City of Davis v. Coleman, 74-1942

Citation521 F.2d 661
Decision Date30 July 1975
Docket NumberNo. 74-1942,74-1942
Parties, 5 Envtl. L. Rep. 20,633 CITY OF DAVIS, a Municipal Corporation, Plaintiff-Appellant, v. William T. COLEMAN, Jr., Secretary of Transportation, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 661

521 F.2d 661
8 ERC 1259, 5 Envtl. L. Rep. 20,633
CITY OF DAVIS, a Municipal Corporation, Plaintiff-Appellant,
William T. COLEMAN, Jr., Secretary of Transportation, et
al., Defendants-Appellees.
No. 74-1942.
United States Court of Appeals,
Ninth Circuit.
July 30, 1975.

Page 665

David E. Pesonen (argued), San Francisco, Cal., for plaintiff-appellant.

Elias D. Bardis (argued), Dept. of Public Works, Sacramento, Cal., Glen R. Goodsell, Atty. (argued), Dept. of Justice, Washington, D. C., for defendants-appellees.


Before DUNIWAY, INGRAHAM, * and WALLACE, Circuit Judges.

DUNIWAY, Circuit Judge:

This appeal relates to a proposed freeway interchange, the Kidwell Interchange, planned by the Division of Highways of the California Department of Public Works (CDHW) and being built with the help of federal money provided under the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. The project site is on Interstate Highway 80, between three and four miles south of the plaintiff-appellant City of Davis and roughly the same distance north of the City of Dixon, an intervening defendant-appellee. On October 24, 1972, after work had begun, Davis sought from the district court an injunction against the construction on the grounds that the defendants CDHW and the Federal Highway Administration (FHWA) had failed to hold public hearings as required by 23 U.S.C. § 128

Page 666

and regulations promulgated thereunder (23 C.F.R. Part 790 (1974)) 1 and, further, that FHWA and CDHW had failed to prepare and file, respectively, an environmental impact statement (EIS), required by § 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), and an environmental impact report (EIR) required by the California Environmental Quality Act of 1970 (CEQA), Cal.Pub.Resources Code § 21100.

Both sides having moved for summary judgment, the district court, in August 1973, held that the defendants had not complied with 23 U.S.C. § 128 but that Davis lacked standing to maintain the claims based upon NEPA and CEQA. Accordingly the court dismissed the NEPA and CEQA claims and entered a preliminary injunction suspending work on the Kidwell Interchange pending satisfaction of the requirements of § 128.

On October 2-3, 1973, two "design public hearings" were held, one in Dixon and one in Davis. CDHW then prepared the required "design study report" 2 (DSR) and forwarded it, together with the public hearing transcript (see 23 U.S.C. § 128(b)), to FHWA with a request for "design approval," which FHWA granted on January 11, 1974. On CDHW's motion, the district court on May 8, 1974, dissolved the preliminary injunction. It is from that order, and from the earlier ruling on Davis' standing under NEPA and CEQA, that Davis now appeals. We reverse on both points. We also hold that an impact statement fully complying with NEPA and CEQA must be prepared and made available to the public in advance of any new § 128 hearing. 3


A. The Kidwell Project.

The segment of I-80 on which the Kidwell Interchange is being built traverses from the southwest to the northeast a large tract of producing agricultural acreage (the Kidwell area) that lies between Dixon and Davis. Dixon, the project site, and the entire Kidwell area are in Solano County; Davis and most of the Davis campus of the University of California (U.C. Davis), which lies between the Kidwell area and Davis proper, are in Yolo County. Separating U.C. Davis from the Kidwell area, and roughly perpendicular to I-80, is the South Fork of Putah Creek.

To reach Davis and other points north and east from the Kidwell area, motorists must cross Putah Creek on I-80. At present there is no access to I-80 between the Pedrick Road Interchange, one and one-half miles southwest of the Kidwell project, and Putah Creek, slightly more than a mile to the northeast of the project. State Route 113 diverges

Page 667

from I-80 right at the creek and leads into Davis, but there is no access to this exit exceptfrom I-80. Thus, the only present means of getting to I-80 from the Kidwell area, other than Pedrick Road, is via a temporary access opening at grade, slightly northeast of the Kidwell project site. High speed traffic and the absence of conventional ramps makes exit and entry via this opening quite hazardous.

