Morningside-Lenox Park Association v. Volpe

• Decision Date: 12 November 1971
• Docket Number: Civ. A. No. 15237.
• Citation: 334 F. Supp. 132
• Parties: MORNINGSIDE-LENOX PARK ASSOCIATION, Inc., Plaintiff, v. John A. VOLPE, Individually and as Secretary of the Department of Transportation and Bert K. Lance, Individually and as Director of the Georgia State Highway Department, Defendants.
• Court: U.S. District Court — Northern District of Georgia

334 F. Supp. 132

MORNINGSIDE-LENOX PARK ASSOCIATION, Inc., Plaintiff, v. John A. VOLPE, Individually and as Secretary of the Department of Transportation and Bert K. Lance, Individually and as Director of the Georgia State Highway Department, Defendants.

Civ. A. No. 15237.

United States District Court, N. D. Georgia, Atlanta Division.

November 12, 1971.

COPYRIGHT MATERIAL OMITTED

Crosland & Padnos, Michael D. Padnos, Atlanta, Ga., for plaintiff.

Arthur K. Bolton, Atty. Gen., State of Georgia, John W. Stokes, Jr., U. S. Atty., N. D. Georgia, Beverly B. Bates, Asst. U. S. Atty., James D. Billett, Regional Counsel, Federal Highway Administration, Atlanta, Ga., for defendants.

ORDER

MOYE, District Judge.

The institution of this suit is further testimony to the growing propensity of urban residents to battle with the planners and builders of urban highways.¹ At issue is the proposed location of an interstate highway in the Atlanta area, which highway has been in the planning and development stage for several years. The highway project has been opposed from its inception by the Morningside-Lenox Park Association, Inc., and this suit represents another effort by this local civic organization to halt further development or construction of that portion of the Interstate System designated as Interstate 485.

The complaint alleges that the planning, development, and construction of Interstate 485 have been and are being carried out in violation of several federal statutes, namely, (1) Section 102(2) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2) (C); (2) Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) and Section 138 of the Federal Aid to Highways Act of 1968, 23 U.S.C. § 138; (3) 23 U.S.C. § 128; (4) Section 134 of the Federal Highway Act of 1962, 23 U.S.C. § 134; (5) 23 U.S.C. § 313; and (6) the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. The Court held a hearing on plaintiff's motion for a preliminary injunction and, upon defendants' representations that no further demolition or construction would take place before the Court ruled on the issues, the Court denied preliminary injunctive relief. Defendant Volpe was allowed 60 days to file the administrative record, and all parties were allowed the opportunity to file briefs on the legal issues involved. The State defendant filed an answer in which are raised various defenses. Both plaintiff and defendant Volpe have filed cross motions for summary judgment. Before discussing the contentions of the parties, it is necessary briefly to state the factual history of the proposed highway segment involved in this litigation.²

FACTUAL BACKGROUND

The portion of the Georgia Interstate Highway System designated as Interstate 485 extends from the joint through-town sector of Interstate 75 and Interstate 85 near the Atlanta central business district easterly and northerly to the interchange of Interstate 85 and the proposed North Fulton Expressway (F-056), just south of Lenox Road. A section of highway 0.3 miles in length from the through-town sector of I-85 and I-75 east to Boulevard was constructed as project U-061-1(10)³ and has been open to traffic since 1964. On the remaining section of I-485, approximately $23,300,000 has been authorized for expenditure for preliminary engineering and acquisition of right-of-way, and an additional amount of $6,300,000 is estimated for completion of preliminary engineering and right-of-way acquisition. Construction cost for the completion of I-485 is estimated at approximately $65,700,000, resulting in a total estimated cost of $95,300,000.

