Brief for the Lawyers’ Committee for Civil Rights Under Law as Amicus Curiae in Support of the United States

    IN THE

© jm rt o f ^ ta t^ s
OCTOBER TERM, 1970

No. 712

TRIANGLE IMPROVEMENT COUNCIL, ET AL.,
Petitioners,

V.
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

BRIEF OF STATE RESPONDENTS
Stanley E. Preiser 
L. Alvin Hunt 
1012 Kanawha Blvd., E. 
P. 0. Box 2506 
Charleston, W. Va. 25329 

Attorneys for State 
Respondents

Preiser, Greene, Hunt & Wilson 
Of Counsel



I N D E X
Page

Introduction________    1
Questions P resented________________________  3
Statement of the C ase______________________  4
Argument _________________________________ 10

I. The Displacement of the Black Petitioners 
Into a Racially Discriminatory Housing 
Market Without Adequate Governmental 
Measures to Assure Non-Discriminatory 
Relocation Housing Deprives Them of the 
Equal Protection of the Lavŝ s Guaranteed
by the Fourteenth Amendment__________  10

II. The 1968 Relocation Amendments to the
Federal-Aid Highway Act and Regulations 
Thereunder Grant Relocation Benefits to the 
Triangle Residents Which Have Not Yet 
Been Administratively or Judicially Ac­
corded Them _________________________  12
A. The 1968 Relocation Amendments As­

sure Persons Not Yet Displaced as of 
the Date of Enactment the Right to 
Adequate Replacement Housing, and 
Pursuant Thereto Mandate Detailed 
Relocation P lans___________________  12

B. In the Absence of Compliance with the
Requirements of the 1968 Relocation 
Amendments, Administrative Action by 
State and Federal Officials Cannot be 
Upheld on the Basis of General Assur­
ances That Efforts Are Being and Will 
Be Made to Relocate Persons Displaced, 
and That Adequate Relocation Housing 
Exists ___________________________  20



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 _________________________  21

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 Rem edy______________  22

Conclusion_________________________________  23

11



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

--------- 6, 7
Federal-Aid Highway Act of 1956, 

23 U.S.C. §133 ______________

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

Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 
1970, Pub. L. 91-646, Jan. 2, 1971,
84 Stat. 1894 ________________________  2

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

2. Court Rules.

Rule 25(d) (1), F.R.C.P--------------------------  1

Rule 40(3) Supreme Court R u les_________ 4

iii



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-----------------------  18, 19

-Passim
Instructional Memorandum 80-1-68,

September 5, 1968, as amended____

Memorandum on Implementation of Replace­
ment Housing Policy by Secretary of Trans­
portation, John A. Volpe,
January 15,1970 ____________________ 18,19

IV



IN THE

©0«rt of
OCTOBER TERM, 1970

No. 712

TRIANGLE IMPROVEMENT COUNCIL, ET AL.,
Petitioners,

V.
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

fo r  t h e  fo u r th  c ir c u it

BRIEF OF STATE RESPONDENTS

INTRODUCTION
State Respondents' herein, is the vehicle through 

which the various and sundry mechanics for the re-

 ̂For purposes of brevity and clarification, the Respondents, W^illiam 
S. Ritchie, Jr., Commissioner, etc., and O. R. Colan, Director, etc., will 
hereinafter be referred to as State Respondents. At the inception of 
subject litigation in December, 1968, 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.P. 
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 renamed 
by statute (Code 17-2A-1) as West Virginia Department of Highways, 
and its Chief Executive Officer, the West Virginia Commissioner of 
Highways.



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 
of 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 thereunder^, the State Respondents must, 
and have complied® 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-

®See Pet. Br. p. 3 for the statutes, regulations and policy directives 
involved; also Uniform Relocation Assistance and Real Property Ac­
quisition Policies Act of 1970, Pub. L. 91-646, January  2, 1971, 84 Stat. 
1894.

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



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 re­
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 direc­
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 Court and the 
Fourth Circuit Court of Appeals), is a proper, 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 follows:

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



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.

3. State Respondents further take serious issue with 
Petitioners’ assertions that State Respondents refused 
to provide assurances of relocation housing prior to 
displacement of any 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



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 a t 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 miles^ (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

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



6

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 U.S.C. §501, et seq., the State Road Com­
mission of West Virginia was fa r 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.®

® 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.



Upon passage of the 1968 relocation amendments 
to the Federal-Aid Highway Act of 1956, 23 U.S.C. 
§501, et seq., the Bureau of Public Roads, Federal 
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 of 
the Highway Relocation Assistance Program created 
by the 1968 amendment, 23 U.S.C. §501, et seq. (PI. 
Ex. 2 and 3; A. 139a).

Based upon the language of the statute, the various 
memorandums interpreting and supplementing the 
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). (PI. Ex. 5, 6, 7, 8A, B, C; 
A. 154a, 155a, 163a and 164a).



8

Although no Relocation Program Plan under the 
provisions of Section 7 of I.M. 80-1-68 was sub­
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 in the 
Triangle area (A. 370a-372a) and to the satisfaction 
of the 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 in 
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 prop­
erly relocated. One occupant of the Triangle, Mrs. 
Gladys Burton, although replacement housing was 
obtained, refused to move on advice of 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, 1969, 
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 her 
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 route 
of the interstate from the City of Institute. I t further 
developed that the owner of the house, Mrs. Violett 
Nichols, had obtained replacement housing and there



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 of 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 
Court, none of which have contained valid allegations 
of improper displacement of people or improper reloca­
tion thereof by State Respondents.



