Triangle Improvement Council v. Ritchie Brief for Appellants

    IN THE
UNITED STATES COURT OP APPEALS 

FOR THE FOURTH CIRCUIT
NO. 14,033

TRIANGLE IMPROVEMENT COUNCIL, et al.
P laint if fs-Appe Hants

v.
WILLIAM S. RITCHIE, Commissioner, State 
Road Commission of the State of West 
Virginia, et al.,

Defendants -Appellees

On Appeal From The United States District Court 
For The Southern District Of West Virginia

BRIEF FOR APPELLANTS

JACK GREENBERG 
MICHAEL DAVIDSON 

10 Columbus Circle 
New York, New York 10019

JOHN BOETTNER
A. ANDREW HACQUEEN,. Ill’

Legal Aid Society of Charleston 
1026 Quarrier Street 
Charleston, West Virginia 25301

Attorneys for Appellants
Of Counsel:
THOMAS J. O'SULLIVAN 
PETER M. COLLINS 
14 Wall Street 
New York, New York

STEVE YOUNG
10 Columbus Circle 
New York, New York



TABLE OF CONTENTS

Table of Cases..................................
Statement of Issues Presented for Review........
Statement of the Case ...........................1
Statement of Facts

1. Charleston, West Virginia and
the Triangle.......................... 9

2. The Highway Planning Process ..........  12
3. The Current Status of 1 -77.............. 14
4. The Relocation Amendments to the . . . ;

Federal-Aid Highway Act.................. 17
5. Department Regulations and Inter­

pretations Concerning the 1968 
Relocation Amendments.................... 18

6. The Decision Not to Require a
Relocation Plan.......................... 21

7. Federal Highway Officials Know 
That the Supply of Relocation
Housing is Inadequate.................... 24

8. The Belatedly Contrived "Triangle 
Area Relocation Program Plan."

Page

26



Argument
Page.

I. THE 1968 RELOCATION AMENDMENTS 
REQUIRE ADEQUATE RELOCATION 
HOUSING FOR ALL PERSONS DIS­
PLACED AFTER THEIR ENACTMENT.......... 29
1. The Canons of Construction........ 30
2. The 1968 Relocation Amend­

ments Are Remedial and Should
Be Liberally Construed............ 31

3 . Any Interpretation Which De­
lays the Full and Immediate 
Effectiveness of the 1968 
Amendments Should be Rejected . . .  37

4. The District Court Erred by 
Relying Exclusively on an 
Interpretation of a Regula­
tion Which Conflicts With The 
Remedial Statutory Scheme and
the Regulations.................. 42

5. The State Road Commission Is 
Obliged to Assure the Avail­
ability of Relocation Housing 
For All persons Displaced 
After the Enactment of the
1968 Amendments.................. 45

6. The Department of Transporta­
tion is Required to Monitor 
State Highway Departments And 
Assure That No Persons Are 
Displaced After the Enactment 
of the 1968 Relocation Amend­
ments Unless Relocation Housing 
is Available 47



Paqe
II. FEDERAL AND STATE HIGHWAY OFFICIALS 

HAVE FAILED TO COMPLY WITH THE RE­
LOCATION AMENDMENTS TO THE FEDERAL- 
AID HIGHWAY ACT AND THE DEPARTMENT 
OF TRANSPORTATION'S RELOCATION REG­
ULATIONS ..............................  52
1. The District Court Applied

Incorrect Standards of Review . . .  52

2 . The Department Approved the
Srate Road Commission's Assur­
ances of the Adequacy of the 
State's Relocation program 
"Without Observance of Proce­
dure Required By Statute" ........  61

3. The Department Made No Findings
to Support Its Determination 
That Relocation Assurances Were 
Satisfactory......................  66

4. The Department's Determination
of the Acceptability of State 
Road Commission's Assurances 
Was Unsupported by Substantial 
Evidence, Arbitrary, and Unlaw­
ful..............................  67

5. Defendants Failed to Consider 
Factors, Such as Racial Dis­
crimination, Which Are Essential
to a Rational Decision..........  69

III. THE DISPLACEMENT OF BLACKS IN A DIS­
CRIMINATORY HOUSING MARKET WITHOUT 
ADEQUATE GOVERNMENTAL MEASURES TO 
ASSURE NON-DISCRIMINATORY RELOCATION 
HOUSING DEPRIVES DISPLACED BLACKS OF
THE EQUAL PROTECTION OF THE LAWS . . .  74

Conclusion.....................................  78



TABLE OF CASES

Arr?.ngton v. City of Fairfield,
414 F.2d 687 (5th Cir. 1969) 75, 77
Bowles v. Seminole Rock Co. 325 U.S. 410 30
Brewer v. School Board of City of Norfolk,
397 F.2d 37 (4th Cir. 1968) 76

Charlton v. United States, 412 F.2d 390 
(3d Cir. 1969) 56, 58

City of Chicago v. F.P.C.,!38Q F.2d 624 
(D.C. Cir. 1967) 71

Michigan Consolidated Gas Co. v. F.P.C.,
283 F.2d 204 (D.C. Cir. i960), cert.
denied, 364 U.S. 913 (1950) 70

Norwalk CORE v. Norwalk Redevelopment 
Agency, 395 F.2d 920 (2d Cir. 1968) 70, 75, 77
Road Review League v. Boyd 270 F.Supp. 650 
(S.D.N.Y. 1967) 60

Saginaw Transfer Co. v. United States,
275 F.Supp. 585 (E.D. Mich. 1967) 67
Scenic Hudson Preservation Conf. v. F.P.C.,
354 F .2d 608 (2d Cir. 1965), cert, denied,
384 U.S. 941 (1966) 70, 73

Scott v. United States 160 Ct. Cl. 152 (1963) 58
S.E.C. v. Chenery Corp., 318 U.S. 80 (1943) 66
Service v. Dulles 354 U.S. 363 (1957) 64
Thorpe v. Housing Authority of the City of 
Durham, 393 U.S. 268 (1969) 30

Page

i



Page

Udall v. Taliman, 380 U.S. 1 (1965) 30, 45
Unifcfed States v. Davison Fuel and 
Dock Company, 371 F.2d 705 (4th Cir. 1967) 31
United States v. An Article of Drug, 
394 U.S. 784 (1969) 31

Western Addition Community Organization 
v. Weaver 294 F.Supp. 433, 436 (N.D. 
Cal. 1968) 47, 59, 60

Wirtz v. T.T. Peat Humus Co., 373 F.2d 
(4th Cir.), cert, denied, 389 U.S. 834 
(1967) 31

STATUTES
5 U.S.C. <5701 et seq. 6, 56t57, 62

23 U.S.C. <S101 et seq. 2, 6, 12-13, 
17-18, 34, 36, 
39-42, 47, 49, 62

42 U.S .C. §1455 (c) (2) 47

42 U.S.C. §3608(c)
REGULATIONS

71-72

IM 80-1-68 18-20, 22, 28, 
42-44, 61, 73



OTHER AUTHORITIES

Advisory Commission on Intergovernmental 
Relations, Relocation: Unequal Treat­
ment of People and Businesses D.i?'.placed 
by Government (1965) 33

Highway Relocation Assistance Study,
90th Cong. 1st Sees. (1957) 34, 38

Jaffa, judicial Control of Administrative
Action (1965) 45

Progress and Protest, The Architectural 
Forum, Vol. 131, No. 4

Select Committee on Real Property Acquisi- 
tion, Study of Compensation and Assistance 
for Persons Affected by Real property 
Acquisition in Federal end Federally As­
sisted Programs, 88th Cong., 2nd Seas.(1964) 33

Note, The Federal Courts and Urban Renewal,
69 Colum. L. Rev. 472 (.1969)

Page

58



Statement of Issues presented for Review

1. Whether the district court erred in deciding 
that families and individuals who are dis­
placed, after August 23, 1968, by the con­
struction of a federally aided interstate 
highway are not entitled to the full pro­
tection of the 1968 relocation amendments 
to the Federal-Aid Highway Act, 23 U.S.C. 
§501 et seq., simply because federal author­
ization to acqiiire their residences preceded 
August 23, 1968, the effective date of the 
relocation amendments.

2. Whether, assuming that the first issue is 
decided in favor of plaintiffs-appellants, 
defendant federal and state highway offi­
cials have failed to comply with the re­
location amendments to the Federal-Ard 
Highway Act, 23 U.S.C. §501 et_seg.., the 
affirmative action requirements of the 
Fair Housing Act, 42 U.S.C. 3608(c), and 
the relocation regulations of the Depart­
ment of Transportation.

iv



3. Whether defendant federal and state 
highway officials are denying the 
equal protection of the laws to poor 
black residents of Charleston, West 
Virginia, by removing them from their 
homes and forcing them to find re­
placement housing in a racially dis­
criminatory housing market without 
adequately assuring that suitable 
relocation housing is available on a 
non-discriminatory basis.

v



IN THE
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
NO. 14,033

TRIANGLE IMPROVEMENT COUNCIL, et al.
Plaintiffs-Appellants

v.
WILLIAM S. RITCHIE, Commissioner, State 
Road Commission of the State of West 
Virginia, et al.,

Defendants-Appellees

BRIEF FOR APPELLANTS

Statement of the Case
The Triangle Improvement Council, an organization

representing residents of Charleston, West Virginia's
1/

black ghetto, the Triangle, and individual residents 
of this ghetto, initiated this class action to protect 
themselves and their neighborhood against the destructive 
effects of an interstate highway which defendant federal 
and state highway officials plan to construct through 
the Triangle. The principal defendants are federal offi­
cials responsible for the administration of the federal
I/ One plaintiff is white. In accordance with Rule 22(d) 

of the Federal Rules of Civil Procedure, plaintiffs- 
appellants will be referred to by the name of the 
organizational plaintiff, the Triangle Improvement 
Council.



aid highway program, and state officials responsible for
the planning and construction of highways in We3t Virginia.

As neither federal nor state highway officials
have established procedures of receiving, investigating,
and resolving administrative complaints, the Triangle
Improvement Council began this action directly in federal

2/
court. The complaint, filed December 3, 1968, alleged 
that: (1) the public hearing on the highway t?as inade­
quate; (2) defendants failed to consider, as required, 
the adverse social effects of the highway; (3) the impact 
of the highway on Charleston's black community is dis­
criminatory? and (4) defendants are failing to comply 
with the relocation requirements of the Federal-Aid 
Highway Act, 23 U.S.C. §501 et seq. (R.V.I, pp. 5-18).

In response, federal and state defendants objected 
to both the standing of the Triangle Improvement Council 
and the individual complainants to raise the claims in 
this lawsuit, and the district court’s jurisdication to 
review the actions of the Department of Transportation
2 /  At trial, a Department of Transportation official 

testified that he kn&w of no complaint procedure.
All he could recommend to anyone with a complaint 
is that he write to hi? Congressman or the Presi­
dent (R.V.II, p. 139).

-2



and the West Virginia State Road Commission. They also
denied the complaint * a specific factual allegations

3/
(R.V.I, pp. 19-30).

At first, federal and state defendants voluntarily 
agreed to halt displacement activities in the Triangle. 
When it appeared that the agreement was no longer opera­
tive, the Triangle Improvement Council moved for a tem­
porary restraining order halting work on the highway 
pending a final determination of the action. Relevant 
documents were subpoenaed to the hearing on the temporary 
restraining order. On March 10, 1969 the district court 
quashed the subpoenas and denied the motion for a tem­
porary restraining order (R.V.I, p. 35).

The district court then scheduled am April 1,
1959 hearing on the Triangle Improvement Council's 
motion for a preliminary injunction. To prepare for the 
hearing, the Triangle Improvement Council promptly noticed 
the depositions of federal and state highway officials.
Both federal and state officials moved to quash the depo­
sition subpoenas and the district court granted the motions 
to quash on March 17, 1969. (Ibid). Still seeking the
3/ The federal and state answers were filed May 5 and 8, 

1969, respectively, after the April 2-3, 1959 eviden­
tiary hearing.