The location of I-485 is generally along the lines of two previously planned federal-aid highways, F-056 (North-South) and U-061 (East-West). In the latter part of 1964, the state submitted to the Washington Office of the Bureau of Public Roads a request for the addition of I-485 to the Interstate Highway System along the general corridor of F-056 from I-85 near Lenox Road southerly to I-75 near Stockbridge, with a 1.0 mile downtown connector from the through-town sector of I-75 and I-85 westerly along the general corridor of F-061. This request received initial approval of the Federal Highway Administrator on October 15, 1964 (Exhibit 37). Authorization was given by the Division Engineer (Georgia) of the Federal Highway Administration to the State Highway Department on November 20, 1964, to proceed with preliminary engineering to fix the location and prepare preliminary plans suitable for a public hearing (Exhibit 44). Right-of-way acquisition and demolition of improvements along the line from Boulevard to the junction of F-056 near Inman Park was already underway in 1964 as that line had been apparently approved by the FHWA in 1960 as a part of U-061.⁴ The state recommended that 1-485 be superimposed on this existing, approved line. From the junction of F-056 northerly to Saint Charles Avenue, the proposed location generally followed the location of the North Avenue Connector, a spur connection proposed as part of U-061. Between Saint Charles Avenue and I-85, the longest and, apparently, most controversial section of the highway, four alternative routes were studied and analyzed by state and federal highway officials. On July 15, 1965, a public hearing was held at the Atlanta Municipal Auditorium, at which hearing information was presented with regard to previous studies, and interested persons and groups were given the opportunity to express their views (Exhibit 74). After the hearing, two of the alternative routes from Saint Charles Avenue to I-85 (Lines C & D) were discarded, and the choices were narrowed to Lines B and E. In October, 1965, the location of I-485 between Boulevard and Saint Charles Avenue (a distance of about two miles) was approved by the Regional (Georgia) Office of the FHWA (Exhibit 83), and authorization was given for preliminary engineering for survey and plan preparation for this section (Exhibit 84). Authorization for right-of-way acquisition on this section was subsequently given on December 6, 1965, from Howell Street to Alaska Avenue and on May 3, 1966, from Alaska Avenue to Ponce de Leon Avenue (Exhibits 89 and 112).

With regard to the section between Saint Charles Avenue and I-85, the State Highway Department made additional studies of the two alternate routes (Lines B and E) and, on February 6, 1966, submitted to the Georgia Division of the FHWA a supplemental report on this section in which the state recommended that Line B be the final location. The state subsequently requested that no action be taken on its recommendation of Line B until further evaluation (requested by Governor Sanders) was made. On May 24, 1966, this further study was completed and the state submitted an "Amenities Evaluation Report" to the FHWA and reaffirmed its choice of Line B as the final location (Exhibit 116). The Washington Office of the FHWA, by telegram dated July 6, 1966, concurred in the state's recommendation of Line B as the location of I-485 from Saint Charles Avenue to I-85 (Exhibit 130). Preliminary engineering for survey and plan preparation for the entire length of I-485 was authorized on July 12, 1966 (Exhibit 133). It appears from the above facts, that, as of July 1966, the final location of the entire length of I-485 from the interchange of I-75 and I-85 to I-85 near Lenox Road was fixed and had been approved by the FHWA. The subsequent studies, planning, hearings and the like were concerned with the actual design of the highway.⁵

Studies and planning with regard to the design of the highway were continued by the State Highway Department on various sections of the highway. The Georgia Office of the FHWA apparently approved the major design features of the section between Boulevard and Ponce de Leon Avenue (just south of Saint Charles Avenue) on October 5, 1967 (Exhibit 171). Final right-of-way plans and acquisitions for this section were authorized on October 27, 1967 (Exhibits 172, 173, 174). Design plans for the section from Ponce de Leon Avenue to Cheshire Bridge Road (just south of I-85) were submitted by the state on April 8, 1968, and received initial approval by the Georgia FHWA on May 1, 1968 (Exhibits 189 and 190). It was agreed that additional right-of-ways would be acquired whenever feasible and possible for the development of green belts and mini-parks adjacent to the highway. Special consideration was also given to lessening the adverse effects on Orme Park.

Pursuant to a revision in FHWA policy, which required a corridor public hearing and a design public hearing, and because of the controversial nature of the proposed highway, a design public hearing was held, on June 10, 1969, on the section of highway from Ponce de Leon Avenue to I-85, though the major design features and preliminary design plans had been previously approved. Subsequent to the design hearing, the Georgia Office of the FHWA gave "design approval" to this section on August 25, 1969 (Exhibits 269, 271).

On January 30, 1970, the Georgia Office of the FHWA advised the state that approval authority for federal-aid highway projects involving Section 4(f) matters (49 U.S.C. § 1653(f)) was vested in the Secretary of Transportation, and, for each project, a special report should be submitted for transmittal to the Office of the Secretary (Exhibit 306A). On April 29, 1970, the state submitted a Section 4(f) Study Report with regard to the crossing of Orme Park. Approval of the crossing of Orme Park was given by the Secretary of Transportation on February 9, 1971. (See Exhibits 354.) With regard to the area known as Madeira Park, the state informed the Georgia Office of the FHWA that this area had been acquired by the state on May 17, 1967, and no longer functioned as part of the Atlanta Parks System. Since the state acquired the park area prior to the effective date of Section 4(f), 49 U.S.C. § 1653(f),...