10

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 
OF THE LAWS 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 Vir­
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, sanitary 
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 partly occupied 
by the owner. Even this exception is limited to hous­
ing facilities of four units or under®. Therefore, with

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



11

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 in the test- 
mony of one Carolyn Tillman and her supportive 
affidavit (PL 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 for 
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
cause people are not desirous of 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, creed, 
national origin or otherwise.

I t 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.



12

II.
THE 1968 RELOCATION AMENDMENTS TO THE FEDERAL-AID 

HIGHWAY ACT AND REGULATIONS THEREUNDER GRANT RELOCA­
TION BENEFITS TO THE TRIANGLE RESIDENTS WHICH HAVE NOT 
BEEN ADMINISTRATIVELY OR JUDICIALLY ACCORDED THEM.

A. The 1968 Relocation Amendments Assure 
Persons Not Yet Displaced As of the Date 
OF E nactment the Right to Adequate Re­
placement Housing, and Pursuant Thereto 
Mandate Detailed Relocation Plans.

State Respondents agree that the 1968 Relocation 
Amendments assure persons not yet displaced as of 
the date of the enactment thereof the right to ade­
quate replacement housing. This position has always 
been maintained by the State Respondents and has 
been consistently followed. Relocation assistance, ser­
vice and allowances to persons displaced as required 
by the 1968 Relocation Amendments and the I.M.’s 
thereunder have been supplied by State Respondents 
to all persons who have been displaced by action of 
State Respondents. However, State Respondents do 
not agree that the 1968 Relocation Amendments re­
quire a detailed relocation plan for projects long since 
authorized and from the area of which a major por­
tion of the persons had been removed.

As the learned District Judge said in his opinion 
(A. 5 4 a ):

“. . . I am further convinced, after analyzing 
the statutory provisions, their legislative his­
tory, and the instructional memoranda issued 
pursuant thereto, that Congress could not have 
intended that projects authorized and approved 
several years prior to the enactment of the 1968



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 be 
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.C. §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 of an actual, 
formal, written relocation plan and submission of 
the same to the federal agency for approval is devoid 
of merit.

I t 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 
within the right of way boundaries to be relocated 
to safe, sanitary and decent housing.



14

Nor does the provisions of the Memorandum enti­
tled I.M. 80-1-68 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 rules 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. 
I t  is obvious to State Respondents from the cover 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 of Section 5(b)^ 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.

I t 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.

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

■'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. Tollman, 380 U.S. 1 (1965), 
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



16

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

Petitioners, in their brief, a t 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 
construction® 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 “authorize to acquire right of way or 
commence construction” found in the various 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 plans as prescribed by I.M. 80-1-68 
were not absolutely essential to the authorization for 
beginning projects. Furthermore, as the State of West 
Virginia was able, under its laws, to comply with all 
requirements of the Relocation Amendments, and the 
two projects here in question were “going projects”, 
this memorandum had no applicability to the subject 
case.

The other memorandum dated February 12, 1969, 
is concerned with Relocation Procedures—Going Proj­
ects. This Circular Memorandum indicates that States 
should undertake planning on all active projects to the 
extent that it is reasonable and 'proper (Emphasis 
Added). The memorandum recognizes that each such 
project involves a different set of circumstances and 
conditions and necessarily left additional authoriza­
tions to acquire right of way or authorize construc­
tion to the discretion of the Division Engineer based 
upon the information made available to him by the 
State.

I t logically follows that if the statute and/or the 
I.M. 80-1-68 required a relocation plan as contended 
by the Petitioners herein, on the two projects in ques­
tion, there was no need for the additional memoran­
dum instructing the States to undertake such plan­
ning where reasonable and proper and leaving the 
extent thereof to the discretion of the Division Engi­
neer.

With all due deference to the dissenting opinion 
of Judge Sobeloff (A. 72a-78a; 429 F. 2d 423) and the 
opinion of the panel of judges of the Fourth Circuit 
Court of Appeals that considered Petitioners’ petition



18

for rehearing as Judge Sobeloff inferred it to be (A. 
77a; 429 F. 2d 423, 426), State Respondents do not 
subscribe to the proposition that as the result of a 
policy directive of the Secretary of Transportation 
dated January 15, 1970 (Pet. Br. A. 41), and an im­
plementing memorandum of the Federal Highway 
Administration dated March 27,1970 (Amended April 
10, 1970, Pet. Br. A. 43), the position of the Petition­
ers herein has now become the law.

The State Respondents have never contended and 
do not now contend that the 1968 Relocation Amend­
ments do not apply to the projects in question. How­
ever, we do contend that by virtue of the provisions 
of I.M. 80-1-68(5) (b), the formal Relocation Plan re­
quired by I.M. 80-1-68(7) as a part of the “satisfactory 
assurances” are not required. The sole obligation of 
State Respondents on the two projects in question 
was to begin the actual physical activity of assisting 
persons to be displaced to be relocated into safe, sani­
tary  and decent housing and to provide for them the 
various relocation allowances and payments as required 
by the statute and regulations. This has been done.

The memorandums of January 15, 1970, and April 
10, 1970, in no way changed this procedure on the 
two projects in question. In fact. State Respondents 
are of the opinion that these memorandums, in effect, 
adopted the philosophy and theory of State Respondents 
to meet the relocation problem.

