Triangle Improvement Council v. Ritchie Brief for Petitioners

    I n  t h e

October Teem, 1970 
No. 712

Triangle I mprovement Council, et al.,
Petitioners,

W illiam S. R itchie, Commissioner, S tate R oad 
Commission op the S tate op W est V irginia, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OP APPEALS 

FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

J ack Greenberg 
J ames M. N abrit III 
Charles S tephen R alston 
E lizabeth B . D u B ois 
J effry A . Mintz

10 Columbus Circle 
New York, New York 10019

J ohn L. B obttnee
1116-B Kanawha Blvd., E. 
Charleston, West Virginia 25301

A. A ndrew MaoQueen  III 
1026 Quarrier Street 
Charleston, West Virgiina 25301

Attorneys for Petitioners
T homas J . O’S ullivan 

14 Wall Street 
New York, New York 10005

Curtis B erger
Columbia University School of Law 
New York, New York

Of Counsel



I N D E X

PAGE

Opinions Below.............................................................. 1

Jurisdiction ...................................................................  2

Question Presented..................................—.................  2

Constitutional, Statutory, and Regulatory Provisions 
Involved - .......    3

Statement ....................................................................... 4
Introduction ............................................................  4
A. Summary of Pacts ............   6

1. Charleston, West Virginia, and the Triangle 6
2. 1-77 and the Highway Approval Process 9
3. The 1968 Relocation Amendments to the 

Federal-Aid Highway Act and the Admin­
istrative Regulations to Implement Them .. 11

4. The Relocation “Program” in the Triangle 14
B. Summary of Proceedings in the Courts Below 17

S ummary op A r g u m e n t ...............................................................  20

A rgument

I. The Displacement of the Black Petitioners Into 
a Racially Discriminatory Housing Market 
Without Adequate Governmental Measures to 
Assure Non-Discriminatory Relocation Housing 
Deprives Them of the Equal Protection of the 
Laws Guaranteed by the Fourteenth Amend­
ment ........ ................. ................. —...................... 24



11

PAGE

II. The 1968 Relocation Amendments to the Fed­
eral-Aid Highway Act and Regulations There­
under Grant Relocation Benefits to the Triangle 
Residents Which Have Not Yet Been Admin­
istratively or Judicially Accorded Them .......... 27
A. The 1968 Relocation Amendments Assure

Persons Not Yet Displaced as of the Date 
of Enactment the Right to Adequate Re­
placement Housing, and Pursuant Thereto 
Mandate Detailed Relocation Plans ............ 27

B. In the Absence of Compliance with the Re­
quirements of the 1968 Relocation Amend­
ments, Administrative Action by State and 
Federal Officials Cannot Be Upheld on the 
Basis of General Assurances That Efforts 
Are Being and WiU Be Made to Relocate 
Persons Displaced, and That Adequate Re­
location Housing Exists ...............................  38
1. Reversal Is Required Because the Pro­

cedures Mandated by Law with Respect 
to the Submission for Review and Ap­
proval of a Comprehensive Relocation 
Plan Were Not Followed........................  39

2. The District Court’s Purported Finding
That Relocation Housing Was Adequate 
Was Clearly Erroneous .......................  46

III. The Questions of Retroactive Application and
Appropriate Remedy..........................................  50

Conclusion ...........................     53



lU

PAGE

Appendix A—Statutes ......................................Br. App. 1
Appendix B—Regulations and Policy 

Directives ...................................................... Br. App. 17
Appendix C—Legislative History of 1968 

Relocation Amendments to Federal-Aid 
Highway A ct..................................................Br. App. 47

T able op A uthorities

Cases
Arrington v. City of Fairfield, 414 F.2d 687 (5th Cir. 

1969) ..........................................................................  25
Ashwander v. Tennessee Valley Authority, 297 U.S.

288 (1936) .............. ............................................... .....  27

Burton v. Wilmington Parking Authority, 365 IJ.S. 715 
(1961)............................................................-.............  25

Charlton v. United States, 412 F.2d 390 (3rd Cir. 1969) 42
'V/̂  Citizens to Preserve Overton Park v. Volpe, 432 F.2d 

1307 (6th Cir. 1970), cert, granted December 7, 1970,
O.T. 1970, No. 1066 ..............................  37,47

City of Chicago v. F.P.C., 385 F.2d 629 (D.C. Cir. 1967) 26
Crowell V. Benson, 285 U.S. 22 (1932) ........................  27
Cy Ellis Raw Bar v. District of Columbia Redevelop­

ment Land Agency, 433 F.2d 543 (D.C. Cir. 1970) .... 35

D.C. Federation of Civic Associations v. Airis, 391 
F.2d 478 (D.C. Cir. 1968) ..........................................  43

DeLong v. Hampton, 422 F.2d 21 (3rd Cir. 1970) ......  42

Environmental Defense Fund v. Hardin, 428 F.2d 
1093 (D.C. Cir. 1970) ...............................................  45



IV

PAGE

Environmental Defense Fund v. Euckelshans,----F.2d
—-  (D.C. Cir., January 7, 1971, No. 23813) ..........  45

Garner v. Louisiana, 368 U.S. 157 (1961) ..................... 26
Goldberg v. Kelly, 397 U.S. 254 (1970) ........................  44

Jones V. Alfred H. Mayer Co., 392 U.S. 409 (1968) ......  24

Kent V. Dulles, 357 U.S. 116 (1958) .............    39

Medical Committee for Human Rights v. Securities and 
Exchange Commission, 432 F.2d 659 (D.C. Cir. 
1970) .................. ...................................................... . 45

Michigan Consolidated Gas Co. v. Federal Power 
Comm., 283 F.2d 204 (D.C. Cir. 1960) cert, denied,
364 U.S. 913 (1960) ........ ......................................... . 44

Moss V. C.A.B., 430 F.2d 891 (D.C. Cir. 1970) .............. 43

Norwalk CORE v. Norwalk Redevelopment Agency,
395 F.2d 920 (2nd Cir. 1968) ....... ............................. 25

Office of Communications of United Church of Christ 
V. FCC, 359 F.2d 994 (D.C. Cir. 1966) .......................  44

Office of Communications of United Church of Christ 
V. FCC, 425 F.2d 543 (D.C. Cir. 1969) ..........41, 44, 45, 47

Pauley v. United States, 419 F.2d 1061 (7th Cir. 1969) 42
Peterson v. City of Greenville, 373 U.S. 244 (1963) .... 26

/Reitman v. Mulkey, 387 U.S. 369 (1967) .....................  26
 ̂ Koad Review Leag-ue v. Boyd, 270 F. Supp. 650 

(S.D.N.Y. 1967) ............................ ............. ..............  42

•^Scenic Hudson Preservation Conference v. Federal 
Power Comm., 354 F.2d 608 (2nd Cir. 1965), cert, 
denied, 384 U.S. 941 (1966) ....... .............................44, 45



V

PAGE

Service v. Dulles, 354 U.8. 363 (1957) ....................... 32,43
SEC V. Chenery Corp., 318 IJ.8. 80 (1943)...... ........... . 44

^ h annon  v. Dept, of Housing and Urban Development,
-----  F.2d ----- , (3rd Cir. December 30, 1970, No.
18,397) ............................................... .......17, 26, 44,45, 52

Shelley V. Kraemer, 334 U.S. 1 (1948) .............. ............ 26
Small V. Ives, 296 F. Supp. 448 (D. Conn. 1968) ..Br. App. 48

Thorpe V. Housing Authority, 393 U.S. 268 (1969) ....20, 22,
35,44

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

^Triangle Improvement Council v. Ritchie, 429 F.2d
423 (3rd Cir. 1970) .............. ................................... passim

Turner v. City of Memphis, 369 U.S. 350 (1962) ........  25

Udall V. Tallman, 380 U.S. 1 (1965) ........ .......... .......19, 34

\yWestern Addition Community Organization v. Weaver,
294 F. Supp. 433 (N.D. Cal. 1968) ........ ......... ........30, 42

Williams v. Robinson, 432 F.2d 637 (D.C. Cir. 1970) 45

Zuber v. Allen, 396 U.S. 168 (1969) ...................... ........  35

Statutes and Regulations 
1. Statutes

Administrative Procedure Act, 5 U.S.C. §701 
et seq........... ............................  ..18,42

Fair Housing Act of 1968, 42 U.S.C. et seq............  26
Federal-Aid Highway Act of 1968, 23 U.S.C. §501 

et seq...........................       passim
Federal-Aid Highway Act of 1970, Pub. L. 91-605,

§117 .....................................................................30,51



VI

PAGE

Housing and Urban Development Act of 1965,
Pub. L. 89-117, 79 Stat. 475, 42 U.S.C.
1455(c)(2).............................................................. 30

Pub. L. 90-495, §37, 82 Stat. 831............................12, 28

23 U.S.C. §106 .....................................................  10

23 U.S.C. §128 .....................................................  18

23 U.S.C. §133 .....................................................  28

West Virginia Code Cb. 17, Art. 2A, Sec. 20 .......... 12

2. Regulations, Directives, and Memoranda of Depart­
ment of Transportation
Circular Memorandum, January 23, 1968 ............14, 23

Circular Memorandum, December 26, 1968 ..........28, 34

Circular Memorandum, February 12, 1969 ...... 13, 31, 34

Circular Memorandum, March 27, 1970, as amended 
April 10, 1970 .................................................... 14, 35

DOT Policy and Procedure Memoranda (PPM) 10,12, 52

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

Memorandum of Under Secretary of Transportation 
James M. Beggs, November 6,1970.....................10, 37

Memorandum on Implementation of Replacement 
Housing Policy by Secretary of Transportation 
John A. Volpe, January 15, 1970 ...................... 13,35

35 Fed. Reg. 6322 (1970) ...................... ...................  37



Vll
PAGE

Other Authorities
Advisory Commission on Intergovernmental Rela­

tions, Relocation: Unequal Treatment of People and 
Businesses Displaced hy Government (1965) ,.Br. App. 49

Hearings Before the Subcommittee on Intergovern­
mental Relations of the Senate Committee on 
Government Operations, 90th Cong., 2nd Sess......... 50

Highway Relocation Assistance Study, 90th Cong.,
1st Sess. (1967) ...................... ................. 32, Br. App. 50

Charleston (W. Va.) Gazette, November 13, 1970, p. 1 10
New York Times, July 13, 1970, p. 62, col. 1 ...............  10
Note, The Federal Courts and Urban Renewal, 69 

CoLUM. L. R ev. 472 (1969)..........................................  42
Reich, Individual Rights and Social Welfare: The 

Emerging Legal Issues, 74 Y ale L. J. 1245 (1965) .... 41
Select Committee on Real Property Acquisition, Study 

of Compensation and Assistance for Persons Affected 
by Real Property Acquisition in Federal and Fed­
erally Assisted Programs, 88th Cong., 2nd Sess. 
(1964) ............................................................. Br. App. 48

1965 U.S. Code Cong. & Adm. News...............................  30
1966 H.S. Code Cong. & Adm. News...................Br. App. 50
1968 H.S. Code Cong. & Adm. News............29, Br. App. 47,

Br. App. 50, Br. App. 52



I n ' t h e

^m xt of #tat^0
O c t o b e r  T e r m , 1970 

No. 712

T r ia n g l e  I m p r o v e m e n t  C o u n c i l , et al.,
Petitioners,

-V .-

WlLLIAM S. E iTCHIE, COMMISSIONER, S tATB E oAD 
Commission op the S tate, op W est V irginia, et al.

ON 'WRIT OP CEBTIOBARI TO THE UNITED STATES COURT OP APPEALS 
POB THE T’OURTH CIRCUIT

BRIEF FOR PETITIONERS

Opinions Below

The opinion of the United States District Court for the 
Southern District of West Virginia (App. 35a-59a),  ̂ is 
reported at 314 P. Supp. 20 (1969). The opinions of the 
United States Court of Appeals with the dissent of Judges 
Soheloff and Winter from the denial of rehearing en ham 
(App. 65a-66a, 69a-78a) are reported at 429 F.2d 423 
(1970).

 ̂The Single Appendix separately filed in this case is designated 
herein “App.” The Appendix of statutes and regulations attached 
to this brief is designated “Br. App.” Portions of the record not 
printed in the Appendix are referred to by their original exhibit 
number.



Jurisdiction

The judgment of the United States Court of Appeals 
for the Fourth Circuit was entered May 14, 1970 and the 
petition for rehearing denied July 14, 1970. The petition 
for a writ of certiorari was filed in this Court on September 
17, 1970, and granted on December 21, 1970. This Court’s 
jurisdiction derives from 28 U.S.C. §1254(1) .

Question Presented

Petitioners, residents of the black ghetto of Charleston, 
West Virginia, have been or will be displaced from their 
homes by the construction of a federally aided interstate 
highway. They are required to obtain new housing in a 
market from which they are excluded because of racial 
discrimination and a shortage of low cost housing. This 
case presents the fundamental constitutional question of 
whether the Fourteenth Amendment requires that when 
persons are removed from housing by state and federal 
action and thereby subjected to private housing discrimina­
tion, government officials must first make relocation hous­
ing available to them without regard to race or economic 
status.

Additionally, petitioners are among the class of persons 
protected by the amendments to the Federal-Aid Highway 
Act of 1968, 23 U.S.C. §501 et seq., which requires adequate 
assurances of relocation housing prior to their displace­
ment by highway construction. Relying on a subsequently 
amended regulation, the United States Department of 
Transportation and the State Road Commission refused 
to provide such assurances, and the district court denied 
relief. The Court of Appeals affirmed, notwithstanding an 
intervening change in the regulations sustaining petition­
ers’ position.



Under these circumstances, and especially where a pre­
cise statutory remedy is available to cure a constitutional 
wrong, are petitioners entitled to the relief the Constitu­
tion requires and Congress has provided, but which 
neither the administrative agencies nor the lower courts 
have alforded to them!

Constitutional, Statutory, 
and Regulatory Provisions Involved

This case involves the Fifth and Fourteenth Amend­
ments to the Constitution of the United States.

This case also involves various provisions of Title 23 
of the United States Code (Highways), in particular, former 
§133 (repealed effective July 1, 1970, Pub. L. 90-495, §37, 
Aug. 23, 1968, 82 Stat. 836) (Br. App. 1-2); Pub. L. 89-574, 
§12, Sept. 13,1966, 80 Stat. 770 (Br. App. 2-3); the Federal- 
Aid Highway Act of 1968, 23 U.S.C. §501, et seq. (Br. App. 
4-13); the Federal-Aid Highway Act of 1970, Pub. L. 91-605, 
§117 (Br. App. 13-15); and the Pair Housing Act of 1968, 
42 U.S.C. §3601 et seq., particularly §3608 (Br. App. 16).

This case also involves the following regulations and 
policy directives issued by the Department of Transporta­
tion:

(1) Circular Memorandum, January 23, 1968 (PI. Ex. 
No. 9, App. 79a-81a).

(2) Instructional Memorandum, 80-1-68, IfTfl; 2; 3; 4; 
5; 6; 7; 9a, c, and g ; 11; 12; 13; and 17c, f, g, and h ; Sep­
tember 5, 1968, as amended (Br. App. 17-36).

(3) Circular Memorandum, December 26,1968 (Br. App. 
37-38).

(4) Circular Memorandum, February 12, 1969 (Br. App. 
39-40).



(5) Memorandum on Implementation of Replacement 
Housing Policy issued by Secretary of Transportation John 
A. Volpe, January 15, 1970 (Br. App. 41-42).

(6) Circular Memorandum, March 27, 1970, as amended, 
April 10, 1970 (Br. App. 43-44).

(7) Memorandum of Under Secretary of Transporta­
tion James M. Beggs, issued November 6, 1970 (Br. App. 
45-46).

Statement
Introduction.

This action involves the right, under the Constitution 
and federal statutes and regulations, of persons who are 
displaced by the construction of a federal highway to be 
relocated by the responsible state and federal agencies into 
decent, safe, and sanitary housing. The case arises in the 
context of a highway, to be built through the Triangle 
section of Charleston, West Virginia. In the Federal-Aid 
Highway Act of 1968, Congress addressed itself to the 
serious problems of persons whose homes were destroyed 
by highways in finding new housing. Sections 502 and 508 
require the Secretary of Transportation and the states to 
develop, enforce and implement relocation plans which 
would in fact result in the availability of adequate housing 
for displacees. 23 U.S.C. §502, 508.

Thus, the central statutory issue in this case is whether 
the 1968 Act and regulations promulgated under it by the 
Department of Transportation impose obligations towards 
persons faced with displacement after its enactment by 
a highway project commenced before its enactment. In 
addition, this case raises a broader constitutional issue: 
the right under the Fifth and Fourteenth Amendments of 
black and poor white persons to assured relocation housing 
when forced by highway construction to seek new homes



in a housing market restricted because of racial discrimina­
tion and high prices.

The following statement will be divided into two main 
parts. The first will describe the factual setting of the case,
i.e. the history of the 1-77 highway project, its relationship 
to the statutes and administrative regulations, and the 
problem of finding adequate relocation housing in Charles­
ton, West Virginia, as it relates particularly to the situa­
tion of people who are poor and black. The second will 
detail the proceedings in the courts below. As this case 
requires a somewhat detailed description of the history of 
Interstate Highway 77 and its relationship to the events 
in this lawsuit and relevant statutes and regulations, we 
have set out in the margin a table outlining the sequence 
of events with which we are concerned.**

 ̂The following are the dates of the pertinent events involved in 
this case;

1. August 31, 1964: Present route of 1-77 approved by 
Federal Bureau of Public Eoads.

2. April, 1966-May, 1967; Federal authorization to acquire 
land on highway right-of-way given.

3. August 23, 1968: Enactment and effective date of 1968 
Federal-Aid Highway Act.

4. September 5, 1968 : Issuance of implementing regulations 
by the Department of Transportation (IM 80-1-68).

December 3, 1968: Present suit filed.
April 2-3, 1969: Hearing in the District Court.
July 18, 1969: Order entered dismissing complaint.
Pall, 1969: Federal authorization for construction of

5.
6.

7.
8. 

1-77.
9. January 15, 1970, and March 27, 1970: Issuance of new 

relocation requirements by the Department of Transportation.
10. May 14, 1970: Opinion of Fourth Circuit Affirming 

Dismissal.
11. July 10, 1970: Federal order halting work on 1-77 

pending reconsideration of route.
12. July 14, 1970: Denial of Eehearing en ianc.
13. November 6, 1970: Federal authorization to proceed 

with construction issued.
14. December 21, 1970: Certiorari granted.



A. Summary of Facts.
1. Charleston, W est Firginia, and the Triangle.

Charleston, the capital and largest city of West Virginia, 
lies in a narrow valley, along the Kanawha River, and is 
bisected on the east by the Elk River, which joins the 
Kanawha near the center of the city. Because the hills 
rise steeply from both river valleys, there is a “sparsity of 
flat land” in the city for any type of development.®

The Triangle district, located along the south side of the 
Elk near its mouth, is the oldest and largest predominantly 
Negro community in the state. Many of its residents are 
elderly; almost all have comparatively low incomes.^

Urban housing shortage, common in many cities, is par­
ticularly severe in Charleston, partly because many homes 
have been demolished for public projects.® The impact in

®App. 421a; 419a.
In 1966, the average annual household income for blacks in 

the city was more than $3000 below the average income of white 
households, a fact resulting largely from job discrimination (PL 
Ex. No. 14, p. I-D-6.) The district court took note of this fact. 
App. 36a, 314 F. Supp. at 21.

From 1960 to 1966 approximately 1900 low cost housing units 
were destroyed, while in the same period the only low cost hous­
ing constructed has been 100 units of public housing for the 
elderly, while 1500 middle to upper income units were privately 
constructed. App. 300a.

