Tolbert v. State of Ohio Dept. of Transp.

• Decision Date: 16 April 1999
• Docket Number: No. 98-3299,98-3299
• Citation: 172 F.3d 934
• Parties: Joyce TOLBERT, Venita Rodgers, Veronica Cherry, Laurel Nemec, Patricia Nettles, and Stella Campbell, Plaintiffs-Appellants, v. STATE OF OHIO DEPARTMENT OF TRANSPORTATION, Jerry Wray, and City of Toledo, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 934

172 F.3d 934

Joyce TOLBERT, Venita Rodgers, Veronica Cherry, Laurel

Nemec, Patricia Nettles, and Stella Campbell, Plaintiffs-Appellants, v. STATE OF OHIO DEPARTMENT OF TRANSPORTATION, Jerry Wray, and City of Toledo, Defendants-Appellees.

No. 98-3299.

United States Court of Appeals, Sixth Circuit.

Argued March 12, 1999.

Decided April 16, 1999.

Olatunde C.A. Johnson (argued and briefed), NAACP Legal Defense & Educational Fund, New York, New York, William B. Senhauser (briefed), Equal Justice Foundation, Toledo, Ohio, for Plaintiffs-Appellants.

Pamela J. Vest (argued and briefed), Office of the Attorney General, Transportation Section, Columbus, Ohio, Richard J. Makowski (briefed), Office of the Attorney General of Ohio, Cleveland, Ohio, Karen E. Asbury (briefed), Office of the Attorney General, Toledo, Ohio, for Defendants-Appellees except City of Toledo.

Lourdes Santiago (briefed), Senior Attorney, Office of the City of Toledo Law Department, Toledo, Ohio, for Defendant-Appellee City of Toledo.

Before: MERRITT, KENNEDY, and GILMAN, Circuit Judges.

GILMAN, Circuit Judge.

Plaintiffs, who are residents of the Cherrywood apartment complex in Toledo, Ohio and predominantly African-American (the "Cherrywood residents"), claim that the Ohio Department of Transportation ("ODOT"), its director Jerry Wray, and the City of Toledo discriminated against them on the basis of race in allocating sound barriers along highways in Toledo. The district court ruled that their claims were barred by the applicable two-year statutes of limitation, finding that the Cherrywood residents' cause of action had accrued in 1984 when ODOT approved a highway-construction plan that did not include sound barriers near Cherrywood.

The complaint, however, challenges the discriminatory allocation of sound barriers, not the initial failure of ODOT to provide such barriers near Cherrywood. As a result, the Cherrywood residents' cause of action did not accrue until (1) the request for sound barriers in their largely African-American neighborhood had been denied, and (2) they knew or had reason to know that ODOT was in the process of providing sound barriers in a similarly-situated white neighborhood. We therefore REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. The Plaintiffs

The Plaintiffs are residents of Cherrywood. According to a 1990 census, 84f the Cherrywood residents are African-American. Over 71% of the households in Cherrywood's census tract had annual incomes of less than $10,000.

B. The Parkway

The Buckeye Basin Greenbelt Parkway (the "Parkway") is a federally-funded highway currently under construction in Toledo, Ohio. The northbound lanes of the Parkway are located approximately 75 to 100 feet from Cherrywood. Planning for the Parkway began in the 1970s. ODOT claims that it conducted 17 public meetings to discuss the Parkway project between 1979 and 1982, but the record is devoid of information about the notification procedures except for one of the public meetings in 1982. The Cherrywood residents allege that ODOT did not conduct any meetings specifically with them.

In the late 1970s and early 1980s, the Federal Highway Administration ("FHWA") conducted an initial noise analysis for the Parkway project. One such analysis indicated that the existing noise level at Cherrywood was approximately 79 decibels. The Cherrywood residents allege that the current specifications for the Parkway will elevate that noise level to 90 decibels, an increase of over 10 decibels. In 1982, the FHWA incorporated its noise analysis into an Environmental Impact Statement ("EIS"). The EIS recommended against building sound barriers around the Parkway because that would be impractical "due to the influence of traffic generating noise from Cherry Street and to the industrial background noise from the adjacent area." In 1984, the FHWA approved the EIS. Between 1984 and 1995, the FHWA made various changes to the Parkway plans. On January 19, 1995, the FWHA determined that because the changes were not "substantial," no supplemental EIS was necessary.

Construction of the Parkway began in 1996, and is ongoing. In 1996, the Cherrywood residents requested that ODOT reopen the question of whether to provide noise-mitigation measures on the Parkway project. ODOT officials refused to do so stating that the Cherrywood residents could have attended the various public meetings in the 1980s.

