Camillus West Homeowner's Assn. Inc. v. Brinegar

No. 73-CV-481 (N.D.N.Y. March 20, 1974)

The U.S. Secretary of Transportation is enjoined from constructing a federally funded bypass highway segment until a NEPA environmental impact statement has been filed and additional hearings have been held in accordance with the requirements of § 128 of the Federal Highway Act. The court rules that the Secretary's grant of Plans, Specifications, and Estimates (PS&E) approval, without filing an EIS or holding new hearings in addition to those held in 1957 and 1961, clearly violates both NEPA and the Highway Act. The court quickly disposes of defendants' claims that plaintiffs lack standing and that the suit is barred by laches, and implies that the latter claim is made in bad faith. Plaintiffs have suffered irreparable injury from defendants' violation of the two statutes, and are thus entitled to injunctive relief.

Counsel for Plaintiffs
Richard A. Schechter
Urciuoli & Covino
7145 Seventh North Road
Liverpool, New York 13088

Counsel for Defendants
James M. Sullivan, Jr. U.S. Attorney
George Lowe Asst. U.S. Attorney
Federal Building
Syracuse, New York 13201

James Scouten Asst. Regional Counsel
Federal Highway Administration
4 Normanskill Boulevard
Delmar, New York 12054

Louis J. Lefkwitz Attorney General
Douglas S. Dales, Jr. Asst. Attorney General
The Capitol
Albany, New York 12224

[4 ELR 20313]

Port, J.

Memorandum-Decision and Order

In this action injunctive relief is sought to restrain construction of the "Camillus Bypass"¹, a partially federally funded road project.

The complaint was filed on October 26, 1973, together with a motion seeking a temporary restraining order, or in the alternative directing an immediate hearing on the merits of the plaintiff's application for a temporary injunction. The motion was made returnable on October 30, 1973 but was never heard. Prior to the return day the parties reported to the court that they were entering into discussions to resolve their differences and it appeared that those discussions would be successful. Subsequently, the parties stipulated that the defendants' time to submit answers would be extended until ten days after a written demand was made therefor by the plaintiff's attorneys. Such demand was later made when the court was advised that the defendant Schuler had broken off all further discussions.The matter came on for hearing before the court on February 7, 1974.

It was stipulated in open court that the matter of a preliminary and permanent injunction should be heard by the court upon the written material presented without an evidentiary hearing.

THE PROJECT AND ADMINISTRATIVE PROCEEDINGS

The project, briefly described, originates at the intersection of Routes 5 and 173 near the Fairmont Fair Shopping Center, moves westerly and to the north of Route 5, and terminates at a point about 5 miles distant, situated just west of Camillus. About 3 1/2 miles are scheduled to be six lane divided highway and the remainder is to be four lane.² Additionally, the reconstruction or improvement of about six miles of existing crossroads is planned,³ including the relocation of about 1 1/2 miles of North Street (Camillus-Warners Road — Route 36).⁴

The cost of the Route 5 relocation proper is about $20 million of which about $8 million are federal funds. The cost of the North Street relocation is about $2 million; half being federally financed.⁵

Hearings were held for this project on October 7, 1957 and December 22, 1961,⁶ and an opportunity for another as to a small portion of the project was granted in mid 1962 by newspaper notice.⁷ No other hearings were held, nor were any other opportunities for hearings afforded. The defendant Secretary of Transportation of the United States granted approval of the Plans, Specifications and Estimates (PS&E) on June 19, 1973.⁸

The defendants do not question the fact that this is a "major federal action significantly affecting the quality of the human environment" which ordinarily requires an environmental statement. No claim is made by the defendants that such a statement was, in fact, filed.

[4 ELR 20314]

The plaintiff contends that the defendants have failed to comply with the hearing requirements of § 128 of the Highway Act (23 U.S.C. § 128) as amended in 1968 and 1970;⁹ failed to comply with the provisions of NEPA because of the failure to file an environmental impact statement;¹⁰ and that as a result, the PS&E approval by the federal officials was unlawful.¹¹ The last hearing in connection with this project was held in 1962. Obviously, it did not meet the requirements of the 1968 and 1970 amendments.

Why the PS&E approval was granted under these circumstances remains somewhat of a mystery. This was done in the face of the holding in Monroe County six months earlier that the amendments to § 128 require expanded hearings "whenever PS&E approval has not been given prior to the effective date of the amendment. This rule is based upon the fact that a hearing is a condition precedent to the granting of federal aid, and, therefore, the Secretary must apply the statute which is in effect when he awards that aid."¹²

With reference to the need for an environmental impact statement: "[t]his approval [PS&E] in the present case was not given prior to the effective date of NEPA, and, therefore, an impact statement must be prepared. . . .¹³ The environmental reevaluation substituted will not suffice.¹⁴

As has been indicated earlier it is difficult to understand why the state officials would seek approval and why the federal officials would grant PS&E approval six months after the determination of the Monroe County case which at the very least would indicate to them that such conduct, if contested, would be found to run counter to the controlling law in this circuit. When questioned along these lines upon oral argument the only response of the defendants was the highly implausible one of an unawareness of Monroe County in spite of the fact that the Secretary of United States Department of Transportation was the party enjoined. The more likely reason seems to be that they took a calculated risk that their action would not be challenged.In view of the disputes that shadow this project throughout its course it is not surprising that the risk turned out to be a poor one.