In 1966, a study prepared for an urban renewal program esti­
mated that total displacements to be caused by public projects in 
Charleston would be:

Highway Construction 
Urban Renewal 
State Capital Expansion 
Disaster, Condemnation and 

Conversion

1094
755
280

750

Total 2879
PI. Ex No. 14, p. I-D-14. These figures represent family units, and 
th ^  the total number of persons is far greater. The planned 
urban renewal project was postponed.



the Triangle is even more severe. Land clearance for a 
proposed expansion of a local water company, east of the 
highway rente, displaced 243 persons a few years ago.® 
The planned highway will remove the homes of about 300 
more. The proposed urban renewal project, which has 
been postponed indefinitely, largely because of the lack of 
replacement housing, will, when added, displace almost all 
of the district’s 2000 residents.’

Housing discrimination exacerbates the etfect of this 
situation on black citizens.® Private discrimination has con­
centrated Negroes in only a few areas of the city; the 
Triangle is the largest.® As a result, black persons do not 
have the same opportunities for finding relocation housing 
in the private sector as whites.’®

This situation was recognized by the federal highway 
officials in studies of relocation problems made in early 
1968, before dislocation had begun. The division right-of- 
way officer reported on February 20, 1968 :

. . . [0]ur major area of concern lies with those 
people who have income 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

® Def. Ritchie Ex. No. 1; App. 100a. 
’ Ibid.; PI. Ex. No. 14, 16, 24.
® This, of course, is in addition to the difficulties arising from the 

lower incomes of blacks. See N. 4, supra.
® PI. Ex. No. 23.
’"App. 304a-306a; 331a-338a; PI. Ex. No. 25.
A community worker who made a survey of fifty homes listed as 

available for relocation by the State Road Commission found that 
of those available and within the financial capability of Triangle 
residents, only eight would rent to Negroes. App. 332-335a: PI. Ex. 
No. 25.



8

to $7500 a year and who do not want to, or cannot, 
buy their own home. Urban renewal and public hous­
ing is 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}'^

He underscored his concerns again on February 26, 1968:
It appears that the relocation problem in the Charles­
ton area, insofar as the State Road Commission is 
concerned, could become critical 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.^^

Less than 10 days later, on March 6, 1968, after meeting 
with State Road Commission, Federal Housing Adminis­
tration and Urban Renewal officials, the division right-of- 
way officer again expressed alarm that the housing market 
was being depleted:

It appears that the Federal Housing Administration 
programs will provide the only source of replacement 
housing in the area. The existing private market, par­
ticularly in low to moderate priced rentals, is being 
depleted primarily by Interstate acquisition. It also 
appears that future authorization for acquisition will 
be affected unless the Federal Housing Administration 
programs are instituted in the very near future.^^

PI. Ex. No. 12, App. 93a.
PI. Ex. No. 12, App. 87a (Emphasis added).
PI. Ex. No. 12, App. 97a-98a. The urban renewal program then 

contemplated was not approved, with the result that the additional 
housing it would provide never came into being.



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. The only 
change he could cite was the availability of rent supple­
ments, provided for under 23 U.S.C. §506(h).^̂

2. 1-77 and the Highway A pproval Process.

The section of 1-77 at issue here is part of the interstate 
highway system.” Eoutes 64 from the west and 77 and 79 
from the north meet on the north hank of the Elk River, 
crossing southeasterly through the Triangle and the rest 
of the city as 1-77.” While several alternative routes were 
originally considered, at least one of which would have 
avoided heavily populated areas, '̂' the state proposed the

^^App. 424a-427a. He emphasized this by saying: “I’m not at 
all sure they could have gone through with the relocation program 
in the area . . . without these rental supplements.” App. 427a. He 
was unable to say what relief would be available when the rent 
supplements, which have a statutory limit of two years, expired 
for families placed in housing more expensive than they could 
afford. App. 428a.

16 responsible federal agency is the Department of Transpor­
tation (DOT), acting through the Federal Highway Administration 
and the Bureau of Public Roads. Most of the operative work is 
carried on by state agencies, in this ease the West Virginia Depart­
ment of Highways (formerly the State Road Commission of West 
Virginia). The governing federal statute is Title 23 of the United 
States Code. The regulations in part are in 23 C.P.R., but are 
primarily found in various types of memoranda (instructional, 
policy and procedure, or circular) issued by DOT.

The process by which these interstate roads are built involves 
both state and federal agencies. The federal government finances 
90% of the cost of an interstate highway, while the planning and 
construction of highways are state responsibilities. The states 
choose the system of routes for development, select and plan the 
individual projects to be built, acquire rights-of-way, and super­
vise the construction contracts. Thus, the federal agencies finance 
the road building, and exercise a veto power over the state’s 
activities.

^®App. 41a, 314 P. Supp. at 24; App. 109a, Def. Ritchie Ex. 
No. 1.

App. 421a.



10

present route in 1964, and it was approved by the Bureau 
of Public Eoads on August 31, 1964.“ Federal authoriza­
tion for right-of-way acquisition was given between April, 
1966, and May, 1967.” As of the effective date of the reloca­
tion amendments to the Federal-Aid Highway Act, 23 
U.8.C. ^01 et seq., and indeed, at the time of trial in this 
case, the final step in the approval process, authorisation of 
construction, had not yet been given.^° Under that statute, 
the Secretary is obliged to require “satisfactory assur­
ances” of the availability of adequate relocation housing 
before he may approve projects under 23 U.S.C. §106.̂ i

“ App. 41a-42a, 314 P. Supp. at 24. On July 10, 1970, as a 
result of a public demonstration, a resolution by the City Council 
and a recommendation by James D. Braman, Assistant Secretary 
of Transportation for Environment and Urban Systems, all ad­
vocating a shift of the route one block east into land preAdously 
cleared by the water company but not being used, in order to 
lessen the impact on the residents, Secretary of Transportation 
John A. Volpe ordered work on the road to cease, while the route 
was reconsidered. New York Times, Jidy 13, 1970, p. 62, col. 1. 
On November 12, 1970, Undersecretary of Transportation John M. 
Beggs announced that the route was reaffirmed, and authorized 
construction to proceed. Br. App. 45-46; Charleston (W. Va.) 
Gazette, November 13, 1970, p. 1.

“ App. 42a-43a; 314 P. Supp. at 24. 
App. 132a-137a.

In the past, “plans, specifications and estimates” 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 contribution, 50 
Stat. 838, the submission and approval of plans, specifications and 
estimates were administratively divided into two major stages: 
the right of way acquisition stage and the construction stage. 
DOT Policy  ̂ and Procedure Memorandum 21-5. (Hereinafter 
“PPM.”) Right of way clearance is considered part of the con­
struction stage. PPM 21-12. Pollowing the approval of plans, 
specifications and estimates for a given stage, federal and state 
highway officials enter into project agreements limited to such 
stage. PPM 21-7. The approval of the construction stage is the 
final approval given by the DOT.



11

In the Triangle district itself, only 9 of the 65 parcels 
to be acquired had been optioned to the State Eoad Com­
mission prior to August 23, 1968, the effective date of the 
1968 relocation amendments. Between then and the time 
of trial, April 2, 1969, nine additional parcels had been 
optioned and one condemnation action had begun.̂ *̂" As 
of February 28, 1969, shortly before trial, only 17 house­
holds had been moved and some 282 persons remained to 
be dislocated.^^’’ At the time the appeal was argued before 
the Court of Appeals in May, 1970, petitioners counted 
262 persons remaining in the right-of-way. Following the 
Court of Appeals’ affirmance, displacement accelerated and, 
by July, when the petition for rehearing was denied, 189 
persons (150 by federal defendants’ count) remained. A 
survey taken by petitioners on December 22, 1970, indi­
cated that 65 persons and 14 businesses had not yet been 
moved. The state respondents assert that on January 28, 
1971, 35 individuals and 5 businesses remain.̂ ®

3. The 1968 Relocation Amendments to the Federal-Aid 
Highway Act and the Adm inistrative Regulations to Im­
plem ent Them.

Prior to 1962, there was no provision to grant assistance 
to persons displaced by federally aided highway construc­
tion, beyond the right they might have under state law 
relating to condemnation by public agencies. In that year. 
Congress enacted 23 U.S.C. §133, requiring the states to 
provide “relocation advisory assistance” to dislocatees and 
authorizing relocation payments to cover moving expenses.

21̂  PL Ex. No. 4.
Def. Ritchie Ex. No. 1, App. 99a-101a.

“  Response of Respondents Ritchie, et al. to application for in­
junction filed in this Court January 30, 1971.



12

where “authorized by State law.” Several studieŝ ® showed 
these provisions to be inadequate, as highway officials were 
not obliged to curtail their displacement activities even if 
they knew that relocation resources were not available.®* 
Congress responded to the deficiency in the Federal-Aid 
Highway Act of 1968. The new law not only required the 
payment of a variety of relocation allowances, which the 
states were obliged to permit no later than July 1, 1970, 
23 U.S.C. §§505-507, but also a program which assures the 
actual availability of adequate relocation housing for dis­
placed persons, 23 U.S.C. §502 and §508.®® Section 502 re­
quires the Secretary of Transportation to police the ade­
quacy of state relocation programs, and prohibits him from 
approving any project unless he receives “satisfactory as­
surances” that relocation assistance and adequate reloca­
tion housing are available. Section 508 requires the state 
to ascertain the relocation needs of those to he displaced 
and to assure that an adequate amount of satisfactory re­
location housing is available.

Under the rule making authority authorized by the stat­
ute, 23 U.S.C. §510(b), the Secretary has undertaken to 
define the statutory term “satisfactory assurances.” In­
structional Memorandum (IM) 80-1-68 issued September 5,

See infra at Br. App. 48-50.
The regulations under section 133 required state highway- 

departments to compile information about available public and 
private housing opportunities. PPM 80-5(3) (f) 4 and 5.

The Act was specifically made effective on the date of its en­
actment, August 23, 1968, except to the extent that states were 
unable to comply because of local law, and fully applicable on 
July 1, 1970. Pub. L. 90-495, §37, set out as note under 23 U.S.C. 
§502.

West Virginia amended its laws to permit full compliance on 
March 7, 1969, prior to the hearing in the District Court. W. Va. 
Code Ch. 17, Art. 2A, Sec. 20.



13

1968,̂ ® sets out in detail what is required. The key require­
ment is that state highway departments prepare relocation 
plans presenting relevant factual data pertaining to reloca­
tion housing problems and their solutions, which must be 
approved by federal officials prior to right of way acquisi­
tion and/or construction.^^ The federal officer must then 
review the plan to determine whether it “is realistic and is 
adequate to provide orderly, timely and efficient relocation 
of displaced individuals and families” to satisfactory hous­
ing available without regard to race “with minimum hard­
ship on those affected.”

A Circular Memorandum (CM) issued by the Bureau of 
Public Eoads on February 12, 1969, shortly before the trial 
in this ease, stated that the state should undertake the plan­
ning required by IM-80-1-68 “on all active projects to the 
extent that it is reasonable and proper,” and that to deter­
mine this, the local federal officials should review each 
project to determine the extent of dislocation remaining, 
and to require the planning information where “a substan­
tial number of persons remain to be relocated.”

While this case was pending before the Court of Ap­
peals, new relocation instructions were issued by DOT. 
These were ordered by the Court to he filed as part of the 
record, one month prior to argument.®" The changes were 
ordered by Secretary Volpe in a memorandum issued Jan­
uary 15, 1970, requiring: “Specific written assurances that 
adequate replacement housing will he available or provided 
for” before approval of all projects and that construction

As amended, Br. App. 17-36.
”  IM 80-1-68, Tf7, Br. App. 25-27.
^Ud. f5a(5), Br. App. 21.

Br. App. 39-40.
App. 63a-64a; see also App. 77a, 429 F.2d at 426.



14

“be authorized only upon verification that replacement hous­
ing is in place and has been made available to all affected 
persons.” The Federal Highway Administration imple­
mented this on March 27,1970, in a memorandum applicable 
to all projects authorized after May 1, 1970, and to all 
previously authorized projects on which persons were not 
yet displaced on that date, and requiring that federal offi­
cials “shall not authorize any phase of construction . . . 
which would require the displacement of individuals or 
families” or permit any other dislocation until the person 
has obtained for himself or has been offered by the state 
adequate replacement housing immediately available.^  ̂ In 
affirming the district court’s judgment, the Court of Ap­
peals made no reference to the existence or impact of these 
new requirements.®*

4. The Relocation “Program ” in the Triangle,

Prior to the relocation amendments, and on the basis of 
the DOT study on relocation which had been submitted to 
Congress, the Director of Public Roads issued a memo­
randum on January 23, 1968, to his regional and state 
administrators directing that relocation problems be 
studied and considered more intensively.®  ̂ Specifically not­
ing that legislation was not needed to implement certain 
aspects of the study, he stated that “the relocation plan 
concept should be implemented particularly in an urban 
area where there is a large number of families and busi­
nesses to be dislocated.”

Br. App. 41-42. 
Br. App. 43-44.

®® Cf. App. 76a-77a, 429 P.2d at 425-426, Sobeloff and Winter, 
JJ., dissenting from denial of rehearing en hanc, and discussion 
infra at 19-20, 35-37.

®‘‘ CM January 23, 1968, App. 79a-81a (PI. Ex. No. 9.)
Id. at 80a-81a.



15

Studies made by the federal officials in response to this 
directive indicated that relocation housing in Charleston 
was in fact inadequate to meet the needs of highway dis- 
placees.*® Although the federal division engineer concluded 
on March 25, 1968, that the State had not satisfactorily 
dealt with this problem,” no remedial action was required.” 
It was considered sufficient to rely on general assurances 
and evidence from past performance.”

Solely in response to this lawsuit,^ the State Road Com­
mission prepared a so-called “relocation plan” for the Tri­
angle.“ Although the federal officials requested and ob­
tained a copy of it, they made no attempt to review it, as 
the regulations require.^^

The plan establishes that the overwhelming majority 
of Triangle residents are tenants and are poor, with aver-

See supra pp. 6-9.
He wrote;
In the Charleston area the State did secure valuable informa­
tion 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 provide information either factual, esti­
mated or projected as to the availability of replacement 
housing.

PI. Ex. No. 9, App. 83a. See also App. 167a-168a.
App. 168a.

” App. 150a-151a; 198a-199a; 226a-227a; 384a-386a; 415a-416a. 
«  App. 386a.
“  Def. Ritchie Ex. No. 1 App. 99a-126a.
«  IM 80-1-68, H7b.
The right-of-way officer stated, “I have not had occasion to 

review it in any depth. . . .  I have seen it. That’s about all.” 
App. 209a. See App. 407a-408a.



16

age rentals about half those in the city as a whole.̂ ® While 
containing voluminous but misleading statistics about pub­
lic housing in the city,^‘ it only asserted vaguely that the 
majority of displacees in the Triangle “appear to be eligible 
for public housing.” It contains no information regard­
ing the effects of racial discrimination on the availability 
of housing.̂ ® Most important, the plan treats the Triangle 
in isolation, and makes no attempt to consider the compet­
ing and simultaneous needs of the several hundred persons 
outside the Triangle who would he displaced hy the same 
highway nor those who would lose their homes from other 
causes. State Road Commission officials did not consider 
competition to be relevant."*̂  As recognized by the Depart­
ment of Transportation in its regulations,competition for

App. 101a.

The plan relies on the “turnover” rate in public housing, a 
standard discredited in relocation planning, does not consider the 
needs of other highway displacees from outside the Triangle, and 
makes no finding that residents are indeed eligible under housing 
authority requirements. See infra at 47-50.

4S App. 102a.

The state officers relied on the Charleston fair housing ordi­
nance to support their view that discrimination was not a factor. 
The ordinance, however, does not cover two or three family units 
or four family owner occupied units. App. 392a. A survey taken 
by a community worker of the housing on a list furnished by the 
Road Commission to displacees, showed that over half had been 
already rented, and that only eight of those remaining were avail­
able to blacks. App. 332a-334a; PI. Ex. No. 25.

’̂ App. 395a.

80-1-68 H7b(3)(b)e(c) Br. App. 27.



17

available units is obviously highly relevant in relocation 
planning.^®

B. Summary of Proceedings in the Courts Below.

This action was filed in the United States District Court 
for the Southern District of West Virginia on December 3, 
1968, three and one-half months after the enactment of the 
relocation amendments to the Federal-Aid Highway Act, as 
a class action on behalf of all persons living in the inter­
state corridor in the Triangle and threatened with displace­
ment by the highway.®" It challenges the failure of federal

Petitioners have deliberately confined their discussion of the 
facts to those in the record as developed at trial and as presented 
to the Court of Appeals. They are aware of the data relating to 
relocation that has been presented to this Court by the state in 
its response to petitioners’ motion for a stay injunction. They 
urge, however, that this data not be considered here in deciding the 
case in chief for a number of reasons.

Clearly, most, but not all, of the Triangle residents have been 
uprooted and relocated someplace. But this Court does not sit as 
a trial court to make findings regarding the factual dispute in this 
ease, viz., whether people have been relocated to decent, safe, and 
sanitary housing as required by federal statute. It surely cannot 
make such findings on the basis of ex -parte and self-serving presen­
tations by one of the parties.

With regard to the constitutional issue, the fact that persons 
have been relocated somewhere does not mean they have been re­
located on a racially nondiscriminatory basis. Placing blacks into 
one ghetto from another does not satisfy the dictates of the Four­
teenth Amendment, or federal law. Sha-nnon v. Dept, of Housing
and Urban Development,------ F .2 d ------ (3rd Cir. Dec. 30, 1970,
No. 18397.) The factual questions of how people were moved and 
to where should be resolved by the district court on remand after 
decision by this Court of the legal issues presented by petitioners 
and according to valid standards and procedures.

Plaintiff-petitioners Keith Kincaid, Tennis Hogans, Robert 
Bayes, Katie Dean, Sedalia Hayes and Lillian Day were all residents 
of the corridor at the time the action was filed. The last named, 
Lillian Day, is white, and represents the interests of low-income 
white displacees. They are joined by the Triangle Improvement 
Council, an organization representing' the Triangle community, and 
its ofScers.



18

and state officials to assure, in accordance with the reloca­
tion housing requirements of the 1968 amendments and the 
equal protection clause of the Fourteenth Amendment, the 
availability of relocation housing on a non-discriminatory 
basis for persons evicted from their homes by highway con­
struction.®  ̂ The defendant-respondents are the federal and 
state officials responsible for the construction of the high­
way.®̂

To prepare for trial, plaintiffs sought discovery of 
pertinent administrative documents from the agencies. The 
district court refused to permit any discovery.®® Following 
the hearing on plaintiffs’ motion for a preliminary injunc­
tion, the case was submitted on the merits.

In its opinion, the court ruled preliminarily that the de­
fendants’ objections to reviewability and standing were not 
well founded, as the Administrative Procedure Act, 5 U.S.C. 
§701 et seq. authorized judicial review, and the plaintiffs 
were “persons affected” by the agency’s actions.®* On the 
merits, however, it dismissed, accepting the defendants’

The complaint (App. 9a-21a) also challenged the adequacy of 
public hearings on the highway route and the failure of federal 
and state highway officials to consider the adverse social effects of 
the highway as required by 23 U.S.C. §128. Prior to the hearing on 
the motion for a preliminary injunction, the district court limited 
petitioners’ proof to the problem of relocation housing (App. 27a, 
39a-40a, 44a-45a; 314 P. Supp. at 22, 23, 25.) This limitation on 
petitioners’ proof, in effect a partial summary judgment made 
without any proceedings to determine whether triable issues of 
fact existed, was not appealed.

®̂ The City of Charleston and its officials were also named as 
defendants because of their involvement in various programs af­
fecting housing. Although they participated in the trial, they did 
not appear in the Court of Appeals, and have not yet participated 
in the proceedings in this Court.

®® App. 38a-39a; 314 P. Supp. at 22-23.
®*App. 46a-49a; 314 P. Supp. at 26-28.