C. The I-75 Expansion

ODOT also made plans to widen Interstate 75 in Toledo in the 1980s. According to the 1990 census, 86% of the residents in the 18 census blocks immediately adjacent to the I-75 widening project (known as "Point Place") are Caucasian. Sixty percent of the households in the five adjacent census tracts had annual incomes of over $25,000.

According to a 1983 ODOT noise analysis, the widening of I-75 would result in noise levels between 70 and 82 decibels in the adjacent neighborhoods, creating an increase of no more than three decibels above the original sound level. The noise analysis recommended against the construction of sound barriers for the I-75 widening.

ODOT has nonetheless since decided to construct sound barriers adjacent to I-75. The Cherrywood residents allege that the City of Toledo was involved in this decision. Construction commenced in the summer of 1996.

D. Procedural Background

The Cherrywood residents filed a six-count complaint in the United States District Court for the Northern District of Ohio on August 26, 1997. It named ODOT, its director Jerry Wray, and the City of Toledo as defendants. The complaint states in pertinent part as follows:

Discrimination Against Plaintiff Class

19. In analyzing the noise impact of the Parkway, defendants, inter alia, incorrectly measured existing noise levels, failed to evaluate meaningfully noise abatement measures, and failed to take into consideration the views of the impacted residents in violation of 23 C.F.R. § 772.

20. In designing, approving, and constructing the Parkway, defendants failed to assess whether the allocation of sound mitigation measures and consideration of alternative Parkway alignments complied with Title VI, Title VIII, and other civil rights requirements.

21. Defendants failed to provide plaintiffs, the African-American population residing in the Cherrywood apartments and nearby residential properties, with sound mitigation measures or other design alternatives to lessen the noise impact of the Parkway. Plaintiffs allege that defendants' discriminatory refusal to approve sound mitigation measures or other design alternatives and defendants' discriminatory allocation of mitigation measures between Point Place and Cherrywood disproportionately imposes environmental and health burdens of freeway construction on the basis of race.

22. Defendants do not advance any reason rising to the level of necessity, to justify: (1) the absence of noise mitigation measures or other design alternatives at the southwestern terminus of the Parkway or (2) the disparity in the allocation of mitigation measures between predominantly white areas along I-75 and predominantly African-American area surrounding Cherrywood apartments.

The complaint then alleges that the above facts constitute violations of (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; (2) U.S. Department of Transportation regulations implementing Title VI; (3) The Fair Housing Act, 42 U.S.C. § 3601; (4) The Civil Rights Act of 1870, 42 U.S.C. § 1981; (5) The Civil Rights Act of 1866, 42 U.S.C. § 1982; and (6) The Civil Rights Act of 1871, 42 U.S.C. § 1983.

In November of 1997, the defendants filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion alleged that the complaint was barred by the applicable statute of limitations. In December of 1997, the Cherrywood residents filed their first amended complaint, alleging that they did not learn that the Parkway project would pass near their homes until construction commenced in 1996. It further states that "Defendants actions ... continue through the present time."

The district court granted the defendants' motion to dismiss the complaint in February of 1998. First, the court noted that all of the federal statutes under which the Cherrywood residents had brought their claims are subject to a two-year statute of limitations. It then concluded that the cause of action accrued in 1984, when the Parkway EIS was approved. The district court also found that the failure to erect sound barriers was not a "continuing violation" that would prevent the limitations period from lapsing. It thus concluded that all of the Cherrywood residents' claims were time-barred.

Additionally, the district court opined that even if the claims of the Cherrywood residents were not time-barred, they would not prevail on the merits. In so stating, the court specifically said that its analysis of the merits was not necessary to its ruling on the statute of limitations issue.

II. ANALYSIS

A. The Cherrywood residents' cause of action for discrimination accrued when they knew or had reason to know of the allegedly discriminatory allocation of sound-mitigation measures

1. Standard of review

The determination that a complaint was filed outside of the applicable statute of limitations is a conclusion of law that this court reviews de novo. See Farber v. Massillon Board of Educ., 917 F.2d 1391, 1399 (6th Cir.1990).

2. The Cherrywood residents' claims of discriminatory allocation of sound-mitigation measures arose at the time that they knew or should have known of ODOT's allegedly discriminatory conduct

In dismissing the Cherrywood residents' claims in their entirety, the district court relied upon Sierra Club v. Slater, 120 F.3d 623 (6th Cir.1997), for the proposition that "[a] cause of action arising out of an improper EIS generally...