Triangle Improvement Council v. Ritchie Petition for a Writ of Certiorari

    H-mtnmu* (Smtrt uf tlf? Suited i
OCTOBER TERM, 1970

if't2 8

I No. 71:

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TRIANGLE IMPROVEMENT COUNCIL, ET AL.,
Petitioners,

WILLIAM S. RITCHIE, COMMISSIONER, 
STATE ROAD COMMISSION OF THE 

STATE OF WEST VIRGINIA, ET AL., 
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Stanley E. Preiser 
L. A lvin Hunt 
1012 Kanawha Blvd., E. 
P. 0. Box 2506 
Charleston, W. V a .'25329 

Attorneys for State 
Respondents



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I NDEX
Page

_______ __  1
Introduction ..........—....... ..... 3

Questions Presented -------------- -------^
Statement of the Case -------- ------ ----- ^

Argument .... -...... --.... .......  . .

1 wttat oJSSm. “ s i“ £ ifo a s s SMeasures to A ^ U11  _ ivps Them of the 
Relocation Housing 1 ,  Guaranteed

? „ S n ? h 0C e n d m e „t  . .............  «

II- f l ^ I i f m g h w a y  A r t S r f C S t i S S

Been Administratively or Judicia y ^
corded Them --------------------------------------------
A The 1968 Relocation Amendments As- 
A ‘ sure Persons Not Yet Displaced as of 

the Date of Enactment the Right to 
A^nuate Replacement Housing, and 
& n t  Thereto Mandate Detailed jg  
Relocation Plans---------- ------------ ----

B - C ?  “ o f
Amendments, Administrative Artion by
State and F e d e r a l S T i u r -  Upheld on the Basis of Geneial assui
ances That Efforts Are Being and Wil 
Be Made to Relocate Persons Displaced, 
and That Adequate Relocation Housing ^
Exists ......— .....— ........... ........



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1 . Reversal Is Required Because the
Procedures Mandated by Law with 
Respect to the Submission for Re­
view and Approval of a Comprehen­
sive Relocation Plan Were Not Fol­
lowed ___      2 1

2 . The District Court’s Purported
Finding That Relocation Housing 
Was Adequate Was Clearly Erro­
neous ___    21

III. The Questions of Retroactive Application
and Appropriate Remedy ..............     22

Conclusion _______    23

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TABLE OF AUTHORITIES

Cases: Page

Triangle Improvement Council v. Ritchie,
314 F. Supp. 20 (S.D. W.Va. 1969)___________  12

Triangle Improvement Council v. Ritchie,
429 F. 2d 423 (4th Cir. 1970)____________  17, 18

Udall v. Tallman, 380 U.S. 1 (1965)___________  15

Statutes and Regulations:

1. Statutes.
Charleston Human Rights Act, Code City of 

Charleston (Nov., 1967)________________ 10, 11

Federal-Aid Highway Act, 23 U.S.C. §128___ 4

Federal-Aid Highway Act of 1956,
23 U.S.C. §133 _____________________ ____ 6, 7

Federal-Aid Highway Act of 1968,
23 U.S.C. §501, et seq.---------------------------Passim

Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 
3970, Pub. L. 91-646, Jan. 2. 1971,
84 Stat. 1894 ____________________________  2

West Virginia Code, Ch. 17, Art, 2A, Sec.-l..... 1

2 . Court Rules.

Rule 25 (d ) (1 ), F.R.C.P____________________  1

Rule 40 (3 ) Supreme Court R u les__________  4

ill



t

3 Regulations, Directives, and Memorandums of 
Department of Transportation.

Circular Memorandum, December 26, 1968,..  16

Circular Memorandum, February 12,1969.— 16,17

Circular Memorandum, March 27, 1970, as 
amended April 10, 1970-.- —- ------------- >

Instructional Memorandum 80-1-68,
September 5, 1968, as amended-------------Rasswi

Memorandum on Implementation of Replace­
ment Housing Policy by Secretary of Trans­
portation, John A. Volpe, 1Q
January 15, 1970 -----------------------------------  ’

IV



IN THE

&upffni£ (Cmirt of tip lUutvft
OCTOBER TERM, 1970

No. 712

4

TRIANGLE IMPROVEMENT COUNCIL, ET AL.
Petitioners,

v.
WILLIAM S. RITCHIE, COMMISSIONER, 

STATE ROAD COMMISSION OF TPIE 
STATE OF WEST VIRGINIA, ET AL., 

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

BRIEF OF STATE RESPONDENTS 

INTRODUCTION

State Respondents1 herein, is the vehicle through 
which the various and sundry mechanics for the re-