19

interpretation of the statute, sug’gested by paragraph 5b 
of IM 80-1-68, that the requirements for “satisfactory as­
surances” of relocation housing, and particularly for a re­
location plan, do not apply to projects, like this one, where 
authority to acquire right-of-way preceded the 1968 Act. 
Without discussing in any detail petitioners’ contention 
that this interpretation undermined the clear intent of 
Congress, the court held that it had a rational basis, and 
should not be disturbed, relying on Udall v. Tallman, 380 
U.S. 1 (1965). Finally, although the federal agencies had 
contended they were not obliged, in this circumstance, to 
review the adequacy of relocation housing, the court under­
took independently to make that determination. On the 
basis of assurances that the relocation requirements would 
be met, it “assume [d] that the highway officials gave these 
assurances in good faith,” and found that “adequate reloca­
tion housing, on an open racial basis, will be available in 
Charleston for an orderly relocation of the displacees from 
the interstate corridor.” “ Apparently from the testimony 
relating to the relocation plan prepared for the litigation, 
and the plan itself,®® it found “that there is ample public 
housing in the Charleston area to accommodate the limited 
number of individuals remaining in the 1-77 corridor in the 
Triangle area.” On the basis of these findings, it dis­
missed the constitutional claim, holding that there was no 
racial discrimination in the provision of relocation housing 
to Negroes.

While the appeal was pending in the Fourth Circuit, the 
Department of Transportation issued memoranda on re­
location policy which altered the requirements of the earlier

App. 5 6 a -5 7 a 314 F. Supp. at 30-31. 
See supra at 15-17.

” App. 57a; 314 F. Supp. at 31.



20

regulations and went far toward accepting petitioners’ in­
terpretation of the Act. These documents®* were ordered 
to be filed as part of the record on appeal.®® Despite this 
fact, and petitioners’ supplemental brief and oral argument 
which discussed them, the court made no reference to them 
in its one sentence affirmance “on the opinion of the district 
court.”

In their petition for rehearing with a suggestion for re­
hearing e% banc, petitioners asserted that the district court’s 
opinion could not properly be affirmed in light of the change 
in the Department’s view of the law, since the lower court’s 
ruling had specifically been based on the prior administra­
tive interpretation, relying principally on this Court’s 
opinion in Thorpe v. Housing Authority, 393 U.S. 268 
(1969). Rehearing was denied, again without explanation.®  ̂
A dissenting opinion by Judge Sobeloff, joined by Judge 
Winter, did suggest the reasoning of the Court and the 
majority.®^

SUMMARY OF ARGUMENT

The record in this case reveals both racial discrimination 
and a shortage of low cost housing in the Charleston hous­
ing market. State and federal action which displaces black 
and poor persons into such a market constitutes a violation 
of the Fifth and Fourteenth Amendments, since it results

®* See supra at 13-14.
®® App. 63a-64a.
®®App. 65a-66a; 429 F.2d 423.
SI App. 71a; 429 P.2d at 423.
s® App. 72a-78a; 429 P.2d at 423-426. See infra at 35-37.



21

in a denial of equal protection through, the combination of 
state and private action. This position is supported by 
decisions of this Court as well as those of lower federal 
courts in directly analogous circumstances (24-26).

II

A. A constitutional determination is not, however, neces­
sary to the decision of this case, as Congress has provided 
a statutory remedy to insure that all persons displaced by 
federally-aided highway construction are provided with 
adequate replacement housing, in the relocation provisions 
of the 1968 Federal-Aid High-way Act. The language of 
the statute and its legislative history indicate clearly that 
Congress intended it to be fully effective immediately. Any 
interpretation delaying its effectiveness or diluting its bene­
fits conflicts -with Congressional intent (27-30).

By regulation, the Department of Transportation has 
implemented the statute by requiring comprehensive re­
location planning in order to determine before displacement 
the needs of those whose homes will be destroyed and the 
resources available to meet those needs. By a technical re­
striction contained in its own regulation, the Department 
determined that such planning was not required in the Tri­
angle because authority to acquire right-of-way had been 
given before the effective date of the statute, although only 
a small number of persons had actually moved before that 
date. The district court accepted this limitation as valid, 
although it conflicts with the legislation it purports to 
enforce, and indeed -with other portions of the same regu­
lation (30-35).

While this case was pending in the Court of Appeals, the 
Department issued new relocation guidelines which sub­
stantially modified the previous limitations and partially



22

adopted petitioners’ interpretation of the statute. The 
Court of Appeals erred in failing to take note of the impact 
of this change in the law. Thorpe v. Housing Authority, 393 
U.8. 268 (1969). Those guidelines do not, however, yet 
fully implement the statute (35-37).

B. Insofar as they did purport to require assurances of 
adequate relocation housing for petitioners, the state and 
federal officials failed to comply with procedures mandated 
by law, relying solely on vague and unsupported assertions. 
Where an agency is effectively given the task of policing 
itself, in possible conflict with its primary function of build­
ing roads, has no internal review procedures for persons 
aggrieved by its actions, and has demonstrated impatience 
with those who question its conduct, a reviewing court 
should carefully scrutinize the administrative procedures. 
The district court erred in failing to review the entire rec­
ord to determine whether the agency’s conclusion was in 
fact supported by substantial evidence, and in relying in­
stead on vague tests and oral assurances made during trial, 
which had no factual underpinning. Moreover, in making 
the ultimate factual determination itself the court usurped 
what should properly be an administrative function (38- 
46).

The district court’s finding that relocation housing in 
Charleston was adequate to meet the needs of petitioners, 
in addition to being improperly made, is clearly erroneous. 
The court did not require the agencies to supply the infor­
mation necessary to support that conclusion, and the bulk 
of the evidence which was presented contradicts it. The 
finding that public housing alone would be ample fails to 
consider the factors of competing displacement, and actual 
ehgibility for public housing, and erroneously determines 
the availability of such housing (4fi-49).



23

III

A remedy should be afforded to petitioners which will 
insure that all those who are entitled to the protections 
of the 1968 relocation amendments, both those who are 
yet to be moved and those who have been displaced into 
demonstrably inadequate housing, are afforded the bene­
fits which Congress intended them to have (50-52).



24

ARGUMENT

The Displacement of the Black Petitioners Into a 
Racially Discriminatory Housing Market Without Ade­
quate Governmental Measures to Assure Non-Discrim- 
inatory Relocation Housing Deprives Them of the 
Equal Protection of the Laws Guaranteed by the Four­
teenth Amendment.

As the record in this case demonstrates, construction of 
1-77 through the Charleston Triangle has had and will have 
the effect of displacing black and poor residents of the area 
and throwing them into a highly constricted, racially dis­
criminatory housing market.

We may assume arguendo, that the discrimination of the 
housing market represents private decision m ak in g  to ex­
clude Negroes from areas reserved for whites, and poor 
persons from those reserved for the more wealthy, and not 
state action at the point of purchase and rental.®® Never­
theless, it is state action which has uprooted the black and 
poor jilaintiffs by destroying their homes, and placed them 
at the mercy of the racial discrimination and high prices in 
siteh hoiising as remains in Charleston.

$tieh governmental action, we submit, violates the Fifth  
and Fottrteenth Ameitdments to the United States Constitu- 
tiom although at the point of impact, private action is also 
present. While “prt''‘'^te conduct abridging individnal rights 
does no vioience to the Uqual Protection Clause unless to 
some signi&ant extent the $tate in any of its leaxtiiestatioiis

ss A e .gsectatamtiott is bssse* n t race, rc is j f  ceturse 
nceuthifiei V  a ^  JKmer Cv.. ^ 2  U S.



25

has been found to have become involved in it,” Burton v. 
Wilmington Parking Authority, 365 U.8. 715, 722 (1961), 
Turner v. City of Memphis, 369 U.S. 350̂  (1962), the State 
and federal governments here are sigTiificant moving forces.

The question is not novel. Norwalk CORE v. Norwalk 
Redevelopment Agency, 395 F.2d 920 (2nd Cir. 1968) holds 
that governmental relocation which puts minorities at the 
mercy of discrimination in the housing market violates the 
equal protection clause:

What plaintiffs’ complaint alleges, in substance, is 
that in planning and implementing the Project, the local 
defendants did not assure, or even attempt to assure, 
relocation for Negro and Puerto Rican displaoees in 
compliance with the Contract to the same extent as 
they did for whites; indeed, they intended through the 
combination of the Project and the rampant discrimina­
tion in rentals in the Norwalk housing market to drive 
many Negroes and Puerto Ricans out of the City of 
Norwalk. The argument is that proof of these allega­
tions would make out a case of violation of the equal 
protection clause. We agree.

Id. at 930. The court also made clear the importance of rec­
ognizing the realities of private discrimination:

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 mem­
bers of minority races than for other displaceos. This 
means that in many cases the relocation standard will 
he easier to meet for white than for non-white dis- 
placees.

Id. at 931. Similarly in Arrimglon v. City of Pair field, 414 
F.2d 687 (5th Cir, 1969), where state aeiiori was irivolv(fd



26

in the destruction of the homes of Negroes by a private 
builder, “the fact that the decision to discriminate may be 
made by private individuals rather than a public official is 
not decisive,” since, “the City may involve itself in the 
discriminatory operation of the private housing market.” 
Id. at 692-93.

Such a view of the law is, of course, consonant with 
numerous other cases which find denial of equal protection 
of the law in a combination of governmental and private 
action, e.g. Shelley v. Kraemer, 334 U.S. 1 (1948), (court 
enforcement of privately agreed upon restrictive cove­
nants) ; Peterson v. City of Greenville, 373 U.S. 244, 248 
(1963) (“convictions cannot stand, even assuming . . . 
that the manager would have acted as he did independ­
ently of the existence of the ordinance”) ; cf. Garner v. 
Louisiana, 368 U.S. 157, 176 (1961) (Douglas, J., concur­
ring) ; Reitman v. Mulhey, 387 U.S. 369 (1967).®̂

Additionally, the failure of the federal officials to take into 
consideration the diserimrnatory effects of their programs is a vio­
lation of the Fair Housing Act of 1968, which requires all executive 
departments to act ‘-affirmatively” so as to further the national 
policy of fair housing. 12 US'C. §3608(e), Br. App. 16. See
Shatim>n v. Department of Housing and Urban Development, ------
F 'ld ------- 3d Cir.. Dec. 30. 1970. No. 18397). Cf. City of Chicago
Y, FJT.C., 38-5 F.2d 629. 635 (D.C. Cir. 19671:

A regulatory agency may. should, and in some instances must, 
g-,ve consaderation to objectives expressed hv Congress in other 
l^tsiarion. assuming they can be related to the objectives of 
the statute administered hv the agencv.



27

II

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

Petitioners have argnied in I, supra, that reversal is re­
quired because the Triangle residents’ rights under the 
Fifth and Fourteenth Amendments to the United States 
Constitution were violated by the State’s failure to provide 
an adequate relocation program, in which they would be 
free from private racial discrimination. But the Court 
need not reach this Constitutional question, since reversal 
is independently required by the 1968 Amendments to the 
Federal-Aid Highway Act and implementing regulations. 
While petitioners contend that the Federal Act and regni- 
lations clearly guarantee persons not yet displaced at the 
time of the Act’s enactment an adequate relocation housing 
program, any ambiguity which may exist must be resolved 
by construing the Act and regulations so as to avoid the 
necessity for a constitutional adjudication.®^

A. The 1968 Relocation Amendments Assure Persons Not 
Yet Displaced as of the Date of Enactment the Right to 
Adequate Replacement Housing, and Pursuant Thereto 
Mandate Detailed Relocation Plans.

The statutory language makes clear that the 1968 Relo­
cation Amendments were intended to protect the rights of 
persons not yet displaced as of the time of enactment. 
Thus Congress did not, as it had in its first tentative

See, e.g., Ashwander v. Tennessee Valley Authority, 297 TT.S. 
288, 348 (1936); Crowell v. Benson, 285 U.S. 22, 62 (1932).



28

measure dealing with, highway dislocation/® limit the ap­
plicability of the requirements to projects not yet approved. 
The Act was declared effective and fully operative on the 
date of its enactment.®’ Moreover, the statute defines the 
term “displaced person,” the very individual which it seeks 
to protect, as:

any person who moves from real property on or after 
the effective date of this chapter [August 23, 1968] 
as a result of the acquisition or reasonable expectation 
of acquisition of such property [for a Federal-Aid 
highway] .®*

This interpretation is supported by the legislative his­
tory.®® The 1968 Relocation Amendments arose out of 
recognition that the federal highway program had previ­
ously been wholly deficient in affording protection to per­
sons displaced and had therefore resulted in widespread 
disruption and misery, particularly in urban areas and 
among the poor and minority groups. Further, at the time 
the 1968 Relocation Amendments were enacted, 32,000 of 
the 41,000 miles of the entire interstate road system had 
been constructed or were under construction. Of the 9,000

66 23 U.S.C. §133 (e), Br. App. 2.
6’ Pub. L. 90-495 §37, Aug. 23, 1968, 82 Stat. 831. The one 

limiting feature in the act provides that until July 1, 1970, it 
“shall be applicable to a state only to the extent that such state is 
able under its laws to comply . . .” Ihid.

It should be emphasized that it has never been suggested in these 
proceedings that West Virginia’law in any way prevented the state 
from complying fully with the requirements of the 1968 amend­
ments. See n. 25 supra. Moreover, the Department has determined 
that these limitations apply only to relocation payments and not 
to the requirements that adequate relocation housing be available.
C.M. December 26, 1968, Br. App. 37-38.

6*23 U.S.C. §511(3).
6® A summary of the relevant legislative history appears at Br. 

App. 47-52.



29

remaining miles, 8,500 were in the phases of engineering 
design and right of way approval, but construction and 
actual displacement had not taken place, since these phases 
typically occur years later.®'’'̂  Thus the main dislocation 
problem facing Congress and with which it presumably at­
tempted to deal was posed by the vast numbers of persons 
scheduled to be displaced under highway projects already 
approved. Finally, the committee reports and floor debate 
relating to the 1968 Amendments reflect Congress’ recog­
nition of the urgency of dislocation problems and of the 
need to act immediately to remedy them.®®*’ Any interpre­
tation making the Act’s protections inapplicable to persons 
to be displaced by projects which had already been approved 
would defeat the obvious intent of Congress.

The protections afforded by the 1968 Amendments are 
detailed in Section 502, which provides specifically that the 
Secretary “shall not” approve any project “which will cause 
the displacement of any person . . . unless he receives satis­
factory assurances from the State highway department” 
that:

. . . within a reasonable period of time prior to dis­
placement there will be available, to the extent that 
can reasonably be accomplished, in areas not generally 
less desirable in regard to public utilities and public 
and commercial facilities and at rents or prices Avithin 
the financial means of the families and individuals dis­
placed, decent, safe, and sanitary dwellings, as defined 
by the Secretary, equal in number to the number of 
and available to such displaced families and indi­
viduals and reasonably accessible to their places of 
employment.^®

1968 U.S. Code Cong. & Adm. News. 3484. 
See Br. App. 47-52.

’»23 U.S.C. §502(3); Br. App. 5.



30

This language clearly calls upon the Secretary to require 
the development by State officials of a program satisfac­
tory to the Secretary which would guarantee relocation 
housing.’^

In order to implement this provision, the Secretary of 
Transportation issued on September 5, 1968, a Memoran­
dum entitled IM 80-1-68,'̂  ̂ pursuant to his rule-making

The term “satisfactory assurances” in a closely related context 
appears first in section 305(a) of the Housing and Urban Develop­
ment Act of 1965, Pub. L. 89-117, August 10, 1965, 79 Stat. 475; 
42 U.S.C. §1455 (c) (2) which mandates that as a condition of fur­
ther assistance “the Secretary [of Housing and Urban Development] 
shall require, within a reasonable time prior to actual displacement, 
satisfactory assurance by the local public agency” that satisfactory 
housing is available for all persons displaced. The House commit­
tee report on this section indicates that it was intended to “expand 
and implement the existing requirement that there be a feasible 
method for the temporary relocation” of urban renewal displacees. 
1965 U.S. Code Cong. & Ad. News 2672; see also id. at 2645.

Cf. Western Addition Community Organization v. Weaver, 294 
P. Supp. 433 (N.D. Cal. 1968) holding that the failure of the local 
agency to prepare and of the Secretary to review a relocation plan 
was a violation of the statute, and enjoining the proposed project 
until such a plan was submitted to the Secretary and approved 
by the court.

That Congress intended Section 502 to require the actual provi­
sion of relocation housing is also suggested by an amendment to the 
relocation provisions contained in the Federal-Aid Highway Act of 
1970. Pub. L. 91-605 §117, Dec. 31, 1970, Br. App. 13-14. That 
section authorizes the Secretary to approve the cost of providing 
replacement housing for dislocatees where a highway project can­
not proceed to construction “because replacement housing is not 
available and cannot otherwise be made available as required by 
section 502 of this title.” (Emphasis added.)

Br. App. 17-36.
Paragraph 2b(2) of the memorandum states that it is applicable

All Federal-aid highway projects authorized on or before 
August 23, 1968, on which individuals, families, businesses, 
farm operations, and nonprofit organizations have not been 
displaced.

to :



31

authority under the act.̂  ̂ Paragraph 7 of this memoran­
dum specifically requires that the State highway depart­
ment, “prior to proceeding with right-of-way negotiations 
and/or construction shall furnish” a relocation program 
plan for review and approval by the division engineer.

The federal respondents suggested in their brief to the Court 
of Appeals that this language means that the requirements of the 
memorandum are applicable to previously authorized projects only 
if no persons had been displaced as of the effective date, and that 
since a small number of persons in the Triangle had moved before 
August 23, 1968, the requirements have no force here. Federal 
Appellees’̂ brief at 21 N. 5. It is submitted that such an inter­
pretation is not supported by the language, and is inconsistent with 
the legislative history of the 1968 Amendments, and with the 
statutory definition of a displaced person as “any person who moves 
from real property on or after the effective date of this chapter.” 
This position is also in conflict with a circular memorandum issued 
February 12, 1969, which states that a relocation plan should be 
required on any project where a “substantial number of persons 
remain to be relocated.” C.M. February 12, 1969, Br. App. 39-40.

"'23 U.S.C. §510; Br. App. 11.
(Emphasis added.) Specifically, the State highway department 

is required to submit the following information for review and 
approval:

(1) The methods and procedures by which the needs of every 
individual to be displaced will be evaluated and correlated with 
available . . . housing. . . .

(2) The method and procedure hy which the State will as­
sure an inventory of currently available comparable housing 
available to persons without regard to race, color. . . .

(3) An analysis relating to the characteristics of the inven­
tories so as to develop a relocation plan which will:

(a) outline the various relocation problems disclosed by 
the above survey;

(b) provide an analysis of Federal, State and community 
progra,ms affecting the availahility of housing currently in 
operation in the project area;

(c) provide detailed information on concurrent displace­
ment and relocation hy other governmental agencies or pri­
vate concerns;

(d) provide an analysis of the problems involved and 
the method of operation to resolve and relocate the relo- 
catees . . . (Emphasis added.) IM 80-1-68 jf7, Br. App. 26-27.



32

Having issued IM 80-1-68 in order to implement Section 
502, the Department of Transportation was not free to 
disregard its requirements^®

However, despite Section 502 and IM 80-1-68, no reloca­
tion plan whatsoever with respect to any 1-77 project was 
ever required or prepared prior to this lawsuit. Further, 
the plan— l̂imited to Triangle—which was prepared in re­
sponse to the suit failed to meet the minimal requirements 
of the statute and implementing regulation.’®

The district court held that no relocation plan or other 
detailed factual demonstration of the availability of reloca­
tion housing for the Triangle displacees was required under 
the law because authorization to acquire right-of-way on 
the projects in the Triangle had been given in 1966 and 
1967.” The court relied on jf5h of IM 80-1-68, which pro-

While . . . the Secretary was not obligated to impose upon him­
self these more rigorous substantive and procedural require­
ments, neither was he prohibited from doing so . . . and having 
done so, he could not, so long as the Regulations remained un­
changed, proceed without regard to them. Service v. Dulles, 
354 U.S. 363, 388 (1957).

