Williams v. Board of Supervisors of Elections of Choctaw County Brief of Appellants

    IN THE

United States Court of Appeals
FOR THE FOURTH C IRCUIT

FAIRFAX COUNTYWIDE CITIZENS ASSOCIATION, et a l,
Plain tiff-Appellees 
and Cross-Appellants,

COUNTY OF FAIRFAX, VIRGINIA, et al,
Defendan t-A ppellan ts 
and Cross-Appellees.

On Appeal and Cross-Appeal from the United States 
District Court for the Eastern District o f Virginia

BRIEF FOR
PLAINTIFF-APPELLEES AND CROSS-APPELLANTS

ALLISON W. BROWN, JR., 
Suite 301
1345 E Street, N.W.
Washington, D.C. 20004

ROBERT M. ALEXANDER 
2011 South Glebe Road 
Arlington, Virginia 22204
Attorneys for Plaintiff-Appellees 

JACK GREENBERG and Cross-Appellants
JAMES M. NABRIT, III 
10 Columbus Circle 
New York, N. Y. 10019

O f Counsel

C A S IL L A S  PRESS, IN C . -1 7 1 7  K  Street, N.W.-WaShlngton, O .C.--223-1220



INDEX

Page

Statement of issu es......................................................................................................................... 1

Statement o f the c a s e .......................................................................    2

A. History o f the proceed ing .............................................................................................. 2

B. The reopened p r o c e e d in g .............................................................................................  5

C. Present status o f the c a s e .............................................................................................  6

A rg u m en t.........................................................................................................................................  8

I. The County’s and State’s insistence that roads in black 
neighborhoods conform to an unreasonable right-of-way 
standard as a condition o f being paved violates the set­
tlement agreement, and constitutes arbitrary and capri­
cious government action in violation o f plaintiffs’ con­
stitutional r i g h t s .............................................................................................................  8

A. Insistence on compliance with the 30’ right-of-
way standard with respect to the roads in is­
sue is a breach o f the settlement agreem en t............................................  8

B. State laws that are unreasonable, arbitrarily and 
capriciously administered, and racially discrimi­
natory are not a defense to the County’s breach
of the settlement agreement .......................................................................  13

II. The excuses given by the County for is refusal to carry 
out its commitment under the settlement agreement to 
upgrade and pave roads in black neighborhoods were
properly found by the district court to be without m e r i t .................................  19

0)

Conclusion 24



AUTHORITIES CITED

Page
Cases:

Board o f Supervisors of Tazewell County v. Norfolk & W. Ry. Co.,
119 Va. 763, 91 S.E. 124 ( 1 9 1 6 ) ..................................................................................  15

Bradely v. School Board o f Richmond, Virginia, 324 F. Supp. 396 
(E.D.Va., 1971), rev’d on other grounds, 462 F.2d 1058 (C.A.4,
1972), a ffd  412 U.S. 92 ( 1 9 7 3 ) ........................................................................................  13

City of Danville v. Anderson, 189 Va. 662, 53 S.E.2d 793 ( 1 9 4 9 ) ............................ 15

Costello v. Wainwright, ___  U.S. ___ , 45 U.S.L.W. 3632 ( 1 9 7 7 ) ............................  14

District of Columbia v. Robinson, 180 U.S. 92 ( 1 9 0 1 ) .................................................. 15

Dixon v. Anderson, 252 F. 694 (C.A.4, 1 9 1 8 ) ..................................................................  13

Gautreaux v. Chicago Housing Authority, 342 F. Supp. 827 (N.D. I..,
1972), a ffd  480 F.2d 210 (C.A.7, 1973), cert, denied, 414 U.S. 1144 . . .  13

Haney v. County Board of Education o f Sevier County, 429 F.2d 364
(C.A.8, 1970)   14

Hawkins v. Town of Shaw, Miss., 437 F.2d 1286 (C.A.5, 1971), affirmed
on rehearing 461 F.2d 1172 ( 1 9 7 2 ) ..................................................................................  3

Louisiana v. United States, 380 U.S. 145 ( 1 9 6 5 ) ............................................................  13

Two-Way Tronics, Inc. v. Greater Washington Educational Television
Ass’n, 106 Va. 110, 141 S.E. 2d 742 ( 1 9 6 5 ) ............................................................... 13

United States v. Warwick Mobile Home Estates, 537 F.2d 1148 (C.A.4, 1976) . . 13

Virginia Hot Springs Co. v. Lowman, 126 Va. 662, 53 S.E. 326 (1919) . . . . 15

Constitution and Statutes:

U.S. Constitution, Fourteenth A m e n d m e n t ............................................................................. 3

42 U.S.C. Sec. 1983   2

Code o f Virginia (1950), Sec. 33.1-184 ..........................................................................  15

Code of Virginia (1950), Sec. 33.1-230 ..........................................................................  14

(ii)



IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

Nos. 77-1190, 77-1248

FAIRFAX COUNTYWIDE CITIZENS ASSOCIATION, et al,
Plain tiff-Appellees 
and Cross-Appellants,

COUNTY OF FAIRFAX, VIRGINIA, et al,
Defendant-Appellants 
and Cross-Appellees.

