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HARRISBURG COALITION v. VOLPE

May 12, 1971

HARRISBURG COALITION AGAINST RUINING the ENVIRONMENT (by Clifford R. Dillman, Trustee ad litem), et al., Plaintiffs,
v.
John A. VOLPE, Individually and as Secretary of Transportation of the United States, et al., Defendants, City of Harrisburg, Intervening Defendant


Nealon, District Judge.


The opinion of the court was delivered by: NEALON

This class action arises from the planned construction of two major highways through a public park in the City of Harrisburg, Pennsylvania. Plaintiffs are a community group, the Harrisburg Coalition Against Ruining the Environment, several students and faculty members of the Harrisburg Area Community College (hereinafter HAC), and certain black residents of the Uptown area of Harrisburg. They seek to permanently enjoin the Federal, State and City Governments, as well as the State contractor, from constructing Interstate Route 81 (hereinafter I-81) and the Harrisburg River Relief Route through Wildwood Park in the northern section of Harrisburg. Hearings, including a view of Wildwood Park, were held on April 15, 16, 19, 20 and 21, 1971. *fn1"

 Jurisdiction is properly asserted under the Civil Rights Act of 1871, 42 U.S.C. § 1981 et seq.; the Federal Question Statute, 28 U.S.C. § 1331, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. See Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F. Supp. 238 n. 1 (M.D. Pa. 1970). Relief is sought under the Mandamus Statute, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

 The action arises under the Department of Transportation Act, 49 U.S.C. §§ 1651-1658; the Federal Aid Highway Act, 23 U.S.C. §§ 101-104, and Policy and Procedure Memorandum 20-8 (hereinafter PPM 20-8) issued thereunder, 34 Fed. Reg. 727-730, and Bureau of Public Roads Instructional Memorandum 21-5-63 also issued thereunder; the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (hereinafter NEPA); the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000b-6, and the Fourteenth Amendment of the United States Constitution. Pendent jurisdiction is asserted over plaintiffs' claims under the provisions of the Pennsylvania Department of Transportation Act of 1970, 71 P.S. § 512 (hereinafter Penn DOT).

 Seven issues are raised in this action: (1) whether plaintiffs and the class they represent are barred from maintaining this lawsuit by the doctrine of laches; (2) whether the doctrine of sovereign immunity precludes maintenance of this suit against Secretary Kassab and J. Robert Bazley, Inc., the State contractor; (3) whether the construction of I-81 and the River Relief Route through Wildwood Park is a denial to black residents of equal opportunities to housing and recreation in violation of the Fourteenth Amendment and the Civil Rights Acts of 1871 and 1964; (4) whether the Court has pendent jurisdiction over plaintiffs' claim under the Penn DOT Act against Jacob Kassab, Pennsylvania Secretary of Transportation (hereinafter Secretary Kassab); (5) whether the United States Secretary of Transportation John A. Volpe (hereinafter Secretary Volpe) made the proper parkland determination as required by Section 4(f) of the Department of Transportation Act of 1966 and by Section 138 of the Federal Aid Highway Act of 1968; (6) whether Secretary Volpe complied with the public hearing requirements of Section 128 of the Federal Aid Highway Act and PPM 20-8 and Bureau of Public Roads Instructional Memorandum 21-5-63 issued thereunder, and (7) whether Secretary Volpe submitted an adequate environmental statement to the Council on Environmental Quality pursuant to Section 102(2)(C) of NEPA.

 FACTS

 The City of Harrisburg is the Capitol of the Commonwealth of Pennsylvania and, according to the 1970 census, has a population of 68,000. This is a significant population decline from 79,000 in 1960 and 89,000 in 1950. Harrisburg has seven developed public parks within its boundaries, Paxtang Park, Cameron Park, Reservoir Park, Rose Garden, Island Park, Italian Lake and River Park, and, in addition, has the subject matter of this lawsuit, Wildwood Park, located approximately four miles north of downtown Harrisburg. Longer than it is wide, Wildwood Park protrudes as the northern extremity of Harrisburg into neighboring Susquehanna Township. To the west of the Park are the main lines of the Penn Central Railroad, the Lucknow Freight Yards and a privately-owned industrial park. To the north and east are more populated areas. Wildwood Park has sharply rising hills and ridges on its easterly side and a narrow strip of flat land on its westerly border. Access to the Park, therefore, is limited and is realistically confined to the north and to the south.