The District Court was assured that displacement 
would be conducted at a slow pace in order that ade­
quate replacement housing could be found. This was 
done. At the time of the trial of this matter, no



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 
persons. 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. I t provides, in part:

“2. Construction will be authorized only upon 
verification that replacement housing is in 
place and has 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”.



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 of 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 
the 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 
the force and effect of Federal Regulations, by virtue 
of the above discussed memorandums.

B. I n  t h e  A b sen c e  of Co m plia nc e  W it h  t h e  R e­
q u ir e m en t s  OF THE 1968 Relocation  A m e n d ­
m e n t s , A d m in istr a tiv e  A ction  B y  S tate  a n d  
F ederal  Of fic ia l s  Ca n n o t  B e U ph e l d  on  t h e  
B a sis  of Gen e r a l  A ssu r a n c es  T h a t  E fforts 
A re B e in g  a n d  W ill  B e Made to Relocate 
P erso ns D isplaced , a n d  T h a t  A dequate  R e­
lo c atio n  H o u sin g  E x ist s .

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-



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 with 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 Federal 
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.

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.

III.
THE QUESTIONS OF RETROACTIVE APPLICATION AND APPRO­

PRIATE 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 would 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 P ri­
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 individuals 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.

State 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 in regard 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 of law advanced by Petitioners. 
Therefore, State Respondents have approached this 
m atter 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 of 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 
proper 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 has 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.



25

The relief prayed for by Petitioners should be de­
nied.

Respectfully submitted,
St a n l e y  E . P reiser ,
L. A l v in  H u n t  
P. 0. Box 2506
1012 Kanawha Boulevard, East 
Charleston, West Virginia 25329
Attorneys for State Respondents

P reiser , Gr e e n e , H u n t  & W ilson  
P. 0. Box 2506
1012 Kanawha Boulevard, East 
Charleston, West Virginia 25329
Of Counsel



APPENDIX



3-A

AN ORDINANCE repealing Article 75, Part 9, Streets and 
Public Services Law, Code of the City of Charleston, 1957, 
known as Ordinance 919—^Amended, and enacting Ordinance 
Article 75, Part 9, Streets and Public Services Law, Code of 
the City of Charleston, 1957, relating to establishment of the 
Charleston Human Rights Commission, prohibiting discrimi­
nation in employment, housing and public accommodations 
and providing penalties for violations:

Be it ordained by the Cotmcil of the City of Charleston;

That Article 75, Part 9, Streets and Public Services Law, 
Code of the City of Charleston, 1957, known as Ordinance 919 
—Amended, adopted by Council on October 2, 1967, be re­
pealed and that Article 75, Part 9, Streets and Public Services 
Law, Code of the City of Charleston, 1957, as hereinafter pro­
vided is hereby enacted to read as follows:

Section 1. This ordinance shall be known and may be cited 
and referred to as The Charleston Human Rights Act.

Section 2. Policy Declared.—It is the public policy of the 
City of Charleston to provide all of its citizens equal opportu­
nity for employment, equal access to places of public accom­
modations, and equal opportunity in the sale, purchase, lease, 
rental and financing of housing accommodations or real prop­
erty. Equal opportunity in the areas of employment, public 
accommodations, housing and real property is hereby declared 
to be a human right or civil right of all persons without regard 
to race, religion, color, national origin or ancestry.

The denial of these rights to properly qualified persons by 
reason of the race, religion, color, national origin or ancestry is 
contrary to the principles of freedom and equal opportunity 
and is destructive to a free and democratic society.

Section 3. Definitions.—When used in this ordinance:

(a) The term “person” means one or more individuals, 
partnerships, associations, organizations, corporations, labor 
organizations, cooperatives, legal representatives, trustees.



4-A

trustees in bankruptcy, receivers, and other organized groups 
of persons.

(b) The term “commission” 
Rights Commission.

means the Charleston Human

(c) The term “director” means the executive director of 
the Charleston Human Rights Commission.

(d) The term “employer” includes the city, or any politi­
cal or civil subdivision thereof, and any person employing 
five (5) or more persons within the City, provided that such 
term shall not be taken, understood or construed to include 
a private club.

(e) The term “employee” shall not include any individual 
employed by his parents, spouse, or child, or in the domestic 
service of any person.

(f) The term “labor organization” includes any organiza­
tion which exists for the purpose, in whole or in part, for 
collective bargaining or for dealing with employers concern­
ing grievances, terms or conditions of employment, or for 
other mutual aid or protection in relation to employment.

(g) The term “employment agency” includes any person 
undertaking with or without compensation to procure, recruit, 
refer or place employees.

(h) The term “discriminate” or “discrimination” means 
to exclude from or fail or refuse to extend to a person equal 
opportunities because of race, religion, color, national origin 
or ancestry, and includes to separate or segregate.

(i) The term “unlawful discriminatory practices” includes 
only those practices specified in Section 9 of this ordinance.

(j) The term “place of public accommodations” means any 
establishment or person, as defined herein, including the City, 
or any political or civil subdivision thereof, which offers its 
services, goods, facilities, or accommodations to the general 
public, but shall not include any accommodations which are 
in their nature distinctly private.



5-A

(k) The term “housing accommodations” means any bixild- 
ing or portion thereof, which is used or intended for use as 
the residence or sleeping place or one or more persons, but 
does not include (A) the rental of a dwelling, or a portion 
thereof, containing accommodations for two, three or four 
families, one of which accommodations is maintained by the 
owner at the time of rental as the household of his family 
or (B) the rental of a room or rooms in a single family private 
dwelling or room in any apartment sublet by the owner or 
tenant of said apartment to another person or persons by the 
owner or occupant of such accommodation in which he or 
members of his family reside.