-3-



opportunity for some discovery prior to the hearing, the 
Triangle Improvement Council filed motions to produce 
and inspect documents (R.V.I, p. 36). These motions were 
denied on March 23, 1969, at which time the district 
court also quashed subpoenas isstiad on March 26, 1S6S for 
the purpose of requiring production of documents at the 
hearing itself. (Ibid) The district court did instruct 
defendants to bring "all relevant material" to the hearing 
which was set over until April 2, 1969 (Ibid.). Apparently, 
the definition of relevancy was left to defendants to 
determine. At the evidentiary hearing on April 2-3, 1969, 
the district court, presumably satirically but nevertheless 
accurately, characterized his denial of discovery as "?in- 
oori3cionable" (R.V.II, p. 58). In advance of trial, the 
district court also restricted the evidence • the consti­
tutional and statutory issues concerning relocation (R.V.
I, p. 35).

A hostile environment pervaded the April 2-3 
hearing. Throughout the hearing the district court in­
quired into the livelihood of counsel and witnesses for 
the Triangle Improvement Council (e.g., F..V.II, pp. 3-7).
As local counsel for the Triangle Improvement Council are 
employed by a legal aid society which the Office of Economic

-4-



Opportunity funds, and as they are challenging the legality
of the administration of a federally aided program, the 
district court felt prompted to disparage the litigation 
as a "looking glass war" (R.V.XX, pp» 3, 7). The court 
unrestrainedly commented that federal financing of legal 
challenges to federally aided programs is "frightening",
" a matter of concern to me not only as a judge but as 
an individual", "bureaucracy gone mad", and "ridiculous" 
(R.V.II, pp. 427-28). He termed the litigation a "gambit" 
tJX.V.II, p. 50), and called upon the local bar association 
to reconsider its support of the Legal Aid Society because 
the Society, in the court's opinion, was "not fulfilling 
its classic role and responsibility" (R.V.II, p. 428).

At the conclusion of the hearing, and in response 
to the court * s suggestion, the Triangle Improvement Couxicil 
agreed to submit the case for a decision on the merits 
without a further evidentiary hearing (R.V.II, pp. 424-25). 
This was done simply because the Council had no confidence 
that the district court would allow any more latitude for 
discovery prior to a final evidentiary hearing than the 
coiirt allowed prior to the preliminary evidentiary hearing.

On July 2, 1969, the district court rendered judg­
ment on the merits. The court decided two issues favorably

-5-



for the Triangle Improvement Council:standing and review- 
ability. The court concluded that the relocation amend­
ments to the Federal Aid Highway Act, 23 U.S.C. §501 
et seg., "clearly were intended to protect persons such 
as the plaintiffs in this matter," and that the Triangle 
Improvement Council and individual residents have standing 
to challenge the failure to comply with these amendments 
(R.V.I, pp. 43-44). The court also concluded that the 
administrative decisions involved in this litigation are 
reviewable under the Administrative procedure Act, 5 U.S.C. 
§701 et seg. (R.V.I, pp. 42-43).

On the merits, however, the district court ordered 
dismissal of the complaint (R.V.I, p. 51). The court sus­
tained federal and state defendants* interpretation of 
the 1968 relocation amendments to the Federal Aid Highway 
Act, 23 U.S.C. 501 et seg. That interpretation excludes 
from the Act's protection persons displaced after the en-

iP
actment of the 1968 amendments the Department's "auth­
orization" to acquire their homes preceded August 23, 

1968.
Consequently, residents of Triangle, most of whom 

had not been displaced and most of whose homes had not 
even been acquired as of August 23, 1968 were not entitled

-6-



to the protection of the relocation amendments simply 
because "authorization” to acquire their homes preceded 
August 23, 1968 (R.V.I, pp. 46-47).

The district court also agreed with the Depart­
ment's and State Road Commission's contention that —  

even though they are not required to comply with the 1968 
relocation amendments - they were nsJcing "a sincere ef­
fort" to comply (R.V.I, p. 48). Beyond expressing con­
fidence in defendants' sincerity, the court limited its 
review to determining whether federal and state highway 
officials were in "substantial compliance" with the 
governing statutes and regulations (Ibid). In deciding 
whether or not "substantial compliance" was present, the 
court relied heavily on defendants' oral assurances to 
the court during the course of the trial that relocation 
activities would be lawfully conducted. The court simply 
"assumed" that these assurances were given "in good faith" 
(R.V.I, p. 49). The only specific evidentiary finding 
which the court made concerning the availability of re­
location housing was that "there is ample public housing 
in the Charleston area tc accomodate the limited number 
of individuals remaining in the 1̂ -77 corridor in the 
Triangle area (R.V.I, p. 50).

-7



The court also dismissed the Triangle Improve­
ment Council's constitutional claim that the Fifth and 
Fourteenth Amendments prohibit displacing poor blacks in 
a discriminatory housing market without assuring that 
non-discriminatory relocation housing is available.
Again the court relied on "representations" and "assur­
ances" to the court by state and federal highway officials 
that they would not discriminate (R.V.I, p. 49). The 
court also declared that it was "satisified from the evi­
dence that the subject displacees from the 1-77 corridor 
in the Triangle ar&a can obtain housing within the range 
of their economic means without racial discrimination 
which would be of such a nature as to raise federal con­
stitutional problems" (R.V.I, pp. 49-50). In the court's 
view, the problem was poverty and not race (R.V.I, p. 50).

An order dismissing the complaint was entered 
July 18, 1969 (R.V.I, p. 52). On August 25, 1969 the 
Triangle Improvement Council filed a notice of appeal 
(R.V.I, p. 54), and received permission to appeal in 
forma pauperis.

-8-



Statement of Facts

1. Charleston. West Virginia and the Triangle 
Charleston, West Virginia has much in common with 

other American cities. It is a city in crisis. This 
case concerns two aspects of this crisislj race and 
housing and the way in which highway planners by 
slighting federal law and regulations exacerbate the 
crisis.

According to studies undertaken for Charleston's
± yCommunity Renewal Program, a substantial number of 

Charleston’s residents live in housing which is struc­
turally substandard, beyond their economic means, or 
overcrowded (Pit. Exh. No. 14, p. I-C-8). Approximately 
4800 of Charleston's 26000 housing units require major 
rehabilitation or clearance (Ibid). Over 8000 of these 
households pay over 25% of their incomes for rent (Pit. 
Exh. No. 16, p. 1-23). Even with excessive rent payments 
approximately 3800 households are unable to rent stand­
ard housing (Ibid). Typically, this burden falls most 
heavily on the very poor (Ibid).

4 / The Community Renewal Report in evidence is a "final 
draft report" prepared by the Charleston Municipal 
Planning Commission and a planning and development 
consultant firm pursuant to 42 U.S.C. §1453(d).
The Report analyzes, inter alia. Charleston’s 
housing problem.

-9-



While these conditions have victimized both 
poor whites and blacks in Charleston, as a group blacks 
have suffered most of all (Pit. Exh. Mo. 14, I-D-25), 
for the simple reason that blacks are poorer as a

jl/group than whites. Income differentials however,
alone do not account for all of the difficulties which 
blacks have in obtaining decent housing. Racial dis­
crimination in housing also seriously impedes their 
ability to find standard housing (Pit. Exch. No. 19, 
pp I-D-25-27).

The result of these forces is the creation of 
black ghettoes. One such ghetto is the Triangle,
an area of Charleston which, as described by the 
district court, "is populated predominantly by low- 
income families of the negro race." (R.V.I. p. 33).

Charleston's housing problems, and especially 
the housing problems of Charleston's blacks, have 
been getting worse, not better. The major reason for
5 / in 1966, the average annual household income for

blacks was more than $3,000 below the average 
income of-white:.households, a factor resulting 
largely from job discrimination (Pit. Exh. No. 14, 
p. I-D-6).6 / in the words of the final draft report for the Com­
munity Renewal Program: "Negroes have established
a foothold in several of Charleston’s older, run­
down neighborhoods and with a segregated pattern 
being effectively enforced,new Negro households 
are forced to locate on the ever-expandingrfrigge 
of these neighborhoods." (Pit. Exh. No. 14,
I-D-25).

-10-



this change is the massive demoliton of homes and 
displacement of persons by public projects.

The Community Renewal Program estimated that 
total displacements in Charleston between 1S6S-71 will

Highway Construction 1,0S4
Urban Renewal 755
State Capital Expansion 280
Disaster, Condemnation and

Conversion 750
Total Displacements 2,879

Pit. Exh. No. 14, p. I-D-14. Since these figures are 
for family units the number of persons displaced is far 
greater.

Although blacks form less than 10% of Charleston's 
population, nearly 20% of the households to be displaced 
are black. Further, most of the black displacees are

Upoor. With the joint handicaps of poverty and race 
they must find alternative housing in a market which has 
already forced them into substandard, excessively costly, 
and overcrowded housing.

Of all the neighborhoods in Charleston, the total^ ^
impact of these projects is most severe in the Triangle.
2 y  Nearly 60% of all'black households to be displaced 

earn less than $3000 annually. (Pit. Exh. No. 14, 
I-D-14-15).

_§_/ An informative account of the Triangle's problems 
entitled Progress and Protest has recently been 
published in The Architectural Forum, Vol. 131,
No. 4, November issue.

-11-



The West Virginia Water Company has acquired land in 
the Triangle, displacing 243 people (R.V.I., p. 73).
An urban renewal project will displace 1500 persons 
(R.V.I. p. 74). The highways, 1-77 the subject of 
this litigation will displace 300 more people in the 
Triangle. There are approximately 2000 residents in 
the Triangle (R.V.I., p. ). Obviously not many will 
be left in what was West Virginia's largest black com­
munity, when displacement activities are completed.

2. The Highway Planning Process 
1-77 is being constructed as part of the inter- 

state highway system. The first statutory step m
highway planning is a State's submission to the 
Secretary of Transportation of general programs for 
highway projects. 23 U.S.C. §105. Following program 
approval by the Secretary the route selection process 
begins. During this phase, the public hearing required 
by 23 U.S.C. §128 is held, the state highway department 
selects a route and a request is made for federal route
q / The responsible federal agency is the Department of 

Transportation (acting through the Federal Highway 
Administration and the Bureau of Public Roads),

;and the governing federal statute is the Federal 
Aid Highway Act, 23 U.S.C. §101 et seg. The reg­
ulations are found partly in 23 C.F.R., but mostly 
in policy and procedure memoranda and circular 
memoranda issued by the Department of Transporta­
tion.

-12-



approval. Neither program approval nor route approval 
constitutes a contractual obligation by the Federal 
government to finance right of way acquisition cr 
actual construction.

The approvals which commit the federal government 
to pay 90% of the costs of interstate highway construc­
tion are approvals of plans, specifications, and estim-

in /ates for proposed projects. 23 U.S.C. §106(a).
These approvals are significant to the relocation ques­
tion, as the Secretary is obliged to require"satisfac- 
tory assurances" of the availability of adequate reloca­
tion before he may approve projects under Section 10S.
23 U.S.C. §502.

In the past "plans, specifications and estimates"
11/were required for actual construction only since

costs of acquiring right of way were ineligible for
federal contributions. 42 Stat. 212. Thereafter when
acquisition costs became eligible for federal contribu
tions, 58 Stat. 838, the submission and approval of plans
specifications, and estimates were administratively
'{777 The term "project"means an undertaking to construct 

a particular portion of a highway. 23 U.S.C.§101.
1 1 / The phrase "plans, specifications, and estimates" 

appears in the first federal highway act, the 
Federal Aid Road Act of 1916. 39 Stat. 357.

-13-



divided into two major stages: the right of way ac-
quisition stage and the construction stage.
Policy and Procedure Memorandum 21-5. Following the 
approval of plans, specifications, and estimates for 
a given stage, federal and state highway officials 
enter into project agreements limited to such stage. 
Policy and Procedure Memorandum 21-7. The approval of 
the construction stage is the final approval given 
by the Department of Transportation.

3• The Current Status of 1-77.
The West Virginia State Road Commission selected

the route of 1-77 which received federal approval on
TuL/August 31, 1964.

The portion of 1-77 routed through the Triangle 
consists of two"projects". In 1966 and 1967 federal 
highway officials approved state plans, specifications, 
and estimates for right of way acquisition and author­
ized acquisition of right of way for these projects.
These federal authorizations completed the first stage 
of federal approvals required for the two projects in 
the Triangle.
] 2 /  Right of way clearance is considered part of theconstruction stage. Policy and Procedure Memorandum

21- 12 .