 Prior to the 1960's, Wildwood Park had a total of 850 acres within its boundaries and consisted of a 90-acre lake (which still exists) adjoined on the southern end by a section of flat land. It appears that in the early part of the Twentieth Century, Wildwood Park was a major recreational asset for the people of Harrisburg. Since then, however, the Park experienced a steady decline in use, maintenance and care. Some of the flat section of land, for instance, was used as the Harrisburg City dump and was frequently on fire, often causing noxious fumes to settle over portions of Harrisburg. The remainder of the Park also suffered from indiscriminate dumping. Security, especially at night, became a problem. Siltation from two feeder streams gradually filled Wildwood Lake to such an extent that it created two small deltas and reduced the Lake depth to a few feet, thus making extensive dredging of the Lake necessary and highly expensive. In addition, few species of fish now remain in the Lake. One final example of the Park decline was the closing of a small zoo located on the flat portion of the land, where HAC is now located.

 During the 1960's various plans and good intentions to develop Wildwood Park were never followed through to completion. For example, the National Audubon Society conducted a survey of Wildwood Park and in April, 1964, recommended many improvements to the Park, including construction of a nature center on the flat section of the parkland. And in 1964-65, the Harrisburg City Council authorized a bond issue of $50,000 to finance the dredging of Wildwood Lake, but did not spend the money when it was realized that the cost of meaningfully dredging the Lake would be prohibitive.

 In 1963, 157 acres of the flat area of Wildwood Park were chosen as the site for HAC, a multi-county facility. Harrisburg City Council gave its consent to the sale of the land and upon receiving the required Court approval, formally deeded the land to HAC in 1965. After the selection of this land for HAC, all of the City-sponsored recreational activities, particularly a children's day camp, a pavilion and archery sites were phased out of Wildwood Park. HAC construction was completed in 1967 and now has a student population of 3800. As presently planned, the highways would be located in close proximity to HAC with an intersection on the north of the campus with I-81 and on the south with Elmerton Avenue.

 About the time that Wildwood Park was experiencing a general decline in use, maintenance and care, Harrisburg's transportation problems began to develop in direct proportion to the expansion of the surrounding suburbs. Severe traffic congestion -- automobile and truck -- occurred in the northern portions of the City along the Susquehanna River. The plan to relieve this condition ultimately became known as the River Relief Route. A public hearing on the River Relief Route was held on July 22, 1965, in the City of Harrisburg, at which time the route through Wildwood Park was presented. Previously, in October, 1963, the City Council of Harrisburg had approved the transfer of the land in Wildwood Park for the River Relief Route right of way. The highway project is funded 50-50 by the Federal and State Governments.

 Specifically, the River Relief Route is intended to proceed north from a point near the Cameron Street-McClay Street intersection adjoining the Pennsylvania Farm Show Complex, into Wildwood Park along its easterly side, over the ridges and steep hills of the Park, to the northern tip of Wildwood Lake and to connect with completed highway projects farther north. For purposes of this action, the River Relief Route is divided into two parts, one known as Section 1 between the Cameron Street-McClay Street intersection and the southern delta in Wildwood Lake and the other, known as Section 2, between the latter point and the area beyond the Park's northern boundary. *fn2" Section 1 is 1.59 miles in length, 1.38 of which is located within Wildwood Park and will include 93 acres of the Park. Section 2 is 1.63 miles in length, 1.21 of which will be located within Wildwood Park and will include 41 acres of the Park.