The avowed purpose of the Kidwell Interchange and its network of frontage roads is to replace this temporary access, which soon must be closed to meet Interstate System safety standards. If the interchange is not completed, additional frontage roads will have to be constructed to connect property adjacent to I-80 with the Pedrick Road Interchange. This alternative would require some property owners to drive south to the Pedrick Road Interchange, turn around, and drive back to reach Davis. Understandably the circuity of this route upsets some of these people. Yet the number of people that would be so affected is very small, for almost all of the Kidwell area is lightly populated agricultural land. There are so few people that Solano County has not yet seen fit to build the road to be called Kidwell Road, which the interchange is supposed to connect to I-80. Thus, the "Kidwell Interchange," to be built, say the defendants, at a cost of $519,000, will upon completion serve only one avowed purpose: providing slightly more convenient freeway access to a handful of local motorists. 4

The explanation for this curious state of affairs is unmistakable and rather simple: the "Kidwell Interchange" is not being built to meet the existing demand for freeway access but to stimulate and service future industrial development in the Kidwell area which Solano County and the City of Dixon are now planning. 5 Although the entire area is now zoned agricultural, the 1963 Dixon Area General Plan shows a narrow 2120 acre tract between I-80 and the nearly parallel tracks of the Southern Pacific Railroad to the southeast as a "General Industrial Reserve." This tract borders I-80 for almost five miles and extends from the current Dixon City limits to Putah Creek. On the northwest side of I-80 is a 1320 acre tract, triangular in shape, shown on the Dixon General Plan as a "Limited Industrial Reserve." This tract is bounded by Putah Creek and U.C. Davis

Page 668

on the north and Pedrick Road on the west. As far as we know there are no immediate plans to rezone, but the Solano County Industrial Development Agency (SCIDA) has already begun to promote a 150 acre "University Research Park" to be located in the Limited Industrial Reserve and very near the proposed interchange.

Obviously the major attraction for the research and high technology concerns that SCIDA hopes to attract is the park's proximity to U.C. Davis. Unless the Kidwell Interchange is completed, the only access to the park will be by frontage road and the Pedrick Road Interchange; thus, the travel distance to the University would be approximately doubled. Also, affidavits submitted by Davis suggest that the absence of an interchange would substantially increase accessibility costs for potential tenants, thereby making the Kidwell area significantly less attractive as an industrial site. Lack of nearby freeway access would probably also dampen SCIDA's plans for the other side of I-80. These plans, apparently not so far along as the "University Research Park," call for encouraging the location of canneries and other food processing plants in the General Industrial Reserve. The importance of trucking in the food processing industry suggests that accessibility costs would be an important factor in plant site selection.

B. History of the Project.

For purposes of federal funding approvals, the Kidwell Interchange was originally made part of a construction project encompassing the widening of a 2.4 mile segment of I-80. The widening, which has now been completed, was necessary to upgrade the segment to full freeway status. CDHW secured federal approval for the basic design features 6 of this freeway segment on February 18, 1958, but at that time the plans did not include the interchange. Eight months later, on October 21, 1958, CDHW and Solano County executed a "freeway agreement," required by state law because the project necessitated elimination of property owners' at-grade access to the then U.S. 40. The agreement only obligated the state to replace the existing access with parallel frontage roads connecting adjacent land with the Pedrick Road Interchange.

Owners of some of this property were disturbed by the proposed elimination of their access and complained to the county, which agreed to reopen the access question with CDHW. The outcome of renewed negotiations, say the defendants, was an "agreement in principle" in 1962 between FHWA, CDHW and Solano County that an interchange would be built somewhere between Pedrick Road and Putah Creek. If indeed there was such an agreement it was shortlived, for when FHWA advised CDHW that full federal funding would not be provided for the additional work, CDHW refused to execute a revised freeway agreement obligating it to construct the interchange. Thus, despite the fact that the 1963 Dixon General Plan clearly contemplated an interchange in the Kidwell area, it was not until July 7, 1970, that the county and CDHW signed a revised freeway agreement providing for the Kidwell project. FHWA had evidently changed its position on federal money by that time, but neither the exact date nor the reasons for this reversal are clear from the record. We do know that FHWA granted "basic design approval" to the project in the middle of 1969, but quickly withdrew it when it became clear that the state and county did not plan to create "Kidwell Road" before or contemporaneously with construction of the interchange. The stated reason for the withdrawal was that unless Kidwell

Page 669

Road was built traffic would be insufficient to justify the project. 7

In any event, is seems clear that FHWA did agree to...

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