The desirability of requiring relocation plans had been recog­
nized by the Department of Transportation even prior to Section 
502’s enactment. The study prepared by the Department in response 
to the congressional mandate contained a recommendation that 
state highway departments be required to submit relocation plans 
for all projects in large urban areas. Highway Belocation Assist­
ance Study, 90th Cong., 1st Sess. at 16-17, 90 (1967). Moreover, in 
a memorandum to his regional and local subordinates issued Janu­
ary 23, 1968, seven months before the enactment of the statute, 
the Director of Public Roads urged that relocation plans be re­
quired in urban areas where large numbers of persons would be 
dislocated. PI. Ex. No. 9; App. 79a-81a.

”  Def. Ritchie Ex. No. 1; App. 99a-126a.
”  Significantly the court did not address itself to the meaning of 

Section 508 which imposes an independent obligation on the State 
to assure the availability of adequate replacement housing.



33

vides that state relocation assurances, which include the 
U7 plan, “are not required where authorization to acquire 
right-of-way or to commence construction has been given 
prior to the issuance of this memorandum.”

Petitioners contend that this ruling constituted reversible 
error under the statute and existing regulations.

The sentence of H5b relied on by the district court is 
essentially meaningless as written since wherever author­
ization to commence construction has been given, authoriza­
tion to acquire a right-of-way must also have been given. 
The sentence would make sense if the “or” were changed 
to “and” so that it read “authorization to acquire right- 
of-way and to commence construction.” That this may 
well have been the intention is supported by the following 
sentence of t[5b which provides that the state “will pick 
up the sequence at whatever point it may be in the acquisi­
tion program” on the issuing date of the regulations. This 
would appear to require that where, as here, the construc­
tion phase of the acquisition program had not received 
federal authorization as of the date of issuance of IM 80- 
1-68, the relocation requirements of T[7 were to apply. This 
interpretation of H5b is supported by other sections of that 
same regulation which indicate that the relocation protec­
tions are applicable where construction or displacement has 
not yet occurred.’* Moreover, the court’s interpretation

Thus the regulation is made applicable to all projects author­
ized on or before August 23, 1970, on which persons “have not been 
displaced” (l[2b(2)), and requires that relocation plans be prepared 
“prior to proceeding with right-of-way negotiations and/or con­
struction” (117b). (Emphasis added.) The construction phase of 
the projects here in issue had not been given approval on effective 
date of the statute or the regulation. App. 132a-137a. By regula­
tion, right-of-way clearance is a part of the construction stage. 
DOT policy and Procedure Memorandum 21-12. No clearance had 
taken place in the Triangle by the effective date of the statute or 
regulation, nor indeed at the time of the trial seven months later.



34

of T|5b conflicts with memoranda issued after IM 80-1-68 
but before this trial which indicate the Department’s recog­
nition of its obligation under Section 502 and IM 80-1-68 
to require relocation plans for persons not yet displaced 
regardless of when right-of-way acquisition or construction 
was approved.’®

But even assuming that H5b was intended to permit the 
displacement of persons after the effective date of the 1968 
Amendments without adequate relocation guarantees, as 
the District Court found, then it was in clear conflict with 
the statutory purpose and should have been declared null 
and void.

In upholding the restrictive interpretation of the statute 
contained in H5b, the District Court relied on UAall v. Tail- 
man  ̂ 380 U.S. 1, 16 (1965): “When faced with a problem 
of statutory construction, this Court shows great deference 
to the interpretation given the statute by the officers or

A Circular Memorandum to regional DOT officials issued by 
the Bureau of Public Roads on December 26, 1968, provides:

Under paragraph 7b(3) [of IM 80-1-68] the division engineer 
should insist that the State furnish an analysis of the relocation 
problems and possible solutions in sufficient detail to enable 
him to determine the advisability of proceeding with the project 
and to assure that no relocatee will be required to move unless 
there is satisfactory replacement housing available to him. 
CM, December 26, 1968; Br. App. 37-38 (PL Ex. No. 3) 
(Emphasis added).

A similar memorandum issued February 12, 1969, states that 'while 
all ]f7 assurances may not be called for where a “major portion of 
the relocations have previously been accomplished,” the submission 
of the data required by [f7b would be appropriate “if a substantial 
number of persons remain to be relocated,” even on going projects. 
CM, February 12, 1969, Br. App. 39-40 (PI. Ex. No. 3). The 
Federal highway officials in West Virginia failed to require the 
state to supply any additional information in compliance with these 
instructions from their superiors.



35

agency charged with its administration.” However, as 
was stated more recently in Zuber v. Allen, 396 IJ.S. 168, 
192 (1969), the “departmental construction of its own 
enabling legislation . . .  is only one input in the interpre- 
tational equation,” whose weight is limited when the agency 
construction was not known to Congress when the statute 
was considered, and which should he disregarded where it 
conflicts with Congressional intent.®’̂

Whether or not the district court erred in ruling at the 
time of trial that the Department had no obligation to 
require and review a relocation plan with respect to per­
sons not yet displaced on the effective date of the 1968 
Amendments, there can be no question that regulations 
issued by the Department in April, 1970 while this case 
was pending on appeal, required reversal under Thorpe 
V. Housing Authority, 393 IJ.S. 268 (1969). These regula­
tions specified that construction (defined to include clear­
ance) should not be authorized until persons who would 
he displaced by it had been provided with adequate replace­
ment housing.®̂  While these regulations are inadequate in 
that they provide no relief for persons displaced prior to

App. 53a, 314 F. Supp. at 29.
Accord, Gy Ellis Raw Bar v. District of Columbia Redevelop­

ment Land Agency, 433 F.2d 543, 548, 550 (D.C. Cir. 1970).
The first is a memorandum from the Secretary to his sub­

ordinates ordering that their policies require that construction be 
authorized “only upon verification that replacement housing is in 
place and has been made available to all affected persons.” Br. App. 
41-42. The second is a memorandum from the Right-of-Way 
Director of the Bureau of Public Roads to the Regional Adminis­
trators. Applicable to all projects authorized after May 1, 1970, 
and to all authorized before that date “on which individuals and 
families are still to be displaced,” it provides;

The division engineer shall not authorize any phase of con­
struction (clearance of right-of-way regardless of how per­
formed is considered to be a construction phase insofar as this 
memorandum is concerned) which would require the displace­
ment of individuals or families, or permit the dislocation of



36

1970 in violation of Section 502’s requirements, they at 
least make clear that comprehensive relocation plans were 
required before construction approval as the entire Court 
of Appeals apparently recognized.®® The failure of the 
Court of Appeals to reverse on the basis of the intervening 
regulations was apparently grounded on the assumption 
that the Department’s new policy would be applied to the 
Triangle and that petitioners’ claims were thus mooted.®̂  
But as Judge Sobeloff points out in his dissent from the 
denial of rehearing en banc, this assumption was unwar­
ranted since defendants had continued on the appeal to 
press their contention that no formal relocation plan was 
required despite the new regulations. And as Judge Sobel- 
otf also noted, failure to reverse the district court’s decision 
might well be interpreted as approval of that court’s hold­
ing that no duty existed to provide an adequate relocation 
housing program (App. 78a; 429 F.2d at 426).

Indeed, the defendants have prepared no relocation plan, 
and to this date have resisted the requirement for an 
analysis (in accordance with the guidelines of the regula­
tions) that would definitely test, either to corroborate or 
to contradict, their assertion that adequate housing exists.

individuals or families on any such project or on any project 
already authorized, until such time as the person being re­
located has either by himself obtained and has the right of 
possession of adequate replacement housing or the State offers 
him adequate replacement housing which is available for im­
mediate occupancy. C.M. March 27, 1970, as amended, April 
10, 1970, Br. App. 43-44.

®® There is, of course, no dispute within the court that the ap­
pellants’ [petitioners here] position on the applicability of the 
1968 amendments has now become the law and that compre­
hensive relocation plans are required before construction can 
be approved.

App. 77a, 429 F.2d at 426. (Sobeloff, J., dissenting).
See Judge Soheloff’s dissent from the denial of rehearing 

en banc, App. 77a-78a; 329 P.2d at 426.



37

While the April, 1970 regulations require reversal of 
the district court’s ruling, reversal on this ground alone 
would be insufficient. First, as noted, the new regulations 
fail to provide any remedy for persons displaced prior to 
their issuance and, further, they do not specify the detailed 
requirements of an adequate relocation plan as does IM 80- 
1-68. Second, as was recently argued before this Court in 
another pending case,*® and as the record in this case makes 
manifest, the Department of Transportation has shown 
little regard for its own policy statements as limits upon or 
guides to its actions.*®

Similarly, no change has taken place while the case has 
been pending in this Court which obviates the need to decide 
whether the 1968 Amendments apply to protect the rights 
of persons not yet displaced at the time of those amend­
ments, and whether they require a comprehensive relocation 
plan together with guarantees of actual relocation housing.*^

Citizens to Preserve Overton Park v. Volpe, O.T. 1970, No. 
1066, Brief for Petitioners at 21 n. 16.

®® The insignificance accorded to such policy statements is indi­
cated by a recent amendment to the Department’s Regulations pro­
viding that:

“No such direction, policy, rule, procedure, or interpretation 
contained in a Federal Highway Administration order or 
memorandum shall be considered a regulation or create any 
right or privilege not specifically stated therein.” 35 Fed. Reg. 
6322 (1970) amending 23 C.F.R., Chap. 1, pt. 1 §132.
On October 30, 1970, IM 80-2-70 was issued by the Federal 

Highway Administrator. It supercedes IM 80-1-68, supplying de­
tailed relocation regulations. It is not effective until 90 days after 
issuance, and is inapplicable to projects on which construction has 
been previously authorized and persons previously displaced.

A November 6, 1970 memorandum from the Under Secretary 
of Transportation (Br. App. 45-46) indicated that:

Further construction involving the Triangle Area will be 
authorized only after the people now living within the right- 
of-way in that area have been relocated into adequate decent,



38

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

The district court found that the major requirements of 
the 1968 amendments and the implementing IM 80-1-68 
were not intended to apply to persons not yet displaced 
as of their effective date where authority to acquire right- 
of-way had previously been given. To the limited extent 
the court did consider the statute applicable, it relied on 
assurances made at the trial by state and federal officials 
that appropriate efforts were being made to comply with 
the provisions of the 1968 Act “in a practical if not a 
formal manner, even though such compliance is not legally 
required” (App. 55a), and to deal with persons residing 
in the Triangle “in a manner that comports with the federal 
statutes and regulations” (App. 56a). The court further 
found that “adequate relocation housing, on an open racial 
basis, 'wdll be available in the Charleston area for an orderly 
relocation of the displacees . . . ” (App. 57a).

Petitioners submit that if, as argued supra, the applicable 
law and regulations required the submission of compre­
hensive relocation plans to federal authorities for their 
re\dew and approval, then agency action which disregarded 
those specifically mandated procedures cannot be upheld 
on the basis of mere assurances that the rights of displaced

safe and sanitarv lioiising, in accordance with DOT Order 
5620.1.

While the memoranda constitute additional evidence of the De­
partment's recognition that Section 502 does in fact require a com­
prehensive relocation plan together with actual provision of 
adequate relocation housing, they do not moot the issues in this 
case for the same reasons that the April 1970 regulations do not.



39

persons would be protected or on the basis of evidence 
which the court considered de novo with respect to the 
availability of relocation housing. Further, petitioners 
submit that the court’s purported finding that adequate 
replacement housing would be available is clearly erroneous.

1. Reversal Is Required Because the Procedures Mandated 
by Law with Respect to  the Submission for Review and 
A pproval o f a Comprehensive Relocation Plan Were 
Not Followed.

As noted supra, no relocation plan comporting with the 
requirements of the 1968 amendments and IM 80-1-68 was 
ever prepared. Instead, the Department of Transportation 
relied on conclusory, general assurances** that the State 
Road Commission would adequately rehouse persons dis­
placed by all its projects across the State.** The partial 
relocation plan submitted subsequently by the State Road 
Commission,*'’ coneededly inadequate under the standards

** The position taken by the Department of Transportation 
throughout this litigation, and apparently approved by the district 
court, has suggested that Section 502’s requirement of “satisfactory 
assurances” is so open-ended and undefined that mere verbal or 
even unartieulated assurances are sufficient. This Court should 
not readily infer that Confess gave the agency essentially 
standardless and thus unconstitutional discretion. Kent v. Dulles, 
357 U.S. 116', 129 (1958).

** The State Road Commission’s 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 santiary housing with minimum hardship to 
those affected, to the extent such housing is reasonably avail­
able. ..  .

“The State Road Commission is making a sincere and real­
istic effort to comply with the provisions of this Instructional 
Memorandum to the extent it can reasonably be done on pre­
viously authorized projects, and will continue such efforts on 
projects authorized in the future . . .” (PI. Ex. No. 5).

*“ App. 386a. See Def. Ritchie Ex. No. 1, App. 99a-126a.



40

of the IM, and prepared solely for this litigation, was 
not even reviewed by the Department as required by law.”

There are three general considerations which make care­
ful judicial review of administration action in this par­
ticular situation essential. The first is that the agency 
involved has, itself, helped to create the harm which 
Congress has now directed it to correct. In the past, 
agencies have ordinarily been set up to administer remedial 
legislation regulating other parties’ activities in the public 
interest. The agency here, however, is not the “Depart­
ment of Relocation” (nor is there even an individual 
charged with the sole responsibility of relocation). The 
Department of Transportation’s primary function is that 
of a road builder: to build the interstate system, and to 
build it fast. In the process, it has displaced thousands 
upon thousands of people who have not been adequately 
rehoused. Now Congress has said: reform yourself. Under 
these circumstances, the Department’s procedures and de­
cisions regarding relocation should be closely scrutinized.

A second factor calling for careful judicial review is that 
there are no internal agency review procedures available. 
Neither federal nor state highway agencies have estab­
lished procedures of receiving, investigating or resolving 
relocation complaints. At trial, a Department of Transpor­
tation official testified that the only means of appeal that

App. 209a, 407a-408a. The Department also relied on the im­
pressions of its right of way officer who relied on the same general, 
conelusory assurances by the State and its “half of a relocation 
plan” (App. 168a). 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 (App. 175a-180a). He conveniently 
ignored his February and Jlareh, 1968, studies which pointed out 
serious deficiencies in the availability of relocation housing (App. 
84a-9Sa: PI. Ex. No. 12. See supra 7-9).



41

he could recommend to an aggrieved person was writing 
to his Congressman or the President.®^

A third compelling reason for the careful scrutiny of 
agency action in this case is that the Triangle residents 
have been faced with the bewildering complexities of deal­
ing with two separate agencies, which has compounded the 
ordinary problems characterizing agency proceedings.®® 
Moreover, throughout these proceedings, particularly in the 
district court, the plaintiffs have encountered “the perva­
sive impatience—if not hostility” of the agencies.®̂

While the district court acknowledged that the actions 
of governmental highway agencies are judicially review- 
able,®® the court so restricted its review as to render it 
virtually meaningless.

Thus, rather than looking to the factual record on which 
the administrative officials based their determinations, the 
court relied, in sustaining those determinations, on oral 
assurances, given to the court during the trial, on the basis 
of which it concluded that federal and state authorities 
were making a “sincere” effort, and that defendants’ “assur­
ances” that they would comply with the law were given “in 
good faith.” ®®

While these obviously inadequate oral assurances appear 
to have been the basis for the court’s decision, the opinion

9®App. 227a.
®® See Reich, Individual Bights and Social Welfare; The Emerg­

ing Legal Issues, 74 Y a l e  L.J. 1245, 1253 (1965), noting that 
agency proceedings are characterized by “closed doors, Kafka-like 
uncertainty, difficulty in locating responsibility, and rigid adher­
ence to a particular point of view.”

See Office of Communication of United Church of Christ v. 
FCC, 425 P.2d 543, 548 (D.C. Cir. 1969) where agency hostility 
was held to be a factor requiring rejection of its determination.

®®App. 46a-48a; 314 P. Supp. at 26-27.
App. 56a; 314 P. Supp. at 30.



42

also implies that the federal officials’ actions were in “sub­
stantial compliance” with federal laws and regulations 
(App. 56a; 314 F. Supp. at 30) and were “premised on 
rational grounds” (App. 55a; 314 F. Supp. at 30). Even 
assuming that the opinion was in any sense grounded on 
such findings, and that they were supported by the record, 
it is clear that the standards of judicial review implied are 
wholly inadequate. In Charlton v. United States, 412 F.2d 
390 (3d Cir. 1969), the court rejected the contention that 
an agency’s “substantial compliance” with its statute and 
regulations satisfied the requirements of the Administra­
tive Procedure Act,” and held that agency action had to he 
supported by substantial evidence. The substantial evi­
dence test has been found applicable to administrative 
decisions regarding relocation.®* While the evidentiary rec­
ord in a case like this differs from the kind of record 
developed by federal agencies with formal hearing mecha­
nisms, there is still an administrative record that a court 
can and should review. In a recent decision involving re­
view of route location decisions by the Department of 
Transportation, a district court defined the administrative 
record to include all “the information which the Adminis­
trator had before him,” and held: “It is on that record 
that the Administrator acted and on that record that his 
action must be judged.” Road Review League v. Royd, 270- 
F. Supp. 650, 662 (S.D. N.Y. 1967). Such a requirement

”  The district court properly noted the applicability of the 
Administrative Procedure Act. App. 47a-48a; 314 F. Supp. 26-27.

See, e.g., Western Addition Community Organization v. 
Weaver, 294 F. Supp. 433, 443 (N.D. Cal. 1968) (involving the 
urban renewal relocation statute); Note, The Federal Courts and 
Urban Renewal, 69 C o l u m . L . R e v . 472 (1969). Moreover the 
substantial evidence test set forth in Charlton v. United States, 
supra, has been followed in recent eases. DeLong v. Hampton, 422 
F.2d 21 (3d Cir. 1970); Pauley v. United States, 419 F.2d 1061 
(7th Cir. 1969) (Arbitrary and capricious test also applied.)



43

compels a rational decision-making' process by the agency, 
rather than allowing it to rely upon belatedly contrived 
rationalizations for its action (such as the Triangle “re­
location plan”).

The district court erred by not reviewing the record in 
this case to determine whether the agency followed proce­
dures required by law, and whether the agency’s deter­
minations were supported by substantial evidence, or were 
instead arbitrary and unlawful.

The Department of Transportation recognized in prom­
ulgating IM 80-1-68 that it is vital to the protection of 
persons to be displaced that there be an adequate mecha­
nism for gathering information regarding relocation. Fur­
ther, the agency specified in the regulations the kind of 
information essential to a determination of the adequacy 
of relocation housing so that the Department might have 
a basis for determining whether state assurances were 
satisfactory.

It is fundamental that once having prescribed the pro­
cedure through which it is to reach its determination, an 
agency is not free capriciously to reject that procedure.^^ 
Thus the federal defendants could not lawfully accept the 
state highway commission’s relocation assurances without 
making a “review and approval” of the required factual 
“survey” and “analysis” prepared by the State. IM 80-1-
68, V.

Further, on the administrative record presented here the 
Department of Transportation’s conclusion that adequate 
protection was being accorded to persons displaced in the 
Triangle cannot be sustained. It is essential that an admin­
istrative agency base its actions on adequate inquiry into

Service v. Dulles, 354 U.S. 363 (1957). Cf. D.C. Federation 
of Civic Associations, Inc. v. Airis, 391 F.2d 478 (D.C. Cir. 1968) ; 
Moss V. G.A.B., 430 P.2d 891, 901 (D.C. Cir. 1970).