1 3 / As stated above, the approval of route location 
did not commit the federal government to pay 
right of way and construction costs.

-14-



Further federal approvals remain, however, before 
1-77 is actually constructed through the Triangle. As 
of the time of trial, the State Road Commission had not 
submitted plans, specifications, and estimates for con­
struction. (R.V.I. p. 19). Until these are submitted 
and approved, the federal government is under no con­
tractual obligation to pay for the construction of 
1-77. The administrative process of approving 1-77 
has begun; it has not been completed.

Within the Triangle, the acquisition program 
had barely begun by August 23, 1968, the effective date 
of the 1968 relocation amendments. Of the 65 parcels 
to be acquired within the Triangle, only ftibe had been 
optioned to the State Road Commission prior to that 
date. Thereafter, nine additional parcels have been 
ootioned to the State Road Commission and one condemna­
tion action begun (Pit. Exh. No. 4).

Outside the Triangle, the acquisition program 
appears to have been more extensive. On one project 
several hundred properties had been acquired over the 
two-mile length of the project as of the time of trial 
(R.V. Ill, p. 28). It was estimated that 200 properties 
had been acquired on the other project. The state right 
of way official could not recall the number of parcels 
acquired as of August 23, 1968.

Concerning the displacement of people, the
-15-



state's right of way officer testified as to the num­
ber of persons remaining to be relocated as of February 
28, 1369. In one project 913 persons had already been 
displaced and 380 persons remained to be displaced. In 
the other project 401 persons had already been dis­
placed and 496 persons remained to be displaced. The 
federal right of way officer admitted that the remain­
ing displacement on that project was "substantial"
(R.V. II, p. 133). Neither federal nor state right of
way officers were able to testify as to the extent of

l A /displacement as of August 23, 1968.
In the Triangle, a substantially smaller prop­

ortion of people had been displaced as of February 28, 
1969. Some 284 persons remained to be dislocated 
(R.V.I, p. 41) and only 17 households had moved prior 
to the trial (R.V.I. p. 72 ).

The Triangle Improvement Council requested that 
defendants furnish information about the number 
of persons dislocated as of August 23, 1968, and 
the number of persons remaining to be dislocated 
as of that date. The court took the request 
under advisement, saying that "if I think it is 
an operative factor we can do that to supple­
ment the record." (R.V. II, p* 130). Apparently, 
the district court concluded that the extent of 
displacement as of August 23, 1968 was ttofopera- 
tive as the court took no action to require 
defendants to supplement the record.

-16-



4. The Relocation Amendments to the Federal”
Aid Highway Act.

The first federal highway relocation la\̂  enacted 
in 1962; merely required states to provide relocation 
information to displacees. However, it did not require 
that housing actually be available for dispxaced per­
sons. Even if a state knew that relocation resources

1 5 / .were insufficient, neither federal nor state high­
way officials were obliged to curtail their displace­
ment activities.

(Tbhgress remedied this deficiency in the Federal 
Aid Highway Act of 1968. The 1968 amendments not only 
required the payment of a variety of relocation allow­
ances, 23 U.S.C. §§505-507, but also a program which 
assures the actual availability of adequate relocation 
housing for displaced persons. 23 U.S.C. §502 and

i i /§508.

15/ The regulations under the 1962 amendment re­
quired state highway departments to compile 
information about available public and private 
housing opportunities. Policy and Procedure 
Memorandum 80-5(3)(f)4 and 5.

16/ to satisfy the statute, the supply of "decent,
safe, and sanitary" relocation housing units must 
be "equal in number to the number of and avail­
able to . . . displaced families* and individuals." 
Relocation housing must also be within the fin­
ancial means of displaced persons, in areas in 
which public and commercial facilities are at least comparable to the facilities previously en­
joyed by displacees, and reasonably accessible 
to places of employment. 23 U.S.C. §502(3) and 
§508 (a) (2) .

-17-



The statute imposes the obligation to assure the 
availability of relocation housing on both state and 
federal highway officials. Section 508 requires each 
state highway department to establish a relocation ad­
visory assistance program which must include assur­
ances of the availability of adequate relocation hous­
ing. Section 502 requires the Secretary of Transportation 
to police the adequacy of state highway relocation 
programs. That section bars him from approving any 
project unless he receives "satisfactory assurances" 
from the state highway department that the required 
relocation assistance program and adequate relocation 
housing will be available. 23 U.S.C. §502.

5. Department Regulations and Interpretations. 
Concerning the 1908 Relocation .Amendments

The Department's regulations detail the kind of
assurances which are required before a state highway
department shall be authorized to proceed tfith "any
phase of any project which will cause the displacement

1 2 /of any person . . .  IM 80-1-68(5)(a).
Specific, not general, assurances are required.

The key requirement is that state highway departments
TT7 shortly after the enactment of the 1968 amendment 

the Department issued Instructional Memoranaum 
80-1-68 to govern the administration of the lybo 
amendments. The IM was issued pursuant to the 
Secretary's rule-making power. 23 U.S.C. §biu.

-18-



prepare relocation plans which present relevant factual 
data pertaining to relocation housing problems and 
their solution. IM 80-1-68(7).

On the basis of the information in the plan, 
federal highway officials must determine whether "the 
State's relocation program is realistic and is adequate 
to provide orderly, timely, and efficient relocation 
of displaced individuals and familifes^to decent, safe 
and sanitary housing available to persons without re­
gard to race, color, religion or national origin with 
minimum hardship on those affected." IM 80-l-68.(2J_.

Although the Department of Transportation's reg­
ulations clearly set forth the kind of relocation 
assurances required by the Department, the regulations 
are an uncertain guide to their applicability to pro­
jects authorized prior to the enactment of the 1968 
amendments. On the one hand, the regulations state that 
they are applicable to "all Federal-aid highway projects 
authorized on or before August 23, 1968, on which in­
dividuals, [and] families '. . . have not been displaced."
TM 80-1-68(2)(b)(2). On the other hand, paragraph 5(b) 
of the regulations states that "(relocation) assur­
ances are not required where authorization to acquire 
right of way or to commence construction has been given 
prior to the issuance of this memorandum." IM 80-1-69 (5j_Jb).

-19-



This latter statement is immediately qualified by 
the following proviso in Paragraph 5(b) that "the 
State will pick up the sequence at whatever point it 
may be in the acquisition program at the time of issu­
ance of this memorandum." IM 80-1-58(5? (b)

On February 12, 1959, the Department issued a 
circular memorandum ("CM") presumably to clarify re­
location procedures on active projects. Federal of­
ficials relied extensively in this CM to support 
their interpretation of the statute and regulations that 
the state was not required to submit a relocation plan. 
The CM required the State to undertake relocation plan­
ning "on all active projects to the extent that is 
reasonable and px*oper." It instructed federal highway 
officials to review active projects before issuing 
additional authorizations to acquire right-of-way or 
begin construction and"to assure himself that the State
has or will make the necessary relocations without un-

l J E t /  1 " -U.' *due hardship to the relocatees." If "a substantial
number" of people remain to be relocated the division 
engineer is instructed to require a relocation plan 
before issuing an authorization v/hich will result in 
displacement.

IQ_/ The text of the February 12, 1969 memorandum is 
included in the Statutory Appendix,

-20-



Finally, the circular memorandum concluded by 
stating that whether or not a federal obligation exists 
to police a state highway department's relocation pro­
gram on an active on-going project, "it is the respon­
sibility of the State to furnish relocation assistance, 
and payments where authorized by State law, in accord­
ance with the requirements of the law and the IM".

6. The Decision Not to Require a Relocation Plan.
From this morass of conflicting regulations and 

interpretations officials within the Department had to 
determine whether to require the State Road Commission 
to submit a plan of relocation. The State Road Com­
mission submitted general assurances for all of West 
Virginia, which the Department of Transportation approved 
that displacees from all highway projects will be adequat 
ely rehoused (R.V.II, pp. 39-40). However, the federal 
officials decided not to require the submission of a 
relocation plan to substantiate the State Road Commis­
sion's "assurances" for the two projects in the Triangle 
or indeed for any interstate projects in Charleston 
(R.V.II, p. 358).

The determination by federal officials that the 
State need not submit a relocation plan for the 1-77 
projects was based iii part upon this interpretation 
of Department regulations. Thus the chief federal road

-21-



official in West Virginia testified that "tt)he 
specific language of this IM (80-1-68) and the attach­
ments thereto preclude the necessity of a requirement 
for a relocation plan”. (R.V. I‘i, p* 400). The 
federal right of way officer in West Virginia found his 
legal support in the provisions of the February 12, 1969 
C.M. (R.V. II, pp. 102). While admitting that a "sub­
stantial” number of persons remained to be dislocated 
(R.V.II, p. 138), the federal right of way officer 
nevertheless concluded that a relocation plan was not 
required. He interpreted the CM as providing that no 
relocation plan was necessary if authorizations to ac­
quire right of way had already been issued (R.V.II,p.139).

However, Federal highway officials did not 
place sole reliance on their interpretations of law to 
justify their failure to require a relocation plan.
The federal right of way officer testified that he was 
"satisfied" that the state maintained close surveill­
ance of relocation on all projects in Charleston; that 
the State at least had "half of a relocation plan ; 
that the state had provided general assurances under 
paragraph 5a of IM 80-1-63, "so we had a certain amount 
of protection here" (R.V.II, pp. 73-74); that his observa­
tions of the State's prior experience (under the weaker 
1962 relocation amendment)" satisfied me that they can

-22-



relocate the people in the Triangle and other areas" 
(Id. at 75); and that he had previously studied re­
location problems in Charleston (.Id. at 75-77) , 
though he did not mention that his studies had 
demonstrated the "depletion"of housing and "critical” 
shortage of relocation housing in Charleston (R.V.I, 
pp.67, 70).

-23-



7. Federal Highway Officials Know That The
Supply of Relocation Housing Is Inadequate.

Federal highway officials' expression of satis­
faction with state relocation capabilities is strictly 
contrary to their own acknowledgment that the supply of 
relocation housing in Charleston is inadequate. Early 
in 1968, federal officials uncovered serious deficiencies 
in the supply of relocation housing. Anticipating the 
adoption of the 1969 relocation amendments federal 
officials were instructed to review relocation programs 
of states within their jurisdiction.

In Charleston, the federal division engineer 
requested information from the State Road Commission, 
and, independently, the federal right of way officer 
mode his own inquiries into the availability of re­
location housing. Neither approach revealed the presence 
of adequate relocation housing. Indeed, three perceptive 
memoranda by the federal right of way officer candidly 
reported deficiencies in the supply of relocation housing. 
fc.V.I. pp. 60-70). On February 20, 1968, he reported:

It is my opinion that our major area of concern 
lies with those people who have incomes over and 
above that which would qualify them for public 
housing and desire to rent. More specifically, 
this area would be defined as families with 
average annual incomes of from $5000 to $7500 
a year and who do not want to, or cannot, buy 
their own home. Urban renewal and public housing 
as of little value to our relocation problem in 
these cases, and I have reason to believe that 
the private housing market is about saturated 
presently. (R.V.I. p. 62) # [Emphasis added]

-24-



He underscored his concerns again on February 26, 1968:
It appears that the relocation problem in the 
Charleston area, insofar as the State Road 
Commission is concerned, could become critieal 
in the not too distant future due primarily 
to the apparent lack of rental property in the 
$60-$90 per month price range. The available 
replacement housing in this area is being 
depleted and no new sources are available at 
this time. (R.V.I. p. 67).

Less than 10 days later, on March 16, 1968 after meeting 
with State Road Commission, Federal Housing Administra­
tion and Urban Renewal officials, the division right of 
way officer again expressed his alarm.

It appears that the Federal Housing Administra­
tion programs will provide the only source of 
replacement housing in the area. The existing 
private market, particularly in low to moderate 
priced rentals, is being depleted primarily by 
Interstate acquisition. (R.V.I. p. 70).
In Contrast to the federal official's candid and 

critical analysis of Charleston's housing problem, the 
State Road Commission produced no detailed findings. 
Indeed, the federal division engineer so concluded when 
he expressed his dissatisfaction with information pro­
vided by the State:

In the Charleston area the State did secure 
valuable information relative to persons to 
be dislocated by a survey which was a valuable 
assist in defining the overall problem involved.
It would not be considered, in our opinion, a 
complete relocation plan since it did not pro­
vide information either factual, estimated or 
projected as to the availability of replacement 
housing. (R.V.I. p. 58).

