Hill v. Coleman, Civ. A. No. 4499.

• Decision Date: 18 July 1975
• Docket Number: Civ. A. No. 4499.
• Citation: 399 F. Supp. 194
• Parties: Roland E. HILL et al., Plaintiffs, v. William T. COLEMAN, Jr., as Secretary of Transportation of the United States of America, et al., Defendants.
• Court: U.S. District Court — District of Delaware

399 F. Supp. 194

Roland E. HILL et al., Plaintiffs, v. William T. COLEMAN, Jr., as Secretary of Transportation of the United States of America, et al., Defendants.

Civ. A. No. 4499.

United States District Court, D. Delaware.

July 18, 1975.

Thomas Herlihy, Jr. and Morris Cohen, of Herlihy & Herlihy, Wilmington, Del., for plaintiffs.

Alan J. Hoffman, Asst. U. S. Atty., Wilmington, Del., and Francis J. Locke, Regional Counsel, Regional Federal Highway Administrator, Dept. of Transportation, Baltimore, Md., for defendant Coleman, Jr.

Johanna D. Drooz Yoffie, Deputy Atty. Gen., Wilmington, Del., for defendants Hall, Haber, Davidson and Bewick, Jr.

Joseph M. Bernstein, Asst. County Atty., for New Castle County, Wilmington, Del., for defendant Peterson.

OPINION

LATCHUM, Chief Judge.

On October 25, 1972 plaintiffs¹ filed this action against the Secretary of Transportation of the United States² and against the Secretary of the Department of Highways and Transportation of the State of Delaware³ in order to contest⁴ the proposed construction of a highway facility known as the "Newark Beltway." Count I of the complaint alleged that Secretary Volpe had approved the location of the proposed Beltway and would authorize the release of federal funds despite the fact that he and defendant Mearns, as well as their respective subordinates, had not complied with all of the necessary prerequisites to "location approval" mandated by the National Environmental Policy Act of 1969 (NEPA), the Department of Transportation Act of 1966, the Federal-Aid Highway Act of 1968, and pertinent regulations thereunder.

Count II alleged that rights of way for the proposed Newark Beltway having been established, the value of plaintiffs' real estate had depreciated, first, because of uncertainty as to when construction would begin and, second, because "under the provisions of the Delaware Code and statutes" in the interim period before construction plaintiffs would be unable (1) to secure building permits in order to improve their properties or (2) to take any other action which would infringe on the proposed rights of way.

Counts III and IV alleged that construction of the proposed Newark Beltway through Christine Manor would cause the formation of a new flood plain and would irreparably diminish the market value of seven homes by $266,000.00 because of the destruction of irreplaceable septic systems and water wells. Finally, Count V alleged that the state had violated plaintiffs' procedural and substantive due process rights, in addition to United States Department of Transportation procedures, by failing to inform the Christine Manor Civic Association of state requests for federal aid for the construction of projects in the Christine Manor area.

As their relief, plaintiffs requested (1) a preliminary injunction enjoining both defendants "from proceeding further with the location of the Newark Beltway . . ." and from "approving, granting or using" any federal funds for the Beltway, (2) a declaratory judgment that the location of the Beltway "as presently proposed" "would be in violation of the constitutional, statutory, and common law rights of plaintiffs" and in violation of several statutes,⁵ (3) a permanent injunction of the same scope as the preliminary injunction, and (4) judgment "directing defendants to withdraw and cancel any and all approvals of the location of the Newark Beltway project and from granting any approval in the future."

Secretary Volpe answered Count I of the complaint by specifically denying that he had given location approval to the Newark Beltway; he also asserted as one of his affirmative defenses that the plaintiffs' action against him was premature. Secretary Mearns answered Count I by denying that location approval had been given and asserted as an affirmative defense that the action was premature. Secretary Volpe's successor in office, Claude S. Brinegar,⁶ subsequently filed a motion for summary judgment or in the alternative a motion to dismiss the complaint with respect to him on the grounds that there was no federal subject matter jurisdiction of the case and that the complaint was premature because the appropriate federal officials had not granted location approval for the Newark Beltway.⁷

Before the Court could rule on this motion, on March 15, 1973 counsel for plaintiffs belatedly informed it that Count II of the complaint was an attempt to articulate the allegation that 17 Del.C. § 147 violated the Fifth and Fourteenth Amendments of the United States Constitution because the statute purportedly operated to take plaintiffs' property without just compensation. Plaintiffs' counsel also asserted that they were requesting injunctive relief on this basis. Consequently, the Court granted plaintiffs leave to amend in order to clarify the allegations contained in Count II of the complaint and any other portion thereof.⁸

Plaintiffs did amend their complaint⁹ and a three judge court was then ordered convened pursuant to 28 U.S.C. §§ 2281 and 2284.¹⁰ The parties stipulated, with the approval of the Court, that briefing and oral argument with regard to any outstanding motions to dismiss and/or for summary judgment¹¹ would be postponed until after the three judge district court rendered its decision on the issue of the constitutionality of 17 Del.C. § 147.

