Concerned Citizens Alliance, Inc. v. Slater, 98-7462

Citation176 F.3d 686
Decision Date14 May 1999
Docket NumberNo. 98-7462,98-7462
PartiesCONCERNED CITIZENS ALLIANCE, INC.; Joseph Krempasky, Appellants, v. Rodney SLATER, Secretary, U.S. Department of Transportation; Kenneth R. Wykle, Administrator, Federal Highway Administration; Bradley L. Mallory, Secretary, Pennsylvania Department of Transportation.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Andrea C. Ferster (Argued), Washington, DC, for Appellants.

Paul W. Edmondson, General Counsel, Elizabeth S. Merritt (Argued), Associate General Counsel, Laura S. Nelson, Assistant General Counsel, National Trust for Historic Preservation, Washington, DC, for Amici Curiae.

David Barasch, U.S. Atty., Dulce Donovan, (Argued) Asst. U.S. Attorney, Harrisburg, PA, Paul A. Tufano, General Counsel, John M. Hrubovcak, Assistant Counsel, Robert J. Shea, Assistant Chief Counsel, Andrew S. Gordon, Chief Counsel Commonwealth of Pennsylvania, Department of Transportation, Office of Chief Counsel, Harrisburg, PA, for Appellees.

Before: BECKER, Chief Judge, McKEE, Circuit Judge, LEE, District Judge. *

OPINION OF THE COURT

BECKER, Chief Judge.

Highways and historic districts mix like oil and water, and when a new highway must go through an historic area, historic preservationists and federal and state highway officials are likely to clash over the preferred route. Such controversies take on a legal cast as the result of Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c)(2) (amended by and codified at 23 U.S.C. § 138), which provides:

[T]he Secretary [of Transportation] shall not approve any program or project ... which requires the use of any ... land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such ... historic site resulting from such use.

Id.

The situs of the present controversy is Danville, Pennsylvania, a picturesque county seat overlooking the Susquehanna River. Danville, which contains an historic district that was nominated to the National Register of Historic Places in 1994, is joined with Riverside, the town across the river, by a deteriorating bridge. In the early 1980s, federal and state agencies decided that the bridge had to be replaced. The plaintiffs, Danville area residents who formed the Concerned Citizens Alliance, sued the U.S. Department of Transportation, the Federal Highway Administration ("FHWA"), and the Pennsylvania Department of Transportation ("PennDoT") in the District Court over the defendants' selection of a bridge alignment that would send traffic through Danville along Factory Street after it exited the new bridge.

The plaintiffs contend that the defendants failed to comply with the requirements of Section 4(f)(2) by arbitrarily and capriciously selecting the Factory Street Underpass alignment as the preferred alternative. The plaintiffs also submit that the defendants ignored the conclusion of the Advisory Council on Historic Preservation ("ACHP") that the Mill Street alternative would minimize harm to the Danville Historic District. Although both alternatives pass through the Historic District, plaintiffs maintain that the defendants failed to adequately support their conclusion that the Underpass alternative was preferable. Additionally, the plaintiffs allege that the defendants violated both Section 4(f) and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by failing to evaluate in detail an alternative that would include, in addition to rebuilding the current bridge, building a second bridge upstream to allow traffic to reach the nearby connection to Interstate 80 without going through the center of Danville. The District Court granted summary judgment for the defendants on all grounds, and this appeal followed.

We devote our attention to three critical issues. First, we consider the level of deference the FHWA owes to the ACHP, which is an expert agency created to comment on federally assisted projects involving historic properties, and whether the appropriate deference was given. Second, we evaluate whether the defendants acted arbitrarily in concluding that the Factory Street Underpass alternative would inflict the least amount of harm on the Historic District. Third, we determine whether the defendants violated NEPA. We conclude that, although the views of the ACHP are entitled to deference, the ACHP cannot mandate a particular outcome. Rather, we must carefully review the record to assure that the views of the ACHP were in fact considered and any concerns it raised were answered. We also conclude, based on the entire administrative record, that they were, and that the defendants did not act arbitrarily or capriciously in selecting the Factory Street Underpass alternative. Finally, we agree with the District Court that the plaintiffs' NEPA claim is without merit. We therefore will affirm the judgment of the District Court.