 On August 12, 1970, J. Robert Bazley, Inc. was awarded the contract for Section 2 of the River Relief Route. Work began in September, 1970, with a Bazley subcontractor clearing and grubbing the land, followed by actual Bazley construction on October 15, 1970. Clifford Dillman, a faculty member at HAC and a plaintiff here, first observed the Bazley construction on December 9, 1970, and began to organize opposition to the highways within Wildwood Park. Ultimately, the Bazley firm ceased construction work on Section 2 for a period of two weeks between March 15, 1971, and April 2, 1971, at the request of the newly inaugurated Governor of Pennsylvania and the newly appointed Secretary of Transportation. During this time, an examination of the highway projects was conducted and upon completion of this investigation, Clifford Dillman was advised that work would resume on the construction of Section 2 and that the contract for the construction of Section 1 would be awarded, bids having been previously opened on February 11, 1971. This class action was commenced soon afterwards and, pursuant to stipulation, the Commonwealth has withheld signing the contract for Section 1 pending a decision on the merits.

 At one time in March, 1967, Pennsylvania withdrew the River Relief Route as a Federal project, contemplating 100% State financing, but on January 10, 1969, resubmitted the project for Federal financing under the Federal Aid Urban Act. After consultation, the request was approved and the project reinstated without the necessity of an additional public hearing under Section 128 of the Federal Aid Highway Act or PPM 20-8 issued thereunder. Three interchanges are planned along the proposed route for the River Relief Route -- near its southern end, at the intersection with Elmerton Avenue; near the southern end of Wildwood Lake, at its intersection with I-81; and near its northern end, at its intersection with Linglestown Road.

 I-81 will traverse Wildwood Park in an easterly-westerly direction and will include 27 acres of the Park, although it has not yet been advertised for bids. It is part of the nationwide interstate system of highways and is funded 90-10 by the Federal and State Governments. A public hearing was held on I-81 in Harrisburg on November 19, 1962. On the east, I-81 is completed as far as Progress Avenue in Harrisburg, not far from Wildwood Park. On the west, I-81 is completed as far as its intersection with Route 11, and is presently under construction between this point and the western edge of Wildwood Park. This portion of I-81 will cross the Susquehanna River in the vicinity of McCormick's Island.

 Since Federal funds were requested for the financing of the River Relief Route and I-81 through the confines of Wildwood Park, Secretary Volpe undertook to make findings under Section 4(f) of the Department of Transportation Act and Section 138 of the Federal Aid Highway Act. Soon after January, 1969, when Pennsylvania requested resubmission of the River Relief Route for Federal financing, Secretary Volpe began the process of assimilating information under the foregoing Congressional Acts. It ultimately took four submissions by the Commonwealth of Pennsylvania and consultation with the Bureau of Outdoor Recreation of the Interior Department and with the Department of Housing and Urban Development before Secretary Volpe made his determination on May 18, 1970, that, pursuant to Section 4(f) of the Department of Transportation Act, *fn3" there were no feasible and prudent alternatives to the use of Wildwood Park by I-81 and the River Relief Route, and that the highway projects included all possible planning to minimize harm to the Park. A copy of this determination is attached hereto as Appendix A. On May 22, 1970, Secretary Volpe forwarded his 4(f) determination to the Council on Environmental Quality pursuant to Section 102(2)(C) of NEPA. On July 1, 1970, the Penn DOT Act became the law in Pennsylvania imposing upon the Pennsylvania Secretary of Transportation duties which are analogous to those imposed upon Secretary Volpe. No findings or determinations pursuant to Penn DOT were ever made, however, by Secretary Kassab or his predecessors after July 1, 1970.

 I. LACHES

 The issue is initially presented as to whether the doctrine of laches bars plaintiffs and the classes *fn4" they represent from maintaining this action. The contractor, J. Robert Bazley, Inc., contends that in view of the wide publicity given to the highway projects, particularly the River Relief Route, at every stage of their development, plaintiffs are guilty of unreasonable delay in asserting their rights and that, in view of the extensive commitments by the Bazley firm to the construction of Section 2 of the River Relief Route, severe prejudice will result to it. The Mayor and the City of Harrisburg join in this argument, adding mainly that the seriousness of Harrisburg's traffic congestion is an important prejudicial factor to consider. In addition, the State and Federal defendants raise the laches defense.