Nevertheless, no remedial action was required because, as

— 25-



the federal right of way officer testified, "it was 
not considered in our opinion required that they have 
a complete one" (Ibid).

At trial, the division engineer was asked whether
the facts described in the right of way officer's
February and March 1968 evaluations had changed during
the year (R.V. II, p. 412). The only change he could

, L9/cite was the availability of rent supplements.
8. The Belatedly Contrived "Triangle Area 

Relocation Program Plan" ._____________
Solely in response to this lawsuit, the State

2 Q _ /Road Commission prepared a "relocation plan" for
the Triangle (R.V. II, p. 359). Although the Department
requested and obtained a copy of the completed plan,
the Department oddly enough did not review it (R.V. II,
pp. 389, 116). When the federal right of way official
was asked whether he had "seen" it, he answered only:

Without rent supplements, he testified, "I’m not 
at all sure they could have gone through with the 
relocation program in the area" (R.V. II, p. 414). 
When asked what families who were unable to afford 
the housing into which they had been relocated would 
do after their limited two year rent supplements 
expired, the federal division engineer had no answer. 
All he could say was that "there are many other government programs," "I am not a social worker," 
and "I assume you are asking a question which is up 
to Congress to answer" (R.V. II, p. 415).

20/ The entire plan is reproduced in the appendix R.V.I. 
pp. 71-99. The plan was prepared in late February 
1969, nearly three months after this action 
began.

-26-



"I have seen it. That's about all" (R.V. II, p.
116).

The plan provides some useful information 
about the Triangle residents: the overwhelming
numbers are tenants and poor. Information in the 
plan about their ability to obtain relocation housing 
is far less adequate. The plan only vaguely asserts 
that the majority of Triangle displacees "appear" to be 
eligible for public housing.

With respect to private housing the plan 
shows that the average monthly rent of the units 
available was $90, approximately double the $45-$50 
monthly rental now paid by Triangle residents. The 
plan was silent on room size of the units and space 
needs of Triangle displacees. Though the plan stated 
that some 80 rental units are available, no effort was 
made to determine whether such units are available to

?l /blacks. When a community worker did survey a 50
unit list furnished by the State Road Commission, she
discovered, upon simple inquiry, that there were landlords
2V  The State Road Commission takes the position 

that no inquiries concerning racial avail­
ability were necessary because Charleston 
has a fair housing ordinance. The fair 
housing ordinance does not, however, cover 
all units (R.V.II, p. 368).

-27-



on that list who would not rent to blacks. She 
also discovered that 28 units on the li3t had 
already been ranted (R.V.II, p. 285). Her 
testimony was not rebutted.

While the plan acknowledges the drastic and 
cumulative impact of public projects on the Triangle, 
it treats the Triangle in isolation. Although, as 
of the time of trial, several hundred people who 
lived outside the Triangle also had yet to be dis­
placed by the highway alone, no consideration was given 
to their needs for replacement housing or the extent 
to which they would compete for the housing which 
the State Road Commission's plan asserts will be 
available for Triangle displacees. Obviously,
Triangle displacees have no priority over other high­
way displacees in their search for public or private 
housing. The State Road Commission just did not 
consider the competition to be "relevant" (R.V.II, 
p. 372). In contrast to the State, the Department 
of Transportation considers competition for available 
units to be highly relevant. IM 80-1-68(7)(b).

-28-



ARGUMENT
I

THE 1968 RELOCATION AMENDMENTS REQUIRE 
ADEQUATE RELOCATION HOUSING FOR ALL 
PERSONS DISPLACED AFTER THEIR ENACTMENT
The Department and the state Road Commission 

claim though they draw no support from the 
that they are not required to assure the availability 
of relocation housing to Triangle displaces® because 
authorizations to acquire right of way in the Triangle 
preceded the enactment of the 1968 amendments. For 
this proposition, they rely on their interpretation of 
the Department's regulations.

The district court sustained their interpretation, 
ruling that the agency's determination had "a rational 
basis" and that this was all that was needed (Ibid). 
However, the court did not suggest what, if anything, 
in the history or language of the 1968 amendments sup­
ported the Department's interpretation. In terms of the
Triangle, the district court's holding means that persons

22/
who will not be displaced until mid 1970, two years after
22/ The State Road Commission estimates "lead time" for 

the highway project is 16 months from February 28, 
1969 (R.V.I, p. 74). Construction is estimated to 
begin in late 1970 (R.V.II, p. 389).

-29-



the enactment of the 1968 amendments, are not protected
by the relocation amendments because the Department 
authorised the acquisition of their homes prior to the 
1938 amendment. We submit that the 1968 amendments do 
not permit this interpretation.

1. The Canons of Construction
Generally, the question concerning the validity 

of an administrative regulation is whether or not the 
regulation is "inconsistent" with its underlying statute. 
Thorpe v. Housing Authority of the City of Ditrham, 393 
U.S. 268, 277 (1969). The test is not an unwaivering 
one, however.

On the one hand, there are canons of construction 
which urge a reviewing court to limit its inquiry and 
show "great deference to the interpretation given the 
statute by the officers or agency charged with its ad­
ministration". Udall v. Tallman, 380 U.S. 1, 16 (1965). 
This is especially so when the issue is the validity of 
administrative interpretation of an administrative reg­
ulation, and not the validity of the regulation itself. 
Thorpe v. Housing Authority of the City of Durham. 39? 
U.S. 268, 276 (1969); Udall v. Tallman 380 U.S. 1, 16

; Bowles v. Seminole Rock Co., 325 U.P, 410, 413-14 

(1945). 30-



On the other hand, if a statute is remedial then

the general canon of construction is that it should be 
liberally construed. United States v. An Artj.c_le_.gf_Drug^ 
394 U.S. 784, 798 (1959). The task of liberal construc­
tion is "to effectuate congressional policy". United^ 
States v. Davison Fuel And Dock Company, 371 F.2d 705 
(4th Cir. 19S7). Moreover, exceptions to remedial statutes 
should be narrowly construed. As this Court held in 
striking down a claim that workers manufacturing peat 
moss are not protected by the Fair Labor Standards Act:

Remedial social legislation of this nature is 
to be construed liberally in favor of the 
workers whom it was designed to protect and 
any exemption form its terms must be narrowly 
cons tr xied.

Wirtz v. T. T. Feat Humus Co., 373 F.2d (4th Cir.) cert, 
denied., 389 U.S. 834 (1967). Accordingly, a reviewing 
court should examine the history and purpose of a re­
medial statute and approve only those interpretations 
which assure protection for people whom the legislature 
intended to protect.

2. The 1968 Relocation Amendments are 
Remedial and Should be Liberally _
Construed.

The 1968 relocation amendments resulted from * 
decade of efforts to reform the interstate highway

-31-



On the other hand, if a statute is remedial then

the general canon cf construction is that it should be 
liberally construed. United States v„ An Article of Prng_> 
394 U.S. 734, 793 (1959). The task of liberal construc­
tion is "to effectuate congressional policy". United_ 
States v. Davison Fuel And Dock Company. 371 F.2d 705 
(4th Cir. 1957). Moreover, exceptions to remedial statutes 
should be narrowly construed. As this Court held zn 
striking down a claim that workers manufacturing peat 
moss are not protected by the Fair Labor Standards Act:

Remedial social legislation of this nature is 
to be construed liberally in favor cf the 
workers whom it was designed to protect and 
any exemption form its terras must be narrowly 
construed.

Wirtz V. T. T . Feat Humus Co., 373 F,2d (4th Cir.) cert, 
denied., 389 U.S. S34 (1967). Accordingly, a reviewing 
covert should examine the history and purpose of a re­
medial statute and approve only those interpretations 
which assure protection for people whom the legislature 
intended to protect.

2. The 1958 Relocation Amendments are 
Remedial and Should be Liberally 
Construed.

The 1968 relocation amendments resulted from ? 
decade of efforts to reform the interstate highway

-31-



program. The history of this effort clearly demonstrates
that the relocation amendments are designed to remedy a 
serious national wrong.

Early in the interstate highway program, members
of Congress recognized that the burdens of displacement
were falling on those least able to reestablish themselves.
In support of a 1957 relocation bill. Senator Javits said:

It is our aim to ease in every way the burdens 
of moderate arid low-income families which are 
most frequently displaced. . . as a result of 
major public improvements in which the United 
States participates. . .We should do everything 
we can toward this objective of humanitarianism 
and justice.

103 Cong. Rec. 5316-7 (1957). Senator Javits' concerns 
were soon underscored by three successive government 
studies. Each expressed alarm at the effects of displace­
ment by government programs, and each called for the kind 
of remedial action which the 1968 relocation amendments 
provide.

The first study was the work of a Select Congres­
sional Committee. Its central findings confirmed that

23/

2?./ Indeed the Senate report noted:
"The problem of providing adequate relocation as­
sistance to those persons. . .displaced by highway 
construction on the Federal Aid system has long 
been a subject of the comm:* tteeb* attention. *
1968 U.S. Code Cong. Ad. News 3487.

-32-



displacement caused by federally assisted programs sev­
erely disadvantaged the poor and minority groups:

Most displacements affect low or moderate 
income families or individuals, for whom 
a forced move is a very difficult experi­
ence. The problem i3 aggravated for the 
elderly, the large family and the nonwhite 
displacee. The lack of standard housing 
at prices or rents that low or moderate 
income families can afford is the most 
serious relocation problem.

The committee1s findings were confirmed in a report of 
the Advisory Commission on Intergovernmental Relations 
which further emphasized that the burdens of displace­
ment fall unevenly on the poor and nonwhite. Its reoody.
was the same as the Select Committee’s: mandatory assur-

25/
ance of an adequate supply of standard housing.

In 1566 Congress responded to the reports and 
called for a study to determine what action should be
taken to provide additional assistance to highway dis- 
placees. Pub. L. 89-74. The report of the Senate Public
24/ Select Committee on Real Property Acquisition,

Study of Compensation and Assistance.f or.Persons.
Afiected by Real property Acquisition in Federal. 
and"Federally Assisted programs, 88th Cong., 2nd 
Sess., at 106 (1964).

25/ Advisory Commission Intergovernmental Relation® 
Relocation: Unequal Treatment of People and_
Businesses Displaced by Government. (1965).

—33 —



Works Committee accompanying the 19G6 highway hill stated 
that the operation of 23 U.S.C.§£L33 "has not been fully 
satisfactory and effective. . The report further ex­
pressed the Committee's concern that "the situation has 
worsened as construction of the Interstate System has 
moved into heavily developed urban areas.” 1966 U.S.
Code Cong. & Ad. News 3043-4.

The resulting study, Highway Relocation Assistance 
Study, 90th Cong., 1st Sess (1967), restated problems which 
were already well known. Low and moderate income persons 
continued to bear the burden of highway displacements.

Prompt federal action tras necessary "to avoid
the human and economic disasters that can be wrought by

26/involuntary displacement." Id. at 36.
The decade of reform efforts resulted in the

relocation provisions of the Federal Aid Highway Act of
i960, 23 U.S.C. §501 et sag. The committee reports,
floor debate, and language of the 1968 amendments all
confirm v,That the history of the previous decade showed —
that the relocation amendments were truly "remedial".
26/ The urgency of federal action was underscored by the 

projection that between July 1, 1967 and June 30,
1970, 146,903 residential units will be displaced by 
federally aided highway construction while most of 
the right of way for the interstate system will have 
been acquired (although not necessarily cleared) by 
June 30, 1970. Id. at 45.

-34-



During debate on the Federal-Aid Highway Act of 
1968, the importance of adequate relocation was continu­
ally restated. The relationship of highway displacement 
to urban unrest was very much in the forefront of Con­
gressional concern. The principal sponsor of the 1SS8 
Act, Senator William Jennings Randolph, spoke of the 
urgent need for a comprehensive highway relocation pro­
gram:

Today wa are in an \irban society. . . These 
dislocations and displacements caused by 
urban highways have been the source of much 
of the discontent avid unrest in our cities.

114 Cong. Rec. 8037. As Senator Randolph continued, im­
mediate action was imperative:

We cannot wait any longer for this program.
There is an urgency about it. I think it 
is imperative that we move.