Although initially, the defendants contested the standing of the plaintiff, in their proposed findings of fact they concede the standing of the plaintiff. The court finds that the plaintiff has standing.¹⁵

The defendants also, without detail or specification, claim the expenditure and incurring of large sums in connection with the ongoing project in support of a laches defense.¹⁶ However, in view of the circumstances surrounding the application for the granting of the PS&E approval this defense requires little discussion. It smacks of the defendant who, having murdered his mother and father, pleads for leniency on the grounds that he is an orphan.

The violations of NEPA and the Highway Act have resulted in irreparable injury to the plaintiff entitling it to injunctive relief.¹⁷ The court has jurisdiction of the parties¹⁸ and the subject matter of this action.¹⁹

This Memorandum Decision, together with stipulation of facts annexed hereto as an appendix and made a part hereof shall constiute the findings of fact and conclusions of law.

For the reasons herein, it is

ORDERED, that defendant Brinegar shall in all respects comply with the requirements of Section 102 of the National Environmental Policy Act (42 U.S.C. § 4332(2)(c)); and it is further

ORDERED, that defendant Schuler shall in all respects comply with the requirements of Section 128 of the Federal Aid Highway Act (23 U.S.C. § 128); and it is further

ORDERED, that defendant Brinegar, his successors, agents, servants and employees and defendant Schuler, and his respective successors, agents, servants and employees be and they hereby are enjoined and restrained, as of the date of this order, from disburing or receiving any further federal funds either for construction or materials, heretofore or hereafter provided, with respect to PIN 3033.10 until the court, after proper hearing on notice, is satisfied that this order has been complied with.

1. Also known as "relocated Route 5" and Project Identification Number (PIN) 3033.10. This project is funded by the authority of the Federal Aid Highway Act. 23 U.S.C. §§ 101 et seq.

2. Bestgen Affidavit, P4. See map of project area in Bestgen Exhibit XVII.

3. Other roads affected are: Maple Drive, Ed Dixon Road (also known as Rolling Hills Road), Bennett Road, Hinsdale Road, Warners Road (Route 173), and Fairmont-Belle Isle Road. Bestgen Exhibit XVII, p. 2.

4. Bestgen Affidavit, P5.

5. Bestgen Exhibit I.

6. Stipulation, PP1, 2. The latter hearing was carried over to include a second day (1/9/62). See the summary of this hearing in Bestgen Exhibit VI.

7. Stipulation, P3.

8. Stipulation, P4.

9. The 1968 amendment adds social and environmental factors to economic factors as the items to be studied and developed at the hearings. The 1970 amendment calls for the submission of a certifying report as to these studies.

10. The National Environmental Policy Act (NEPA) mandates the preparation of such an "impact statement". 42 U.S.C. §§ 4321, 4332(2)(C).

11. This contention is based on the authority of Monroe County Conservation Council v. Volpe, 472 F.2d 693 (2nd Cir. December 18, 1972).

12. 472 F.2d at 701. The Monroe County opinion clearly controls the disposition of the present case. Its rationale was adopted by this court on Nov. 14, 1973. Capitol Region Citizens Committee v. Volpe, 72-CV-254 (N.D.N.Y. 11/14/73).

13. 472 F.2d at 699.

14. The "reevaluation" prepared under the authority of Draft Instructional Manual P4(c) [See Bestgen Affidavit, PP20, 21, 22; Exhibit XVII] is connected to FHWA efforts to postpone the effective date of NEPA by 13 months [See Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731, 736-737 (D. Conn. 1972); Conservation Society of Southern Vermont v. Volpe, 343 F. Supp. 761, 767 (D.Vt. 1972)] and to rely on an antecedent "equivalent" theory of design approval as the date from which to measure statutory applicability [Committee to Stop Route 7, 346 F. Supp. at 735-736.See also D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754, 781-785 (D.D.C. 1970) rev'd on other grounds 459 F.2d 1231, 1243 (D.C. Cir. 1972) cert. den. 405 U.S. 1030 (1972)]. Agencies in general must comply with NEPA to the "fullest extent possible." Calvert Cliffs Coordinating Committee v. A.E.C., 449 F.2d 1109, 1117-1119 (D.C.Cir. 1971). As regards the "reevaluation" in particular "a second look by the state as to whether environmental damage has been minimized cannot be substituted for a first look by the agency obligated by federal law to determine whether the environment should be damaged at all. Committee to Stop Route 7, 346 F. Supp. at 739.

15. Sierra Club v. Morton, 405 U.S. 727 (1972); Citizens Cimmittee For the Hudson Valley v. Volpe, 425 F.2d 97, 105-106 (2nd Cir. 1970) cert. den. 400 U.S. 949 (1970).

16. See Ward v. Ackroyd, 344 F. Supp. 1202, 1212-1213 (D.Md. 1972).

17. See Gulf & Western v. A & P Company, 476 F.2d 687, 692-693 (2nd Cir. 1973); West Va. Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 235-236 (4th Cir. 1971). Moreover, no bond appears to be necessary under the cases and the same is hereby dispensed with. Powelton Civic Homeowners Association v. H.U.D., 284 F. Supp. 809, 839-841 (E.D.Pa. 1968).

18. See, Pa. Environmental Council v. Bartlett, 454 F.2d 613, 624-625 (3rd Cir. 1971).

19. Jurisdiction is properly invoked under the Federal Question statute (28 U.S.C. § 1331), the Mandamus statute (28 U.S.C. § 1361), the Declaratory Judgment Act (28 U.S.C. §§ 2201-2202), and the Administrative Procedure Act (28 U.S.C. §§ 701-706). Derivative jurisdiction is given by the NEPA (42 U.S.C. §§ 4321 et seq.) and by the Federal Aid Highway Act (23 U.S.C. §§ 101 et seq.).