44

and consideration of the relevant f a c t s , a n d  that an ade­
quate record of the grounds for administrative action he 
made and disclosed so that judicial review is possibled“̂

In the instant case there was virtually no factual inves­
tigation or analysis by the administrative agencies involved 
of the relocation problems posed by the Triangle projects 
as there would have been if a proper relocation plan had 
been prepared and reviewed. The analyses prepared by 
the Department of Transportation of relocation housing 
problems in Charleston all preceded the enactment of the 
1968 relocation amendments .The State’s relocation plan 
ignored vital considerations such as race and competing 
displacement, was inadequate under the regulations, and 
was never reviewed by federal officials. This administrative 
record regarding the existence, in fact, of sufficient adequate 
housing consists solely of bald, unsubstantiated “assur­
ances” by the State.“  ̂ Neither the written assurances nor

See, e.g., Scenic Hudson Preservation Conference v. Federal 
Power Comm., 354 F.2d 608, 620 (2d Cir. 1965), cert, denied, 384
U. S. 941 (1966) ; Shannon v. Department of Housing and Urban
Development,------P .2d -------  (3d Cir., Dec. 30, 1970, No. 18,397) ;
Office of Communications of the United Church of Christ v. FCC, 
359 F.2d 994 (D.C. Cir. 1966); see also, 425 F.2d 543, 548 (D.C. 
Cir. 1969) ; Michigan Consolidated Gas Co. v. Federal Power Comm., 
283 F.2d 204, 226 (D.C. Cir. 1960), cert, denied, 364 U.S. 913 
(1960).

i”! See SEC v. Chenery Corp., 318 U.S. 80, 94 (1943). See also 
Thorpe v. Housing Authority, 393 U.S. 268, 283 (1969) ; Goldberg
V. Kelly, 397 U.S. 254 (1970).

App. 84a-98a.
See PI. Ex. No. 5, letter dated November 13, 1968, from 

M. E. Hamill, then State Eoad Commission of West Virginia to 
the Bureari of Public Roads:

The State Road Commission assures the Bureau of Public 
Roads that the provisions of paragraph 5(a) will be complied 
with on all Federal-Aid projects. . . .

*  *  *

The State Road Commission does provide timely, orderly and 
efficient relocation of displaced individuals. . . .



45

the oral assurances given at trial reveal any numerical 
factual underpinning. The Department accepted the State’s 
assurances without providing any reasons or analysis.̂ '*'* 
The two federal officials who testified to the assurances of 
the State conceded that they had relied on assumed ex­
pertise and past experience/"^ despite the fact that this 
experience had occurred prior to the 1968 amendments 
when virtually no significant relocation requirements 
existed.

In short, the administrative record contains no complete 
and detailed relocation assurances submitted by the State. 
Under these circumstances, the federal officials’ conclusions 
that the State could, in fact, provide the adequate relocation 
housing required by law should not have been sustained by 
the district court.̂ "®

104 pp 7  ̂ letter from Bureau of Public Eoads to M. R.
Hamill, dated November 20, 1968.

106 App. 176a-177a.
In Scenic Hudson Preservation Conference v. FPC, supra 

n. 100, the court remanded the ease to the agency because of the 
agency’s failure to compile a sufficient record. In Shannon v. HTJD, 
supra n. 100, the court held that the agency’s decision “must be 
an informed one” (slip op. p. 23), and that “the agency must 
utilize some institutionalized method” whereby it has before it the 
relevant information (slip op. pp. 20-21). Similarly, in Office of 
Communications of the United Church of Christ v. FCC, supra 
n. 94, the court held that an administrative agency has “an affirma­
tive duty to assist in the development of a meaningful record which 
can serve as the basis for the evaluation” of the performance of 
the party in question. 425 F.2d at 548.

For eases in which courts have remanded to agencies for the 
reason that the grounds for the administrative decision did not 
clearly appear on the record, see e.g., Medical Committee for Human 
Bights V . Securities and Exchange Commission, 432 F.2d 659, 676 
(D.C. Cir. 1970); Environmental Defense Fund v. Hardin, 428 
F.2d 1093 (D.C. Cir. 1970) ; see also Williams v. Robinson, 432 
F.2d 637, 641 (D.C. Cir. 1970) ; Environmental Defense Fund v.
BucJcelshaus,------F .2 d -------  (D.C. Cir., Jan. 7, 1971, No. 23813)
(slip op. pp. 22, 23).



46

The district court also erred in ruling that the agency 
action could be sustained on the basis of the court’s de novo 
consideration of evidence with respect to the availability 
of relocation housing and purported finding that “adequate 
relocation housing, on an open racial basis, will be avail­
able in the Charleston area for an orderly relocation of 
the displacees.” In making this factual finding, the dis­
trict court usurped the function of the agency. If the notion 
of agency expertise is to have any meaning, it is clear that 
the agency must make the initial factual determination. 
This is particnlarly important in the present case where 
newly enacted programs are concerned, since the agency 
should in the first instance have an opportunity to develop 
reasonable procedures to enforce the new law, and should 
be allowed to develop the appropriate expertise.

2. The District C ourfs P urported Finding That Relocation  
Housing Was Adequate Was Clearly Erroneous.

In the first place the district court’s determination that 
relocation housing was adequate was apparently made with­
out reference to the standards mandated by Section 502 
and IM 80-1-68, since the court took the position that they 
were inapplicable. Thus the court based its finding on only 
a few limited factors, ignoring many of the elements which 
W of IM 80-1-68 provides must be considered, such as the 
type and quality of available housing, its proximity to 
transportation and employment, the effect of concurrent 
displacement, and the detailed standards as to what con-

App. 57a. 311 P. Supp. at 31. That the court undertook to 
make this determination is particularly surprising in light of its 
statement that “courts should not undertake the administration of 
complex and far reaching federal programs, but upon appropriate 
judicial review should determine only whether the agency admin­
istering the program is in substantiM compliance with the appli­
cable statutes and regulations.” App. 55a-56a, 31-1 F. Supp. at 30.



47

stitutes “decent, safe and sanitary” housing. Indeed, the 
record does not even contain the information necessary to 
make a proper determination under the applicable law and 
regulations, since the respondents failed to provide it and 
the district court ruled that they were not required to 
do 80 .̂ “*

Even apart from the legal standard applied, the record 
does not support the court’s finding that adequate reloca­
tion housing was available, on a nonracial basis. This find­
ing was based on the court’s conclusion that:

Even should no housing be available for dislocateees 
in the private housing market, the evidence clearly 
demonstrates that there is ample public housing in the 
Charleston area to accommodate the limited number 
of individuals remaining in the 1-77 corridor in the 
Triangle area.̂ "®

In reaching this conclusion, the court relied heavily on the 
“Triangle Relocation Plan” prepared by the state defen­
dant for this lawsuit.̂ ^® This plan asserted that the ma­
jority of the Triangle residents “appear” to be eligible for 
public housing. The plan also reasoned that since there 
was a turnover of approximately 30% of the city’s public 
housing units, and since highway displacees have preferred 
access to public housing, there would he available over the 
span of time in which the relocation from the Triangle

108 rpjjg record’s inadequacy was further exacerbated by the 
court’s denial of all discovery to the plaintiffs. App. 38a-39a, 314 
P. Supp. at 22-23. Gf. Citizens to Preserve Overton Park v. Volpe, 
432 P.2d 1307, 1316, n. 1. (6th Cir. 1970) (Celebrezze, J., dis­
senting), cert, granted December 7, 1970, O.T. 1970, No. 1066; 
Office of Communications of the United Church of Christ v. FCG, 
425 P.2d 543, 548 (D.C. Cir. 1969).

App. 57a, 314 F. Supp. at 31.
Def. Ritchie Ex. No. 1, App. 99a-126a.



48

would take place, approximately 319 units—more than the 
number of families to be displaced in the Triangle.

This analysis fails first in that it takes no account of 
concurrent displacement, a factor considered of great im­
portance in the regulations. That is, the plan considers 
the Triangle in isolation. But, as the court found, the 
Triangle displacees constituted only one-third of those to 
be displaced by the two projects entering the district, as 
of the time of trial, and less than one-seventh of the total 
who either had been or were to be displaced.^^  ̂ And even 
these figures do not take into account displacement by other 
highway projects outside the Triangle involved in the In­
terstate system in Charleston, or by other public programs. 
There was no evidence whatever of the number of such 
displacees who would be eligible for public housing and 
thus compete with the Triangle displacees.

Secondly, the record contains no income statistics or 
other evidence showing that the Triangle residents were 
in fact eligible for public housing. The state plan’s as­
sumption of eligibility relied solely on the fact that the 
average rents in the area were one-half those in the city 
as a whole.

Finally, in contrast to the reported turnover rate of 30%, 
the record shows a vacancy rate in public housing of about 
1%“  ̂ and a city-wide vacancy rate of 2.7%.̂ ^̂  These fig­
ures indicate that adequate relocation housing was not

“ 1 App. 45a-46a, 314 F. Supp. at 26.
The Executive Director of the Housing Authority testified 

that at any time an average of eleven of the total 934 units were 
vacant. App. 245a. He also testified that there was a waiting list 
of 600 families who had been found eligible for public housing, and 
that on the average a person without priority would wait 18 to 24 
months to be admitted. App. 246a-247a.

App. 299a.



49

available in Charleston, since it is the vacancy rate which 
is relevant in determining the number of excess units 
available for relocation housing, and since a vacancy rate 
of less than 3% has been found by authorities experienced 
in these problems to be inadequate for relocation plan- 
ningd^* The district court’s finding that there was adequate 
public housinĝ ^® available to the dislocatees is, therefore, 
clearly erroneous.

The relocation guidelines of the Department of Housing and 
Urban Development, which administers the federal programs caus­
ing the greatest amount of displacement provide:

Turnover, in essence, represents the process by which one 
occupied unit becomes vacant and reoccupied. It is a “neutral” 
process with respect to altering the supply of excess housing, 
i.e., the number of units which are in excess of the combined 
amount required to accommodate locality households and pro­
vide for mobility. It is only the excess units—or vacancies— 
which can be considered as supplying relocation housing re­
sources for displaced families.

1. For determination of number of existing, standard vacant 
units available for relocation:
Policy: Only that amount of standard vacant rental housing 
which is in excess of a 3 percent renter vacancy rate shall be 
counted in the relocation planning. Furthermore, only those 
units in excess of the 3 percent vacancy rate which are appro­
priate by unit size (i.e., 1 bedroom, 2 bedroom, 3 bedroom, 
etc.) and which are appropriate by rent ranges required by 
the displaced households shall be counted as resources. (De­
partment of Housing and Urban Development, Regional Cir­
cular No. 907, Belocaiion Resources and Criteria, February 26, 
1968.)

These guidelines were presented to the district court. App. 299a.
Although the district court proceeded on the assumption that 

no housing would be available to the Triangle displacees in the 
private housing market (App. 57a; 314 F. Supp. at 31), the 
federal respondents seek to bolster the court’s ruling by reference 
to evidence of the availability of such private housing (Brief for 
the Federal Respondents in Opposition to Certiorari, at 5-7). Evi­
dence with respect to availability of private housing, not relied on 
by the court, clearly cannot be used to sustain the court’s factual 
conclusions with respect to public housing. And, in any event, the 
evidence relied on by respondents does not support a conclusion



50

III

The Questions of Retroactive Application and Ap­
propriate Remedy.

Petitioners’ position throughout this litigation has been 
that the highway officials have failed to meet their obliga­
tions under the 1968 Highway Act by failing to insure that 
adequate housing was available for the Triangle displacees. 
They have urged that the respondents should meet this 
obligation by the method proposed in their own regula­
tions, that of preparing a thorough relocation plan which 
would analyze fully the needs of the persons to be dis-

tliat adequate housing was available in the private market. The 
fact that the state had relocated about 2000 persons in the previous 
two years necessarily removed available housing from the supply 
without replacing it. Experience with prior relocation cases was 
under the prior statute which did not even require replacement 
housing, much less set standards for it. Finally, the evidence indi­
cated that the only significant change since the time of the federal 
studies which warned of a possibly “critical” shortage of housing in 
Charleston (PI. Ex. No. 12, App. 84a-98a) was the availability of 
rent supplements available under the new act (App. 425a-428a). 
Rent supplements provide no relief for families who are living in 
apartments beyond their means when the two year payments ex­
pire (App. 428a). The present Secretary of Transportation has 
himself noted in a related context that the very fact that rent 
supplements are needed is proof that available housing is insuf­
ficient :

_[0]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 families. Payment of a RAP (relocation adjustment 
payment or rent supplement) indicates that this requirement 
is not being met. Second, the adjustment 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.

Statement of Governor John A. Volpe, Hearings Before the Suh- 
committce on Intergovernmental Relations of the Senate Com­
mittee on Government Operations, 90th Cong., 2nd Sess at 481 
(1968).



51

located, and the housing available to supply these needs, 
so that it could he demonstrated in a documented and re- 
viewable manner whether the requirements of the statute 
were being met. If the Court accepts this view, it is neces­
sary to consider what remedy is now appropriate to cor­
rect the wrongs which have been conunitted.

Congress intended that every person displaced by fed­
eral highway programs since August 23, 1968 be assured 
the availability of satisfactory replacement housing. The 
failure of the administrators to fulfill this obligation, com­
bined with their zeal to complete the highway and the 
realities of the inadequate supply of housing in Charleston 
has resulted in the displacement of a major portion of 
those on the right-of-way in the Triangle,̂ ^® many into 
demonstrably inadequate housing. Moreover, the State 
Road Commission has failed in several respects to meet 
even the minimal assurances it made at the trial. For those 
who remain to displaced, the preparation of a relocation 
plan, which meets the requirements of the regulations,^’̂'̂ 
and which would be reviewed by the district court may be 
appropriate relief.

For those who have moved, it is submitted that they 
should not be put in the position of being told that although 
they were denied the rights which Congress intended 
them to have, they are yet to be compelled because of 
administrative wrongdoing to remain in inadequate hous­
ing. A remedy is now available to deal with this problem. 
In the Federal-Aid Highway Act of 1970, enacted Decem-

At the time of trial there were 284 persons to be displaced 
in the Triangle. App. 46a. Petitioners’ most recent survey, taken 
December 23, 1970, shows that 65 persons and 14 businesses re­
main. The State respondents assert that 35 persons and 5 busi­
nesses remained on January 28, 1970.

The more detailed requirements of I.M. 80-2-70 may be ap­
plicable to a plan now formulated. See supra at n. 87.



52

ber 31, 1970,“ ® Congress authorized the Secretary to ap­
prove as “a part of the cost of construction” of Federal- 
aid highways the cost of building new housing and pur­
chasing, rehabilitating or moving existing housing as 
replacement housing for dislocatees where a project can­
not proceed because of a lack of available housing “as 
required by section 502” of Title 23. This statute provides 
a readily available method to deal with the housing needs 
of highway dislocatees in Charleston. On remand, the 
respondents should be required to locate all those who 
have been displaced from the Triangle and to present to 
the court a report of their present housing condition. 
Where they are now in satisfactory and acceptable hous­
ing, nothing more need be done. Where, however, they 
have been forced into inadequate or substandard housing, 
the respondents should be compelled to use the provision 
of the 1970 Highway Act authorizing the construction, 
rehabilitation or purchase of housing for dislocatees to 
provide them with “decent, safe and sanitary housing.”

Pub. L. 9-605, §117; Br. App. 13-14. As already mentioned, 
supra n. 71, petitioners suggest that this new provision demon­
strates that Congress did indeed intend the 1968 act to require the 
provision of replacement housing for dislocatees.

This suggestion is in accord with the relief granted in 
Shannon v. Department of Mousing and Urban Development,
------- F.2d ------, (3d Cir., Dec. 30, 1970, No. 18,397). There the
Court ruled that a low rent housing project had been authorized 
and financed by HUD without regard for its obligation to pro­
mote fair housing and in fact in a manner which promoted racial 
separation. By the time the appeals court ruled, the building was 
completed and occupied. The court held that relief was nonethe­
less required, and that the case was not moot. It suggests as pos­
sible remedies on remand the withdrawal of further HUD support, 
the possible replacement of rent supplement tenants with market 
rental tenants, or the sale of the project to a profit-making owner. 
Slip Op. at 23-24.

As DOT regulations permit the free amendment of projects 
already approved to take into consideration changed conditions, 
PPM 21-7, there should be no technical difficulty in applying this 
remedy to the on-going projects. Cf. I.M. 80-1-68, p b , Br. App. 
19-20.



53

CONCLUSION

For tlie foregoing reasons, the judgment below should be 
reversed and the case remanded to the district court with 
instructions that further displacement be enjoined until the 
respondents have prepared a relocation plan in accordance 
with the regulations for all remaining displacees, and that 
those already displaced in violation of the law be afforded 
the remedy suggested in Point III.

Respectfully submitted,

J a c k  G b e e k b e b g  
J a m e s  M . N a b b it  III 
C h a b l e s  S t e p h e n  R a l s t o n  
E l i z a b e t h  B .  D u B o is  

J e f p b y  a . M i n t z

10 Columbus Circle 
New York, New York 10019

J o h n  L. B o e t t n e b

1116-B Kanawha Blvd., E. 
Charleston, West Virginia 25301

A .  A n d e e w  M a c Q u e e n  III 
1026 Quarrier Street 
Charleston, West Virginia 25301

Attorneys for Petitioners

T h o m a s  J. O ’S u l l i v a n  
14 Wall Street 
New York, New York 10005

C u E T is  B e e g e b

Columbia University School of Law 
New York, New York

Of Counsel



A P P E N D I C E S



,Br. App. 1

APPENDIX A 

Statutes

1962 RELOCATION AMENDMENT 
(23 IJ.S.C. §133)

(Pub. L. 87-866, §5(a), Oct. 23, 1962, 76 Stat. 1146)
(Repealed effective July 1, 1970; See Pub. L. 90-495, §37, 

Aug. 23, 1968, 82 Stat. 836, and Pub. L. 91-605, §120, Dec. 
31, 1970.)
§133. Relocation assistance

(a) As used in this section the term “eligible person” 
means any individual, family, business concern (including 
the operation of a farm) and nonprofit organization to be 
displaced by construction of a project.

(b) The Secretary prior to his approval of any project 
under section 106 of this title for right-of-way acquisition 
or actual construction shall require the State highway de­
partment to give satisfactory assurance that relocation 
advisory assistance shall be provided for the relocation of 
families displaced by acqnisition or clearance of rights-of- 
way for any Federal-aid highway.

(c) The Secretary shall approve, as part of the cost of 
construction of a project on any of the Federal-aid highway 
systems, such relocation payments as may be made by a 
State highway department, or a local public agency acting 
as an agent for the State highway department for this 
purpose, to eligible persons for their reasonable and nec­
essary moving expenses caused by their displacement from 
real property acquired for such project. However, the Sec-



Br. App. 2 

Appendix A

retary shall not require a State to pay relocation payments 
where not authorized by State law.

(d) Payments under this section shall be subject to such 
rules and regulations as may be prescribed by the Secre­
tary, and shall not exceed $200 in the case of an individual 
or family, or $3,000 in the case of a business concern (in­
cluding the operation of a farm) or nonprofit organization. 
In the case of a business (including the operation of a farm) 
and in the case of a nonprofit organization, the allowable 
expenses for transportation under this subsection shall not 
exceed the cost of moving 50 miles from the point from 
which such business or organization is being displaced. 
Such rules and regulations may include provisions author­
izing reimbursement for payments made to individuals and 
families of fixed amounts (not to exceed $200 in any case) 
in lieu of their respective reasonable and necessary moving 
expenses.

(e) This section shall apply only with respect to projects 
approved under section 106 of this title after the date of 
enactment of this section.

RELOCATION ASSISTANCE STUDY: REPORT 
TO CONGRESS BY JULY 1, 1967

(Pub. L. 89-574, §12, Sept. 13, 1966, 80 Stat. 770)

(a) The Secretary of Commerce is authorized and di­
rected to make, in cooperation with the Secretary of the 
Department of Housing and Urban Development, the State 
highway departments, and other affected Federal and State 
agencies, a full and complete study and investigation for 
the purpose of determining what action can and should be



Br. App. 3 

Appendix A

taken to provide additional assistance for the relocation 
and reestablishment of persons, business concerns, and non­
profit organizations to be displaced by construction of proj­
ects on any of the Federal-aid highway systems, and to 
submit a report of the findings of such study and investiga­
tion, together with recommendations, to the Congress not 
later than July 1, 1967. The study and investigation shall 
include, but shall not be limited to—

(1) the need for additional payments or other finan­
cial assistance to such displaced persons, business con­
cerns, and nonprofit organizations, and the extent to 
which the making of such payments and the providing 
of other financial assistance should be mandatory;

(2) the feasibility of constructing, within the right- 
of-way of a highway or upon real property adjacent 
thereto acquired for such purposes, publicly or pri­
vately owned, buildings, improvements, or other facili­
ties to aid in the relocation of such displaced persons, 
business concerns, and nonprofit organizations;

(3) the extent to which the costs of acquiring such 
real property and constructing such buildings, im­
provements and other facilities should be paid from 
the highway trust fund; and

(4) sources of funds to pay the portion of the costs 
of acquiring such real property and constructing such 
buildings, improvements and other facilities, which is 
not properly chargeable to the highway trust fund.