*~For~purposes of brevity and clarification, the Respondents, William 
S. Ritchie, Jr., Commissioner, etc., and O. R. Colan, Director, etc., wi 
hereinafter be referred to as State Respondents. At the inception of 
subject litigation in December, 19C8, M. R. Hamill was Commissioner 
State Road Commission of West Virginia, and was replaced by said 
William S. Ritchie, Jr., and the District Court (A. 36a) substituted 
Mr Ritchie as a named defendant pursuant to Rule 25(d) (1 ), F.R.C.F. 
Since the time of the opinion of the District Court, Mr. James E. Bailey 
has replaced Mr. O. R. Colan as Director of Right of Way Division, 
and the State Road Commission of West Virginia has been lenamed 
by statute (Code 17-2A-1) as West Virginia Department of Highways 
and its Chief Executive Officer, the West Viiginia Commissioner of
Highways.

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location of individuals, individual families, businesses, 
farm operations and non-profit organizations displaced 
by federally-aided highway location and/or construc­
tion are carried out, in the Triangle area of the City 
of Charleston, as well as throughout the entire State 
o f West Virginia in any area in which highway 
construction is being pursued.

This relocation of displacees is pursuant to the 
provisions of federal statutes administered by federal 
agencies. State Respondents, in order to obtain re­
imbursement for the expense of relocation assistance 
to displacees, supplemental rental allowances, etc., 
from the federal government must and have complied 
with all provisions, regulations, requirements and direc­
tives of the federal agencies in regard to relocation of 
displacees. Morover, pursuant to the applicable fed­
eral statutes, and the rules, regulations and directives 
promulgated thereunder2, the State Respondents must, 
and have complied3 with all relocation procedures and 
requirements affecting displacees in order to qualify 
for federal aid for other phases of the highway con­
struction program.

To the Federal Respondents is delegated the respon­
sibility of initially construing the requirements of 
the statutes, promulgating rules and regulations to 
carry the provisions of the statute into effect, and im­
posing sanctions in the event of non-compliance there-

! S>ee Pet. Br. p. 3 for the statutes, regulations and policy directives 
involved; also Uniform Relocation Assistance and Real Property Ac- 
qui'ition Policies Act of 1970, Pub. L. 91-646, January 2, 1971. 84 Stat. 
189'..

“Compliance, at least, to the satisfaction of the federal agencies ad­
ministering the relocation provisions of the various statutes and regu­
lations.



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with by the State agency. The State Respondents have 
and will continue to comply with each and every stat­
ute, regulation, directive and procedure affecting le- 
location and displacement of persons or businesses 
as required by applicable federal statutes, responsible 
federal agencies or this Court.

However, State Respondents believe that the con­
struction placed upon the Federal Aid Highway Act 
of 1968, 23 U.S.C. §501., et seq. in regard to displace­
ment and relocation and the memorandums and diiec- 
tives issued pursuant thereto and in furtherance there­
of by the Federal Respondents, as carried out by the 
State Respondents (and which construction and per­
formance was affirmed by the District Couit and the 
Fourth Circuit Court of Appeals), is a propel, valid, 
legal and logical construction and application thereof 
in regard to the two federally-aided highway projects 
with which we are here concerned and the individuals, 
families, businesses and organizations affected thereby.

QUESTIONS PRESENTED

State Respondents are in accord with Petitioners’ 
general categorization of the questions presented for 
consideration herein, but take issue with some of the 
alleged factual statements inserted therein under the 
guise of “ Questions Presented,”  as folloivs: 1 2

1. All of the Petitioners in subject litigation have 
not and will not be displaced by the interstate highway 
in question.

2. Also considered clearly erroneous by State Re­
spondents are the numerous allegedly factual state-



4

ments (without reference to the authority or basis for 
such) that the housing market in the City of Charles­
ton is racially discriminatory and that the persons dis­
placed in the Triangle area are thereby excluded from 
obtaining replacement housing.

S. State Respondents further take serious issue with 
Petitioners’ assertions that State Respondents refused 
to provide assurances of relocation housing prior to 
displacement of anjr person by highway construction.

STATEMENT OF THE CASE

Although cognizant of the provisions of Rule 40(3 ) 
Supreme Court Rules that no statement of the case 
need be made beyond what may be deemed necessary 
in correcting any inaccuracy or omission in the state­
ment of the other side, it is considered more expedient 
to include a narrative statement of the case rather than 
to detail the inaccuracies and omissions contended by 
State Respondents to exist in Petitioners’ statement.