114 Cong Rec. 8038.
Finally, in the text of the 1968 Act itself.

Congress unequivocally established the remedial nature
of the relocation amendments. In a "Declaration of
Policy", Congress declared that "the prompt and equitable
relocation" of persons displaced by the construction of
federally aided highways:

. . .is necessary to insure that a few 
individuals do not suffer dispropor­
tionate injuries as a result of programs

-35-



designed for the benefit of the public
as a whole.

23 U.S.C. §501.
Finally, there are two special considerations 

present which call for statutory interpretations which 
give full effect to the remedial purposes of the reloca­
tion amendments, and call for close scrutiny of Depart­
ment interpretations which restrict the application of 
the 1968 amendments.

One eonsideraion is that the wrong which the 
relocation amendments seek to remedy is often a consti­
tutional wrong. The history of the interstate program 
(as revealed by government studies) shows the discrimin­
atory burdens placed on the poor and racial minorities. 
The custernary deference which courts give to interpreta­
tions of administrative agencies has no place where 
questions of equal protection are involved.

A second somewhat atypical consideration present 
in this case is that the wrong which the federal agency 
is directed to correct is one which the agency itself 
helped to create. This is not the usual situation in 
which a federal agency is set up to administer remedial 
legislation designed to regulate the activity of private

-36-



or semi-public parties in the public interest. The agency 
here is not the "Department of Relocation" (nor is there 
even an individual charged with the sole responsibility 
of relocation). The Department of Transportationcs primary 
function is that of a road builder: to build the inter­
state system, and build it fast. In the process, it has 
displaced thousands upon thousands of people (mostly poor 
and non-white) who have not been adequately rehoused.
Now it is ordered by Congress to reform itself. Its 
steps towards reform if hesitant or faltering should be 
closely scrutinized, and any decisions which deny reloc­
ation assistance should be severely questioned.

In these circumstances, the district court should 
not have deferred, as it did, to the agency's interpreta­
tion of its obligations.

3. Any Interpretation Which Delays the Full, 
and Immediate Effectiveness of the 1968 
Amendments Should be Rejected.

The 1968 amendments were enacted after most of
27/

the damage had been done. If the amendments are to pro­
vide any meaningful protection then their full force; must'
2 J / By 1968, approximately 26000 miles of the interstate 

system had been constructed. Of the remaining 15,000 
miles, approximately 6000 were under construction 
and 8500 in engineering design or right of way ac­
quisition stages. 1968 U.S. Code Cong. ST Ad Newd 4046.

-37-



be felt immediately.
The Department of Transportation projects that 

acquisition of right of v/ay for the entire interstate 
system will be virtually complete by June 1970. Highway. 
Relocation Assistance Study, p. 45. If the time between 
nr.thorizations to acquire right of way and the completion 
of actual acquisition of right of way in the Tricingle is 
characteristic of the interstate system, then it appears 
that substantially all authorizations to acquire right 
of way throughout the entire system were issued prior to 
the enactment of the 1968 amendments. Accordingly, an 
interpretation which denies their full protection to pro­
jects on which right of way acquisition was authorized 
prior to their enactment renders them virtually meaning­
less.

Before a reviewing court looks to an agency inter­
pretation of a statute, it should first determine whether 
Congress considered and resolved the very issue at stake. 
Here Congress clearly adverted to the problem of applic­
ability. As a general rule, the relocation amendments 
"shall take effect on the date of [their] enactment. . ." 
P.L. 90-495 §37. This rule of immediate applicability 
is emphasized ir the statute’s definition of a "displaced

-38-



person" to mean:
. .any person who moves from real 

property on or after the effective 
date of this chapter as a result of 
the acquisition or reasonable expect 
ation of acquisition of such real 
property. . . "

23 U.S.C. §511(3).
*

But, to avoid the type of "inflexibility" which
•

concerned the court below, Congress created a specific 
exception to the general rule of applicability. Until 
Jrily 1, 1970, the relocation provisions of the Act are 
applicable to a state highway department "only to the 
extent that such State is able under its laws to comply 
with such sections" and thereafter the Act becomes fully 
applicable 90-495 §37.,Congress permitted this lim­
ited delay to allow states to adopt legislation ̂ author­
izing their highway departments to pay increased reloc­
ation allowances, and the Department has correctly decided 
that this limited delay applies only to relocation payments
and not to the requirement that adequate relocation housing 

28/
be available.

Moreover, even as to relocation payments. Congress
sought to expedite the implementation of the 1968 amend-
23/ The Department's ruling is contained in a Circular 

Memorandum, December 26, 1968, which is reproduced 
in the Statutory Appendix.

-39-



taints by providing full federal reimbursement (not just
a ninety percent contribution) of payments to displacses.

29/
fell'JSly.Z*, 1S7Q. 23 U.S.C. §504a.

Furthermore, Congress has explicitly provided a 
mechanism to apply the requirements of the 1968 amend­
ments to projects approved prior to their enactment. 
Project agreements executed prior to the enactment of u 
the 1968 relocation amendments are required to be amended 
to include federal reimbursement for the costs of reloc­
ation services and payments described in 23 U.S.C. §502 
"with respect to property which has not been acquired as 
of the date of this chapter." 23 U.S.C. §504(b). The 
prevision of funds necessarily entails an obligation to 
provide the services described. As the report of the
2 9 / The explanation by the Senate Committee on Public 

Works is instructive:
Delay in implementing the relocation program 
would inevitably result if the States had to 
be given time to enact legislation enabling 
them to contribute their usual share of these 
relocation payments. Since the great majority 
of highway displacements will in fact take place 
in the years before 1971, the committee feels 
that the 100 percent Federal share during this 
period is necessary to the success of the pro­
gram.
1968 U.S. Code Concr. Ad. News. 4076.

-40-



Senate Committee on Public Works states:
Subsection (b) would require application of 
the requirements of this chapter to any 
project for which property had not been 
acquired before the enactment of this act.

r  *30/
1568 U.S. Code Cong, d. News'.'3523.

The 1968 Congressional determination as to the 
applicability of the relocation amendments to previously 
approved projects stands in marked contrast.-to it3 deter­
mination in 1962 on the same subject. Congress specific­
ally prohibited the application of the 196? highway relocation 
amendment to projects approved prior to its enactment.
23 U.S.C. §133(e). Likewise, in adopting a similar pro­
vision for urban renewal law (which requires the Secretary 
of Housing and Urban Development to police the relocation 
activities of local agencies). Congress explicitly man­
dated that new requirements did not apply to projects in 
which HUD had already approved planning grants. Pub. L. 
88-560, §305(a).

In short, the 1968 amendments strikingly omit
prohibitions (present in previous highway and circular
urban renewal statutes) against applying their beneficial
30/ The provision of the Senate bill (S. 3418) on which 

the committee commented was carried over verbatim 
into 23 U.S.C. §504(b). See 114 Cong. Rec. 8028.

-41-



provisions to going projects, and indeed create a mechanism 
for retroactive applicability in 23 U.S.C. §504(b). In 
view of such clear-cut Congressional intent the court below 
erred in holding that Congress could not have intended to 
subject previously approved projects to the requirements 
of the 1968 amendments (R.V.I, p. 48).

4. The District Court Erred by Relying 
Exclusively on an Interpretation of 
a Regulation which conflicts with 
the Remedial Statutory Scheme and 
the Regulations.

A careful examination of the Department's regul­
ations reveals a pattern generally consistent with the 
remedial statutory scheme and the legislative history. 
Nevertheless the district court singled out one peculiar 
sentence of the IM and interpreted it to deprive persons 
not displaced as of the effective date of the Act of its 
benefits. (R.V.I, p. 47).

The first sentence of paragraph 5(b) of W' 8Gr-*r68

states:
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 court below interpreted that sentence to mean that
if federal authorization for right of way acquisition

-42-



had been given by August 23, 1968, the relocation amend­
ments did not apply. However, the regulations set forth 
a consistent rational pattern which contradicts the court's 
interpretation of that single sentence. Thus paragraph 
2(b)(2) of the IM, which states thfct it applies to "all 
Federal-aid highway projects authorized on or before 
August 23, 1968, on which individuals. . . have not been 
displaced," is wholly consistent with the early applic­
ability mandated by Congress in Section 511(3)," Likewise 
paragraph 5(a) of the IM goes beyond the words "any pro­
ject" of Section 502 and bars authorization of "any phase 
of any project which“Will cause the displacement of any 
person. . (emphasis added).

The interpretation that the first sentence of 5(b) 
means that no assurances are required once right of way 
authorization has been given is inconsistent with the 
above regulations. Moreover it turns the second sentence 
of 5(b) into sheer nonsense:

The State will pick up the sequence at 
whatever point it may be in the acquisi­
tion program at the time of the issuance 
of this memorandum .

Obviously if the "acquisition program" had begun, federal 
right of authorizations must have been given earlier, and

-43-



hence the regulations do not establish right of way author­
ization as the cut-off time. The district judge made no
attempt to reconcile his reading of the first sentence v/ith 

31/
the second. Indeed the federal officials were utterly un­
able to render the second sentence intelligible (R.V.II, p.94). 
A possible explanation is the lame excuse given by one of- 
fic al that the IM was hasty "paste-up" (R.V.II, p. 403). 
Moreover, federal officials acted as if that was not. the 
proper interpretation of paragraph 5 (b), for they inter­
preted the IM to apply to the Triangle projects and required 
the state to give paragraph 5(a) assurances (R.V.II, p. 53).
The opinion of the court below did not resolve this appar­
ent conflict between his interpretation of 5(b) and the 
interpretation given that paragraph by the federal offi­
cials. The federal official contended that 5(a) applied 
but that the February 12, 1969 CM excused the state from 
preparation of a relocation plan. His interpretation of the CM
3 1/ it is possible to read the two sentences as consistent: 

Thus where an authorization preceded August 23, 1968, 
assurances are not required with respect to that auth­
orization. Thus the sentence excuses federal officials 
£romnr&opening authorizations already approved, nor 
such authorizations, new relocation assurances are 
not required. The second sentence means that the IM 
applies to going projects where persons have not been 
displaced and where additional authorizations are 
needed.

-44-



was no more warranted by a reading of the whole CM in 
light of the Statute and the Regulations than the district 
court was in giving a meaning to paragraph 5(b) which was 
directly contrary to the interpretation given to it by 
the federal officials who felt that it applied and required 
assuances from the state.

In Udall v. Tallman, 380 U.S. 1 (1965) the case relied 
on by the district court to susta n the Department's in­
terpretation of its obligations, the Court stressed that 
the regulation in question had been "consistently construed" 
in a certain way by the agency. Id. at 17. Here, the 
Department's obligations have not been "consistently con­
strued". It may be that federal officials arrived at 
their interpretation to avoid the imposition of "another 
hair shirt" (R.V.II, p. 410) of additional work. In the 
words of Professor Jaffe, agency discretion here may have 
been J'a facade for inadequate thinking, failure to face 
issues, hidden expediencies, or downright dishonesty."
Jaffe, Judicial Control of Administrative Action 588 (1965).

S . The State Road Commission is Obliged to 
Assure the Availability of Relocation 
Housing gor All Persons Displaced After 
the Enactment of the 1968 Amendments.

The State Road Commission is required to assure 
relocation housing for each person it displaces after the

-45



enactment of the 1968 relocation amendments. 23 U.S.C. 
§508. This obligation is not related to any particular 
stage of project approval, and exists independently of 
the Department of Transportation obligation under 
Section 502 to police the State's relocation program.

To be clear, the State's obligation to assure 
adequate relocation housing runs to each person thi&- 
State displaces even if the Department authorised the 
acquisition of his home prior to the 1968 amendments, 
and even if his home was actually acquired prior to these
amendments.

The State's focus is required to be on people,
not technical concepts of property law. As the Federal
Highway Administrator testified earlier this year before
a Congressional committee:

We read the Federal-Aid Highway Act provisions 
to require relocation payments if actual dis­
placements had not in fact occured as of the 
act's effective date. In other words, persons 
still lawfully occupying property at the effec­
tive date of the act were entitled to its bene­
fits. This Approach has several advantages.
It avoided the difficulties inherent in any 
attempt to decide when property was technically 
"acquired" as a legal concept, it was easy to

32/ See Circular Memorandum, February 12, 1969, which 
is reproduced on the Statutory Appendix.

