Collin County, Tex. v. HOMEOWNERS ASS'N (HAVEN)

Decision Date30 June 1989
Docket NumberCiv. A. No. CA3-84-0376-D.
Citation716 F. Supp. 953
PartiesCOLLIN COUNTY, TEXAS, et al., Plaintiffs, v. HOMEOWNERS ASSOCIATION FOR VALUES ESSENTIAL TO NEIGHBORHOODS (HAVEN), et al., Defendants.
CourtU.S. District Court — Northern District of Texas

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Thomas W. Luce, III, David Bryant (argued), R. Matthew Molash (argued), and John E. Castaneda, of Hughes & Luce, Dallas, Tex., for Collin County, Texas and as representative of the plaintiff's group consisting of the City of Dallas, Tex., City of Garland, Tex., City of Plano, Tex., and City of Richardson, Tex.

Patrick R. Cowlishaw (argued) of Cohan, Simpson, Cowlishaw, Aranza & Wulff, Dallas, Tex., for City of Carrollton, Tex.

David Frederick (argued) of Law Office of David Frederick, Austin, Tex., and Mary E. Kelly of Henry, Kelly and Bunch, Austin, Tex., for HAVEN.

Marvin Collins, U.S. Atty. and Mary Ann Moore, Asst. U.S. Atty., Dallas, Tex., for Federal defendants.

Rodney D. Parrott, Asst. Atty. Gen., Highway Div., Austin, Tex., for State defendants.

MEMORANDUM OPINION AND ORDER

FITZWATER, District Judge.

In this action to obtain a judgment declaring that a final environmental impact statement ("FEIS") for a state highway complies with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the court must decide whether a declaratory judgment action may properly be maintained and whether the FEIS was adopted in accordance with the appropriate procedure. Answering both questions in the affirmative, the court grants plaintiffs' motion for summary judgment and denies the cross-motion of an organization that opposes construction of a segment of the highway.

I.

In a prior reported opinion, Collin County, Texas v. Homeowners Ass'n for Values Essential to Neighborhoods (HAVEN), 654 F.Supp. 943 (N.D.Tex.1987) ("HAVEN I"), the court has recounted much of the background facts and procedural history of this action. The court reiterates here certain of the reported facts from HAVEN I and additional background and procedural facts that are necessary to place in context today's decision.

Plaintiff, Collin County, Texas ("Collin County"), filed this action1 in 1984 to obtain a declaratory judgment that the FEIS for proposed Texas State Highway 190 ("SH 190") is sufficient. HAVEN I, 654 F.Supp. at 945. It sued as nominal defendants several surrounding cities and federal and state agencies. Collin County also sued defendant, Homeowners Association for Values Essential to Neighborhoods (HAVEN) ("HAVEN"),2 requesting as contingent relief that, if the FEIS were found sufficient, HAVEN be enjoined from interfering with construction of the highway. At the time HAVEN I was decided, the cities of Dallas and Garland, Texas had been realigned as plaintiffs. Id. n. 2. Today, the cities of Plano, Richardson, and Carrollton, Texas, and Denton County, Texas, have also been realigned as plaintiffs.3

State Highway 190 is a planned major east-west controlled access highway to run between Interstate Highway 35E on the west and State Highway 78 on the east. HAVEN I, 654 F.Supp. at 946. The highway will traverse portions of the cities of Carrollton, Richardson, Plano, and Dallas, terminating in Garland, Texas.

The concept of a major east-west highway in northern Dallas County dates back to a 1964 study of future Dallas County transportation requirements entitled, "Dallas County Development in Outer Loop Highway Needs." What is now designated as SH 190 was the northern segment of proposed Loop 9, which was intended to encircle Dallas County.4 The proposed loop was studied in 1970. At a public hearing, City of Carrollton representatives — including the Mayor and City Planner — supported Loop 9 but requested that the highway be moved farther north to coincide with Carrollton's own planning for the Loop's location. City of Richardson residents vigorously opposed the proposed route, suggesting that the Texas State Department of Highways and Public Transportation ("DHPT") consider a more northern route that would serve Collin, Denton, and Dallas County residents.

Following the public hearing, a multi-discipline team completely restudied and reevaluated the location and design of the route. This team thereafter recommended a principal urban arterial street (4-6 lane thoroughfare), coupled with another freeway to the north which would extend well into Collin and Denton Counties. This proposal was rejected following citizen and agency input. Ultimately, the Loop 9 project was abandoned, primarily due to funding difficulties.