After public hearings held in Charleston, West 
Virginia, on March 29, 1960, and June 10 , 1964, pur­
suant to the applicable provisions of the Federal-Aid 
Highway Act, 23 U.S.C. § 128, the Bureau of Public 
Roads on August 31, 1964, approved the routing of 
combined Interstate 64 and Interstate 77 through 
the City of Charleston, West Virginia, which approved 
routing bisected the area of Charleston commonly 
referred to as the “ Triangle” .

According to the complaint filed in this proceed­
ing by Triangle Improvement Council, the Triangle 
is bounded generally as follows: On the north by



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Dryden Street, on the east by Capitol Street, on the 
south by Washington Street and on the west by Elk 
River (A. 10a). Interstate 64 (hereinafter refer­
red to as 1-64) is a generally east/west highway 
and Interstate 77 (hereinafter referred to as 1-77) is 
a generally north/south highway. These two high­
ways, together with Interstate 79, also a north/south 
highway, converge on the westerly side of Elk River 
opposite the Triangle area and 1-64 and 1-77 jointly 
cross the Elk River in a generally easterly direction 
into the Triangle area and continue eastwardly through 
the same (PI. Ex. 1; A. 137a). Two separate pro­
jects affect the Triangle and have been designated 
Project A  and Project B (A. 142a). Project A  
is approximately 2.9 miles long and begins at the 
interchange where 1-77 and 1-79 connect, proceeds 
down Elk River in a southerly direction to connect 
with 1-64 at Glenn Street, then crossing Elk River 
through the Triangle to Young Street. Project B be­
gins at Young Street in the Triangle and proceeds 
in a generally easterly direction to Jefferson Street, 
approximately 1.9 miles4 (Volpe’s Ex. 4; A. 208a 
and 275a).

The Bureau of Public Roads first authorized the 
State Road Commission to acquire right of way on 
Project A on April 19, 1966, and on Project B on 
November 30, 1966 (A. 192a). On Project A, there 
were approximately 1,293 persons to be relocated 
and on Project B there were approximately 897, or 
a total of 2,190. By February 28, 1969, approximately 
913 of these persons had been relocated on Project A, 
and approximately 401 on Project B, or a total of

4 The breaking point between the two projects will probably be Court 
Street which is one block east of Young Street (A. 209a).

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1,314 persons. There remained to be relocated on 
Project A, approximately 380 persons and on Project B, 
approximately 496 persons, or a total of 876 (A. 
213a and 214a). In the Triangle area there remained 
to be relocated as of February 28, 1969, approximately 
116 individuals and 55 families of two or more per­
sons. The total number of persons to be relocated was 
284 (A . 148a and 149a) (A. 193a, 194a and 195a).

During the interim period from April 19, 1966, 
when right of way acquisition was first authorized 
by the Bureau of Public Roads until April 1, 1969, 
the day before hearings were begun in the District 
Court on the subject case, numerous parcels of real 
estate were acquired by the State Road Commission 
(Pi. Ex. 4; A. 147a; Ritchie Ex. 5 and 6 ; A. 383a).

Prior to August 23, 1968, the effective date of the 
1968 relocation amendments to the Federal-Aid High­
way Act, 23 TJ.S.C. §501, et seq., the State Road Com­
mission of West Virginia was far exceeding the re­
quirements in regard to relocation assistance provided 
by the 1962 relocation assistance amendment to the 
Federal-Aid Highway Act of 1956, 23 U.S.C. §133, 
which became effective October 23, 1962.5

5 Paraphrasing the testimony of Gerald B. Saunders, Division Right 
of Way Officer, Bureau of Public Roads, Department of Transportation 
(A. 178a-182a, 209a-211a), 512 relocations on about 50 projects had 
been reviewed. Approximately 125 of these reviews were within the 
projects concerned herein and were under the requirements of the 1962 
relocation advisory assistance amendments to the Federal-Aid Highway 
Act of 1956 (23 U.S.C. §133). Saunders was satisfied that the State 
Road Commission was providing all the relocation assistance required 
and probably then some if compared nationwide. (Emphasis Supplied)

For detailed narrative of the activity by the State Road Commission 
in relocation assistance, see A. 370a, 372a.

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Upon passage of the 196S relocation amendme 
to the Federal-Aid Highway Act of 19o6 23 
§501, ct seq., the Bureau of Public Roads, Fedeia 
Highway Administration, U. S. Department of Trans­
portation issued a series of Instructional Memoran­
dums, Policy and Procedure Memorandums, and Cir­
cular Memorandums to cover the administration oi 
the Highway Relocation Assistance Program created 
by the 1968 amendment, 23 U.S.C. §501, et seq. (PI. 
F.v 9 and 3: A. 139a).

