

are adequate for these families: and convenient to public

transportation and employment. There are numerous

eS eee

. .

v SN PE PP I Ge PR RE a Ret ve hyp ee

. 4 . ® »

rw eee

102a

Defendant Ritchie’s Exhibit No. 1

rentals available in the Charleston area which are in the

$125.00 and up category, however, these units would not

be within the financial means of the displacees with the

maximum supplemental payment. The majority of the

displacees on the Interstate projects within the geographical

boundaries of the Tyimfigle appear to be eligible for public *

hoysihg. In the Charleston area there are four (4) exist-

ing Public Housing “sto (1) Lee Terrace, which was

just recently constructed, is for the elderly, (2) Washing-

. ton Manor, (3) Orchard Manor, (4) Little Page Terrace.

These four (b) Public ‘Housing Projects make up 934

units, there is a turnover of. approximately 30 per cent

per year or approximately 239* units a yéar will be avail-

able to qualified individuals. Interstate relocatees receive

priority in such Public Housing. ‘Therefore, throughout

the span of. the acquisition process there will be approxi-

mately 319° Public Housing units that will’ come onto the

market; as well as on any given day throughout the’ same

period of time there will be atleast 80 rental units within

the financial means of the people being: displaced with an

addition of a supplemental payment. (See Exhibits #2

and #3) which shows the amount of rent paid by the 166

tenants with a percentage breakdown’ on the number of

units being rented, Exhibit +3 shows the number of avail-

able units with a breakdown of rental values’and a break-

down of dwellings for sale in. the Charleston Metropolitan

ana... ! ' |

The owners in the Triangle area, which is approximately

nine (9) families, should have no relocation problems. We «

have approximately 800 listings for sale in the Charleston

_area. On this figure approximately 450 are in the Multiple _-

Listing Service, 175 listings which were secured by The

State Road Commission’ 8 Replacement Housing Section,

Defendant Ritchie's Exhibit No. 1° |

- and another approximately 175, listings of brokers who do

, not belong to the Multiple Listing Services or who do not

' - list expensive housing. in Multiple Listing.

It is our opinion that adequate degent, safe, and sanitary

a replacement housing will be made available to The State .

Road Commission displacees, however, it is acknowledged’

that this factor could become a problem in some cases for

the following reasons:

1, The social environmental desires of some of the indi-

viduals involved may restrict the number of. av ‘ailable

. choices acceptable to the displacee for replacement hous-

ing.* The additional monetary allowances set out in the -

1968 Highway Act will be beneficial and each displacee

will be offered adequate decent, safe and sanitary housing .

which meets federal requirements.. However, we are ynable

to conclusively state that every social and environmental .

situation will be completely resolved. There are individuals .

on these projects who would not readily accept other areas

due to their social, economic and envirenmental desires’ .

regardless of their race, color or creed. The answer, to

~ many’ of the relocation problems in the Triangle Area

will be answered by Public Housing accommodations, how-

ever, the Triangle Improvement Council has promoted a

resistance to Public Housing relocation and if they are

_ successful in this respect, the State relocation problem will

pe accordingly j increased,

-2. At the present time The State Road esata: i...

meeting some resistance on the part of a few organizations

and individuals who in some cases do not ¢ even live in the

| ‘Triangle aréa-~-..

_ The State Road Commission is well aware of existing

_ potential relocation problems in the Triangle Area, How-

ever, a field office staffed with qualified relocation personnel . |

~ is readily peconstble, to résidents and contact is being made

. e

‘ 10a

_Defendant nites s Exhibit No. 1

with ‘them at appropriate stages of acquisition. Every

effort is being made to minimize hardships, and several

specific instances are noteworthy where’ unique assistance |

was provided y the State in achieving necessary relocation.

The State Road Commission realizing the ‘relocation

problenis in this particular area is taking the following -

” steps in-

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