Nevertheless, in 1977, because of the importance of the northern part of Loop 9 and the apparent inability to proceed with Loop 9 as a unitary project, the DHPT authorized the development of the northern sector of Loop 9 as SH 190. The DHPT authorized construction of the highway from State Highway 78 on the east to Interstate Highway 35E on the west and allocated $6 million for the initial phase of construction. Later in 1977 the Department approved $12.8 million to begin right-of-way acquisition and an additional $200,000 for relocation costs. In 1978 the DHPT preliminarily approved a route for SH 190 (Route F) that was later rejected in favor of the route ultimately adopted. The preliminary approval was not the equivalent of a predetermined route for SH 190. In 1979 the DHPT stated that the route and design of SH 190 would proceed in the most feasible and economic manner and in accordance with departmental policies and the DHPT 20-year project development and control plan.

In early 1980 the DHPT notified the Federal Highway Administration ("FHWA") of its intention to prepare a draft environmental impact statement ("draft EIS") for SH 190. Such a statement was necessary because the highway will be paid for in part with federal funds and is a "major Federal action" within the meaning of NEPA. See 42 U.S.C. § 4332(2)(C). The FHWA published in the Federal Register a notice of intent to prepare the draft EIS. The DHPT also issued a "20 Year Project Development and Control Plan" and allocated an additional $139.7 million for the SH 190 project. The draft EIS was thereafter prepared by DHPT and was transmitted in December 1981 to affected local governmental entities in order to obtain their review and comments. The draft EIS addressed seven alternative route locations (Routes A-F and F')5 and a "no build" alternative. It also addressed several connector combinations and two different designs.

In 1982 the Environmental Protection Agency ("EPA") determined that the draft EIS met the requirements for filing under Council for Environmental Quality ("CEQ") regulations. The notice of availability of the draft EIS was then published in the Federal Register. The DHPT received detailed comments on the draft EIS from the EPA, the U.S. Department of the Interior ("DOI"), and the Texas Historical Commission ("THC").

The DHPT thereafter issued a notice of public hearing concerning the combined route and design. Legal notices appeared in March and April 1982 in the principal Dallas and suburban newspapers of general circulation. The public hearing was conducted on April 29, 1982. The comments of affected governmental entities, and of the majority of citizens present, were favorable. Carrollton homeowners located near the proposed route presented mixed comments. Most urged a more northern route; others suggested a depressed roadway. The Mayor of Carrollton expressed the City Council's support for Route F', although he also agreed with positions taken by certain homeowners, including depressing the roadway.

At approximately the time of the public hearing, the Carrollton homeowners formed organizations for the sole stated purpose of preventing the construction of SH 190 along proposed Route F'. Homeowners residing along Trinity Mills Road formed "Citizens United to Relocate Vehicular Expressway" ("CURVE");6 another group, "Favorable Access to Carrollton Transportation System," also formed.

As noted, the draft EIS examined seven alternative routes. In response to the opposition to Route F', the FHWA and the DHPT studied two more routes, Routes G and J, and analyzed these routes in the FEIS. Routes G and J addressed the concerns of Carrollton homeowners. The FEIS modified the proposed design of Route F' through part of Carrollton to ameliorate concerns raised by area residents. Specifically, the FEIS proposed depressing SH 190 between Old Denton Road and Kelly-Springfield Road in Carrollton to provide a continuous "wall" to abate noise. Routes G and J were found to be unsatisfactory, however, primarily because they benefited a smaller group of people at significant added cost. A major focus of the FEIS is the comparison and evaluation of alternative Routes G and J with Route F'.7

The attempts at redesign did not placate CURVE. In the Spring 1983 municipal elections, CURVE supported a slate of candidates opposed to the alignment. Most of the slate was elected. The new Carrollton City Council withdrew Carrollton's endorsement of Route F' and requested a more northern corridor.

After almost one year of further study and work to address the additional comments received on the draft EIS, the DHPT submitted advance copies of the FEIS — which recommended Route F' — to the FHWA for comment.8 The FEIS was revised to satisfy various concerns raised by the FHWA and Carrollton homeowners. In particular, the FEIS modified the proposed design of Route F' through part of the Carrollton area. The FEIS was thereafter approved by the Texas Highway and Public Transportation Commission and delivered to the FHWA. Following final circulation, the FHWA gave its approval in January 1984.

A number of citizens formed HAVEN in order to raise money for a possible legal challenge to SH 190. HAVEN's president and its lawyer indicated publicly that, if SH 190 were approved, litigation would ensue. HAVEN's newsletters also made clear...

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