 On a previous occasion, this Court considered the doctrine of laches in an environmental suit involving a secondary road. Pennsylvania Environmental Council, Inc. v. Bartlett, supra. In the circumstances of that case, the individual and corporate plaintiffs were not found to have been guilty of laches. The present defendants strenuously advance arguments distinguishing the Bartlett case.

 Of additional importance on the laches issue are the dates of the award of the contract, the beginning of construction, and the institution of suit. Pennsylvania Environmental Council, Inc. v. Bartlett, supra. Other factors may enter into consideration, of course, but for the purpose of this lawsuit, the foregoing factors are sufficient for discussion.

 For laches to exist there must be both an unreasonable delay in the bringing of a suit and prejudice to the defendants. Pennsylvania Environmental Council, Inc. v. Bartlett, supra. Considering all of the circumstances of this case, I am of the opinion that with respect to Section 2 of the River Relief Route, the time lapse between the effective dates of the pertinent Federal and State legislation and regulations, and the date of the institution of this class action was not an unreasonable period. It is certainly not insofar as the applicability of the recently enacted Penn DOT Act is concerned. And it becomes less so for the Department of Transportation Act, the Federal Aid Highway Act, and NEPA, in view of the fact that the critical determinations thereunder were made in May, 1970. In these circumstances, the fact that PPM 20-8 dates back to 1969 or that the Instructional Memorandum dates back to 1963 is not particularly significant. I am of the opinion that the time lapse between the award of the Section 2 contract, the beginning of construction, and the institution of this lawsuit was not unduly lengthy. Overall, then, unreasonable delay in bringing this action against all defendants, particularly the Federal defendants, is not present as far as Section 2 is concerned. I conclude similarly for Section 1 and I-81.

 Prejudice to the defendants does exist to some degree with respect to Section 2; however, it is not so strong, in my opinion, as to be controlling. The contractor has the legitimate concern that the low bid which won it the award of the contract for Section 2 would remain constant. However, as the testimony indicates, remedies against the Commonwealth are available to the contractor for his monetary loss. E.g., the Board of Arbitration of Claims, 72 P.S. §§ 4651-1 to 4651-10. And in light of the two-week shutdown already experienced by the contractor, these remedies will more than likely be invoked in any event. Finally, I must take cognizance of the fact that the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136, considered the equities of a somewhat similar situation and did not hesitate to halt construction work by the contractor at the time of oral argument of that case. Therefore, I conclude that the prejudice claims of the contractor must be rejected.

 The City of Harrisburg's claim of prejudice must similarly be denied. This is not to say that the City is not suffering from a very serious traffic situation. However, Harrisburg's traffic problems will not be solved by completion of Section 2 of the River Relief Route, for the contract for Section 1 remains to be signed and the contract for I-81 remains to be advertised for bids. In other words, the solution to the City's automotive congestion will be delayed in any event by other construction. Whatever prejudice exists to the City is therefore insufficient to support a finding of laches.

 Finally, the Federal and State Government have not produced any substantial evidence of prejudice caused by whatever delay may have occurred in the bringing of this suit.

 Accordingly, the defense of laches cannot be sustained on the present record.

 II. SOVEREIGN IMMUNITY

 Secretary Kassab and J. Robert Bazley, Inc. raise the defense of sovereign immunity to this action relying on Pennsylvania Environmental Council, Inc. v. Bartlett, supra. Here, however, Secretary Kassab and the Bazley firm are faced with allegations of constitutional violations in the construction of the highway projects involved. Since it is well established that the defense of sovereign immunity will not shield unconstitutional action, Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908); C.A. Wright, Law of Federal Courts § 48 (1970), I will not initially dismiss the complaint ...


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