(l) The term “real property” includes real estate, lands, 
leaseholds, commercial or industrial buildings, and any vacant 
land offered for sale or rent on which the construction of a 
housing accommodation, commercial or industrial building is 
intended.

(m) The term “real estate broker” includes a person, firm, 
or corporation who, for a fee, commission, or other valuable 
consideration, or by reason of a promise or reasonable expec­
tation thereof, lists for sale, sells, exchanges, buys, or rents, 
or offers or attempts to negotiate a sale, exchange, purchase, 
or rental of real estate or an interest therein, or collects or 
offers or attempts to collect rent for the use of real estate 
or solicits for prospective purchaser or assists or directs in 
the procuring of prospects or the negotiation or closing of 
any transaction which does or is contemplated to result in 
the sale, exchange, leasing, renting, or auctioning of any real 
estate or negotiates, offers, or attempts or agrees to negotiate 
a loan secured or to be secured by mortgage or other encum­
brance upon or transfer of any real estate for others, or any 
person who, for pecuniary gain or expectation of pecuniary 
gain, conducts a private or public competitive sale of lands 
or any interest in lands. In the sale of lots, the term “real 
estate broker” shall also include any person, partnership, as­
sociation, or corporation employed by or on behalf of the 
owner or owners of lots or other parcels of real estate, at a 
stated salary, or upon a commission, or upon a salary and 
commission, or otherwise, to sell such real estate, or any parts



6-A

thereof, in lots or other parcels, and who shall sell or exchange, 
or offer or attempt or agree to negotiate the sale or exchange, 
of any such lot or parcel of real estate.

(n) The term “real estate salesman” includes any person 
who, for compensation, valuable consideration or commission, 
or other thing of value, or by reason of a promise or reason­
able expectation thereof, is employed by and operates under 
the supervision of a real estate broker to sell or offer to sell, 
buy or offer to buy or negotiate the purchase, sale or exchange 
of real estate, offers or attempts to negotiate a loan secured 
or to be secured by a mortgage or other encumbrances upon 
or transfer of real estate, to lease or rent, or offer to lease or 
rent any real estate for others, or to collect rents for the use 
of real estate, or to solicit for prospective purchasers or lessees 
of real estate, or who is employed by a licensed real estate 
broker to sell or offer to sell lots or other parcels of real estate, 
at a stated salary, or upon a commission, or upon a salary and 
commission, or otherwise to sell real estate, or any parts 
thereof, in lots or other parcels.

(o) The term “purchaser” includes any occupant, prospec­
tive occupant, lessee, prospective lessee, buyer or prospective 
buyer.

(p) The term “owner” shall include the owner, lessee, sub­
lessee, assignee, manager, agent, or other person, firm or 
corporation having the right to sell, rent or lease any hous­
ing accommodation or real property within the City of Charles­
ton or any agent of any of these.

(q) The term “complainant” means any individual charg­
ing on his own behalf of have been personally aggrieved 
by discriminatory practices.

Section 4. Human Rights Commission Created; Status, 
Powers and Objects.—A Charleston human rights commission 
is hereby created and established in the city government. The 
commission shall have the powers and authority and shall 
perform the functions and services as in this ordinance pre­
scribed and as otherwise provided by law. The commission 
shall encourage and endeavor to bring about mutual under-



7-A

standing and respect among all racial, religious and ethnic 
groups within the city and shall strive to eliminate all dis­
crimination in employment, places of public accommodations 
and in the sale, purchase, lease, rental or financing of housing 
and other real property by virtue of race, religion, color, 
national origin or ancestry.

Unless the context clearly requires another meaning or refer­
ence, the word “commission” as used in this ordinance shall 
be construed to mean and to refer to the Charleston human 
rights commission.

Section 5. Commission Composition; Terms; Oath of Office; 
Expenses.—The commission shall be composed of nine mem­
bers, all residents and citizens of the City of Charleston and 
broadly representative of the several racial, religious and ethnic 
groups residing within the City, to be appointed by the Mayor 
by and with the advice and consent of the City Council.

Not more than five members of the commission shall be 
members of the same political party.

Upon passage of this ordinance, members of the commis­
sion shall be appointed to terms of three years commencing 
on the first day of July of the year of their appointments, 
except that the nine members first appointed hereunder shall 
be appointed for terms of from one to three years, respec­
tively, retroactively to the proceeding July 1st so that the 
terms of three members of the commission will expire on the 
thirtieth day of June of each succeeding year thereafter. Upon 
the expiration of the initial terms, all subsequent appoint­
ments shall be for terms of three years each, except that 
appointments to fill vacancies shall be for the unexpired term 
thereof. Members shall be eligible for reappointment.

No member of the commission shall receive any salary or 
compensation for his services as such, but each member shall 
be reimbursed for any reasonable and necessary travel ex­
penses incurred in performance of commission services.

Section 6. Commission Organization and Personnel.— Âs soon 
as practical after the creation of the commission, the Mayor



8-A

shall call a meeting thereof to be convened at the City Build­
ing. The commission shall at the meeting organize by electing 
one of its members as chairman of the commission and one 
as vice-chairman thereof for a term of one year or until 
their successors are elected and qualified. At such meeting 
the commission shall also elect from its membership such 
other officers as may be found necessary and proper for its 
effective organization. Annually thereafter, as soon as prac­
tical after the first day of July, the commission shall elect 
a chairman and vice-chairman from its membership and such 
other officers as may be found necessary and proper for its 
effective organization.

