Arlington Coalition on Transportation v. Volpe

• Decision Date: 08 October 1971
• Docket Number: Civ. A. No. 59-71-A.
• Citation: 332 F. Supp. 1218
• Court: U.S. District Court — Eastern District of Virginia
• Parties: ARLINGTON COALITION ON TRANSPORTATION et al., Plaintiffs, v. John VOLPE, Secretary of Transportation, et al., Defendants.

332 F. Supp. 1218

ARLINGTON COALITION ON TRANSPORTATION et al., Plaintiffs, v. John VOLPE, Secretary of Transportation, et al., Defendants.

Civ. A. No. 59-71-A.

United States District Court, E. D. Virginia, Alexandria Division.

October 8, 1971.

Frances G. Beck, Arlington, Va., Donald S. Burris and Lawrence J. Latto, Shea & Gardner, Washington, D. C., for plaintiffs.

Stuart Dunn, Asst. Atty. Gen., William B. Moore, Arlington, Va., for defendant Fugate.

Charles Radigan, Arlington, Va., for intervenor Arlington Chamber of Commerce.

Grayson P. Hanes, Fairfax, Va., for intervenor Fairfax County Chamber of Commerce.

Irwin L. Schroeder, Dept. of Justice, Gilber K. Davis, Asst. U. S. Atty., for the government.

MEMORANDUM OPINION

OREN R. LEWIS, District Judge.

The plaintiffs want this Court to stop further construction of I-66 through Arlington County. The defendants and intervenors insist that this interstate highway be completed without further delay.

The plaintiffs are four residents of Arlington owning land in the corridor selected for the highway and two unincorporated associations interested in the preservation of environmental and community values, including sound transportation planning in Arlington County.

They contend that a new location or corridor public hearing must be held before further action can be taken in re the planning and construction of the highway — first, because state authorities failed to submit a transcript of the 1958 public hearing to the Secretary of Transportation prior to federal approval as required by 23 U.S.C. § 128 — second, because the 1958 hearing in any event was outdated due to the passage of time — and third, because the 1968 amendment of § 128 requires consideration of the economic and social effect of the highway's location and its impact on the environment.

The plaintiffs also contend that the 1958 hearing is insufficient to permit the use of I-66 funds for the planning, relocation and construction of a portion of Lee Highway (US 29-211) in that this item was then neither mentioned or discussed — and that the Secretary of Transportation is in clear violation of § 138 of the Federal Highway Act, 23 U.S.C. § 138, and 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f), both of which provide that the Secretary shall not approve any program or project that contemplates the use of any public park unless he has determined that (1) there is no feasible and prudent alternative for the use of such land, and (2) such program includes all possible planning to minimize harm to the park.

Lastly, the plaintiffs say the Secretary of Transportation has violated § 102 of the National Environmental Policy Act, 42 U.S.C. § 4332(2) (C) by failing to require the filing of an environmental impact statement before permitting further completion of I-66 after the effective date of the Act.

The defendants are the Secretary of Transportation and the Division Engineer of the Federal Highway Administration, and the Commissioner of the Virginia Department of Highways and the Recorder of Deeds of Arlington County, Virginia. (The latter has been dismissed as a party defendant.) The intervenors are the Arlington County Chamber of Commerce and the Fairfax County Chamber of Commerce.

The defendants insist that the Congress of the United States has entrusted to their discretion the desirability and necessity for the construction of I-66 and that their exercise of this discretion is not subject to review, absent arbitrary and capricious action. They do not question judicial review of their administrative actions subject to the provisions of the Administrative Procedure Act, 5 U.S.C. § 701, et seq. — They further say they have fully complied with all federal and state statutes requisite to the location and construction of I-66.

The Commissioner of the Virginia Department of Highways asserts the additional defense of sovereign immunity under the Eleventh Amendment of the Constitution of the United States.

The intervenors say their respective counties have realigned their highway systems and have predicated much of their business and industrial zoning in reliance upon the building of I-66. Further, that millions of dollars of public and private money has been spent on both private and public developments, much of which will be seriously impaired or lost if the completion of the highway is either unduly delayed or abandoned.

Both claim laches on the part of the plaintiffs in not timely filing this suit.

This case was heard and decided upon the well prepared stipulation of facts and exhibits and agreed issues of law, all of which have been filed herein and made a part hereof — and upon the briefs and argument of counsel.

