Highland Co-op. v. City of Lansing, G79-53 C.A.

• Decision Date: 07 July 1980
• Docket Number: No. G79-53 C.A.,G79-53 C.A.
• Citation: 492 F. Supp. 1372
• Parties: HIGHLAND COOPERATIVE, Woodbridge Commons, Village Cooperative, Colonial Cooperative, et al., v. The CITY OF LANSING, the State of Michigan Department of Highways and Transportation, and The Federal Highway Administration.
• Court: U.S. District Court — Western District of Michigan

492 F. Supp. 1372

HIGHLAND COOPERATIVE, Woodbridge Commons, Village Cooperative, Colonial Cooperative, et al., v. The CITY OF LANSING, the State of Michigan Department of Highways and Transportation, and The Federal Highway Administration.

No. G79-53 C.A.

United States District Court, W. D. Michigan, S. D.

July 7, 1980.

COPYRIGHT MATERIAL OMITTED

John D. Pirich, Lansing, Mich., Gerald E. Rosen, Detroit, Mich., for plaintiffs.

Irena Kalvans, Asst. Atty. Gen., Stephen R. Sawyer, City Atty., Lansing, Mich., Janet T. Neff, Asst. U. S. Atty., Grand Rapids, Mich., for defendants.

OPINION

FOX, District Judge.

Plaintiffs, four cooperative housing associations and forty-two individual residents, filed suit seeking a preliminary injunction restraining further federal, state and local agency action in the proposed Edgewood Corridor Project which would create a four-lane boulevard bisecting their neighborhood. They request a full scale Environmental Impact Statement (EIS) be prepared and if the results of the EIS are such that the benefits of the project do not outweigh the detrimental environmental harm, and if less damaging alternatives are available, the Court issue a permanent injunction against defendants. Defendants have filed various motions to dismiss or, in the alternative, for summary judgment on the grounds that the Project is not a major federal action significantly affecting the human environment, and thus does not require the filing of an EIS under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq.

FACTUAL BACKGROUND

The proposed Edgewood Boulevard would run parallel to and slightly north of Interstate 96 on the south end of Lansing from South Cedar Street to Logan Street. This approximate two-mile long project would join together three existing segments creating a four-lane highway in a predominately residential area. First planned in 1964 when the land through which it passes was annexed to the City, it was intended that Edgewood Boulevard would serve as an east-west collector, and permit development of vacant land lying immediately to the north of Interstate 96 between South Logan and South Cedar Streets.

In 1974, the Lansing City Council authorized the development of the planned Edgewood Boulevard, and the project was approved for federal funding as a federal-aid highway in 1977. Pursuant to the requirements of 42 U.S.C. § 4332 and the rules and regulations promulgated thereunder, the proposed Edgewood Project was reviewed by the Department of State Highways and Transportation of the State of Michigan (MDSHT) and the Federal Highway Administration (FHWA) and, on April 6, 1977, it was determined that the Edgewood Boulevard project should be classified as a major action, but that the project would not have a significant impact on the human or natural environment of the area. Based upon that finding, it was further determined that only a Negative Declaration Statement (ND) would be required with regard to the Edgewood Boulevard Project.

The plaintiffs are four cooperative housing associations and forty-two individual residents of the area, and reside along the proposed boulevard. Currently, less than three thousand vehicles per day use Edgewood Boulevard, while the major freeway, I-96, lying less than one hundred yards to the south of the proposed project, carries approximately 20,000 vehicles per day over a comparable highway distance.

The majority of land use in the study area consists generally of single-family and multi-family residences. This area had a population of 5,576 persons in 1975, and is predominately residential. Four large areas of undeveloped land also exist in the project area. The Moore Living Center, a school for the physically and mentally handicapped, is located along the proposed project, and its residents presently use the woodlot east of the Center for nature trails.

A Draft ND was prepared in June 1977, and a Final ND was issued in April 1978. In a letter dated May 1, 1978 the State informed the City of Lansing that MDSHT in cooperation with the Federal Highway Administration (FHWA) had reviewed the ND and found it acceptable. On July 18, 1978, MDSHT, along with FHWA, granted location and design approval for the Edgewood Project, and on November 6, 1978, the FHWA granted program approval for the project. The FHWA authorized $120,000 in federal aid funds for title searches and appraisals, and the City entered into contracts totaling $54,763 for this work. Since the filing of this lawsuit, the City has withdrawn its request for all possible additional federal aid, and while they continue to remain eligible for such funding, the City intends to proceed with the acquisition of property utilizing only municipal funds. In a March 31, 1980 letter to MDSHT, the City stated they had budgeted funds to proceed with the acquisition of right-of-ways in July and August 1980, and it was their intent to follow federal regulations pertaining to all acquisition activities. In regards to the acquisition phase, the State warned on April 21, 1980 that although no federal funds would be used, all federal requirements had to be met, and the relocation plan had to be reviewed by MDSHT and submitted to FHWA for their approval.