46 -



administer, and was a rational determination 
of the point at which benefits should be pro­
vided .

The only question which remains is the extent of the 
Department's obligation to police the State's relocation 
program.

6• The Department of Transportation is 
Required to Monitor State Highway 
Departments and Assure That. Ho Per­
sons Are Displaced After the Enact­
ment of the 1568 Pelocation Amend­
ments Unless Relocation Hoxising is 
Available.

Congress did not leave the administration of its 
remedial highway relocation legislation in the unsuper­
vised hands of state highway departments. Just as in the
federal urban renewal law. Congress imposed a duty on a 
federal agency to "police", Western Addition Community 
Organization v. Weaver, 2S4 F. Supp. 433, 436 (N.D. Cal. 
1968), the administration of local relocation programs 
in order to assure the availability of relocation housing. 
Compare, 42 U.S.C. §1455 (c)(2) and 23 U.S.C. §502.
33/ Hearings on S. 1 Before the Subcommittee on Inter­

governmental Relations of the Senate Committee on 
Governmental Operations, 91st Cong. 1st Sess., p. 300. 
Although the A.dministrator at first spoke of reloca­
tion payments, he concluded by speaking broadly of 
benefits. There is no basis for reading the reloca­
tion amendments to provide an earlier date for payments 
than the assurance that relocation housing actually 
exists. If anything, assurances of the availability 
of relocation housing are required even where payments 
are not. (Circular Memorandum, December 26, 196S)

•47



This important duty does not both begin and end 
at the time of approving authorisations to acquire prop­
erty. It applies to the approval of "any project" which 
causes displacement of people, 23 U.S.C. §502, and nec­
essarily entails continuing supervision of a state's 
performance after approvals are given. The Department's 
determination that it may absolve itself of its respon­
sibility to assure that displacees are adeqtiately rehoused 
is inconsistent with the purpose of the 1968 amendments.

To understand the responsibility of federal high­
way officials, it's necessary to look beyond the Depart­
ment's regulations and interpretations to the statute 
itself. As described earlier, the Department's regula­
tions and interpretations lend themselves to confusion 
and contradiction. Only the statute, viewed in terms of 
its remedial purposes, can resolve this conflict.

The phrase "any project" in Section 502 empha­
sizes the sweep of applicability of the relocation pro­
visions. In the 1962 highway relocation amendment, 
Congress argiiably gave the Department a choice. The 
Department was obliged to require the assurances called 
for by that weaker amendment prior to its approval of 
"any project. . . for right-of-way acquisition or actual

-48-



construction" 23 U.S.C. §133 (emphasis added). Presumably, 
the Department could choose whether to require assurances 
at the acquisition stage or the construction stage. The 
1968 amendments, however, provide no basis for limiting 
the requirement of assurances to one phase of approval 
or another. The phL'Aae in the 1962 amendment, "for right- 
of-way acquisiton or actual construction", has been dropped, 
and in its place Congress has required assurances of the 
availability relocation housing before approval of "any 
project. . . which will cause the displacement of any 
person. . ." 23 U.S.C. §502.

While displacement begins to occur as soon as 
acquisition begins, the rate of displacement is closely 
related to the anticipated time for beginning clearance 
and construction activities. Ultimately, therefore, it 
is authorizations to clear right of way and begin actual 
construction which causes the displacement of persons.
While it is salutary to require assurances prior to the 
beginning of acquisition, it is still essential to re­
quire further assurances before authorizing the subsequent 
phases of clearance and construction which actually pre­
cipitate the displacement of people. Acquisition, with­
out the prospect of clearance and construction, would

-49-



displace some but .not all. It is the total process which 
displaces and it is therefore to all the phases of high­
way building that the obligation to provide relocation 
housing should adhere, if the 19S8 amendments are to pro­
vide the remedy which Congress intended.

Furthermore, conditions change. If assurances 
had been required in 1966 in advance of approval of right 
of way plans, the information in them would have little 
validity in 1970 when displacement is completed. The 
urban renewal statute and regulations require the updating 
of relocation plans prior to actual displacement. In a 
City in which new public projects are continually being 
implemented, the availability of relocation does not re­
main constaht. By the time a project approaches the 
right of way clearance and construction stages, a recon­
sideration of relocation planning is well in order.

Given the remedial purposes of the relocation 
amendments the Department's obligation to require assur­
ances of the availability of relocation housing prior to 
approving "any project" which results in displacement re­
quires the submission and approval of adequately substan­
tiated relocation plans, at . each stage which* precipit^ 
ates displacement. In fact, one section of the Department's

-50-



regulations (a section which the district court and the 
Department ignore) requires satisfactory relocation as­
surances prior to "any phase of any project which will 
cause the displacement of any person...." IM80-1--68 (5) (a).

Finally, the task of continuing supervision of 
state highway departments is a task which the Department 
considers to be its normal function. The federal right 
of way officer testified that the Departments review of 
the State Road Commission's relocation program is "a 
continuing day to day process, routine" (R.V.I, p. 119). 
Even though authorisations to acquire right of way have 
been issued, the division engineer testified that the 
Department still has sanctions it can use against the 
State if people are forced to relocate contrary to the 
1968 relocation amendments (R.V.I, p. 408). At present, 
this policing function is carried out an ad hoc basis.
The submission and review of relocation plans at each 
stage of project approval would enable the continuing 
policing function now assumed by the Department to be 
fulfilled in the intelligent and responsible manner 
which the relocation amendments require.

-51-



II
FEDERAL MID STATE HIGHWAY OFFICIALS HAVE 
FAILED TO COMPLY WITH THE RELOCATION 
AMENDMENTS TO THE FEDERAL-AID HIGHWAY 
ACT AND THE DEPARTMENT OF TRANSPORTATION'S 
RELOCATION REGULATIONS

In tha face of Charleston's critical housing prob­
lems, the relocation amendments to the Federal-Aid 
Highway Act of 1968, and its own regulations, the Depart­
ment of Transportation is required to determine whether 
the State Road Commission is able, in fact, to assure 
adequate relocation housing for the people it is dis­
placing. Nevertheless, although the Department has ac­
cepted general "assurances" that the State Road Commis­
sion will comply with the law, the Department has not 
determined (and has no intention to determine) whether 
the State Road Commission's "Triangle Relocation Plan" 
complies with federal law and regulations. The acceptance 
of general assurances, without the review and critical 
appraisal of a specific and factually supported reloca­
tion plan, is unlawful agency action which this Court 
should set aside.

1. The District Court Applied Incorrect 
Standards of Review.

While the district court acknowledged that the
-52-



actions of the Department of Transportation are judicially 
reviewable, the court gave so restricted a scope to its 
judicial review as to render the right to review virtually 
meaningless. The misapprehension hy the coart of the 
scope of its review is evident from the language of its 
opinion. (R.V.I, pp. 33, 51).

It is apparent that the court relied heavily on 
subjective tests. The court emphasized that federal and 
state authorities were making a "sincere" effort, and 
relied on the "assumption" that defendants1 "assurances" 
that they would comply with the law were given "in good

34/
faith" (Id. at 48-49).

The assurances on which the court relied were oral 
assurances, given to the court during the trial. It re­
quires little argument, however, to establish that ex. P°g^ 
facto assurances to a court are insufficient. Oral assur­
ances to a court, after an agency determination has already
34/ While the district court emphasized the "sincerity" 

and good faith of federal and state administrators 
the court continually deprecated the efforts of the 
Triangle Improvement Council to have it3 day in 
court. The Councils efforts to obtain judicial 
review were disparaged as a "gambit" and a "looking 
glass war". See Statement of Case,p. 5. Not only 
were the court1s gratuitious and intemperate words 
at odds with its reviewing function, but it also 
suggests that the court basically believed that 
the actions of "dedicated" administrators are es­
sentially unreviewable.

-53-



been reached, cannot sustain the determination. The 
statute and regulations require the State Road Commis­
sion to give factually substantiated assurances to the 
Department, and require the Department to subject these 
assixrances to administrative review. Oral assurances in 
court cannot substitute for this process.

The district court did sprinkle among its subjective 
tests two seemingly objective tests. The more general 
of these tests limited the court's task to determining 
whether the Department of Transportation's actions were 
in "substantial compliance" with federal laws and regu­
lations (R.V.I, p. 48). A second test was more specific. 
It provided that agency action "is entitled to great 
weight and should be confirmed if premised on rational 
grounds". Applying this test, the court found that the 
Department of Transportation's determination had "a ra­
tional basis" and should be sustained. (Id. at 48).

The mere statement of an objective test does not 
save the district court's decision, however. It is im­
possible to tell whether the district court's decision 
is predicated on the court's own subjective tests 
("sincerity" and "good faith") or on its objective tests 
("substantial compliance" and "a rational basis").

-55



Moreover, the "substantial compliance" and "rational
basis" tests, without more, fail to salvage the decision 

below.
The contention that an agency's "substantial compli­

ance" with its statute and regulations is enough to pass
2 S /

muster under the Administrative procedure Act has been 
soundly rejected. Charlton v. United States, 412 F.2d 
390 (3d Cir. 1969). In Charlton, the district court sus­
tained the discharge of a federal employee by finding 
"substantial compliance with all applicable procedural 
and statutory requirements." On the basis of that finding 
the district court ruled: "We cannot inquire further into 
the matter." Id., at 391. The Court of Appeals reversed 
and rejected the "substantial compliance" test. Instead, 
the appellate court described the issue as whether the 
determination of wrongdoing "was supported by substantial 
evidence, and not arbitrary, capricious or an abuse of 
discretion." Id. at 393. The question there, as here,
35/ . We' also, take the position that the finding that "a 

rational basis" exists is clearly erroneous. Pre­
sumably this finding is based on the district court s 
conclusion that only public housing is needed, and 
that the supply is adequate. But see, pp.

36/ The Court below properly noted the applicability of 
the Administration Procedure Act.

56 -



is whether the record supports the agency action, and if 
the record fails to support the agency action no amount 
of "substantial compliance" saves it.

Similarly here, the district court's "rational 
basis" test is an insufficient guide to the sufficiency 
of agency action. The Administrative procedure Act re­
quires reviewing courts to set aside agency action which 
is found to be "arbitrary, capricious, an abuse of dis­
cretion, or otherwise not in accordance with law. . ."
5 U.S.C. §706(2)(a). Reviewing courts must also set 
aside agency action which is found to be "without obser­
vance of procedure required by law." 5 U.S.C. §706(2)(d).

The district court presumably sought to offset 
“arbitrary" with "rational". The meaning of "a rational 
basis", and consequently its usefulness as a judicial 
test, is not entirely clear, however. No special word 
formula is needed to test compliance with procedural 
requirements with performance. A test is needed, however, 
to appraise an administrative record in order to deter­
mine whether the record supports the agency action. The

-57-



appropriate test for that task is the siibstantial evi­
dence test.

By definition, an "action unsupported by substan­
tial credible^ evidence must be regarded as arbitrary and
therefore cannot stand." Charlton v. United States, 412

_ /F .2d at 395. Indeed, the lack of substantial evidence
has already been equated to arbitrary action in an action
contenting the Secretary of Housing and Urban Development's
failure to comply with his relocation responsibilities.
In enjoining federal funding of an urban renewal project,
a reviewing court held:

We conclude, therefore, that the Secretary's 
action now under consideration is subject to 
judicial review - at least to the extent of 
determining whether the Secretary's discre­
tion concerning the satisfactoriness of the 
relocation plan has been exercised not arbit­
rarily but reasonably upon some substantial 
and supporting factual basis.

37/ A recent law review article has stated:
"While courts might have a special interest and 
expertise in determining the fairness of procedural 
schemes, they are equally competent to measure sub­
stantive determinations against explicit standards 
on the basis of substantial evidence. Examples of 
important substantive issues that present justici­
able controversies to the courts include the deter­
mination. . . that feasible relocation is possible". 
Note, The Federal Courts and Urban Renewal, 69 Colum. 
L. Rev. 472 (196*9).*

38/ Citing Scott v. United States, 160 Ct. Cl. 152 (1963).

