Stephens v. Adams
| Decision Date | 04 May 1979 |
| Docket Number | No. 78-C-390.,78-C-390. |
| Citation | 469 F. Supp. 1222 |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | Louis R. STEPHENS, John R. Kolberg, Phyllis Petarius, Richard Jaeschke, and all others similarly situated, Plaintiffs, v. Brock ADAMS, Karl S. Bowers, John O. Hibbs, Dale Cattanach, Robert T. Huber, Reuben Bartelt, Vincel Demshar and John J. Malone, and their agents, employees, etc., Defendants. |
James C. Newcomb, Milwaukee, Wis., for plaintiffs.
Michael E. Perino, Asst. Atty. Gen., Madison, Wis., for Dale Cattanach and Robert Huber.
Willis J. Zick, Waukesha County Corp. Counsel, Waukesha, Wis., for Vencel Demshar and Reuben Bartelt.
Clayton A. Cramer, New Berlin City Atty., Waukesha, Wis., for John J. Malone.
Joseph P. Stadtmueller, Asst. U. S. Atty., Milwaukee, Wis., for Brock Adams, John O. Hibbs and Karl S. Bowers.
This is a civil action in which the plaintiff, land owners of property adjacent to the Moorland Road, are seeking declaratory relief and an injunction enjoining the defendants from proceeding with widening of the Moorland Road in a 4.33 mile section wholly within the city of New Berlin, Wisconsin. The state and federal defendants have moved to dismiss or in the alternative for summary judgment. Their motions are supported by various affidavits and documents. The motions will be discussed separately.
In their complaint, plaintiffs allege that the federal government's action is in violation of the public hearing section of the Federal-Aid Highway Act and implementing regulations (23 U.S.C. § 128 and 23 CFR §§ 790.1 through 790.11), that the environmental impacts have not been adequately assessed as required by the National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321 through 4332, hereinafter NEPA), and that violations of the fifth and fourteenth amendments have occurred.
The Moorland Road project involves the widening of a 4.33 mile section of highway which lies within the city of New Berlin, Wisconsin. New Berlin is a city within Waukesha County. Moorland Road is currently a two-lane highway which runs through primarily residential areas. The purpose of the project is to change the section into a four-lane divided urban arterial highway with a 110 foot right-of-way, with parking lanes and left turn bays at major intersections. The purpose for widening the road is to increase its vehicle carrying capacity and to enable it to carry an increased average daily traffic load safely. The federal government's involvement in the Moorland Road project is as a supplier of a portion of the funding. Pursuant to 23 U.S.C. § 128(a):
Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Any State highway department which submits plans for an Interstate system project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunities for such hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway. Such certification shall be accompanied by a report which indicates the consideration given to the economic, social, environmental, and other effects of the plan or highway location or design and various alternatives which were raised during the hearing or which were otherwise considered.
Under 23 U.S.C. § 105(a), a state can "avail itself of the benefits" of federal highway aid by "submitting to the Secretary for his approval a program or programs of proposed projects for the utilization of the funds apportioned" by Congress.
As indicated earlier, one of the grounds for relief asserted by plaintiff is that the Federal Highway Administration failed to comply with the location and design hearing requirements of the Federal-aid Highway Act and the implementing regulations. The regulations applicable to 23 U.S.C. § 128 are contained within Part 790 of 23 CFR.
The federal defendants claim full compliance with the public hearing requirements of federal law. The affidavit of John O. Hibbs, the division administrator of the Federal Highway Administration for the State of Wisconsin, details the actions taken by the Federal Highway Administration in approving funding for the Moorland Road project.