I. Facts and Procedural History

The Danville-Riverside Bridge carries Pennsylvania Route 54 across the Susquehanna and links Danville to Riverside. Route 54 (in the form of Mill Street) passes through the center of Danville and provides access to Interstate 80 a few miles northwest of Danville. In 1983, defendants FHWA and PennDoT decided to replace the old Danville-Riverside Bridge, which was becoming unsafe.

Some twelve options were put on the table. The alternatives relevant to this appeal included the "No-Build" alternative, the Mill Street alternative ("MS alternative"), the Factory Street At-Grade alternative ("FSAG alternative"), the Factory Street Underpass alternative ("FSU alternative"), and the Mill Street plus Bypass alternative ("MS&B alternative"). Originally, the goal of the bridge replacement project was just that: to replace the bridge. Therefore, the FHWA initially refused to consider the MS&B alternative, since it involved not only replacing the existing Danville-Riverside Bridge but also building another bridge 1.2 miles upstream to siphon off "through" traffic to reduce the number of cars and trucks passing through Danville's Historic District. However, Mill Street, on which many shops and businesses are located, is the main commercial street in the district, and in response to comments from the Mill Street business community, the FHWA broadened the stated purpose of the project to include reducing traffic congestion to restore the economic health of Mill Street. The MS&B alternative was therefore placed on the table, although it never received detailed evaluation.

The Evaluation of Project Need listed twenty objectives that the bridge replacement project was to fulfill. These included replacing the deteriorating bridge; minimizing vehicle delay and traffic congestion on Mill Street; maintaining a link between Danville and Riverside through the year 2013; managing traffic congestion on Factory Street; restoring the Mill Street neighborhood, quality of life, and business district; and minimizing pedestrians' exposure to traffic.

Importantly, both Mill Street and Factory Street are in the Historic District. The Final Environmental Impact Statement ("FEIS") describes the collection of commercial, civic, and residential structures along Mill Street as dating "from the mid-nineteenth century to the early twentieth. The two and three story buildings are predominantly Italianate in style with features including blind arches, corbelling, bracketed and highly decorative roof and storefront cornices, columns and window hoods." The FEIS also describes the buildings on West Market Street, a street linking Mill and Factory Streets: "A range of architectural styles are represented including Federal, Greek Revival, Italianate, Second Empire, Victorian Eclectic, Queen Anne, Shingle and Georgian Revival." Factory Street, which is a smaller street one block west of Mill Street, contains mostly residences--both historic and non-historic--and boasts "large, stately buildings" that were "the homes of Danville's wealthy industrialists who shaped the iron industry as well as the architectural character of the present day West Market Street neighborhood."

Currently, bridge traffic flows along Mill Street and travels the length of the Historic District, although to avoid the congestion, some traffic cuts west on West Market Street to access Factory Street, which eventually connects up with Route 54. The FSU alternative would realign traffic coming off the bridge on the Danville side by routing traffic down Factory Street and through a 345-foot "cut-and-cover" underpass that would begin between Front and Market Streets and end between Market and Mahoning Streets. The MS alternative would replace the bridge but maintain the current traffic flow along Mill Street. The FSAG alternative would simply route traffic onto and along Factory Street without directing traffic through an underpass.

In considering the various alternatives, the FHWA engaged in the requisite Section 4(f) and NEPA analyses. As we detail below, Section 4(f) requires the FHWA to ensure that there are "no prudent and feasible" alternatives that would avoid using historic properties, and, in the absence of a feasible alternative, to undertake "all possible planning to minimize harm" to the Danville Historic District. In performing its 4(f) analysis, the FHWA garnered input from the ACHP and the Pennsylvania Historical and Museum Commission ("PHMC"). Both historical groups notified the FHWA that they preferred the MS alternative. In a letter dated January 14, 1994, the ACHP complained that the FSU alternative, which was favored by FHWA and which included the underpass, would destroy vistas, landscaping, and pedestrian and vehicle circulation patterns, and would create an overwhelming visual intrusion in the form of large retaining...

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