Br. App. 4 

Appendix A

1968 HiaSWAY RELOCATION AMENDMENTS 
(23 U.S.C. §501 et seq.)

(Pub. L. 90-495, §30, Aug. 23, 1968, 82 Stat. 830)

§501. Declaration of policy
Congress hereby declares that the prompt and equitable 

relocation and reestablishment of persons, businesses, 
farmers, and nonprofit organizations displaced as a result 
of the Federal highway programs and the construction of 
Federal-aid highways is necessary to insure that a few 
individuals do not suffer disproportionate injuries as a 
result of programs designed for the benefit of the public 
as a whole. Therefore, Congress determines that reloca­
tion payments and advisory assistance should be provided 
to aU persons so displaced in accordance with the provi­
sions of this title.

§502. Assurances of adequate relocation assistance 
program

The Secretary shall not approve any project under sec­
tion 106 or section 117 of this title which will cause the 
displacement of any persons, business, or farm operation 
unless he receives satisfactory assurances from the State 
highway department that—

(1) fair and reasonable relocation and other pay­
ments shall be afforded to displaced persons in accord­
ance with sections 505, 506, and 507 of this title;

(2) relocation assistance programs offering the ser­
vices described in section 508 of this title shall be 
afforded to displaced persons; and



Br. App. 5

Appendix A

(3) within a reasonable period of time prior to dis­
placement there will be available, to the extent that 
can reasonably be accomplished, in areas not gener­
ally less desirable in regard to public utilities and pub­
lic and commercial facilities and at rents or prices 
within the financial means of the families and indi­
viduals displaced, decent, safe, and sanitary dwellings, 
as defined by the Secretary, equal in number to the 
number of and available to such displaced families and 
individuals and reasonably accessible to their places of 
employment.

§503. Administration of relocation assistance program
In order to prevent unnecessary expenses and duplica­

tion of functions, a State highway department may make 
relocation payments or provide relocation assistance or 
otherwise carry out the functions required under this chap­
ter by utilizing the facilities, personnel, and services of any 
other Federal, State, or local governmental agency having 
an established organization for conducting relocation assis­
tance programs.

§504. Federal reimbursement
(a) The Secretary shall approve, as a part of the cost 

of construction of a project under any Federal-aid highway 
program which he administers, the cost of providing the 
payments and services described in section 502, except that 
notwithstanding any other law, the Federal share of the 
first $25,000 of such payments to any person, on account 
of any real property acquisition or displacement occurring 
prior to July 1, 1970, shall be increased to 100 per centum 
of such cost.



Br. App. 6 

Appendix A

(b) Any  project agreement with a State highway de­
partment executed before the date of enactment of this 
chapter with respect to property which has not been ac­
quired as of the date of enactment of this chapter under 
any such program shall he amended to include the cost of 
providing the payments and services described in section 
502 with respect to such property.
§505. Relocation payments

(a) Payments for actual expenses.—^Upon application 
approved by the State agency, a person displaced by any 
highway project approved under section 106 or section 117 
of this title may elect to receive actual reasonable expenses 
in moving himself, his family, his business, or his farm 
operation, including personal property.

(b) Optional payments—dwellings.—Any displaced per­
son who moves from a dwelling who elects to accept the 
payments authorized by this subsection in lieu of the pay­
ments authorized by subsection (a) of this section may 
receive—

(1) a moving expense allowance, determined accord­
ing to a schedule established by the Secretary, not to 
exceed $200; and

(2) a dislocation allowance of $100.
(c) Optional payments—businesses and farm operations. 

—Any displaced person who moves or discontinues his 
business or farm operation who elects to accept the pay­
ment authorized by this section in lieu of the payment 
authorized by subsection (a) of this section, may receive a 
fixed relocation payment in an amount equal to the average



Br. App. 7 

Appendix A

annual net earnings of the business or farm operation, or 
$5,000, whichever is the lesser. In the case of a business, 
no payment shall be made under this subsection unless the 
State agency is satisfied that the business (1) cannot be 
relocated without a substantial loss of its existing patron­
age, and (2) is not part of a commercial enterprise having 
at least one other establishment, not being acquired by the 
State or by the United States, which is engaged in the same 
or similar business. For pnrposes of this subsection, the 
term “average annual net earnings” means onedialf of any 
net earnings of the business or farm operation, before Fed­
eral, State, and local income taxes, during the two taxable 
years immediately preceding the taxable year in which such 
business or farm operation moves from the real property 
acquired for such project, and includes any compensation 
paid by the business or farm operation to the owner, his 
spouse, or his dependents during such two-year period. 
Added Pub. L. 90-495, §30, Aug. 23, 1968, 82 Stat. 831.

§506. Replacement housing
(a) In addition to amounts otherwise authorized by this 

title, the State agency shall make a payment to the owner 
of real property acquired for a project which is improved 
by a single-, two-, or three-family dwelling actually owned 
and occupied by the owner for not less than one year prior 
to the initiation of negotiations for the acquisition of such 
property. Such payment, not to exceed $5,000, shall be the 
amount, if any, which, when added to the acquisition pay­
ment, equals the average price required for a comparable 
dwelling determined, in accordance with standards estab­
lished by the Secretary, to be a decent, safe, and sanitary 
dwelling adequate to accommodate the displaced owner, 
reasonably accessible to public services and places of em-



Br. App. 8 

Appendix A

ployment and available on the private market. Snch pay­
ment shall be made only to a displaced owner who pur­
chases and occupies a dwelling within one year subsequent 
to the date on which he is required to move from the 
dwelling acquired for the project. No such payment shall 
be required or included as a project cost under section 504 
of this title if the owner-occupant receives a payment re­
quired by the State law of eminent domain which is deter­
mined by the Secretary to have substantially the same 
purpose and effect as this section and to be part of the 
cost of the project for which Federal financial assistance 
is available.

(b) In addition to amounts otherwise authorized by this 
title, the State agency shall make a payment to any indi­
vidual or family displaced from any dwelling not eligible 
to receive a payment under subsection (a) of this section 
which dwelling was actually and lawfully occupied by such 
individual or family for not less than 90 days prior to the 
initiation of negotiations for acquisition of such property. 
Such payment, not to exceed $1,500, shall be the amount 
which is necessary to enable such person to lease or rent 
for a period not to exceed 2 years, or to make the down 
payment on the purchase of, a decent, safe, and sanitary 
dwelling of standards adequate to accommodate such indi­
vidual or family in areas not generally less desirable in 
regard to public utilities and public and commercial facili­
ties.

§507. Expenses incidental to transfer of property
(a) In addition to amounts otherAvise authorized by this 

title, the State shall reimburse the owner of real property 
acquired for a project for reasonable and necessary ex-



Br. App. 9 

Appendix A

penses incurred for (1) recording fees, transfer taxes, and 
similar expenses incidental to conveying sucli property;
(2) penalty costs for prepayment of any mortgage entered 
into in good faith encumbering such real property if such 
mortgage is on record or has been filed for record under 
applicable State law on the date of final approval by the 
State of the location of such project; and (3) the pro rata 
portion of real property taxes paid which are allocable 
to a period subsequent to the date of vesting of title in 
the State, or the eJffective date of the possession of such 
real property by the State, whichever is earlier.

(b) No payment received under this chapter shall be 
considered as income for the purposes of the Internal 
Revenue Code of 1954, or for the purpose of determining 
the eligibility or the extent of eligibility of any person for 
assistance under the Social Security Act or any other 
Federal law.

§508. Relocation services
(a) Each State shall provide a relocation advisory as­

sistance program which shall include such measures, facili­
ties, or services as may be necessary or appropriate in 
order—

(1) to determine the needs, if any, of displaced fam­
ilies, individuals, business concerns, and farm opera­
tors for relocation assistance;

(2) to assure that, within a reasonable period of 
time, prior to displacement there will be available, to 
the extent that can reasonably be accomplished, in 
areas not generally less desirable in regard to public 
utilities and public and commercial facilities and at 
rents or prices within the financial means of the fam-



Br. App. 10

Appendix A

ilies and individuals displaced, housing meeting the 
standards established by the Secretary for decent, safe, 
and sanitary dwellings, equal in number to the number 
of, and available to, such displaced families and in­
dividuals and reasonably accessible to their places of 
employment;

(3) to assist owners of displaced businesses and 
displaced farm operators in obtaining and becoming 
established in suitable locations; and

(4) to supply information concerning the Federal 
Housing Administration home acquisition program un­
der section 221(d) (2) of the National Housing Act, 
the small business disaster loan program under sec­
tion 7(b) (3) of the Small Business Act, and other 
State or Federal programs offering assistance to dis­
placed persons.

(b) Nothing in this chapter shall be construed to pro­
hibit any person from exercising any right or remedy 
available to him under State law with respect to any ac­
tion of a State agency in carrying out this chapter.

§509. Relocation assistance programs on Federal 
highway projects

Notwithstanding any other provision of law, on and af­
ter the effective date of this title any Federal agency 
which acquires real property for use in connection with a 
highway project authorized by section 107 and chapter 2 
of this title or any other Federal law shall, in accordance 
with regulations issued by the Secretary, provide the pay­
ments and services described in sections 502, 505, 506, 507, 
and 508 of this title. When real property is acquired by a



Br. App. 11

Appendix A

State or local governmental agency for such a Federal 
project for purposes of this chapter, the acquisition shall 
be deemed an acquisition by the Federal agency having 
authority over such project.

§510. Authority of the Secretary
(a) To carry into effect the provisions of this chapter, 

the Secretary is authorized to make such rules and regu­
lations as he may determine to be necessary to assure—

(1) that the payments authorized by this chapter 
shall be fair and reasonable and as uniform as prac­
ticable ;

(2) that a displaced person who makes proper ap­
plication for a payment authorized for such person by 
this chapter shall be paid promptly after a move or, 
in hardship cases, be paid in advance ; and

(3) that any person aggrieved by a determination 
as to eligibility for a payment authorized by this chap­
ter, or the amount of a payment, may have his appli­
cation reviewed by the head of the State agency mak­
ing such determination.

(b) The Secretary may make such other rules and regu­
lations consistent with the provisions of this chapter as 
he deems necessary or appropriate to carry out this chap­
ter.

§511. Definitions
As used in this chapter—

(1) The term “person” means—
(A) any individual, partnership, corporation, or 

association which is the owner of a business;



Br. App. 12

Appendix A

(B) any owner, part owner, tenant, or sharecrop­
per who operates a farm;

(C) an individual who is the head of a family; or
(D) an individual not a member of a family.

(2) The term “family” means two or more indi­
viduals living together in the same dwelling unit who 
are related to each other hy blood, marriage, adoption, 
or legal guardianship.

(3) The term “displaced person” means any person 
who moves from real property on or after the effective 
date of this chapter as a result of the acquisition or 
reasonable expectation of acquisition of such real 
property, which is subsequently acquired, in whole or 
in part, for a Federal-aid highway, or as the result 
of the acquisition for a Federal-aid highway of other 
real property on which such person conducts a busi­
ness or farm operation.

(4) The term “business” means any lawful activity 
conducted primarily—

(A) for the purchase and resale, manufacture, 
processing, or marketing of products, commodities, 
or any other personal property;

(B) for the sale of services to the public; or
(C) by a nonprofit organization.

(5) The term “farm operation” means any activity 
conducted solely or primarily for the production of 
one or more agricultural products or commodities for 
sale and home use, and customarily producing such 
products or commodities in sufficient quantity to be



Br. App. 13 

Appendix A

capable of contributing materially to the operator’s 
support.

(6) The term “Federal agency” means any depart­
ment, agency, or instrumentality in the executive 
branch of the Government and any corporation wholly 
owned by the Government.

(7) The term “State agency” means a State highway 
department or any agency designated by a State high­
way department to administer the relocation assist­
ance program authorized by this chapter.

FEDERAL-AID HIGHWAY ACT OF 1970

(Pub. L. 91-605, Dec. 31, 1970)
C o u s T E u c T io x  OF B epuacembstt H o u s iu g

See. 117. (a) Sections 510 and 511 of title 23, United 
States Code including all references thereto are hereby 
renumbered as sections 511 and 512 respectively.

(b) Chapter 5 of title 23, United States Code, is amended 
by inserting immediately after section 509 the following- 
new section:

Ҥ510. Construction of replacement housing
“ (a) The Secretary may approve as a part of the cost 

of construction of any project on any Federal-aid sys­
tem the cost of (A) constructing new housing, (B) ac­
quiring existing housing, (C) rehabilitating existing 
housing, and (D) relocating existing housing, as re­
placement housing for individuals and families where 
a proposed project on the Federal-aid system cannot 
proceed to actual construction because replacement 
housing is not available and cannot otherwise be made



Br. App. 14

Appendix A

available as required by section 502 of this title. For 
the purposes of this subsection the term ‘housing’ in­
cludes all appurtenances thereto.

“(b) State highway departments shall, wherever 
practicable, utilize the services of State or local gov­
ernmental housing agencies in carrying out this sec­
tion.”

(c) The analysis of chapter 5 of title 28, United States 
Code, is amended by adding after

“509. Relocation assistance programs on Federal 
highway projects.”

the following:
“510. Construction of replacement housing.”

(d) The definition of the term “construction” in section 
101(a) of title 23, United States Code, is amended to read 
as follows:

“The term ‘construction’ means the supervising, in­
specting, actual building, and all expenses incidental 
to the construction or reconstruction of a highway, 
including locating, surveying, and mapping (including 
the establishment of temporary and permanent geo­
detic markers in accordance with specifications of the 
Coast and Geodetic Survey in the Department of Com­
merce), acquisition of rights-of-way, relocation assist­
ance, elimination of hazards of railway grade crossings, 
acquisition of replacement housing sites, and acquisi­
tion, and rehabilitation, relocation, and construction 
of replacement housing.”



Br. App. 15

Appendix A

E ffective D ate of Rei/)oation P rovisions

Sec. 120. Section 37 of the Federal-Aid Highway Act of 
1968 is amended to read as follows:

“E ffective D ate

“Sec. 37. (a) Except as otherwise provided in sub­
section (b) of this section, this Act and the amend­
ments made by this Act shall take effect on the date 
of its enactment, except that until July 1, 1970, sec­
tions 502, 505, 506, 507, and 508 of title 23, United 
States Code, as added by this Act, shall be applicable 
to a State only to the extent that such State is able 
under its laws to comply with such sections. Except 
as otherwise provided in subsection (b) of this sec­
tion, after July 1, 1970, such sections shall be com­
pletely applicable to all States. Section 133 of title 
23, United States Code, shall not apply to any State 
if sections 502, 505, 506, 507, and 508 of title 23, United 
States Code, are applicable in that State, and effective 
July 1, 1970, such section 133 is repealed, except as 
otherwise provided in subsection (b) of this section.

“(b) In the case of any State (1) which is required 
to amend its constitution to comply with sections 502, 
505, 506, 507, and 508 of title 23, United States Code, 
and (2) which cannot submit the required constitu­
tional amendment for ratification prior to July 1, 1970, 
the date of July 1, 1970, contained in subsection (a) 
of this section shall be extended to July 1, 1972.”



Br. App. 16

Appendix A

FAIR HOUSING ACT OF 1968 
(42 U.S.C. §3601 et seq.)

(Pub. L. 90-284, Title Y llI, April 11, 1968, 82 Stat. 81)

§3601. Declaration of policy
It is the policy of the United States to provide, within 

constitutional limitations, for fair housing throughout the 
United States.

§3608. Administration-Authority and responsibility

(a) ............. .......
(b) ....................
Cooperation of Secretary and executive departments and 

agencies in administration of housing and urban develop­
ment programs and activities to further fair housing pur­
poses.

(c) All executive departments and agencies shall admin­
ister their programs and activities relating to housing and 
urban development in a manner affirmatively to further 
the purposes of this subchapter and shall cooperate with 
the Secretary to further such purposes.



Br. App. 17

APPENDIX B

Regulations & Policy Directives

Circular Memorandum dated January 23, 1968 (PI. Ex. 
No. 9), appears in the separate Appendix at pp. 79a-81a.

TJ.S. D epartment of Transportation 
Federal Highway Administration 

Bureau of Public Roads 
Washington, D.C. 20591

September 5, 1968

I nstbxjctional Memorandum 80-1-68 
34-10

S u bject: Relocation Assistance and Payments — Interim 
Operating Procedures (RCS 34-01-03)
(B/B 04-B-2211)

There are enclosed Interim Operating Procedures covering 
the administration of the Highway Relocation Assistance 
Program established by Chapter 5 of Title 23, TJ.S.C.
These procedures supersede paragraph 3 of PPM 80-5 and 
will be incorporated in a new Policy and Procedure Memo­
randum after a period of operation thereunder.

/s /  P. C. T urner 
P. 0. Turner 
Director of Public Roads

/s /  L owell K. B ridwell 
Lowell K. Bridwell 
Federal Highway Administrator



Br. App. 18 

Appendix B

[Including Amendments of Paragraphs 5a(2), 5a(5),
7b(2) and 9c(2) dated October 2, 1968 and November 
5, 1968]

Interim Operating Procedures 
Relocation Assistance and Payments

1. PUBPOSE

In accordance with Chapter 5 of Title 23, U.S.C., this 
memorandum prescribes policies and procedures relating 
to the following:

a. Administration of the relocation program and the pro­
vision of relocation payments and services to individuals, 
families, businesses, and farm operators displaced by 
Federal-aid highway construction;

b. Eligibility for reimbursement of relocation payments 
and costs of services by State and State designated agen­
cies; and

c. Relocation payment records and relocation advisory 
assistance reports.

2. E ffective D ate and A ppucabiiuty

a. The provisions of this memorandum are effective Au­
gust 23, 1968, and the payments and services described 
herein shall be provided by the State to the extent that 
such State is able to comply herewith under its laws. After 
July 1, 1970, such payments and services shah, be provided 
by all States.

b. The provisions of this memorandum are applicable 
to the following:

(1) All Federal-aid highway projects authorized after 
August 23, 1968, involving rights-of-way which are occu-



Br. App. 19 

Appendix B

pied by an individual, family, business, farm operator, or 
nonprofit organization.

(2) All Federal-aid highway projects authorized on or 
before August 23, 1968, on which individuals, families, busi­
nesses, farm operations, and nonprofit organizations have 
not been displaced.

(3) Rights-of-way acquired without Federal participa­
tion upon which the State intends to construct a Federal- 
aid project from which as of August 23, 1968, individuals, 
families, business, farm operations, and nonprofit organi­
zations have not been displaced.

c. The relocation payments and services described in 
this memorandum shall be provided by any Federal agency 
which acquires property for highway projects authorized 
under Chapters 1 and 2 of Title 23, U.S.C. When real prop­
erty is acquired by a State or local governmental agency 
for such a Federal project, the acquisition shall be deemed 
to be an acquisition by the Federal agency having authority 
over such project.

3. AtrTHOBITV

Statutory authority for this memorandum is set forth 
in Chapter 5 of Title 23, U.S.C. (23 U.S.C. 501 et seq.)