Based upon the language of the statute, the various 
memorandums interpreting and supplementing e 
same, the officials of the Bureau of Public Roads con­
cluded that, with the exception of relocation payments, 
the provisions of the Highway Relocation Assistance 
Program were not applicable to the two projects which 
affected the Triangle area.

Therefore, no assurances as mentioned in the statute 
(23 U.S.C. §502) and in the I.M. (I.M. 80-1-68, Sec­
tion 5) were required by the Bureau of Public Roads 
on the projects affecting the Triangle (A. 175a 
and 176a), and no Relocation Program Plan was re­
quired for the two projects pursuant to said I.M. 
80-1-68, Section 7.

However, with the exception of the Relocation Pro­
gram Plan set forth in Section 7 of I.M. 80-1-68, 
the State submitted all other assurances required by 
the statute (23 U.S.C. §502) and the I.M. and its 
amendments on a state-wide basis and such assurances 
were approved by the Bureau of Public Roads (A. 
150a-155a, 161a-165a). (PL Ex. 5, 6, 7, 8A, P>, C; 
A. 154a, 155a, 163a and 164a).



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Although no Relocation Program I lan undei the 
Aitnougn 80-1-68 was sub-

provisions 01 bection ‘ OI X.m. u nrnippts
plied by the State, as such, in regard to the projects 
affecting the Triangle, the State Road Commission 
of West Virginia has been providing the relocation 
assistance and service to the displaced persons m the 
Triangle area (A. 370a-372a) and to the satisfaction 

officials of the Bureau of Public Roads (A .
175a-179a).

Irrespective of the lack of a formal, written reloca­
tion plan, the displacement and relocation activities 
of the State Road Commission of West Virginia i 
the Triangle area, both before and after August 23, 
1968 must have also been to the apparent satisfac­
tion of persons being displaced as there was no evi­
dence of any sort introduced during the course of the 
hearing that any displaced person had not been piop- 
erly relocated. One occupant of the Triangle, i • 
Gladys Burton, although replacement housing w 
obtained, refused to move on advice ox agents of the 
plaintiff herein (A. 373a-377a). One other person, 
Mrs. Geraldine Jordan, who rented a room, testi­
fied that she was requested to move by April 7, 19bJ, 
and that the State offered her no assistance (A. 344a- 
346a) It, however, developed on cross-examina­
tion that Mrs. Jordan had been advised of and was 
familiar with the location of the Relocation Office 
in the Triangle area and that no one had given he 
written notice to vacate or had threatened to evict 
her from the premises. She had occupied the prem­
ises about 4 or 5 months and had moved into the loute 
of the interstate from the City of Institute It furttie 
developed that the owner of the house,_ Mrs. V mleti 
Nichols had obtained replacement housing and there

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were accommodations for her tenants also, but because 
of some personality conflict between Mrs. Jordan and 
a daughter of the landlady over room locations, she 
declined to move to the new location (A. 347a-350a).

The only other evidence of lack of relocation hous­
ing, other than studies, surveys and projections by 
various agencies, was the evidence of Robert Bayes, 
one o f the plaintiffs herein, and an owner of real 
estate within the interstate route, who testified that 
he was approached by the State Road Commission 
two years ago, but had not been contacted since, nor 
had any action been taken to displace him. He has 
attempted to find housing (apparently to purchase) 
and the prices are tremendous (A. 429a-431a).

Moreover, since the hearings in the District Court, 
petitions have been filed requesting stays and injunc­
tions in both the Circuit Court of Appeals and this 
Coin t, none or which have contained valid allegations 
of improper displacement of people or improper reloca­
tion thereof by State Respondents.

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ARGUMENT

For sake of clarity the argument of State Respond­
ents will be sub-divided into the same categories as 
Petitioners’ argument and shall contain the same 
headings.

I.
THE DISPLACEMENT OF THE BLACK PETITIONERS INTO A RACI­

ALLY DISCRIMINATORY HOUSING MARKET WITHOUT ADEQUATE 
GOVERNMENTAL MEASURES TO ASSURE NON-DISCRIMINATORY RE­
LOCATION HOUSING DEPRIVES THEM OF THE EQUAL PROTECTION 
n r t u p  l AWS GUARANTEED BY THE FOURTEENTH AMENDMENT.