On April 8, 1974 the three judge district court issued its opinion and order¹² in which it abstained from passing on the constitutionality of the Delaware statute but retained jurisdiction pending plaintiffs' pursuit of their remedy in the Delaware state courts afforded by 10 Del.C. § 6501, and ordered other issues raised by plaintiffs in their complaint to be disposed of by a single judge. Secretary Brinegar filed a renewed motion to dismiss the action against him and/or for summary judgment.¹³ The state defendants also filed a renewed motion for summary judgment.¹⁴ Following extensive briefing¹⁵ and submission of numerous supporting affidavits and exhibits, the Court heard oral argument on May 8, 1975, and having given the parties a final opportunity to submit briefs, affidavits and any other documentation, the Court is now ready to rule on the outstanding motions.¹⁶

I.

Defendants have moved for summary judgment on Counts I, III, IV and V of the complaint¹⁷ as amended asserting that since the proposed road known as the Newark Beltway is not an undertaking of the federal government, the amended complaint fails to state a claim for declaratory or injunctive relief against them based upon 23 U.S.C. § 128,¹⁸ 23 U.S.C. § 109(j),¹⁹ 42 U.S.C. § 4332,²⁰ 49 U.S.C. § 1653(f)²¹ and 23 U.S.C. § 138.²²

Plaintiffs oppose the motions for summary judgment on two grounds. Their first, and primary, contention is that the amended complaint states a claim for relief under the aforementioned statutes because of the actions taken by former United States Secretary of Transportation Brinegar, his predecessors in office, and other federal officials with regard to the proposed Newark Beltway pursuant to the Federal Aid Highway Act. The Court will discuss briefly the relevant portions of the Act²³ before examining the record in this case to evaluate plaintiffs' first contention.

Responsibility for the administration of the Federal Aid Highway Act is lodged with the Federal Highway Administration ("FHWA"),²⁴ and currently there are four separate "approvals" which a state²⁵ must obtain from the FHWA before it may be reimbursed under the Act for highway construction expenses. These are (1) "program approval," (2) "location approval," (3) "design approval," and (4) "`P, S & E' approval."

"Program approval" involves cursory review by the FHWA of a "transportation program" that has been developed by a state highway department.²⁶ A "transportation program" is simply a study projecting expected future regional transportation needs, identifying numerous broadly aligned transportation corridors which could accommodate those needs, and perhaps suggesting that a highway could be constructed within one or more corridors. Since 1962 state highway departments have been delegating the major responsibility for devising "transportation programs" for urban areas of over 50,000 population to FHWA-funded local "metropolitan planning organizations" ("MPO") which continuously evaluate the future transportation needs of such areas using sophisticated computer processes.²⁷ The state highway department does receive funds directly from the FHWA for distribution to MPOs in the state, but its acceptance of such money does not obligate it to submit to the FHWA for possible "program approval" any "transportation program" that is proposed by a MPO.

After obtaining FHWA "program approval," the state highway department may decide to study further on its own²⁸ the possibility of building a particular highway that is suggested by a transportation corridor in the "program." If so and if at the same time the state highway department concludes that it does not want to preserve the possible option to receive reimbursement under the Act for appropriate future highway construction expenses²⁹ it is at least free to select an approximate highway route or location on the basis of pure engineering standards or other criteria mandated by state law, this selection process to be conducted in any manner that the state highway department chooses. But if the state highway department decides to preserve the possible option to receive reimbursement under the Act for appropriate future highway expenses, it must follow (at its own expense) certain FHWA required procedures which inter alia afford the public as well as other state and federal agencies the opportunity to provide input regarding the wisdom of building a highway vis-a-vis building other forms of transportation or of doing nothing at all, plus the opportunity to identify and comment upon the probable environmental, social, and economic consequences of several...