58-



Western Addition Community Organization v. Weaver, 294

F. Supp. 433, 443, (N.D. Cal. 1968). The highway reloc­
ation statute is substantially identical to the urban 
renewal relocation statute which was involved in Western 
Addition Community Organization v. Weaver, and should be

2a/
governed by the same standard of review.

Although the evidentiary record is not the same as 
the kind of record developed by federal agencies with 
formal hearing mechanisms, there is still an administra­
tive record to review. In a recent decision involving 
review of route location decisions by the Department of 
Transportation, a district court defined the administra­
tive record to include "all the information which the
39/ We recognize that the issue is not settled. The 

court in Western Addition Community Organization 
v . Weaver inserted the modifier "some" before the 
requirement of substantial evidence and, subsequently, 
in a memorandum opinion dissolving its injunction 
(after HUD approved a new relocation plan) omitted 
“substantial" from its test and required that the 
Secretary make his determination "reasonably rather 
than arbitrarily and with some factual basis for 
his dedision." WACO v. Weaver No. 49053 (N.D. Cal., 
March 5, 1969). Also, the concurring opinion in 
Charlton v. United States, supra,., expressed a 
more limited view than the. majority. Nevertheless, 
we urge this Court to follow the majority opinion 
in Charlton, especially in light of the remedial 
purposes of the relocation amendments. Decisions 
which so drastically affect the lives of so many 
people should not be supported with less than 
substantial evidence.

-59-



Administrator had before him. It is on that record that 
the Administrator acted and on that record that his ac­
tion must be judged.” Road Review League v._Boyd_, 270 
F. supp. 650, 662 (S.D.N.Y. 1967). In Western Addition, 
Community Organization v. Weaver, the record consisted 
Of communications between federal and state officials, 
and, most importantly, the analyses by HUD's staff of ex­
perts of the local redevelopment agency's relocation plan. 

294 F. Supp. at 437-40.
Here, there was a record to review. It is a record 

which is significant for what it omits as well as what 
it includes. While there are analyses by the Department 
of relocation housing problems in Charleston, these 
factual analyses all preceded the enactment of the 1968 
relocation amendments (R.V.I, pp. 60-70). Following, 
the 1968 amendments the analyses stop. If a proper re­
location plan had been required there would have been 
more of a record. If the relocation plan prepared by * 
the State Road Commission had been read and analyzed 
by federal officials, there would have been more of a 
record. Nevertheless, there are documents which reveal 
the Department's consideration of housing problems in 

Charleston.
-60



The Department's administrative, record review 
should have been in depth, and not passed over lightly 
by using tests of "good faith" and "substantial compli­
ance". The district court erred by not subjecting this 
record to tests which would determine whether the agency 
followed procedures required by law, and whether the 
agency's determinations were supported by substantial 
evidence, or were, instead, arbitrary and unlawful.

2. The Department Approved the State Road 
Commission's Assurances of the Adequacy 
of the State's Relocation program "With­
out Observance of procedure Required,By 
Law."

Pursuant to Paragraph 5(a) of IM 80-1-68, the 
Department requested assurances respecting the State Road 
Commission's relocation program.(R.V.II, pp. 39-40). 
Thereafter, the State Road Commission submitted, and the 
Department approved, general assurances that the State 
Road Commission would adequately rehouse persons displaced 
by all its projects, including 1-77. In respect to 1-77, 
however, the Department did not require the submission 
of a relocation plan to support these assurances. In 
fact, no relocation plans were required for any inter­
state projects in the City of Charleston. Subsequently, 
when a relocation plan was prepared by the State Road

-61-



Commission, the Department did not review it. By not 
requiring a relocation plan, and then not reviewing a 
plan when it had been prepared, the Department of Trans­
portation acted "without observance of procedure' required 
by law. " 5 U.S.C. §706 (2) (d).

The statute only sets forth the requirement that 
state relocation assurances be "satisfactory" 23 U.S.C. 
§502. However the agency charged with the responsibility 
of administering the statute has enunciated procedures
by which it can determine whether state assurances are 

4Jl /satisfactory. Central to the Department's procedural 
requirements is the fact gathering mechanism of the re­
location plan. It is essential that once having pre­
scribed the procedure through which the Department is 
to reach its determination, the Department is not free 
capriciously to reject that procedure.

The relocation housing problem is capable of 
analysis. The number of people to be displaced, their 
incomes, race, and family sizes are measurable. The 
amount of available housing is measurable. It's possible 
to quantify the amount of available housing which is
40 / The highway relocation requirements are modeled

after urban renewal relocation requirements, where 
relocation plans have long been required.

-62-



available at various prices and rent levels, and it is pos­
sible to describe the condition of available housing. The 
availability to blacks of suitably priced housing can be 
determined. The impact of other displacement activities, 
and the offsetting effect of new housing construction can also 
be analyzed. It is through a relocation plan that all these 
factors can be carefully considered and judgments made whether 
the supply of housing is adequate to rehouse displacees. 
Without the kind of analysis required by a relocation plan, 
there is little basis on which to accept or reject assurances 
that relocation housing will be available.

We have argued above that the 1968 relocation amend­
ments require the Secretary to require assurances of the 
availability of relocation housing for persons displaced by 
1 -7 7 , even though authorization to acquire right of way pre­
ceded the enactment of the 1968 amendments. If we are right, 
then a relocation plan is certainly required. On the facts of 
the case, even if we are wrong, a relocation plan is still 
required because the Department has administratively required 
that the assurances be provided.

Whether or not the Department was obliged to require 
relocation assurances, it has approved the State Road Commis­
sion's assurances that displacees will be adequately rehoused. 
It has done so without requiring the submission of a reloca­
tion plan on which to judge the satisfactoriness of the State 
Road Commission's approvals. In so doing, the Department

-63-



has violated well established principles which require an 
agency to act according to its statute and regulations once 
it has decided to do what it otherwise might not have been 
required to do.

Once an agency binds itself to a procedure, it cannot 
at its whim ignore that procedure, to suit its own conven­
ience. As the Supreme Court has held:

While ... the Secretary was not obligated to 
impose upon himself these more rigorous sub­
stantive and procedural standards, neither was 
he prohibited from doing so, ... and having 
done so he could not, so long as the Regula­
tions remained unchanged, proceed without 
regard to them.

Service v. Dulles, 354 U.S. 363, 388 (1957).
Again reference to Western Addition Community Organi­

zation v. Weaver, supra, is instructive. There, the district 
court held the Department of Housing and Urban Development 
responsible for policing the relocation activities of a 
municipal urban renewal agency even though the 1965 policing 
statute, 42 U.S.C. §1455(c)(2), had been specifically made 
non-retroactive to projects on which planning began prior to 
the 1965 enactment. It was sufficient, in the court's view, to 
note that the Secretary had followed the amendment in respect 
to the disputed urban renewal project just as if he was legally 
required to do so. 294 F. Supp. at 436. Once having acted 
pursuant to its relocation amendment, HOD was required to act 
"not arbitrarily but reasonably upon some substantial and 
supporting factual basis." Id.* a*- 4 4 3. Similarly, the

-64-



Department of Transportation may not accept a state highway 
commission's relocation assurances without the kind of admin­
istrative record (a well supported relocation plan) which 
its regulations require.

Instead of relying on a relocation plan, the Department
of Transportation relied on the impressions of its right of
way officer. The right of way officer, in turn, relied on
th0 fact that the State Road Commission had provided para-41/
graph 5a (of IM 80-1-63) assurances ("so we had a certain 
amount of protection here"), and that the State Road Commis­
sion had "half of a relocation plan." He also relied on his 
experience in supervising the administration of the inadequate 
relocation programs under the 1962 relocation amendments, and 
studies he had undertaken in February and March 1968 (R.V.XI, 
pp. 73-76), He apparently forgot his February and March 
1963 studies which pointed out serious deficiencies in the 
availability of relocation housing (R.V.I, pp. 60-70). In 
short, he relied on nothing.
4 1 7  The State Road Commission’s conclusory assurances dated 

November 13, 1968 stated:
"The State Road Commission does provide timely, 
orderly and efficient relocation of displaced 
individuals and families to decent, safe and sani­
tary housing with minimum hardship to those affected, 
to the extent such housing is reasonably available. ...

"The State Road Commission is making a sincere 
and realistic effort to comply with the provisions 
of this Instructional Memorandum, to the extent it 
can reasonably be done on previously authorized 
projects, and will continue such efforts on projects 
authorized in the future. ..."

Nevertheless, in spite of the absence of factual support 
for these general assurances, the Department required no 
evidence to support them. .5 5 _



The use of a relocation plan, on the other hand, would 
have provided a surer guide to the ability of the State Road 
Commission to fulfill its statutory responsibilities. With­
out one, the Department could not evaluate assurances offered 
by the State Road Commission. By not requiring one, and not 
reviewing the one which was finally submitted, the Department 
acted "without observance of procedure required by law."

3 • The Department Made No Findings to Support 
Its Determination That State Relocation 
Assurances Were Satisfactory.

Although two federal officials testified that the 
State Road Commission had given satisfactory relocation assur­
ances, there is no evidence of findings in the administrative 
record in support of the decision. Similarly, although a 
state official categorically and unequivocally declared that 
"the State Road Commission has complied with each of the 
regulations of the IM 80-1-68 and its amendments ... (R.V.XX, 
p. 351), there is no evidence that the State is complying 
with the new statute. Nowhere in the record did the Depart­
ment offer one specific instance of state compliance with the
regulation.

By accepting the federal officials' bald assertions 
that state relocation assurances were satisfactory, the court 
below ignored a fundamental principle of Administrative Law
which is that

the orderly functioning of the process of review 
requires that the grounds upon which the admin­
istrative agency acted be clearly disclosed and
adequately sustained. 
SEC v. Chenery Corp., 318 U.S. 80, 94 (1943).

-66-



In short, how can a reviewing court tell whether agency action 
is arbitrary or not unless the agency gives reasons upon which 
it bases its decisions? Upon the present administrative 
record, the decision of the court below was sheer speculation, 
because there was no administrative decision supported by 
cogent reasons. The Department was not free merely "announce 
its ultimate conclusions by way of unrationalized fiat."
Saginaw Transfer Co. v. United States, 275 F. Supp. 585, 587 
(E0D. Mich. 1967). This court should order the Secretary not 
only to follow the lawful procedure in reaching a determina­
tion as to the satisfactoriness of the State's relocation 
assurances, but also to announce the reasons upon whicn the 
Secretary bases his determination in order that a court may 
properly exercise its role of responsible judicial review.

4. The Department's Determination of the Accept­
ability State Road Commission's Assurances 
Was Unsupported by Substantial Evidence,
Arbitrary, and Unlawful.

Additionally, the Department's determinations should 
be set aside because they are unsupported by substantial evi­
dence and, consequently, arbitrary and unlawful. In fact,
the evidence flatly contradicts any finding that adequate

A2./relocation housing exists.
3T/ At trial, counsel fo~the Department of Transportation,

Mr. Upton, stated:
"teas do have a problem with housing in the Kanawha 
Valley (i.e.. Charleston) and I think everybody 
would be willing to stipulate that." (R.V. II, 
p. 251)

-67-



The only analyses undertaken by the Department of
Transportation all show a deficit of relocation housing. On
three occasions in February and March 1968, the federal right
of way officer in charge of relocation reported the rapid
depletion of private replacement housing' £R.V.I, pp.
60-70). A year later, the only change which the division
engineer could report was the availability of short teim rent
supplements (R.V.II., p. 412). The actual supply of housing
had not increased, and no assurances could be given that dis-
placees would not be evicted a&tt&r after their limited two

43/
year rent supplements expired.

Seemingly acknowledging the shortage of private 
relocation housing, the district court relied on the avail­
ability of public low rent housing to meet all the relocation

Testifying on a proposed Uniform Relocation Assistance 
Act, Secretary Volpe (then Governor Volpe) cogently 
argued that short term rent supplements were no substi­
tute for an adequate supply of relocation housing:

” [O]ne of the basic protections of the bill is that 
displacement is not to take place unless there is advance assurance that adequate housing, at prices they can afford, will be available to these fami­
lies. Payment of a RAP (relocation adjustment 
payment or rent supplement) indicates that this 
requirement is not being met. Second, the adjust­
ment payment only defers the hardship for two years. 
At the end of that period, the payment ceases, and the household is left in housing which is beyond its 
means."