The commission shall, subject to the approval of the Mayor, 
select an executive director, by and with the advice and con­
sent of the City Coimcil, who shall serve at the will and pleas­
ure of the commission and the Mayor. The executive director 
shall serve as secretary of the commission. The executive 
director shall have a college degree. He shall be selected 
with particialar reference to his training, experience and quali­
fications for the position and shall be paid an annual salary, 
payable in monthly installments, from any appropriations 
made therefor. The commission, upon recommendation of 
the executive director, may employ such personnel as may be 
necessary for the effective and orderly performance of the 
fimctions and services of the commission.

The commission shall equip and maintain its offices at the 
City Building and shall hold its annual organizational meet­
ing there. The commission may hold other meetings during 
the year at such times and places within the City as may be 
found necessary. Any five (5) members of the commission 
shall constitute a quorum for the transaction of business. 
Minutes of its meetings shall be kept by its secretary.

The executive director and other commission personnel shall 
be reimbursed for necessary and reasonable travel and sub­
sistence expenses actually incurred in performance of commis­
sion services upon presentation of properly verified expense 
accounts as prescribed by law.

The commission shall prepare and submit an annual budget



9-A

to the City Council for approval. This budget, however, shall 
be predicated upon the appropriation annually made by the 
City Council for expenditure by the commission.

Section 7. Assistance to Commission; Legal Services.—The 
commission may call upon other officers, departments and 
agencies of the city government to assist in its hearings, 
programs and projects. The City Solicitor shall render legal 
services to the commission upon request made by the commis­
sion or by the chairman or the executive director thereof.

Section 8. Commission Powers; Functions; Services.—The 
commission is hereby authorized and empowered:

(a) To cooperate and work with federal, state and local 
government officers, imits, activities and agencies in the pro­
motion and attainment of more harmonious understanding 
and greater equality of rights between and among all racial, 
religious and ethnic groups in this City;

(b) To enlist the cooperation of racial, religious and ethnic 
units, community and civic organizations, industrial and labor 
organizations and other identifiable groups of the City in 
programs and campaigns devoted to the advancement of toler­
ance, understanding and the equal protection of the laws for 
all groups and peoples;

(c) To receive, investigate, and pass upon complaints alleg­
ing discrimination in employment, places of public accommoda­
tions or in the sale, purchase, lease, rental and financing of 
housing accommodations or real property because of race, reli­
gion, color, national origin or ancestry, and to initiate its own 
consideration of any situations, circumstances or problems, in­
cluding therein any racial, religious or ethnic group tensions, 
prejudice, disorder or discrimination reported or existing with­
in the City relating to employment, places of public accommo­
dations, and housing and real property;

(d) To hold and conduct public and private hearings on 
complaints, matters and questions before the commission and, 
in connection therewith, relating to discrimination in employ­
ment, places of public accommodations or in the sale, pur­
chase, lease, rental and financing of housing accommodations



10-A

or real property, and during the investigation of any formal 
complaint before the commission relating thereto, to:

(1) Issue subpoenas and subpoenas duces tecum  upon the 
concurrence of at least five (5) members of the commission, ad- 
minster oaths, take the testimony of any person under oath, and 
make reimbursement for travel and other reasonable and 
necessary expenses in connection with such attendance;

(2) Furnish copies of public hearing records to parties in­
volved therein upon their payment of the reasonable costs 
thereof to the commission;

3. Delegate to a panel of three (3) commission members 
appointed by the chairman, the power and authority to hold 
and conduct the hearings, as herein provided, but all decisions 
and action growing out of or upon any such hearings shall 
be reserved for determination by the conamission;

(4) To enter into conciliation agreements;

(5) To apply to the Circuit Court of Kanawha County for 
enforcement of any conciliation agreement by seeking specific 
performance of such agreement;

(6) To issue cease and desist orders against any person 
found after a public hearing to have violated the provisions 
of this ordinance, or the rules and regulations of the commis­
sion;

(7) To apply to the Circuit Court of Kanawha County 
for an order enforcing any lawful cease and desist order 
issued by the commission.

(e) To recommend to the Mayor and Council, policies, 
procedures, practices and legislation in matters and questions 
affecting human rights.

(f) To delegate to its executive director such powers, 
duties and functions as may be necessary and expedient in 
carrying out the objectives and purposes of this ordinance.

(g) To prepare a written report on its work, functions 
and services for each year ending on the thirtieth day of June 
and to deliver copies thereof to the Mayor on or before the 
first day of December next thereafter.



11-A

(h) To do all other acts and deeds necessary and proper 
to carry out and accomplish effectively the objects, functions 
and services contemplated by the provisions of this ordinance 
including the promulgation of rules and regulations imple­
menting the powers and authority hereby vested in the com­
mission.

(i) To create such advisory agencies and conciliation coim- 
cils, within the City, as in its judgment will aid in effectuating 
the purposes of this ordinance, to study the problem of dis­
crimination in all or specific fields or instances of discrimina­
tion because of race, religion, color, national origin or ances­
try; to foster, through community effort or otherwise, good 
will, cooperation and conciliation among the groups and ele­
ments of the population of this City, and to make recommen­
dations to the commission for the development of policies and 
procedures, and for programs of formal and informal educa­
tion, which the commission may recommend to the appropriate 
City agency. Such advisory agencies and conciliation coun­
cils shall be composed of representative citizens serving with­
out pay. The commission may itself make the studies and 
perform the acts authorized by this paragraph. It may, by 
voluntary conferences with parties in interest, endeavor by 
conciliation and persuasion to eliminate discrimination in all 
the stated fields and to foster good will and cooperation among 
all elements of the population of the City.