On its face, the ND states the project will have probable unavoidable adverse impacts on the environment in several respects:

(1) Woodlots: The Project will result in the removal of existing vegetation, and the loss of lowlands, and swampy terrain.

(2) Wildlife: Loss of wildlife cover, resting places, protection of food sources, and reduction of already scarce primary vegetation will occur. Typical wildlife to be found in this area would include: doves, crows, hawks, songbirds and various waterfowl, cottontail rabbits, grey squirrels, skunks, opossums and racoons.

(3) Surface Water and Drainage: The ND indicates the following impacts will occur: (a) interruption of existing drainage patterns; (b) soil erosion; (c) increase in run-off; (d) injection of chemicals, particularly salts and oil into drainage ways and streams; and (e) reductions of water quality due to erosion.

(4) Landscape: The ND warns that "borrow pits" will be needed to supply fill materials for the highway, and suggests this unsightly result could be cured by turning them into sewage settling ponds.

(5) Air: It is inevitable that increasing automobile demands will add polluting elements to the air.

(6) Noise: The ND states that noise levels will be much higher after construction in the Highlands and Woodbridge Common Cooperatives, and along existing Edgewood Road.

(7) Social Relationships: The relocation of families displaced will have an immeasurable impact on the families and their social relationships in the area.

(8) Economic System: The extension of the Boulevard will add meaningful tax gain to local government from once vacant land, and the taking of some agricultural parcels.

In addition to these environmental impacts described above, the ND also considered several alternatives to the Project. A no-action alternative, while allowing residents the security of having no additional traffic, avoiding displacement of residents and families, and having less harm from an ecological standpoint, was rejected for failing to provide a continuous east-west street in the area as proposed in the City's Transportation Plan. An alternative of using the exit and entrance ramps to I-96 was not considered a viable alternative since the intent of the study was to develop an alignment for Edgewood Boulevard. Several alternative alignments for Edgewood Boulevard were considered. Alternative AB was selected as the best alternative when cost, volume-capacity, residential displacements, noise and air quality impacts, energy savings, social impact, and other factors were considered together. However, the ND noted that a total of sixteen single family residences will be displaced, increased traffic through the Cooperatives will inconvenience vehicular and pedestrian movement, and some woodlots would be lost.

Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires the preparation of a detailed Environmental Impact Statement (EIS) for ". . . every major Federal actions significantly affecting the quality of the human environment . . .." 42 U.S.C. § 4332. Thus, the issues presented in this case are, (1) whether the proposed action is a major federal action; (2) if so, does it significantly affect the quality of the human environment; and (3) whether the agency's threshold decision not to issue and prepare an EIS was reasonable.

MAJOR FEDERAL ACTION

It is agreed that the proposed improvement, as originally conceived, was a major federal action requiring the preparation of at least an ND. 23 C.F.R. § 771.10(d). This determination was made cooperatively with the FHWA and the guidelines provided in the Federal-Aid Highway Program Manual 7-7-2, and the use of the support material developed by the City of Lansing through its consultant. In a letter dated April 1, 1977 the Division Administrator of the FHWA concurred with local officials that the project was a major federal action, but one that did not significantly affect the quality of the human environment. Therefore, as originally envisioned, it is clear that Edgewood Boulevard Project was major federal action. Subsequently, the City has withdrawn its request for further federal aid, and defendants contend the project is no longer a "federal" action under NEPA. They assert this suit is mooted by failure to obtain federal funding for the first segment of the Edgewood Boulevard corridor.

Defendants charge that a plan cannot be said to be "federal" for the purposes of NEPA where the adoption of the plan in no way obligates the federal government, Atlanta Coalition on the Transportation Crisis, Inc. v. Atlanta Regional Commission, 599 F.2d 1333, 1347 (5th Cir. 1979), and here, there are no "irreversible...