Mr. Hibbs' affidavit establishes that pursuant to 23 U.S.C. §§ 302(b) and 105(d), direction of the project was assumed by the Waukesha County Highway and Transportation Commission. On July 12, 1965, Moorland Road received approval as part of the secondary federal highway system, thereby becoming eligible for federal aid for highway construction. In October of 1975, the Federal Highway Administration determined that the Moorland Road project would not cause a significant effect on the quality of the human environment. Therefore, it recommended that the Wisconsin Division of Highways prepare a draft negative declaration rather than a full-blown environmental impactment statement. A negative declaration is permissible when the "proposed action will not have a significant impact upon the quality of the human environment of a magnitude to require the processing of an EIS (environmental impact statement)." 23 CFR § 771.11.
In February of 1976, the Federal Highway Administration approved a draft negative declaration which contains a proposal by Waukesha County to undertake the 4.33 mile Moorland Road project. With approval of the draft negative declaration, the state undertook to comply with the hearing requirements set forth in Part 790 of 23 CFR. That regulation provides that "a state may satisfy the requirements for a public hearing by . . . publishing two notices of opportunity for public hearing and holding a public hearing if any written requests for such a hearing are received." 23 CFR § 790.6(a).
On April 14 and April 21, 1976, notices were published in the Waukesha Freeman and the New Berlin Citizen, two local newspapers. These notices afforded the affected parties the opportunity to request a public hearing only on the southern portion of the 4.33 mile section, the only part of the project for which funds were then available. No timely requests for a hearing were received.
In September of 1976, the Federal Highway Administration (FHWA) approved the original final negative declaration and the preliminary plans for the project. Even though the final negative declaration was approved by the Federal Highway Administration, however, a location and design public hearing for the entire length of the project was held on January 20, 1977, because of expressions of public concern about the project. According to Mr. Hibbs, the hearing conformed with the procedural requirements set forth in 23 CFR § 790.7. The notices, published on December 16, 1976, and January 13, 1977, in local newspapers, clearly comply with 23 CFR § 790.7(a). (Proofs of publication, which meet the requirements of 23 CFR § 790.7, are attached to and are a part of the Hibbs affidavit).
In July of 1977, apparently in response to public concerns over the Moorland Road project, a revised final negative declaration was submitted which certified that public hearings had been held and that the state had considered both the economic and social effects of the project and its impact upon the environment. Furthermore, the state submitted a transcript of the public hearing as required by 23 U.S.C. § 128(b). The reasons for making changes in the Moorland Road project are contained within a letter dated July 7, 1977, addressed to Mr. Hibbs. This letter expresses the county's concern for the landowners affected by the project, but also indicates that the county was responding to projected traffic volumes on the Moorland Road. On July 15, 1977, Mr. Hibbs approved the final negative declaration. In his affidavit, Mr. Hibbs notes that the highway was modified in width, in the southern portion, from 130 feet to 110 feet.
Plaintiff claims that the hearings in this case did not comply with federal regulations, because the design and corridor considerations were discussed in one hearing rather than two separate hearings, and because the project doubled in size after the initial approval of the project.
With respect to plaintiff's claim that the combined corridor and design hearing violates federal law, plaintiff relies on the Federal-aid highway program manual and the cases of Lathan v. Brinegar, 506 F.2d 677, 684-86 (9th Cir. 1974); and Elliot v. Volpe, 328 F.Supp. 831, 840 (D.Mass.1971). Although plaintiff is partially correct in asserting that separate corridor and design hearings must be held, plaintiffs are incorrect in asserting that separate hearings must be held in all cases or that separate hearings were required in the present case.
The hearing requirements are set forth in 23 CFR § 790.5. Subparagraph (a) provides:
Both a corridor public hearing and a design public hearing must be held, or an opportunity afforded for those hearings, with respect to each Federal-aid highway project that: (1) is on a new location; or (2) would have a substantially different social, economic, or environmental effect; or (3) would essentially change the layout or function of connecting roads or streets.
Subparagraph (b) provides, however, that:
A single combined corridor and highway design public hearing must be held, or the opportunity for such a hearing afforded, on all other projects before route location approval, except as provided in paragraph (c) of this section....
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