A brief summary of the stipulated facts and history of the development of I-66 discloses that it is a part of the forty-one thousand mile system of highways authorized by Congress in 1956, 23 U.S.C. § 103(e). The highways are built through Federal-State cooperation — the Federal government, ninety per cent of the cost; the State, ten per cent — Actual construction is undertaken by the State with prior Federal approval of the successive steps required to complete the project.

I-66 connects Washington, D. C., with I-81, a major inland north-south route running through the Shenandoah Valley — and provides major arterial service along the corridor through northern Fairfax and Arlington Counties and to the center of the District of Columbia.

The building of an interstate highway begins with the inclusion of the route on the interstate system, which places a route on a map connecting points without specification of the place on the ground where the road will be built.

Next, the corridor for the highway is chosen by the State. There are no established limits to the width of the corridor — anything from five hundred yards to a half mile — Corridor approval by the Federal highway officials is preceded by a public hearing at which alternate corridors are presented for public comment, at which interested citizens are given an opportunity to record their views as to the effect of the proposed highway on the community.

After the corridor has been approved the engineers and survey crews further narrow the location of the roadway as the design is developed — Eventually a detailed location is made and approved. Thereafter acquisition of the necessary right-of-way is authorized — Federal funds are then committed to the extent necessary to acquire the right-of-way.

The total mileage of I-66 is 75.4 miles, 25 miles of which have been completed.

The Virginia Department of Highways began preliminary studies for the location of I-66 through Fairfax and Arlington Counties prior to 1958 and completed three of the studies regarding the location of the highway in April and October 1958.

A public hearing was held in Arlington on October 29, 1958 to consider a corridor for I-66 through Arlington. Four alternate routes were then considered and discussed. The Federal and State engineers and some of the plaintiffs were present at this hearing. This hearing followed a similar hearing held before the Arlington County Board on September 27, 1958, at which time citizens and civic associations presented their views.

The Arlington County Board recommended that Corridor No. 2 (Fairfax Drive-Bluemont Drive) be approved. The Virginia State Highway Commission adopted this recommendation on February 25, 1959 and submitted the same to the Federal Bureau of Public Roads on March 10, 1959. Additional information was submitted by the Division of Regional Engineers, and the Fairfax Drive-Bluemont Drive corridor was formally adopted on June 4, 1959.

On February 26, 1960 Federal officials informed the Virginia Department of Highways that the public hearing held on October 29, 1958 fulfilled the requirements of 28 U.S.C. § 128 and that no additional hearing was required.

In 1961 and 1962 right-of-way acquisition was authorized for the total length of I-66 from the Beltway to Rosslyn — The initial acquisition was for six lanes. In 1965 the project was expanded to eight lanes — The necessary additional authorizations were had on various dates between June of 1962 and July 1966.

Utility relocation projects were approved in 1964, 1965, 1966, 1968 and 1970.

Public hearings to consider the proposed design of I-66 between Washington Boulevard and Lynn Street were held on December 7, 8 and 9, 1970.

From the date of the location approval, some 924 parcels of land had been acquired in Arlington and Fairfax Counties, including 581 dwellings and 68 businesses, at a cost of $28,670,123.07. Thirty-eight dwellings and one business property are yet to be acquired at an estimated cost of some $5,000,000.00. Four hundred seventy-five families and 68 businesses have been relocated.

The Virginia State Highway Department has spent over a million and a half dollars for necessary preliminary engineering — Joint field inspections with plans in hand have been made, beginning in 1961 to date. These field inspections have all been documented by letters indicating that a substantial agreement had been reached in the field on all points.

The present proposed location of I-66 has been noted on the Arlington County General Land Use Plan since 1961 and the general corridor for I-66 has been published in local newspapers on many occasions since that date.

Some 9.6 acres of Bon Air Park are to be taken for use in connection with I-66. The part to be used for the highway is designated on the Arlington County General Land Use Plan dated August of 1961, with amendments through January of 1964. This tract of land was acquired by Arlington County for park and highway purposes.

Approximately five acres of Spout Run Parkway will be taken for I-66 use.

If the proposed I-266 route to the Three Sisters Bridge is built, some 31.6 acres of Spout Run Parkway will be conveyed to the Virginia Department of Highways — 13.97 acres of which...