4. P eogbamming

b. Any project agreement with a State which was ex­
ecuted on or before August 23, 1968, and which requires 
the use of property not acquired as of that date shall be 
amended to include the cost of providing the payments and 
services described in this memorandum. Any number of



Br. App. 20 

Appendix B

projects may be amended in a single action with each 
project identified. Form PB-37, Project Status Becord, 
must be prepared for each project as required by Volume 
22, Chapter V, Administrative Manual. Attach a copy of 
the modified agreement to each PB-37.

5. A ssurances of A dequate B blocation A ssistance

P r o g r a m

a. No State highway department shall be authorized to 
proceed with any phase of any project which will cause 
the displacement of any person or any construction project 
concerning any right-of-way acquired by the State without 
Federal participation and coming within the provisions of 
paragraph 2b(3) above, until it has furnished satisfactory 
assurances to the extent State law permits, that:

(1) Belocation payments and services were or will be 
provided as set forth in paragraphs 6-10 of this memo­
randum.

(2) In the event housing available to persons without 
regard to race, color, religion or national origin wiU not 
be available within a reasonable period of time prior to 
displacement as provided in paragraph 7 of this memo­
randum, the State shall provide a detailed statement spe­
cifying the respects in which such assurance cannot be 
furnished, the extent to which such housing will be avail­
able prior to displacement, the period of time prior to 
displacement when that housing will become available and 
an estimate of the additional time within which such hous­
ing will become available to the extent that it can be rea­
sonably accomplished.



Br. App. 21 

Appendix B

(3) The public was or will be adequately informed of 
the relocation payments and services which will be avail­
able, as set forth in paragraph 12 of this memorandum.

(4) No person lawfully occupying the real property shall 
be required to move from his home, farm or business 
location without at least 90 days written notice of the in­
tended vacation date from the State or political subdivision 
having responsibility for such acquisition. This provision 
must be carried out to the maximum extent practicable and 
exceptions should be made only in the case of very unusual 
conditions. Such assurance can be furnished on a State­
wide basis or set forth in Point 31 of the State’s statement 
of organization and procedures.

(5) The State’s relocation program is realistic and is 
adequate to provide orderly, timely, and efficient relocation 
of displaced individnals and families to decent, safe, and 
sanitary honsing available to persons without regard to 
race, color, religion or national origin with minimum hard­
ship on those affected.

b. The above assurances are not required where author­
ization to acquire right-of-way or to commence construc­
tion has been given prior to the issuance of this memoran­
dum. 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.

c. The State’s assurances shall be accompanied by a 
statement in which it specifies the provisions of this memo­
randum with which it is unable under its laws to comply 
in whole or in part. In the event a State maintains that 
it is legally unable to comply fully with one or more of 
the provisions of this memorandum, its statement shall be



Br. App. 22 

Appendix B

supported by an opinion of the chief legal officer of the 
highway department in which he discusses the legal issues 
raised and cites reasons and authorities in support of his 
conclusion for each representation of legal inability to 
comply.

6. A dministration of the R elocation A ssistance 
P rogram

a. In order to prevent unnecessary expenses and dupli­
cation of functions, the State highway department may 
make relocation payments or provide relocation assistance 
or otherwise carry out the functions described in this memo­
randum by utilizing the facilities, personnel, and services of 
any other Federal, State, or local governmental agency hav­
ing an established organization for conducting relocation 
assistance programs.

b. Where a State highway department elects to have the 
relocation payments and services required under this PPM 
administered by another Federal, State, or local agency, 
it shall enter into a written contract or agreement to that 
effect with the agency it selects. Such contract or agreement 
shall be subject to the approval of the division engineer 
and shall obligate the agency to perform the services and 
make the payments in accordance with Chapter 5 of Title 
23, IJ.S.C., and the regulations and procedures of the Bu­
reau of Public Roads. The contract shall also provide that 
the records required by paragraph 15 of this memorandum 
will be retained by the agency administering the relocation 
program for a period of not less than three years after 
payment of the final voucher with respect to the particular 
project, or that these records will be turned over to the



Br. App. 23 

Appendix B

State highway department. In the event these records are 
turned over to the highway department, that department 
will retain them for a like period. These records shall he 
made available for inspection by representatives of the 
Federal Glovernment at any reasonable hour. Where the 
contract is with a public agency administering another 
Federal grant program, the contract shall specify the finan­
cial responsibilities of each to finance the relocation pro­
gram required by this memorandum.

c. The State highway department shall, under Point 31 
of its policy and procedural statement, identify the office 
in the State highway department which has Statewide re­
sponsibility for implementing the relocation program, the 
director of that office, and the State agency which will ad­
minister the relocation program. It shall also include the 
estimated number and job titles of personnel in the State 
highway department and the State agency who have direct 
responsibility for providing relocating payments and ser­
vices.

d. The organization and procedures of the State agency 
which administers the relocation program shall provide as 
a minimum that:

(1) Each right-of-way project shall have assigned to it 
one or more individuals whose primary responsibility is to 
provide relocation assistance. These individuals may have 
responsibility for more than one project where reasonable.

(2) A local subsidiary office will be established which is 
reasonably convenient to public transportation or within 
walking distance of each project when the division engineer 
determines, after consultation with the State, that the vol­
ume of work or the needs of the displaced persons are such



Br. App. 24 

Appendix B

as to justify the establishment of such an office. These of­
fices shall be open during hours convenient to the persons 
to be displaced, including at least one and preferably more 
evenings per week if necessary.

(3) Regardless of whether a local office is established, 
personal contact will be made with each person as defined in 
paragraph 17, to be displaced to explain the relocation pay­
ments and assistance which are available and to assist in 
completing any applications required. If such contact can­
not be made, the State agency shall furnish documentation 
to show that reasonable efforts have been made to achieve 
this contact.

(4) Relocation officials shall maintain personal contact 
with and shall exchange information with other agencies 
rendering services useful to displaced persons. Such agen­
cies include social welfare agencies, urban renewal agencies, 
redevelopment authorities, public housing authorities, the 
Federal Housing Administration, Veterans Administration 
and Small Business Administration. Personal contact shall 
also be maintained with local sources of information on 
private replacement properties, including real estate 
brokers, real estate boards, property managers, apartment 
owners and operators, and home building contractors. Sub­
scriptions may be maintained for multiple listing services, 
apartment directory services, neighborhood and metropoli­
tan newspapers, etc.

(5) The local relocation office shall maintain and provide:
(a) lists of replacement dwellings available to persons 

without regard to race, color, religion or national origin 
drawn from various sources, suitable in price, size and



Br. App. 25 

Appendix B

condition for displaced persons to the extent they are 
available;

(h) current data for such costs as security deposits for 
utilities, damages, and leases, closing costs, typical down- 
payments, and interest rates and terms;

(c) maps showing the location of schools, parks, play­
grounds, shopping and public transportation routes in the 
area, and

(d) schedules and costs of public transportation.

(6) Other recommended information to he provided by 
relocation offices includes copies of the State’s brochure ex­
plaining its relocation program, local ordinances pertaining 
to housing, building codes, and open housing; FHA and VA 
booklets of information on inspecting and evaluating re­
placement housing; and consumer education literature on 
housing, shelter costs and family budgeting.

7. D evulopmext op R elocation P bogeam P lan

The planning for the relocation program shall be accom­
plished in stages:

a. Conceptual Stage. A project will be considered to be 
in this stage until such time as the final location is ap­
proved. At this stage the tenant is not to be disturbed in 
any way. The cost incurred in connection with securing 
this information is chargeable to preliminary engineering. 
Prior to the completion of this stage and prior to the public 
hearing, the State shall make preliminary investigations 
which will furnish the following information for each of 
the various alternative locations given final consideration.



Br. App. 26 

Appendix B

(1) Approximate number of individuals, families, busi­
nesses, farms, and nonprofit organizations that would be 
displaced.

(2) The probable availability of decent, safe, and sani­
tary replacement housing within the financial means of 
those displaced.

(3) The basis upon which the above findings were made 
and a statement relative thereto by the State to the Bureau 
of Public Boads.

b. Right-of-Way Acquisition and/or Construction Stage.
The State highway department, prior to proceeding with 

right-of-way negotiations and/or construction shall furnish 
the following information for review and approval by the 
division engineer:

(1) The methods and procedures by which the needs of 
every individual to be displaced will be evaluated and cor­
related with available decent, safe, and sanitary housing at 
reasonable rents or prices and readily accessible to his 
place of employment.

(2) The method and procedure by which the State \rill 
assure an inventory of currently available comparable 
housing available to persons without regard to race, color, 
religion or national origin which is decent, safe, and sani­
tary, including t5q>e of building, state of repair, number of 
rooms, needs of the person or family being displaced (based 
on standards outlined in paragraph 13a), type of neighbor­
hood, proximity of public transportation and commercial 
shopping areas, and distance to any pertinent social insti­
tutions, such as church, community facilities, etc. The use 
of maps, plats, charts, etc., would be useful at this stage.



Br. App. 27 

Appendix B

(3) An analysis relating to the characteristics of the 
inventories so as to develop a relocation plan which will:

(a) outline the various relocation problems disclosed by 
the above survey;

(h) provide an analysis of Federal, State and commu­
nity programs affecting the availability of housing currently 
in operation in the project area;

(c) provide detailed information on concurrent displace­
ment and relocation by other governmental agencies or 
private concerns;

(d) provide an analysis of the problems involved and 
the method of operation to resolve and. relocate the re- 
locatees.

(e) estimate the amount of leadtime required and dem­
onstrate its adequency to carry out a timely, orderly and 
humane relocation program;

(f) assure no person lawfully occupying real property 
shall be required to move without at least 90 days written 
notice; and

(g) furnish the names of the agency or agencies, if 
other than the State, which will provide the relocation 
assistance including an analysis of their present workload 
and ability to perform and the estimated number and job 
titles of relocation personnel servicing the project.

9. Replacement H ousing

a. General Provisions
In addition to other payments authorized by this memo­

randum, individuals and families displaced from dwellings 
on real property acquired for a Federal-aid project are en-



Br. App. 28 

Appendix B

titled to supplementary payments in accordance with this 
paragraph. The State highway department or the agency 
administering the relocation program shall develop pro­
cedures to implement this paragraph, which shall be sub­
mitted to the division engineer for his approval. Such 
procedures shall be designed to assure that the availability 
of these payments is brought to the attention of all eligible 
persons as provided in paragraphs 6 and 12 of this memo­
randum.

c. Payment to owner-occupants displaced from dwellings 
who do not qualify for payments under 9(b) and indi­
viduals or families who are occupying rental or leased 
space.

In addition to the moving cost payments to which they 
are entitled under the provisions of paragraph 8c of this 
memorandum, owner-occupants who do not qualify for 
payment under paragraph 9b and tenants who are displaced 
by a highway project are entitled to the following payments 
if they have lawfully occupied the dwelling taken for at 
least 90 days prior to the initiation of negotiations for such 
property.

(1) An individual or family renting a dwelling unit taken 
for a project is entitled to a payment to enable him to rent 
or purchase decent, safe, and sanitary housing. The amount 
of the pajunent shall be determined by subtracting 24 times 
the amount which the displaced individual or family paid 
in rent for the last month immediately before being required 
to move, or 24 times the economic rent as established by 
the State’s appraisal process for his dAvelling unit, which­
ever is the lesser, from the amount necessary to rent a 
decent, safe, and sanitary dwelling for the nest two years, 
but in no event shall this amoimt exceed $1,500. Where rent



Br. App. 29 

Appendix B

is being paid to a State or political subdivision thereof 
economic rent shall be used in determining the amount of 
payment to which the relocatee is entitled.

(2) An owner-occupant who is not eligible for payment 
because he had not actually owned and occupied his dwell­
ing for at least one year prior to the initiation of the nego­
tiation for the acquisition of that property by the State 
or has elected not to purchase a new property shall be en­
titled to the following payment: A sum equal to the differ­
ence, if any, between the cost of renting for the next two 
years a decent, safe, and sanitary dwelling adequate to 
accommodate him and his family in an area not generally 
less desirable in regard to public utilities and commercial 
facilities than the area from which he was displaced and 
12 percent of the acquisition price of the property taken, 
but in no event may this payment exceed $1,500 or the 
amount which the owner-occupant would have received had 
he been eligible for a payment under paragraph 9b, which­
ever is the lesser. This may be used as a rent supplement 
or for a downpayment on the purchase of a dwelling.

g. Hardship cases
In cases of extreme hardship or other similar extenuating 

circumstances, exceptions to the decent, safe, and sanitary 
characteristics of replacement housing may be permitted 
in particular cases and the displaced individual or family 
still qualify for a payment under this paragraph. Such 
exceptions will only be made with the written concurrence 
of the Regional Federal Highway Administrator.

11. A ppeals

a. An applicant for a payment under paragraphs 8, 9, 
or 10 of this memorandum shall be notified promptly in



Br. App. 30 

Appendix B

writing concerning his eligibility for the payment claimed; 
the amount, if any, he is entitled to receive; and the time 
and manner in which snch payment will he made. Such 
notification shall also inform the applicant of his right to 
appeal and the procedures therefor, in the event the ap­
plicant is dissatisfied with the initial ruling on his applica­
tion for such payments.

b. The head of the State agency shall establish pro­
cedures, consistent with the applicable State law, for 
reviewing appeals under this memorandum. Those pro­
cedures shall provide, at the minimum, that any person 
taking such an appeal shall be given (1) full opportunity 
to be heard and (2) a prompt decision giving reasons in 
support of the result reached.

c. The State highway department shall submit to the 
division engineer under Point 31 of its policy and procedural 
statement the procedure which has been established for 
review of determinations under paragraphs 8, 9, and 10 
of this memorandum.

12. P u b l i c  I n f o b m a t i o n

In order to assure that the public has adequate knowledge 
of the relocation program, the State highway department 
shall include with requests for authorizations to proceed 
on projects causing displacement a statement that it has 
or will take the following steps:

a. The relocation program described in paragraphs 6 
through 11 of this memorandum has been discussed at all 
public hearings required by 23 IT. S. Code 128 and the 
PPB’s implementing that section. The State shall prepare 
a brochure describing its relocation program and distribute



Br. App. 31 

Appendix B

the same without cost at all public hearings and to all other 
individuals and organizations as appropriate. The brochure 
shall state where copies of any State regulations implement­
ing the relocation assistance program can be obtained.

h. The State agency shall provide full and adequate pub­
lic notice of the relocation payments to be made and services 
to be rendered. Such public notice shall include the utiliza­
tion of local newspapers, radio, and television stations (with 
particular emphasis on those which are read or listened 
to by the residents on the project) and local meetings for 
dissemination of news releases, advertisements, announce­
ments and the like.

c. The State agency shall prepare and furnish each indi­
vidual, family, business, and farm operator to be displaced 
by the project a written description of the (1) location as­
sistance payments and services available; (2) the eligibility 
requirements and procedures for obtaining these payments 
and services; and (3) the right to appeal and procedure 
for appealing to the head of the State agency or the ofBcial 
designated to act for him. The above information shall 
be furnished by means of personal contact with those to he 
displaced unless an alternative method is approved by the 
division engineer. This information shall be furnished 
simultaneously with the initiation of negotiations for the 
property involved, and to tenants not later than 15 days 
after a contract for the purchase of property involved has 
been entered into. In no event shall such notice be less 
than 90 days prior to the date the tenant will be required 
to move. The individual furnishing this information shall 
document the tile to that effect.



Br. App. 32 

Appendix B

13. S tandakds for D ecent, Safe and S anitary H ousing

a. A decent, safe, and sanitary dwelling is one which 
meets all of the following minimum requirements:

(1) Conforms with all applicable provisions for exist­
ing structures that have been established under State or 
local building, plumbing, electrical, housing and occupancy 
codes and similar ordinances or regulations applicable to 
the property in question.

(2) Has a continuing and adequate supply of potable 
safe water.

(3) Has a kitchen or an area set aside for kitchen 
use which contains a sink in good working condition and 
connected to hot and cold water, and a sewage disposal 
system. A stove and refrigerator in good operating condi­
tion shall be provided when required by local codes, ordi­
nances or custom. When these facilities are not so re­
quired by local codes, ordinances, or custom the kitchen 
area or area set aside for such use shall have utility service 
connections and adequate space for the installation of such 
facilities.

(4) Has an adequate heating system in good working 
order which will maintain a minimum temperature of 70 
degrees in the living area under local outdoor design tem­
perature conditions. A heating system will not he required 
in those geographical areas where such is not normally 
included in new housing.

(5) Has a bathroom, well lighted and ventilated and 
affording privacy to a person within it, containing a lava­
tory basin and a bathtub or stall shower, properly con­
nected to an adequate supply of hot and cold running



Br. App. 33 

Appendix B

water, and a flush water closet, all in good working order 
and properly connected to a sewage disposal system.

(6) Has provision for artificial lighting for each room.
(7) Is structurally sound, in good repair and adequately 

maintained.
(8) Each building used for dwelling purposes shall have 

two safe unobstructed means of egress leading to safe 
open space at ground level. Each dwelling unit in a multi­
dwelling building must have access either directly or 
through a common corridor to two means of egress to 
open space at ground level. In buildings of three stories 
or more, the common corridor on each story must have at 
least two means of egress.

(9) Has 150 square feet of habitable floor space for 
the first occupant in a standard living unit and at least 
100 square feet of habitable floor space for each additional 
occupant. The floor space is to be subdivided into sufficient 
rooms to be adequate for the family. All rooms must be 
adequately ventilated. Habitable floor space is defined as 
that space used for sleeping, living, cooking or dining 
purposes, and excludes such enclosed places as closets, 
pantries, bath or toilet rooms, service rooms, connecting 
corridors, laundries, and unfinished attics, foyers, storage 
spaces, cellars, utility rooms and similar spaces.

b. Rental of sleeping rooms. The standards for decent, 
safe, and sanitary housing as applied to the rental of 
sleeping rooms shall include the minimum requirements 
contained in subparagraphs a(l), (4), (6), (7) and (8) 
of this paragraph and the following:



Br. App. 34 

Appendix B

(1) At least 100 square feet of habitable floor space for 
the first occupant and 50 square feet of habitable floor 
space for each additional occupant.

(2) Lavatory and toilet facilities that provide privacy 
including a door that can be locked if such facilities are 
separate from the room.

(c) In lieu of the standards listed in this paragraph the 
agency providing the relocation assistance described in the 
PPM may submit for approval by the Director of Public 
Eoads a local housing code by means of which the decent, 
safe, and sanitary nature of replacement housing for a 
project is to be judged. Any code so submitted shall be 
reasonably comparable to the list of standards incorpo­
rated in this paragraph.

d. The Director of Public Eoads may approve excep­
tions to the standards in this paragraph where unusual 
conditions exist.

17. D epinitioxs

As used in this PPM

c. Displaced Person
The term “displaced person” means any person who 

moves from real property on or after the efl êctive date of 
this memorandum as a result of the acquisition or reason­
able expectation of acquisition of such real property which 
is subsequently acquired, in whole or in part, for a Federal- 
aid highway, or as the result of the acquisition for a Federal- 
aid highway or other real property on which such person 
conducts a business or farm operation. A person who moves



Br. App. 35 

Appendix B

from real property which is subsequently acquired for a 
Federal-aid highway as a result of the “reasonable expecta­
tion of acquisition of such real property” is one who moves 
from such property (1) after notification by the State high­
way department that the property is to be acquired for a 
project, or after the location of the highway has been def­
initely established and approved by the Bureau of Public 
Roads and (2) within 12 months before the property is 
scheduled to be taken by the State;

f. Federal Agency
The term “Federal agency” means any department, 

agency or instrumentality in the executive branch of the 
government and any corporation wholly owned by the 
government.

g. State Agency
The term “State agency” means a State highway depart­

ment or any agency designated by a State highway depart­
ment to administer the relocation assistance program au­
thorized by Chapter 5, Title 23, U.S.C.

h. Displacement
The vacating by the eligible person of real property after 

the happening of any one of the following events shall be 
deemed to be a displacement as a result of the acquisition 
or clearance of right-of-way for or construction of a 
Federal-aid highway project;

(1) The State highway department or political subdivi­
sion becomes entitled to possession of the real property



Br. App. 36 

Appendix B

pursuant to an agreement or a court order in a condemna­
tion proceeding instituted for the purpose of acquiring title.