Petitioners’ entire constitutional question is based 
upon the erroneous premise that the displacees are 
subject to private housing discrimination. State Re­
spondents are not so vain or naive as to allege that 
no racial bias or prejudice exists in the City of Charles­
ton, or to deny that racial bias or prejudice may well 
have been the predominant factor in the original 
creation of the “black ghetto of Charleston, West V ir­
ginia”  (as Petitioners refer to the Triangle area), 
but said State Respondents do allege that any  ̂ such 
racial discrimination as does exist does not and will not 
preclude the relocation of all persons involved herein 
on an open racial basis to adequate, safe, sanitaiy 
and decent housing.

The City of Charleston, in November, 1967, adopted 
an ordinance known as the Charleston Human Rights 
Act which, among other things, precludes all discrimi­
nation in the sale and/or rental of housing with the 
exception of facilities which will be pai tly occupied 
by the owner. Even this exception is limited to hous­
ing facilities of four units or under6. Therefore, with

< The entire Ordinance appears as an appendix to this brief.



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the exception of housing facilities which are partially 
occupied by the owners, there is no racial discrimina­
tion in the housing market which would preclude 
the displaced persons in question from being provided 
relocation housing. The sole basis for such allega­
tions of racial discrimination is contained m the test- 
monv of one Carolyn Tillman and her supportive 
affidavit (PI. Ex. 25; A. 333a-334a) to the effect that 
of the list of fifty dwelling units supplied to her by the 
State Relocation Office, only eight were below the 
$60.00 per month rental ceiling which she concluded 
was the maximum rental payable by the average in­
come family of Triangle residents, and of these eight 
dwelling units, two were considered unavailable tor 
rental by blacks. Unless these were within the excep­
tion to the Human Rights Ordinance, these two would 
have been available under the provisions of that Ordi­
nance. Furthermore, in the survey of Mrs. Tillman 
(A. 344a) she did not consider public housing^ “ be- 
rn/nse neonle are not desirous ox public housing.

There is no concrete evidence before this Court that 
any person has been denied replacement housing, 
either public or private, because of race, color, cieed, 
national origin or otherwise.

It is submitted that proof of the existence of a 
racially discriminatory housing market might well 
make out a case of violation of the equal protection 
clause of the Constitution. However, mere assump­
tions and assertions that such discrimination exists, 
without proof thereof, is not sufficient to invoke the 
denial of equal protection safeguards of the Fourteenth 
Amendment.



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13

statute were to be subject to inflexible and strict 
compliance therewith. The administrative agen­
cy did not give it such an interpretation, and 
I am of the opinion that the agency s determi­
nation had a rational basis and should not oe 
disturbed.”

Nothing within the statute itself requires the for­
mulation and preparation of a detailed relocation 
plan. The statute, as such, requires only that certain 
satisfactory assurances be made to the Secretary be­
fore approval of any project which will cause the 
displacement of any person (23 U.S.G. §502). These 
assurances were made by State Respondents and were 
satisfactory to the Secretary (acting, of course^ by 
and through his agents) (A. 164a, 176a). Petition­
ers’ inference that the requirement of satisfactory 
assurances necessitates the preparation cf an actual, 
formal, written relocation plan and submission of 
the same to the federal agency for approval is devoid 
of merit.

It was obvious to the officials of the Bureau of Pub­
lic Roads, from past experience and association with 
relocation activities of State Respondents under the 
provisions of the 1962 Act, that the assurances re­
quired by the 1968 Act could be met and the assur­
ances as given by State Respondents were thus satis­
factory” within the meaning of the statute.

Time has proven these officials to be correct in their 
assessment of the capabilities of State Respondents 
in these relocation activities. As of March 1, 1971, 
9 persons remain as residents of the Triangle area 
wuthin the right of vray boundaries to be relocated 
to safe, sanitary and decent housing.



14

Nor does the provisions of the Memorandum enti­
tled I.M. 80-1-G8 dated September 5, 1968, and its 
subsequent revision dictate the mandatory prepara­
tion and approval of a relocation plan.

By Section 510 of the 1968 Relocation Amendment, 
the Secretary was given authority to make lules and 
regulations to carry out the provisions contained in 
Chapter 5 of Title 23, U.S.C. In compliance there­
with, I.M. 80-1-68 was issued dated September 5, 1968. 
It is obvious to State Respondents from the covei let­
ter attached thereto (Pet. Br. A. 17) that the same 
was an interim operating procedure and that after 
a period of operation thereunder they would be incor­
porated into a Policy and Procedure Memorandum.

