Joseph v. Adams

• Decision Date: 27 April 1978
• Docket Number: Civ. A. No. 76-40076.
• Citation: 467 F. Supp. 141
• Parties: Ronald L. JOSEPH and Betty Joseph, Plaintiffs, v. Brock ADAMS, Secretary, U. S. Department of Transportation, David A. Merchant, Region V Division Administrator, U. S. Department of Transportation, and John P. Woodford, Michigan Director of State Highways and Transportation, Defendants.
• Court: U.S. District Court — Western District of Michigan

467 F. Supp. 141

Ronald L. JOSEPH and Betty Joseph, Plaintiffs, v. Brock ADAMS, Secretary, U. S. Department of Transportation, David A. Merchant, Region V Division Administrator, U. S. Department of Transportation, and John P. Woodford, Michigan Director of State Highways and Transportation, Defendants.

Civ. A. No. 76-40076.

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

April 27, 1978.

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Patrick H. Hynes, Flint, Mich., Peter W. Steketee, Grand Rapids, Mich., Ronald L. Joseph, Flint, Mich., for plaintiffs.

Frank Kelley, Atty. Gen., Janis Meija, Francis J. Carrier, Asst. Attys. Gen., Lansing, Mich., Harold A. Johnson, Jr., Asst. U. S. Atty., Flint, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

On July 8, 1976, plaintiffs filed a complaint seeking a declaration of their rights with respect to, and to enjoin the construction of, the proposed extension of Dort Highway. Plaintiffs allege an environment impact statement (EIS), a document which considers in detail the environmental consequences of, and alternatives to, proposed major federal action which will significantly affect the environment, must be filed in compliance with Section 102(c)(2) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and public hearings must be held in compliance with the Federal Aid Highway Act (FHWA), 23 U.S.C. § 101 et seq. Plaintiffs also allege violations of the Michigan Environmental Protection Act, M.C.L.A. § 691.1201 et seq. and Michigan Executive Order 1974-4 and guidelines issued thereunder. Defendants moved to dismiss or, in the alternative, for summary judgment, for failure to state a claim on which relief can be granted and laches. In addition, the state defendants allege they are immune from suit under the Eleventh Amendment to the U. S. Constitution, lack of subject matter jurisdiction, and lack of standing of the plaintiffs to bring this action. Plaintiffs have cross-moved for summary judgment on the federal claims.

FACTUAL BACKGROUND

Dort Highway, a free access highway built in the 1940's and originally intended as an eastern bypass around Flint, Michigan, presently runs north into Flint from a point about one mile south of Saginaw Street and two miles east of I-475. Saginaw Street is a free access highway which runs northwest from I-75 through the City of Grand Blanc, a small community approximately three miles southeast of Flint, and into Flint. Dort Highway intersects Saginaw Street about 2.5 miles south of Flint. The southern terminus of I-475 is at I-75, about four miles south of Flint; I-475 does not provide access to the region south of I-75. I-75 runs northwest from Detroit and bypasses south and west around Flint.

At issue in this case is the proposed extension of Dort Highway south to I-75. The extension would be about 2.5 miles in length and consist of five contiguous lanes. The northern two-thirds of the extension would be free access, the southern third being limited access. The extension, consisting of all five lanes, would by contrast to I-475, run south from I-75 for about one-half mile and connect with McWain Road, a north-south, two-lane gravel road with its northern terminus near the point of the proposed connection.

The plaintiffs reside on McWain Road, approximately one-half mile south of the proposed connection. Although it appears that McWain Road would be paved if the extension is completed, the parties dispute whether the road would be widened to four lanes. About fifty vehicles per day presently use McWain Road.

The region south of I-75 is basically rural, consisting of primarily uncultivated farmland and several scattered wood lots. South of the proposed interchange, there are seven lakes over 100 acres in size. The trend in the land use in this area, however, is toward residential development.

This region is not directly connected to the region north of I-75. I-75 presently acts as a barrier and restricts the flow of traffic between the two regions. Traffic leaving the vicinity of existing Dort Highway and travelling south must "zig-zag" back and forth over several roads to reach the area south of I-75. Further, traffic south of I-75 cannot enter I-75 or proceed northerly conveniently.