(2) Title to the real property is conveyed to the State 
highway department or political subdivision by the owner 
thereof.

(3) A binding contract for the purchase of the real prop­
erty is entered into by the State highway department or 
political subdivision and the owner of such real property, 
if the real property is not occupied by another eligible per­
son prior to acquisition of title or right of possession.

(4) Public Roads authorizes the State to proceed with 
the relocation prior to actual acquisition of title or posses­
sion of the real property by the State highway department, 
or political subdivision.

(5) Any other move from real property subsequently 
acquired for a Federal-aid highway, which takes place as 
a result of the reasonable expectation that the property will 
be acquired for the highway, shall be deemed a displace­
ment caused by the highway project for purposes of this 
PPM.



Br. App. 37 

Appendix B

U.S. D e p a r t m e n t  o e  T r a n s p o r t a t io n  

Federal Highway Administration 
Bureau of Public Roads 
Washington, D.C. 20591

December 26, 1968

C ir c u l a r  M e m o r a n d u m  To: Regional Federal Highway
Administrators and Division 
Engineers

F rom : J. A. Swanson, Director of Right-of-Way and 
34—10 Location Washington, D. C. s/ John A. Swanson

S u b j e c t : Relocation Procedures

A question has arisen as to whether it is necessary for a 
State to furnish all of the information required by para­
graph 7b of IM 80-1-68 if the State’s legal opinion and as­
surances indicate that the State cannot under present State 
law conform to the requirements of the 1968 Act relative 
to making replacement housing payments to enable dis­
placed persons to move into decent, safe and sanitary 
housing.
Under such circumstances the State cannot reasonably be 
expected to furnish all of the information required by para­
graph 7b. The State should, however, survey the avail­
able housing and have information relative thereto acces­
sible to the relocatees in accordance with the requirements 
of paragraph 6d(5). Under paragraph 7b(3) the division 
engineer should insist that the State furnish an analysis 
of the relocation problems and possible solutions in suf­
ficient detail to enable him to determine the advisability of



Br. App. 38 

Appendix B

proceeding with the project and to assure that no reloeatee 
will be required to move unless there is satisfactory re­
placement housing available to him. The State should, of 
course, make every effort that it can under existing law 
to see that the displacee is relocated in decent, safe and 
santitary housing.
When he is satisfied that conditions exist which will result 
in fair and equitable treatment of the relocatees the divi­
sion engineer may authorize negotiations and/or construc­
tion even though the State cannot make the payments to 
place the relocatees in decent, safe and sanitary housing.



Br. App. 39 

Appendix B

U.S. D e p a e t m e n t  oe  T e a e s p o e t a t i o n  

Federal Highway Administration 
Bureau of Public Roads 
Washington, D.C. 20591

February 12, 1969

C iB ouL A E  M b m o e a u d ij m  T o : Regional Federal Highway
Administrators and Division 
Engineers

F eom : J. A. Swanson, Director of Right-of-Way and 
34-10 Location Washington, D. C. s/ John A. Swanson

S u b j e c t : Relocation Procedures—Going Projects

Paragraphs 2 (h) (2) and (3) of IM 80-1-68 state that its 
provisions are applicable to all active Federal-aid projects 
and to all other active projects upon which the State later 
intends to construct a Federal-aid project where there re­
main individuals families, businesses, farm operations, and 
non-profit organizations which will be displaced.
In accomplishing the planning for the relocation program 
required under paragraph 7, the State should undertake 
such planning on all active projects to the extent that it is 
reasonable and proper. Each such project undoubtedly will 
involve a different set of circumstances and conditions. It, 
therefore, will he necessary for the division engineer to 
carefully review the status of each project before issuing 
any additional authorizations to acquire right-of-way or 
to authorize construction on a project for which right of 
way was acquired after August 23, 1968, irrespective of 
the source of funds utilized for such acquisition, to assure



Br. App. 40 

Appendix B

himself that the State has or will make the necessary re­
locations Avithout undue hardship to the relocatees. If a 
major portion of the relocations have previously been ac­
complished very little good would result from going through 
the conceptual stage study. However, if a substantial num­
ber of persons remain to he relocated at any time an au­
thorization is requested which would require such reloca­
tion, it would seem that the division engineer would need 
to have the information required by paragraph 7b. Some 
variation may be permitted by the division engineer when 
the circumstances warrant.
It should always be borne in mind that regardless of the 
information furnished at this stage of the project it is 
the responsibility of the State to furnish relocation assis­
tance, and payments where authorized by State law, in 
accordance with the requirements of the law and the Im. 
At no time should a relocatee be forced into housing less 
desirable than that from which he Avas required to move 
and to the extent possible under State law all relocations 
should be made to decent, safe and sanitary dwellings.



M e m o r a n d u m

Br. App. 41 

Appendix B

DEPARTMENT OF TRANSPORTATION 
Office of the Secretary

Date: January 15, 1970

s u b j e c t : Implementation o f  Replacement 
Housing Policy

FROM

TO

The Secretary

Commandant, United States Coast Guard 
Federal Aviation Administrator 
Federal Highway Administrator 
Federal Railroad Administrator 
Urban Mass Transportation Administrator

I have reviewed the procedures for implementation of the 
DOT replacement housing policy as submitted in response 
to my October 20, 1969, memorandum.
I find that some of the submissions should be improved 
to clearly emphasize and cover certain aspects of this new 
policy. Ordinarily I would request that the necessary 
changes be made and the procedures resubmitted to me for 
final approval. However, I  consider this new policy so 
important that I am approving the procedures at this time 
so that you can make the necessary changes and place 
them into effect without delay. For your assistance in this 
regard, attached are copies of all of the proposed proce­
dures submitted. The procedures for the Federal Railroad 
Administration are still being developed and will be pro­
vided other addresses by the Federal Railroad Adminis­
trator directly.



Br. App. 42 

Appendix B

Each of you should reexamine your proposed procedures 
and make any modifications or changes necessary to make 
certain that they emphasize and provide full and specific 
coverage of the following points:

1. Specific written assurances that adequate replacement 
housing will he available or provided for (built, if 
necessary) will he required before the initial approval 
or endorsement of any project.

2. Construction will be authorized only upon verification 
that replacement housing is in place and has been 
made available to all afPected persons.

3. All replacement housing must be fair housing—open 
to all persons regardless of race, color, religion, sex 
or national origin. This is in addition to the require­
ment that replacement housing must be offered all 
affected persons regardless of their race, color, re­
ligion, sex or national origin. Coverage of these two 
points is consistent with the requirements of Title 
VIII of the Civil Rights Act of 1968 and Title VI of 
the Civil Rights Act of 1964.

Copies of your final procedures to implement this policy 
should be submitted to the Department Director of Civil 
Rights as soon as possible.

/ s /  J ohn VoLPE

Attachments



Br. App. 43 

Appendix B

U . S .  D b p a e t m b n t  o f  T e a n s p o e t a t io n  

Federal Highway Administration 
Bureau of Public Eoads 
Washington, D.C. 20591

CIECULAB MEMOEANDTJM TO :

April 10, 1970

Eegional Federal Highway 
Administrators and Division 
Engineers

FEOM : John A. Swanson, Associate Director 
34—10 for Eight-of-Way and Location

Washington, D.C.

su b je c t : Eelocation Assistance—Availability of Eeplace- 
ment Housing (Supersedes White Circular Mem­
orandum dated March 27, 1970)

This memorandum is applicable to the following:
a. All Federal-aid or any other highway projects fi­

nanced in whole or in part with Federal-aid highway 
funds or other Federal funds authorized on or after 
May 1, 1970, involving rights-of-way which are oc­
cupied by an individual or family.

b. All Federal-aid or any other highway project fi­
nanced in whole or in part Avith Federal-aid highway 
funds or other Federal funds authorized prior to 
May 1,1970, on which individuals or families are still 
to be displaced as of May 1, 1970.

The division engineer shall not authorize any phase of 
construction (clearance of right-of-way regardless of how



Br. App. 44 

Appendix B

performed is considered to be a construction phase insofar 
as this memorandum is concerned) which would require 
the displacement of individuals or families, or permit the 
dislocation of individuals or families on any such project 
or on any project already authorized, until such time as 
the person being relocated has either by himself obtained 
and has the right of possession of adequate replacement 
housing or the State offers him adequate replacement hous­
ing which is available for immediate occupancy.
Such replacement housing shall be:

a. Fair housing—open to all persons regardless of race, 
color, religion, sex, or national origin.

b. In areas not generally less desirable in regard to :
1. Public utilities
2. Public and commercial facilities

c. Available at rents or prices 'within the financial means 
of the families and individuals displaced.

d. Decent, safe and sanitary.
e. Reasonably accessible to the displacees’ places of 

employment.
f. Adequate to accommodate the displacee.

The applicable PPM’s and IM’s are being revised to con­
form to the above policy.



Br. App. 45 

Appendix B

IJwiTED S tates GtOVernm ent  
Memorandum

SUBJECT :

DEPARTMENT OE TRANSPORTATION
Office of the Secretary

Date, November 6, 1970

Interstate Highway 77—Triangle area 
Charleston, West Virginia

EROM : Under Secretary of Transportation

To : Federal Highway Administrator

The Secretary has reviewed this subject matter in depth 
and has determined that the FHWA approval of the De­
partment of Highways location of 1-77 within the Triangle 
Area is reaffirmed subject to the understanding, as regards 
the segment from Elk River to the Pennsylvania Railroad 
that:

(1) Appropriate steps have been taken and will con­
tinue to insure that all relocation resources are avail­
able to the relocatees on a fair housing basis.
(2) Every effort will be made through coordination 
with the Charleston Urban Redevelopment Authority 
and its HUD financed programs to assist in low-income 
rental housing being available beyond the end of the 
2-year rent supplement period, provided by the high­
way program.
(3) Further construction involving the Triangle Area 
will be authorized only after the people now living 
within the right-of-way in that area have been relocated



Br. App. 46 

Appendix B

into adequate decent, safe and sanitary housing, in 
accordance with DOT Order 5620.1.
(4) A continuous elevated viaduct design will be em­
ployed from Elk River to Capitol Street, suitable to 
the development of other land uses underneath and 
adjacent to the viaduct.
(5) Future use of land adjacent to and underneath 
the Interstate highway will be coordinated with local 
and State officials and the Charleston Urban Rede­
velopment Authority for the enhancement of the pro­
posed urban redevelopment projects including com­
mercial enterprises between Elk River and Capitol 
Street.

Subject to the above-listed understanding, projects now 
under suspension may be reactivated and you may au­
thorize resumption of planning and design activities of 
various phases of w'ork which are necessary to expedite 
construction. The demolition of buildings in the Triangle 
Area in order to prevent vandalism, occupation by squat­
ters, and in the interest of public health, may be authorized 
at the discretion of the Division Engineer as the relocation 
of persons is accomplished.
You are asked to make immediate contact with the Depart­
ment of Housing and Urban Development to insure full 
coordination and a minimum of delay in concurrent ad­
vancement of its programs for redevelopment of the Tri­
angle Area.

/ s /  J a m e s  M . B e g g s  

James M. Beggs



Br. App. 47

APPEINDIX C

Legislative Histary of 1968 Relocation 
Amendments to Federal-Aid Highway Act

The 1968 relocation amendments to the Federal-Aid 
Highway Act resulted from a decade of efforts “to insure 
that a few individuals do not suffer disproportionate in­
juries as a result of programs designed for the benefit of 
the public as a whole.”  ̂ The background and history of 
this effort demonstrates that the amendments were designed 
to remedy a serious national wrong.

In 1962, President Kennedy recommended to Congress 
that a relocation program of the type required under urban 
renewal laŵ  be extended to the Federal-Aid Highway pro­
gram.® The response to the recommendation, 23 IJ.S.C.

1 23 U.S.C. §501. The Senate report on the legislation noted:
The problem of providing adequate relocation assistance to 
those persons . . . displaced hy highway construction on the 
Federal-Aid system has long been a subject of the committee’s 
attention.

1968 U.S. Code Cong. Ad. News 3487.
In support of a relocation bill proposed in 1957, one year after 

the first Federal-Aid Highway Act, Senator Javits said:
It is our aim to ease in every way the burdens of moderate and 
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 to­
ward this objective of humanitarianism and justice.

103 Cong. Eec. 5316-7 (1957).
2 See 42 U.S.C. §1465.
® The Transportation System of Our Nation, Message to Congress, 

April 5, 1962, House Document No. 384.



Br. App. 48 

Appendix C

§133* required assurances of “relocation advisory as­
sistance” and authorized the payment of minimal reloca­
tion assistance to dislocatees.® Significantly, Congress 
limited the applicability of those requirements to projects 
approved after the efirective date of the act,® a limitation 
not found in the 1968 act.

The inadequacies of the 1962 act soon became manifest'' 
and the ever-increasing human disruption caused by high­
way displacement was emphasized for Congress by three 
successive government studies. Each pointed out the hard­
ships created by the lack of sufficient relocation housing and 
assistance, and each called for the kind of remedial action 
which the 1968 amendments provide.

The first was the work of a select subcommittee of the 
House Committee on Public Works.® Its central findings 
confirmed that displacement caused by federally assisted 
programs severely disadvantaged the poor and minority 
groups:

Most displacements affect low- or moderate-income 
families or individuals, for whom a forced move is a

* Repealed by the 1968 law, Pub. L. 90-495 §37.
® Limited to $200 for individuals or families and $3000 for busi­

nesses, 23 U.S.C. §133 (d).
® 23 U.S.C. §133 (e), Br. App. 2, supra.
’ In the words of Judge Sobeloff: “The cold administrative in­

difference to the plight of those left without roofs over their heads 
mounted to the level of a national scandal.” App. 74a, 429 P.2d at 
424. The one case construing §133 held, not surprisingly, that its 
requirement of advisory assistance does not compel the state to 
provide actual housing. Small v. Ives, 296 P. Supp. 448, 455 (D. 
Conn, 1968) (3-judge court).

* Select Committee on Real Property Acquisition, Study of Com­
pensation and Assistance for Persons Affected hy Beal Property 
Acquisition in Federal and Federally Assisted Programs, 88th 
Cong., 2nd Sess. (1964). (Committee Print No. 31.)



Br. App. 49 

Appendix C

very difficult experience. The problem is aggravated 
for the elderly, the large family, and the nonwhite dis- 
placee. The lack of standard housing at prices or rents 
that low- or moderate-income families can afford is the 
most serious relocation problem.®

The committee’s findings were confirmed in a report of the 
Advisory Commission on Intergovernmental Relations^® 
which further emphasized that the burdens of displacement 
fall unevenly on the poor and nonwhite. A principle prob­
lem which it noted was the absence of a requirement that 
the State officials provide assurances of “a ‘feasible method’ 
of relocating families and individuals and an adequate sup­
ply of standard housing available.” It also emphasized 
the necessity of intelligent planning for relocation needs, 
but noted that;

even with advance planning as an essential part of an 
overall system of minimizing the hardships of dis­
placement, it seems that, at least in the bigger, older, 
more congested cities, containing the underprivileged, 
elderly, and non-white particularly, positive measures 
of relocation assistance and service are indispensable.^®

The report found that the most serious problems in reloca­
tion were the shortage of housing for low income groups 
and the special burdens found by non-whites, the elderly.

® M. at 106.
Advisory Commission Intergovernmental Relations, Relocation: 

Unequal Treatment of People and Businesses Displaced by Oovern- 
ment (1965).

“  Id. at 74-75.
1® Id. at 76.



Br. App. 50 

Appendix C

and those with large families in urban areasd® It recom­
mended that the states be required to assure in advance 
the necessary number of proper housing units to meet the 
needs of displaceesl^

In response, the Congress in 1966 ordered the Secretary 
of Commerce, the department then in charge of highway 
programs, to make a detailed report of relocation prob­
lems and recommended solutions, to be submitted no later 
than July 1, 1967.“ The report of the Senate Committee on 
Publics Works which accompanied the 1966 highway act 
stated that the operation of 23 U.S.C. §133 “has not been 
fully satisfactory and effective . . The report further 
expressed the Committee’s concern that “the situation has 
worsened as construction of the Interstate System has 
moved into heavily developed urban areas.” “ The result­
ing study, issued by the Secretary of Transportation," re­
stated the problems which were already well known, and 
urged prompt federal action."

The decade of reform efforts resulted in the relocation 
provisions of the Federal Aid Highway Act of 1968, 23

" Id. at 104-105.
“ 7d. at 114-117.

“ Pub. L. 89-574, §12, Sept. 13, 1966, 80 Stat. 770, supra at 
Br. App. 2-3.

“  1966 U.S. Code Cong. & Ad. News 3043-4.
" Highway Relocation Assistance Study, 90th Cong., 1st Sess. 

(1967). (Committee Print No. 9.)
The urgency of federal action was underscored by the projec­

tion that between July 1, 1967, and June 30, 1970, 146, 950 residen­
tial units would be displaced by federally aided highway construc­
tion 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 41. Cf. 1968 U.S. Code Cong. & Ad. News 3512.



Br. App. 51 

Appendix C

U.S.C. §501 et seq. The committee reports, floor debate, 
and language of the 1968 amendments all confirm what the 
history of the previous decade showed—that the relocation 
amendments were truly “remedial,” and their immediate 
implementation was urgent. During debate on the Federal- 
Aid Highway Act of 1968, the importance of adequate 
relocation was continually restated. The relationship of 
highway displacement to urban unrest was very much in 
the forefront of Congressional concern. The principal 
sponsor of the 1968 Act, Senator Jennings Randolph,” 
spoke of the urgent need for a comprehensive highway 
relocation program:

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

As Senator Randolph continued, immediate 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.^^

Senator Randolph is from West Virginia, and was undoubtedly 
aware of the relocation problems in his home state which had al­
ready become apparent at the time he spoke.

2° 114 Cong. Rec. 8037.
Id. at 8038. The Senate Report on this act points out:
The evidence showed also that, because urban interstate high­
ways often go through rundown, dilapidated, low-income or 
so-called disadvantaged areas, those persons least able to afford 
dislocation are frequently the ones who are forced to move by 
our highway programs.



Br. App. 52 

Appendix C

The language of the Act itself makes clear its remedial 
and urgent nature. Its “Declaration of Policy,” states that 
the “prompt and equitable relocation” of persons displaced 
by federal highway construction

is necessary to insure that a few individuals do not 
suffer disproportionate injuries as a result of pro­
grams designed for the benefit of the public as a whole.̂ ^

The Act was declared effective and fully operative on the 
date of its enactment.

In the face of this legislative history and the require­
ments of the Act itself, a response to the well documented 
need for relocation reform to alleviate the human misery 
and social unrest caused by previous highway displace­
ment, any interpretation which prevents the immediate 
effective implementation of the Act for the benefit of those 
who had not yet been moved from their homes at the time 
of its enactment ought to be soundly rejected.

In this regard it was pointed out that often when persons 
are displaced from these areas there is no housing or replace­
ment property available for their relocation. People are thus 
forced to move, but have no place to go; or if other housing 
or replacement property does exist, it is usually well beyond 
their financial capabilities. The evidence shows clearly that 
there is a definite need for procedures which provide for com­
parable replacement housing and property at the time such 
displacement occurs.

1968 U.S. Code Cong. & Ad. News 3488. Cf. id. at 3512.
2^23 U.S.C. §501, Br. App.

Pub. L. 90-495 §37, Aug. 23, 1968, 82 Stat. 831. The one limit­
ing feature in the act provides that until July 1, 1970, it “shall be 
applicable to a state only to the extent that such state is able under 
its laws to comply . . .” IMd. Even here, this law was more definite 
than the earlier one, which a state could avoid completely by failing 
to enact enabling legislation. 23 U.S.C. §133 (c). Here the states 
were obliged to conform their laws, if needed, by July 1, 1970, or 
risk losing the benefits of federal assistance.



MEIIEN PRESS INC. —  N. Y. C. 219