(j) To accept contributions from any person to assist in 
the effectuation of the purposes of this section, and to seek 
and enlist the cooperation of private, charitable, religious, labor, 
civic and benevolent organizations for the purposes of this 
section.

(k) To issue such publications and such results of in­
vestigation and research as in its judgment will tend to pro­
mote good will and minimize or eliminate discrimination 
provided that the identity of the parties shall not be disclosed.

Section 9. Unlawful Discriminatory Practices.—It shall be 
an unlawful discriminatory practice, unless based upon a bona 
fide occupational qualification, or except where based upon 
applicable security regulations established by the United States



12-A

or the State of West Virginia or the City of Charleston or any 
agencies or political subdivisions of said United States, State 
of West Virginia, or City of Charleston;

(a) For any employer to discriminate against an individual 
with respect to compensation, hire, tenure, terms, conditions 
or privileges of employment, if the individual is able and com­
petent to perform the services required.

(b) For any employer, employment agency or labor organ­
ization, prior to the employment or admission to membership, 
to (1) elicit any information or make or keep a record of 
or use any form of application or application blank contain­
ing questions or entries concerning the race, religion, color, 
national origin or ancestry of any applicant for employment 
or membership; (2) print or publish or cause to be printed or 
published any notice or advertisement relating to employ­
ment or membership indicating any preference, limitation, 
specification or discrimination based upon race, religion, color, 
national origin or ancestry; (3) deny or limit, through a quota 
system, employment or membership because of race, religion, 
color, national origin or ancestry.

(c) For any labor organization because of the race, reli­
gion, color, national origin or ancestry of any individual to 
deny full and equal membership rights to any individual or 
otherwise to discriminate against such individuals with respect 
to hire, tenure, terms, conditions or privileges of employment 
or any other matter, directly or indirectly, related to employ­
ment.

(d) For an employer, labor organization, employment 
agency or any joint labor-management committee controlling 
apprentice training programs to:

(1) Select individuals for an apprentice training program 
registered with the City of Charleston on any basis other 
than their qualifications as determined by objective criteria 
which permit review;

(2) Discriminate against any individual with regard to 
his right to be admitted to or participate in a guidance pro­
gram, an apprenticeship training program, on-the-job training 
program, or other occupational training or retraining program;



13-A

(3) Discriminate against any individual in his pursuit of 
such programs or to discriminate against such a person in the 
terms, conditions or privileges of such programs;

(4) Print or circulate or cause to be printed or circulated 
any statement, advertisement or publication, or to use any 
form of application for such programs or to make any inquiry 
in connection ŵ ith such program -which expresses, directly or 
indirectly, discrimination or any intent to discriminate unless 
based on a bona fide occupational qualification.

(e) For any employment agency to fail or refuse to classify 
properly, refer for employment or otherwise to discriminate 
against any indmdual because of his race, religion, color, 
national origin or ancestry.

(f) For any person being the owner, lessee, proprietor, 
manager, superintendent, agent or employee of any place of 
public accommodation to:

(1) Refuse, withhold from, or deny to any individual be­
cause of his race, religion, color, national origin or ancestry, 
either directly or indirectly, any of the accommodations, ad­
vantages, facilities, privileges, or services of such place of pub­
lic accommodation;

(2) Publish, circulate, issue, display, post or mail, either 
directly or indirectly, any written or printed communication, 
notice or advertisement to the effect that any of the accommo­
dations, advantages, facilities, privileges, or services of any 
such place shall be refused, withheld from or denied to any 
individual on account of race, religion, color, national origin 
or ancestry, or that the patronage or custom thereat of any 
individual, belonging to or purporting to be of any particular 
race, religion, color, national origin or ancestry is unwelcome, 
objectionable, not acceptable, rmdesired or not solicited;

(g) For the owner, lessee, sublessee, assignee or manag­
ing agent of, or other person having the right of ownership 
or possession of or the right to sell, rent, lease, assign, or sub­
lease any housing accommodations or real property or part 
or portion thereof, or any agent or employee of any of them; 
or for any real estate broker, real estate salesman, or employee 
or agent thereof:



14-A

(1) To refuse to sell, rent, lease, assign or sublease or 
otherwise to deny to or withhold from any person or persons 
any housing accommodations or real property or part or por­
tion thereof or represent that such housing accommodations 
are not available for inspection when in fact they are so 
available, provided, of course, that the request for inspection 
is made at a reasonable time, and that the inspection be made 
at a reasonable time, because of race, religion, color, national 
origin or ancestry of such person or persons. Nothing in this 
ordinance shall be deemed to permit any rentals or occupancy 
otherwise prohibited by law;

(2) To discriminate against any person or persons because 
of the race, religion, color, national origin or ancestry of such 
person or persons in the terms, conditions, or privileges of sale, 
rental or lease of any housing accommodations or real prop­
erty or part or portion thereof or in the furnishing of facilities 
or services in connection therewith; or

(3) To print, publish, circulate, issue, display, post or mail, 
or cause to be printed, published, circulated, issued, displayed, 
posted or mailed any statement, advertisement, publication, 
or sign or to use any form of application for the purchase, 
rental, lease, assignment, or sublease of any housing accom­
modations or real property, or part or portion thereof, or to 
make any record or inquiry in connection with the prospec­
tive purchase, rental, lease, assignment, or sublease of any 
housing accommodations or real property, or part or portion 
thereof which expresses, directly or indirectly, any limitation, 
specification, or discrimination as to race, religion, color, 
national origin or ancestry, or any intent to make any such 
limitation, specification, or discrimination, and the production 
of any statement, advertisement, publicity, sign, form of appli­
cation, record, or inquiry purporting to be made by any such 
person shall be prima facie evidence in any action that the 
same was authorized by such person.