It is further obvious to State Respondents that the 
assurances required by Section 5 of I.M. 80-1-68 were 
not required for the two projects here in question 
by reason of the language c f Section 5 (b ) 7 thereof 
which is not subject to any other construction in that 
it is uncontroverted that authority to acquire right of 
way had been granted long before the effective date 
of the 1968 Relocation Amendment.

It is equally as obvious that the provisions of Sec­
tion 7 of I.M. 80-1-68 (Development of Relocation 
Program Plan) does not apply to the two projects in 
question.

I f great deference is given by the Courts to the 
interpretation given to statutes by the officers or agen-

1 The above assurances are not required where authorization to 
acquire right-of-way or to commence construction has been given prior 
to the issuance of this memorandum. The state will pick up the 
sequence at whatever point it may be in the acquisition program at 
the time of issuance of this memorandum. I.M. 80-1-68, Section 5(b ).

/



15

cy charged with its administration as this Court has 
held in the case of Udall v. Tail-man, 380 U.S. 1 (1 96o), 
how much greater deference should be given to the 
interpretation of rules and regulations promulgated 
by the officers to carry into effect the provisions of 
a statute.

The fact that no relocation plan was required upon 
projects which were underway at the time of the effec­
tive date of the 1968 Relocation Amendments was 
not solely the interpretation of the Division Right of 
Way Officer or the Division Engineer of the West 
Virginia Division of the Bureau of Public Roads and 
it was not limited to the two projects here in ques­
tion. According to the testimony of P. E. Carpenter, 
the Division Engineer of the Bureau of Public Roads 
(A . 415a-417a), preparation of the I.M. in question 
was begun in June, 1968, when the possibilities ap­
peared good that the Relocation Amendment would 
pass the Congress. Mr. Carpenter, then Chief of 
Appraisal and Acquisition, Office of Right of Way 
and Location, assisted in preparing the basic policy, 
and the subject of relocation plans for going projects 
was discussed at meetings of the Federal Highway 
Administration in Washington, D. C., prior to the 
enactment of the actual statute, and subsequently 
at meetings of all the top highway officials .in the 
United States.

The interpretation throughout has been that no 
formal relocation plan was required on going projects 
by the provision of the statute (23 U.S.C. §501, et seq.) 
and I.M. 80-1-68.

Mr. Carpenter’s testimony and the above conclu­
sion are given weight and credence by the language

-Vj



of additional memorandums (Pet. Br. A. 37, 39) dated 
December 26, 1968, and February 12, 1969, respec­
tively.

16

Petitioners, in their brief, at page 34, N. 79, quote 
portions of these two memorandums as support for 
their position that relocation plans were required. The 
portions quoted, read separate and apart from the re­
mainder of the memorandum, might well be construed 
as supportive of Petitioners’ claim. However, close 
study of these subsequent memorandums does not 
support that contention.

The first of these, dated December 26, 1968, ob­
viously applies to projects on which authorizations 
to negotiate to acquire right of way and/or begin 
construction8 has not yet been given and relocation 
plans are clearly required under I.M. 80-1-68. How­
ever, under circumstances in which the State, under 
its present law, could not comply with the relocation 
requirements, the requirements of a relocation plan 
were partially rescinded and only sufficient data was 
required for the Division Engineer to determine the 
advisability of proceeding with the project.

Rather than strengthening Petitioners’ position that 
relocation plans were considered mandatory on the 
subject projects by the Department of Transportation, 
this memorandum greatly weakens the same and shows

'Counsel for Petitoners appear to have difficulty with the rather 
frequent use of the terminology “authorise to acquire right of way or 
commence construction” found in the var.ous memorandums. There are 
circumstances under which federally-aided projects are constructed 
on right of way acquired without federal aid or owned by the State 
and, therefore, the first federal authorization may well be in relation 
to the construction aspect of the project.



17

that such relocation p' a“  f?  j ” S the authorization for 
wore not absolutely eaw jtod to_t ^ ^ ^ oI Wes
beginning projects. . g to comply with all
Virginia was ahle, uIl location Amendments, and the 
requirements ol the were “ going projects ,
S i  S o t n d u m  had no ‘applicability to the subject

ease. „Q
,1lirn fiftted February 12, l ytK >The other m em oran dum dated , es_ Going Proj-

is concerned with R‘:l°ca indicates that States
ects. This Circular Memorandum ,nd« . cts ^  m
should undertake planning Vrover (Emphasis
extent that it is — ^ r^ n i T e 7 thathach such 
Added). The memorandum circumstances and
project involves a diffeie dditional authoriza-
conditions and of wav or authorize construc­
tions to acquire rvgM of W ^  Engineer based

" S i  aval,able *  him by the

State.