Hearings Before the Subcommittee on Intergovernmental 
Relations of the Senate Committee on Government Opera­
tions, 90th Cong., 2nd Sess. at 481.

-68-



needs of people displaced by 1-77 (R.V.I., p. 50). There is
no support in the record for this finding.

By way of contrast with the court's finding, neither 
the Department nor the State Road Commission determined that 
public housing alone would furnish sufficient relocation hous- 
ing. The Department had expressed concern about the availa­
bility of private relocation housing. Obviously, it would 
not have done so if public housing was all that was needed. 
Furthermore, all the State Road Commission concluded with 
respect to*public housing was that the "ma3ority" of dis- 
placees in the Triangle "appear" to be eligible for public 
housing (R.V.I., p. 75). Private housing would be needed for 
the rest. If private relocation housing does not exist then, 
clearly, the supply of relocation housing is insufficient.
In view of the fact that neither federal nor state agencies 
found that public housing would provide all the relocation 
housing which was needed, it is hard to understand how the 
reviewing court could make a finding that public housing could 
provide relocation housing for all Triangle displacees 
(R.V.I., p. 50).

5. Defendants Failed to Consider Factors. Such 
as Racial Discrimination, Which Are Essen­
tial to a Rational Decision.

Yet an additional reason why the approval of the State 
Road Commission's assurances should be sat aside is that both 
the Department and the State Road Commission ignored factors 
essential to a rational decision. Key among these factors 
are racial discrimination and competing displacement.

-69-



The law is clear. An agency charged with the duty 
of protecting the public interest has "an affirmative duty 
to inquire into and consider all relevant facts." Scenic 
Hudson Preservation Conference v. Federal Power Comm., 354 
F. 2d 608, 620 (2d Cir. 1965), cert, denied, 384 U.S. 941 
(1966). If an agency fails to consider essential factors, a 
reviewing court may order their consideration. Michigan 
Consolidated Gas Co. v. Federal Power Comm., 283 F.2d 204, 226 
(D.C. Cir. 1960), cert, denied, 364 U.S. 913 (1960).

Racial discrimination is a factor affecting the avail­
ability of relocation housing which any agency administering 
a relocation statute must consider. As the Court of Appeals 
for the Second Circuit recently observed:

It is no secret that in the present state of our 
society discrimination in the housing market means 
that a change for the worse is generally more 
likely for members of minority races than for 
other displacees. This means that in many cases 
the relocation standard will be easier to meet 
for white than for non-white displacees.

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920,
931 (2d Cir. 1968). If racial discrimination bars blacks from 
obtaining otherwise available housing, then, as far as dis­
placed blacks are concerned, the housing is simply non-existent.

Simple logic is not the only source of the obligation 
of state and federal officials to consider the impact of racial 
discrimination on the availability of relocation housing for 
displaced blacks. One of the Congressional concerns apparent 
in the legislative history of the 1968 relocation amendments

-70-



was the impact of highway displacement on minority groups. 
Acknowledgment of this history requires that special considera­
tion be given to the availability of housing for blacks. 
Furthermore, to dispel any doubts. Congress has mandated that 
all executive departments which administer programs affecting
urban development act "affirmatively" to further the national

43/policy of fair housing. 42 U.S.C. 3608(c). If affirmative
action means anything, it at least requires agencies such as
the Department of Transportation to consider the relationship
between race and housing opportunities.

In the face of such compelling considerations, neither
federal nor state highway officials considered the impact of
racial discrimination on the ability of black displacees to
find suitable relocation housing. The federal right of way
official (the federal government’s principal relocation officer
in West Virginia) made no study of the way in which racial
discrimination might impede the access of blacks to relocation
housing. All he knew was that Charleston had an open housing
law, but he did not know whether the open housing law covered

44/all types of housing (R.V.II., p. 99). In spite of the
requirement that the Department of Transportation "cooperate"
with the Secretary of Housing and Urban Development in situations
237 "A regulatory agency may, should, and in some instances

must give consideration to objections expressed by Congress 
in other legislation." City of Chicago v. F.P.C., 385 
F.2d 624 (D.C. Cir. 1967).

44/ It does not. Two and three family houses are excluded, 
along with owner occupied four family houses.

-71-



such as this (42 U.S.C. 3608(c)), the federal right of way
official did not even know about (much less read) studies
financed by the Department of Housing and Urban Development
which show the seriousness of racial discrimination in45_/
Charleston's housing market.

Neither did state high officials consider the impact 
of race on the availability of relocation housing. At trial, 
the state right of way officer took the position that affirma­
tive inquiries into the availability of housing for blacks 
wore unnecessary because of Charleston's fair housing ordi­
nance. Yet, in the same breath, he acknowleoged that the 
fair housing ordinance did not cover all units. When asked 
what the fair housing ordinance excluded, he answered: I
would hate to try to summarize it" (R.V.II., p. 368). In 
contrast, the Triangle Improvement Council did inquire into the 
availability to blacks of housing listed by the State Road 
Commission, and discovered that there were houses on the list 
which were unavailable to blacks (R.V.II., p. 285).

A second factor which federal and state officials have 
ignored is competing displacement. The relocation plan which 
the State Road Commission prepared treated the Triangle in a 
vacuum. Not only was inadequate consideration given to dis­
placement by other government activities, but displacement 
from other segments of 1-77 was ignored as well. This blind­
ness ignores the requirement of the Department's own relocation
?HJ7— See, e'.g'., Final Draft Report . Community Renewal Program.

Pit. Exh. No. 14. -72-



regulations which require "detailed information on concurrent
displacement." IM 80-1-68(7)(b)(3). State highway officials
acknowledge that Triangle displacees have no priorities over
other highway displacees, yet their Triangle relocation plan
gives no consideration to the extent to which the competition
diminishes the opportunity of Triangle residents to find
decent relocation housing.

In a related situation, the court in Seen ic Hud son
required agency reconsideration:

The Commission has ignored certain relevant 
factors and failed to make a thorough study 
of possible alternatives to the Storm King 
Project. While the courts have no authority 
to concern themselves with the policies of che 
Commission, it is their duty to see to it that 
the Commission's decisions receive that care­
ful consideration which the statute contemplates.

354 f .2d at 612. Having failed to consider the relevant
factors of racial discrimination and competing displacement,
federal and state officials should be required to develop a
relocation plan which fully accords with the 1968 relocation
amendments, the Fair Housing Act of 1968, and the Department's
own relocation regulations.

-73-



III.
The Displacement of Blacks in a Discriminatory 
Housing Market Without Adequate Governmental 
Measures to Assure Non-Discriminatory Relocation 
Housing Deprives Displaced Blacks of the Equal 
Protection of the Laws.

The displacement of black residents of the Triangle 
is taking place in a housing market in which racial discrimi­
nation seriously limits their ability to find suitable reloca­
tion housing. The consequence of housing discrimination has 
not only been to increase the ghettoization of blacks, but 
it has also meant that even when blacks have incomes equal 
to whites they are more likely to live in substandard and 
overcrowded housing. It further means that blacks are forced 
to pay premium prices for the limited amount of substandard 
housing which is available to them (Plf. Exh. No. 14, pp.
I-D-25-27).

These conditions should have been well known to federal
and state highway officials. If their personal observations 
failed them, they still had recourse to well documented 
federally financed studies of housing and racial discrimina­
tion in Charleston. Nevertheless, federal highway officials
neglected to take the effort to inform themselves (R.V.II.,46/
p.99-100). Instead, they relied exclusively on a local fair
]jJ7 They should have. As pointed out above, the Fair Housing 

Act of 1968 requires that all executive departments with 
programs affecting urban development not only "affirma­
tively" act themselves to further the national policy of 
fair housing, but also "cooperate" with the Secretary of 
Housing and Urban Development to achieve these objec­
tives. 42 U.S.C. §3608 (c). Minimally, this would entail 
reading HUD financed studies.

-74-



housing ordinance which not only excludes a substantial amount 
of housing from its coverage but which assuredly, as all other 
fair housing laws, has not ended housing discrimination.

The application of the equal protection clause <-o this 
problem, although only recently recognized, is well established 
The fact that racial discrimination is private in origin does 
not excuse government officials from assuring that the statu­
tory relocation standard is fulfilled for all displacees:

Where the relocation standard set by Congress is 
met for those who have access to any housing in 
the community which they can afford, but not for 
those who, by reason of their race are denied free access to housing they can afford and must 
pay more for what they can get, the state action affirms the discrimination in the housing 
market. This is not "equal protection of the 
laws."

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920,
S31 (2d Cir. 1968). Furthermore, even in the absence of a 
statutory standard, government officials may not "knowingly 
and actively precipitate the dislocation of persons who, 
because of a city-wide practice of residential discrimination, 
will have no place to go." Arrington v. City of Fairfield,
414 F.2d 687 (5th Cir. 1969).

The Department and the State Road Commission should
have taken affirmative steps to determine whether private 
racial discrimination will deny blacks the opportunity to find 
decent and suitably priced non-discriminatory relocation 
housing. In preparing a school desegregation plan, it is 
necessary to determine whether the racial character of

-75-



neighborhoods results from housing discrimination. Brewer v. 
School Board of City of Norfolk, 397 F.2d 37, 41 (4th Cir.
1968). Government officials responsible for preparing highway 
relocation plans should take similar affirmative steps in order 
to adequately assure that the effects of private housing dis­
crimination will not be carried over into their programs and 
be exacerbated by them.

These arguments were advanced below, and not rejected 
by the district court. Instead, the court dismissed the claim 
by relying on "representations" of federal and state highways 
that "no racial discrimination will be practiced in the con­
duct of the program," as well as on its finding that, public 
housing is all that is necessary to provide relocation housing 
for Triangle displacees (R.V.I., pp. 49-50).

Neither ground supports the court’s dismissal of the 
constitutional claim. Defendants' representations, of course, 
are not sufficient to prove what they profess, and are at 
any rate limited to "discrimination ... in the conduct of the 
program" and do not indicate that the State Road Commission 
will take affirmative steps to assure that black displacees 
will be adequately rehoused. And the court's finding concern­
ing the ability of public housing to totally rehouse Triangle 
displacees is not only unsupported in the record but is^in 
conflict with the State Road Commission's own "plan."
7^7 To repeat, in its plan-the State is only willing toassert that a "majority" of Triangle displacees "appear" 

to be eligible for public housing (R.V.I., p. 75).

-76



Accordingly, private relocation housing is necessary. 
However, the record shows that such housing is not freely 
available to blacks. Not only do government supported studies 
show the pervasiveness and impact of housing discrimination in 
Charleston, but the State Road Commission's relocation housing 
lists include landlords who discriminate (R.V„II., p.c ®* ).

The district court's finding and conclusion with 
respect to the burden of black displacees is clearly erroneous. 
Neither the Department nor the State Road Commission have ful­
filled their responsibilities under Norwalk CORE v. Norwalk 
Redevelopment Agency and Arrington v. City of Fairfield to 
assure that adequate and non-discrirainatory relocation housing 
is available to black displacees.

-77-



CONCLUSION

The orders of the district court dismissing the
complaint and denying the Triangle Improvement Council's motion
for injunctive relief should be reversed. The displacement of
residents as part of the process of acquiring right of way
and constructing 1-77 through the Triangle should be enjoined
until the State Road Commission submits to the Department of
Transportation a relocation plan, satisfactory to the Secretary
and, of course, subject to the careful judicial review of the
district court, which assures that adequate relocation housing
is available to such persons within the meaning of the Federal
Aid Highway Act, 23 U.S.C.§§501 et seq., and the Department's

4 a /regulations.
AP/  The relief prayed for here is the relief granted in

Western Addition Community Organization v. Weaver, 294 
F. Supp. 433, 440 (W.D. Cal. 1968).

Respectfully submitted.

JACK GREENBERG 
MICHAEL DAVIDSON 

10 Columbus Circle 
New York, N. Y. 10019

JOHN BOETTNER 
A. ANDREW MACQIEEN
Legal Aid Society of Charleston 
1026 Quarrier Street

Of Counsel: Charleston, W. Va. 25301
THOMAS J. O'SULLIVAN Attorneys for Appellants
PETER M. COLLINS 14 Wall Street 
New York, N. Y.

STEVE YOUNG
10 Columbus Circle 
New York, N. Y.



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