(h) For any person or financial institution or lender to 
whom application is made for financial assistance for the 
purchase, acquisition, construction, rehabilitation, repair or 
maintenance of any housing accommodations or real property 
or part or portion thereof or any agent or employee thereof:



15-A

(1) To discriminate against any person or group of per­
sons because of the race, religion, color, national origin or 
ancestry of such person or group of persons or of the pros­
pective occupants or tenants of such housing accommodations 
or real property or part or portion thereof, in the granting, 
withholding, extending, modifying, or renewing, or in the fixing 
of the rates, terms, conditions, or provisions of any such 
financial assistance or in the extension of services in connec­
tion therewith; or

(2) To use any form of application for such financial assist­
ance or to make any record or inquiry in connection with 
applications for such financial assistance which expresses, 
directly or indirectly, any limitation, specification or discrim­
ination as to race, religion, color, national origin or ancestry 
or any intent to make any such limitation, specification, or 
discrimination.

(i) For any person, employer, employment agency, labor 
organization, owner, real estate broker, real estate salesman, 
or financial institution to:

(1) Engage in any form of threats or reprisals, or to en­
gage in, or hire, or conspire with others to commit acts or 
activities of any nature, the purpose of which is to harass, 
degrade, embarrass, or cause physical harm or economic loss 
or to aid, abet, incite, compel, or coerce any person to engage 
in any of the unlawful discriminatory practices defined in this 
ordinance;

(2) Wilfully obstruct or prevent any person from com­
plying with the provisions of this ordinance, or to resist, pre­
vent, impede or interfere with the commission or any of its 
members or representatives in the performance of duty un­
der this ordinance;

(3) Engage in any form of reprisal or otherwise discrim­
inate against any person because he has opposed any practices 
or acts forbidden under this ordinance or because he has filed 
a complaint, testified, or assisted in any proceeding under this 
ordinance.

Section 10. Procedures.—Any individual claiming to be ag­
grieved by an alleged unlawful discriminatory practice shall



16-A

make, sign, and file with the commission a verified complaint, 
which shall state the name and address of the person, em­
ployer, labor organization, owner or real estate broker or 
agency, financial institution or lender, or employment agency 
alleged to have committed the unlawful discriminatory prac­
tice complained of, and which shall set forth the particulars 
thereof and contain such other information as may be re­
quired by the commission’s rules and regulations. The commis­
sion upon its own initiative or the Mayor, or the City Solicitor 
may, in like manner, make, sign and file such complaint. 
Any employer whose employees, or some of them, hinder or 
threaten to hinder compliance with the provisions of this ordi­
nance shall file with the commission a verified complaint, 
asking for assistance by conciliation or other remedial action 
and, during such period of conciliation or other remedial 
action, no hearings, orders or other actions shall be taken, held, 
or made by the commission against such employer. Any 
complaint filed pursuant to this ordinance must be filed within 
sixty (60) days after the alleged act of discrimination.

After the filing of any complaint, or whenever there is rea­
son to believe that an unlawful discriminatory practice has 
been committed the commission shall make a prompt investi­
gation in connection therewith.

If it shall be determined after such investigation that no 
probable cause exists for substantiating the allegations of the 
complaint, the commission shall, within ten (10) days from 
such determination, cause to be issued and served upon the 
complainant written notice of such determination, and the 
said complainant or his attorney may, within ten (10) days 
after such service, file with the commission a written request 
for a meeting with the commission to show probable cause 
for substantiating the allegations of the complaint. If it shall 
be determined after such investigation or meeting that prob­
able cause exists for substantiating the allegations of the com­
plaint, the commission shall immediately endeavor to elimi­
nate the unlawful discriminatory practices complained of by 
conference, conciliation and persuasion. The members of the 
commission and its staff shall not disclose what has transpired 
in the course of such endeavors; Provided, that the commis­
sion may publish the facts in the case of any complaint which



17-A

has been dismissed, and the terms of the conciliation when the 
complaint has been adjusted, without disclosing the identity 
of the parties involved.

In case of failure so to eliminate such practice or in advance 
thereof, if in the judgment of the commission circumstances 
so warrant, the commission shall cause to be issued and served 
a written notice, together with a copy of such complaint as 
the same may have been amended, in the manner provided 
by law for the service of summons in civil actions, requiring 
the person, employer, labor organization, employment agency, 
owner, real estate broker or agency, financial institution or 
lender, named in such complaint, hereinafter referred to as 
respondent, to answer the charges of such complaint at a 
hearing before the commission in Charleston at a time and 
place to be specified in such notice: Provided, however, that 
such written notice be served at least thirty (30) days prior 
to the time set for the hearing.