1 i t  logically follows t o t  U j ^ ^ c o n t o S d  
I.M. 80-1-68 requued two projects m ques-
by the Petitioners ieiei , ^  additional memoran-
tion, there was no n undertake such plan-
dum instructing the States and leaving the

^ r — SThe discretion of the Division E n g , 

neer. # . .
With all due deference  ̂to^tlm and the

of Judge Sobeloff (A. " ’ of the Fourth Circuit
S o m fo ^ ip p e a ^ h a t  considered Petitioners’ petition



19

authorizations for construction had been given and 
yet today no authorizations for construction have been 
given in any area in the Triangle still occupied by 
pei’sons. The sole authorization for construction in 
the Triangle area is for piers for the bridge across 
Elk River and the construction touches no occupied
areas of land.

Relocations are continuing under the constant 
scrutiny of Federal Highway Administration person­
nel, and when all of the residents have been adequately 
relocated to safe, sanitary and decent housing, then 
authorization for construction will be requested.

This is the identical procedure as contemplated by 
the memorandum of Secretary Volpe dated January 15, 
1970. It provides, in part:

“ 2 Construction will be authorized only upon 
verification that replacement housing is m 
place and lias been made available to all af­
fected persons.”

How could such verification be made until actual 
relocation had taken place? Furthermore, if relocation 
has been made, the question of whether or not the 
replacement housing is fair housing— open to all_ per­
sons, regardless of race, color, religion, sex or national 
origin is moot.

The implementing memorandum dated April 10, 
1970 likewise precludes authorization for construction 
“ until such time as the person being relocated has 
either by himself obtained and has the right of posses­
sion of adequate replacement housing or the State 
offers him adequate replacement housing which is 
available for immediate occupancy .

i



20

This is exactly what State Respondents have been 
doing since late 1968.

What advantage or benefit could or would have 
been afforded the persons to be displaced by the prep­
aration o f a formal relocation plan by State Respond- 
ents. A major portion of the people to be relocated 
on the two projects had been moved prior to the effec­
tive date of the 1968 Relocation Amendment. The 
remaining ones could not be prejudiced or injured by 
t e State s program of delaying construction until 
relocation had been completed.

Rather than the Petitioners’ position in this case 
becoming the law, it appears obvious that the policy 
of State Respondents has now become the law through 
 ̂ e ^01 ce an  ̂ effect of Federal Regulations, by virtue 

of the above discussed memorandums.

13. In the A bsence of Compliance W ith the Re­
quirements of the 1968 Relocation A mend­
ments, A dministrative A ction By State and 
Federal Officials Cannot Be Upheld on the 
Basis of General A ssurances That Efforts 
A re Being and W ill Be Made to Relocate 
Persons Displaced, and That A dequate Re­
location Housing E xists.

Responding to Petitioners’ assertions under the 
above heading, State Respondents agree that if the 
statute and the I.M. required a comprehensive reloca­
tion plan on the two projects in question, then the 
assurances, as made to the Court during the trial 
would not be an adequate substitute therefor. How-

i



21

ever, it is our contention, as above set forth, that the 
comprehensive relocation plan was not required.

1 . Reversal Is Required Because the Procedures Man­
dated by Law ivith Respect to the Submission for 
Review' and Approval of a Comprehensive Reloca­
tion Plan Were Not Followed.

State Respondents do not understand the opinion of 
the District Court to hold that the assurances made 
by State Respondents and relied upon by the P'ederai 
Respondents would “ substantially comply” with the 
requirements for a comprehensive relocation plan. The 
District Court said that no such plan was required 
on the two projects in question by virtue of the statute 
and the regulations. The Court further held that from 
the evidence adduced in the trial, the State Respond­
ents could comply with the provisions of the 1968 
Relocation Amendment and the regulations relating 
thereto which were applicable to the two projects in 
question.

2. The District Court’s Purported Finding That Re­
location Housing Was Adequate Was Clearly 
Erroneous.

m There is nothing to substantiate Petitioners’ asser­
tion that the District Court’s determination of ade­
quate relocation housing was made without reference 
to standards set forth in the statute and the regula­
tions. The standards [I.M. 80-1-68(13)] were before 
the Court as a part of the Instructional Memorandum 
and even a cursory glance at the record will reveal 
that the testimony was crammed with the standard 
of safe, sanitary and decent” . The Court’s opinion 
(A. 55a) likewise used the terminology.