This pattern of uncultivated farm land and single-family dwellings also characterizes the region surrounding the southern two-thirds of the proposed extension. The Oakhill subdivision lies to the immediate northwest of the proposed interchange; two other subdivisions lie on either side of the proposed extension and north of Oakhill. There are several wetlands and wood lots in the area.

The vicinity surrounding the northern third of the proposed extension consists of commercial and industrial development; a General Motors factory lies at the northern terminus of the proposed extension. Several residences line existing Dort Highway immediately north of the proposed extension.

A hearing was held on the proposed extension on November 21, 1966 by the Michigan Department of State Highways (MDSH) for the purpose of seeking federal funding of the project. On December 12, 1966, the U.S. Bureau of Public Roads approved the project for "further development of design"; on May 26, 1967 acknowledged to the MDSH that the public hearing was held in compliance with federal funding requirements; and on January 15, 1970 approved the acquisition of right of ways for the project.

Except for the acquisition of the necessary right of ways, the project was dormant until the fall of 1975. At that time, defendants issued a draft Negative Declaration (ND), a mini-EIS which concludes, after a limited study of the environmental consequences, that proposed federal action will not significantly affect the environment and, therefore, no EIS is required. On October 15, 1975, and April 20, 1976, the MDSH conducted public hearings for the purpose of discussing the contents of the draft ND. Further, on December 2, 1975, the MSHD held a meeting with residents of Oakhill subdivision and the plaintiff, at which the need, environmental impact, and safety of the project were discussed. The general public was not notified of this meeting. On July 26, 1976, a final ND was issued. Final approval of federal funding for the interchange was granted on September 30, 1976 and, for the remainder of the project, on March 14, 1978.

On its face, the ND indicates the project will affect the environment in several respects:

1) Noise: The ND states the extension will inject traffic into an area not currently subject to traffic noise and that homes along existing Dort Highway will have their noise levels increased;

2) Aesthetics: A wood lot in the area of the proposed interchange would be lost, "the open grassy land" will be converted to a five-lane roadway, vegetation in a wetland south of the General Motors plant would be removed, and existing topography features will unavoidably be altered by grading and cut and fill activities;

3) Farmland: Uncultivated farmland within the purchased right of way would be lost;

4) Drainage: Due to the sealing of previously unsealed areas, the rate of runoff will be significantly increased, necessitating significant compensatory measures, including the use of existing wetlands, installation of flat equalizer culverts, and the creation of retention ponds. Further, ground water levels and flows may be disturbed or reduced due to decreased infiltration of water into the ground;

5) Soil Erosion: The removal of natural ground cover increases the potential for erosion rapidly;

6) Wildlife: The project will remove eight acres of mature hardwoods, four acres of shrubby cut-over woodlot, and thirty-one acres of wetland. Although no rare or endangered species will be affected, these areas do include a noticeable population of cottontail rabbits and muskrats, as well as fox, squirrel, racoon, ringnecked pheasant, woodchuck, mallard, black ducks, bluewinged teal, hawks, owls, songbirds and small mammals;

7) Recreational Areas: Better access to the lakes south of I-75 may induce an increase in recreational usage of that area;

8) Traffic: New traffic, a significant portion of which will consist of trucks, will be introduced into a virgin area south of existing Dort Highway, and the ND concedes this to be an "adverse impact." The ND also indicates that traffic will increase in the area south of the proposed interchange because of traffic exiting off I-75, as well as local traffic using direct access between the regions north and south of I-75;

9) Secondary Effects: New development may occur along the extension, as well as in the area south of I-75, because of improved access to the Flint metropolitan area. The ND states that developers may already own land because the proposal has been known for some time. The ND, however, as plaintiffs point out, does not describe what impact this development may have on wildlife, wetlands, and land use in the area affected;

10) Safety: Residents along Dort Highway will have difficulty exiting and entering the road due to increased traffic volume, especially during shift changes at the General Motors plant.

In addition to the environmental impacts described above, the ND also considers several alternatives to the project. Two alternatives were rejected in part for their failure to provide access to the area south of I-75. In addition to the foregoing reason, the "do-nothing" alternative was rejected because the project was needed to provide a bypass around Grand Blanc for traffic entering and exiting Flint via Dort Highway. The selected alternative was chosen not only because it was least costly of the full interchanges and minimized displacement of families, but because "it helps promote growth of the area south of I-75 by providing local access".

JURISDICTION

The court clearly has subject matter jurisdiction in this case under...