The case in support of the complaint shall be presented 
before the commission by one of its attorneys or agents. The 
respondent may file a written, verified answer to the com­
plaint and appear at such hearing in person or otherwise, 
with or without counsel, and submit testimony and evidence. 
Except as provided in the immediately preceding provision 
all of the pertinent provisions of Article 5, Chapter 29A of 
the Code of West Virginia shall apply to and govern the 
hearing and the administrative procedure in connection with 
and following such hearings with like effect as if the provisions 
of said Article 5, Chapter 29A were set forth in extenso in 
this section.

If, after such hearing and consideration of all of the testi­
mony, evidence and record in the case, the commission shall 
find that a respondent has engaged in or is engaging in any 
unlawful discriminatory practice as defined in this ordinance, 
the commission shall issue and cause to be served on such 
respondent an order to cease and desist from such imlawful 
discriminatory practice and to take such affirmative action, 
including, but not limited to hiring, reinstatement or upgrad­
ing of employees, with or without back pay, admission or 
restoration to membership in any respondent labor organiza-



18-A

tion or the admission to full and equal enjoyment of the 
services, goods, facilities, or accommodations offered by any 
respondent place of public accommodation, and the sale, pur­
chase, lease, rental, or financial assistance to any complainant 
otherwise qualified for the housing accommodation or real 
property, denied in violation of this ordinance, as in the judg­
ment of the commission, will effectuate the purposes of this 
ordinance, and including a requirement for report of the 
manner of compliance. Such order shall be accompanied by 
findings of fact and conclusions of law as specified in Section 3, 
Article 5, Chapter 29A of the Code of West Virginia.

If, after such hearing and consideration of all of the testi­
mony, evidence and record in the case, the commission shall 
find that a respondent has not engaged in such unlawful dis­
criminatory practice, the commission shall state its findings 
of fact and conclusions of law as aforesaid and shall issue 
and cause to be served on the complainant an order dismiss­
ing the said complaint as to such respondent.

A copy of its order shall be delivered in all cases by the 
commission to the complainant, to the respondent, to the City 
Solicitor, and to such other public officers as the commission 
may deem proper. Any such order shall not be enforceable 
except as provided in Section 11 of this ordinance.

Any person against whom a cease and desist order has been 
served by the commission shall have a full appeal and com­
plete right of review as a matter of right by the Circuit Court 
of Kanawha Coimty, and from that Court to the Supreme 
Court of Appeals of West Virginia in accordance with the 
laws of the State of West Virginia, provided, however, that 
any provision of Chapter 29A supercede this provision in event 
of any conflict thereto.

Section 11. Enforcement of Cease and Desist Order.—In the 
event any person shall fail to obey a lawful cease and desist 
order of the commission, the commission may seek an order 
of the Circuit Court for its enforcement, in a proceeding as 
provided in this section. Such proceeding shall be brought 
in the Circuit Court of Kanawha County. Such proceedings 
shall be initiated by the filing of a petition in such Court, 
together with a written transcript of the entire record upon



19-A

the hearing before the commission. Notice of the filing of 
such petition, together with a copy thereof shall be served 
upon respondent in the manner provided by law for the ser­
vice of summons in civil actions. No hearing shall be held 
upon such petition within twenty (20) days of the date of 
service thereof on the respondent.

The Court may grant such temporary relief or restraining 
order as it deems just and proper and shall make and enter 
upon the pleadings, testimony and proceedings set forth in 
such transcript an order enforcing, modifying and enforcing 
as so modified, or setting aside in whole or in part the order 
of the commission. All such proceedings shall be heard and 
determined by the Court. The jurisdiction of the Circuit Court 
shall be exclusive and its judgment and order shall be final 
subject to review by the Supreme Court of Appeals.

Section 12. Exclusiveness of Rem edy—The procedure here­
in provided shall, when invoked, be exclusive and the final 
determination therein shall exclude any other action, civil 
or criminal, based on the same grievance of the complainant 
concerned. If such complainant institutes any action based 
on such grievance without resorting to the procedure provided 
in this ordinance, he may not subsequently resort to the pro­
cedure herein. In the event of a conflict between the inter­
pretation of a provision of this ordinance and the interpretation 
of a similar provision contained in any state law, the interpre­
tation of the provision of the state law shall apply to this 
mtmicipal ordinance.

Section 13. Penalty—Any person who shall wilfully resist, 
prevent, impede or interfere with the commission, its mem­
bers, agents or agencies in the performance of duties pursuant 
to this ordinance, or shall wilfully violate a final order of 
the commission, shall be guilty of a misdemeanor and, upon 
conviction thereof, shall be punished by a fine of not less 
than one hundred dollars ($100.00) nor more than five hun­
dred dollars ($500.00), or by imprisonment not exceeding thirty 
(30) days, or by both such fine and imprisonment in the dis­
cretion of the court, but seeking judicial review of an order 
shall not be deemed to be such wilfull conduct.



20-A

Section 14. This ordinance shall in no way be construed 
to deny to any person his rights as they exist at common 
law or xmder the laws of the State of West Virginia, for re­
dress or damages, in the event of wilfull and malicious wrongs 
or harassment committed upon him.

Section 15. Construction; Severability.—The provisions of 
this ordinance shall be liberally construed to accomplish its 
objectives and purposes. If any provision of this ordinance 
be held invalid or imconstitutional by any court of competent 
jurisdiction, such invalidity or imconstitutionality shall not 
affect or invalidate the other provisions hereof, all of which are 
declared and shall be construed to be separate and severable.