22

The most logical answer as to whether or not the 
District Court’s finding as to adequate relocation 
housing was erroneous is the fact that relocation has, 
for all practical purposes, been completed.

I t h e  q u e s t io n s  o f  r e t r o a c t iv e  a p p l ic a t io n  a n d  a p p r o ­
p r ia t e  REMEDY.

State Respondents are in accord with Petitioners’ 
suggestion as to retroactive application of this Court’s 
ruling in the event of a ruling adverse to the position 
of State Respondents. However, again, little construc­
tive benefit would be obtained by the formulation of 
a comprehensive relocation plan for the 9 people re­
maining in the Triangle area. They should simply be 
relocated in adequate, safe, sanitary and decent hous­
ing and in all probability will have been so relocated 
by the time decision is rendered herein.

State Respondents are aware that there are per­
sons who have relocated from rights of way in the 
State of West Virginia (including the Triangle area) 
without knowledge of the State Respondents and have 
not received moving allowances and relocation benefits 
to which they may be entitled. A program is presently 
underway to locate these persons and see that they 
receive all benefits due them. This program is appli­
cable throughout the State and not just in the Triangle 
area.

State Respondents feel Petitioners’ suggestion on 
locating all persons displaced from the Triangle and 
report their present housing condition to the Court



23

is too broad a requirement to comply with the provi­
sions of the 1968 Act. Over two and one-half years 
have elapsed since the effective date of the 1968 Act, 
and the present housing condition of some of these 
people v. ould not be pertinent or germane to the issue. 
However, it would appear, if the Court deems it neces­
sary, that it would not be unreasonable to require State 
Respondents to use diligent efforts to ascertain the 
housing conditions to which the individual moved 
immediately upon displacement and act accordingly 
pursuant to the Court’s mandate.

CONCLUSION

State Respondents are cognizant that problems exist 
throughout the country in regard to displacement of 
individuals, families, and businesses as the result of 
the Federal and Federally-Aided Highway Programs. 
They are likewise apprised of the many studies, in­
vestigations and reports in regard to the same pre­
pared by Congressional Committees, Public and Pri­
vate .Agencies, and have supplied data and informa­
tion for use in such reports in an endeavor to assist 
in arriving at equitable and just solutions to the re­
location problems. State Respondents are committed 
to the proposition, “ that a few individual's do not 
suffer disproportionate injuries as a result of programs 
designed for the benefit of the public as a whole” , and 
has conducted its displacement and relocation activities 
accordingly.

Sta:e Respondents, by their counsel, have also taken 
cognizance of the numerous citations of court decisions 
in support of the various propositions proffered by



24

Petitioners i n w a r d  to racial discrimination; Consti­
tutional questions. administrative procedure and judi­
cial review thereof: and concede that the court deci­
sions, as cited, properly state the law. However, the 
facts of the case at bar do not lend themselves to appli­
cation of the theories o f law advanced by Petitioners. 
Therefore, State Respondents have approached this 
matter from a purely factual basis, and refrained 
from a discussion of the law.

The sole issue in this case is whether or not the 
1968 Relocation Amendments to the Federal-Aid High­
way Act and the regulations promulgated by Secre­
tary pursuant thereto require State Respondents to 
make certain assurances, a part o f which assurances 
involves the preparation of a comprehensive reloca­
tion plan, for projects authorized prior to the effective 
date of the statute. There is no question as to the 
Piopei construction of the language in question 
[I.M. 80-1-68(5) ( b ) ]  and assurances are not re­
quired.

The evidence clearly shows that State Respondents 
could fully comply with the remaining applicable provi­
sions of the statute, the (I.M. 80-1-68), and the supple­
mental memorandums in its relocation program. The 
passage of time has shown conclusively that it did.

There may be relocation problems within the Fed­
eral Highway Program that cry out for relief and 
there may be instances in which, “ the Department 
of Transportation lias shown little regard for its own 
policy statements as limits upon or guides to its 
actions”  (Pet. Br. 37),  but the Triangle area of the 
City of Charleston is not such an instance.

The
nied.

Preise 
P. 0 .
1012 K 
Chari c
Of Coi



The relief prayed for by Petitioners should be de­
nied.

Respectfully submitted,
Stanley E. Preiser,
L. A lvin Hunt 
P. 0. Box 2506
1012 Kanawha Boulevard, East 
Charleston, West Virginia 25329
Attorneys for State Respondents

Preiser, Greene, Hunt & W ilson 
P. 0. Box 2506
3 012 Kanawha Boulevard, East 
Charleston, West Virginia 25329
0 /  Counsel