On Appeal and Cross-Appeal from the United States 
District Court for the Eastern District o f Virginia

BRIEF FOR
PLAINTIFF-APPELLEES AND CROSS-APPELLANTS

STATEMENT OF ISSUES

1. Whether the County’s and State’s insistence that roads in black neigh­
borhoods conform to an unreasonable right-of-way standard as a condition of 
being paved violates the settlement agreement and constitutes arbitrary, capri­
cious and racially discriminatory government action in violation of plaintiffs’ 
constitutional rights.



2

2. Whether the excuses given by the County for its refusal to carry out 
its commitment under the settlement agreement to upgrade and pave roads in 
black neighborhoods were properly found by the district to be without merit.

STATEMENT OF THE CASE

This proceeding is before the Court on an appeal and cross-appeal from 
an order of the district court (Judge Oren R. Lewis) issued on November 26, 
1976 (A. 93-95) and the district court’s memorandum opinion of September 
27, 1976 (A. 82-88). The appellants in No. 77-1190 are the County of Fair­
fax, Virginia, and the Chairman and members of its Board of Supervisors, who 
are appealing from the district court’s ruling that they must perform the pro­
visions of a settlement agreement that they entered into with the plaintiffs in 
this civil rights proceeding on May 31, 1972 (A. 34-35). In that settlement 
agreement the County agreed to upgrade and pave 75 roads located in pre­
dominantly black neighborhoods of Fairfax County. The appellants in No. 
77-1248, who were the plaintiffs below, are black residents of the County 

and their civic associations. They are appealing against not only the County 
and its officials, but also Virginia State Highway Commissioner Douglas B. 
Fugate, who was also a defendant below. The cross-appeal is from the dis­
trict court’s refusal to prevent County and State officials from insisting on 
an arbitrary 30' right-of-way as a condition of paving roads in black neigh­

borhoods in circumstances where a right-of-way of that width does not exist, 
and to obtain it through condemnation proceedings would effectively destroy 
the neighborhoods and the properties and homes of many black residents.

A. History of the proceeding

This action was brought under 42 U.S.C. Sec. 1983 by black residents 
and civic associations of Fairfax County, Virginia, to compel the County and 
State governments to remedy inequalities in public services and facilities pro­
vided in black neighborhoods of the County as compared to those provided 
in white neighborhoods. The complaint, filed on August 24, 1971, alleged



3

that black residents of the County were being deprived of their right to equal 
protection of the laws guaranteed by the Fourteenth Amendment to the Con­
stitution (A. 1-5). The complaint alleged that black neighborhoods, in con­
trast to white neighborhoods, were generally characterized by unpaved and 
substandard streets, inadequate storm drainage, lack of curbs and gutters, and 

lack of public sidewalks. The plaintiffs in the case include the Fairfax County­
wide Citizens Association, Gum Springs Civic Association, and the Springdale 

Civic Association, organizations with mainly black memberships that are con­
cerned with protecting and promoting the interests of black residents of the 
County. The plaintiffs also include six black residents of the County who, 
at the time the action was brought, resided on unpaved roads and were thus 
adversely affected by defendants’ discriminatory policies and actions.

The action initially was brought also on behalf of black residents of the 
Town of Herndon, in Fairfax County, against the Town, its Mayor and mem­
bers of the Town Council, alleging racial discrimination in the provision of 
public services and facilities. However, the Herndon defendants have satisfac­
torily performed the terms of a settlement agreement that they entered into 
with plaintiffs, so that aspect of the case is no longer pending.

Subsequent to the filing of the complaint, the defendants filed motions 
to dismiss which, following a hearing, were denied by the district court (Judge 
Albert V. Bryan, Jr.) in a memorandum opinion and order dated December 
2, 1971 (A. 16-19). The court ruled that the complaint sufficiently alleged 
disparities in the quantity and quality of public services provided to white 
and black residents of the County which, if proved, would establish a prima 
facie case of racial discrimination in violation of the Fourteenth Amendment. 
Citing Hawkins v. Town o f  Shaw, Miss., 437 F.2d 1286 (C.A. 5, 1971), af­
firmed on rehearing, 461 F.2d 1172 (1972).

By means of pretrial discovery and extensive field investigation of Fair­
fax County neighborhoods, plaintiffs adduced evidence showing that 61 per­
cent of the black residents of the County lived on unpaved streets or in neigh­

borhoods characterized by unpaved streets, while only 0.6 percent of the white



4

residents of the County were so situated (A. 29). Evidence demonstrating 
these facts as well as other data showing the inferior condition of streets and 

related facilities in black neighborhoods were incorporated into exhibits which 
were furnished to defendants pursuant to the district court’s pretrial order. 
Plaintiffs, though their exhibits, pretrial statement answers to interrogatories 

and depositions, provided defendants with detailed information concerning 
the legal and evidentiary grounds on which they expected to proceed to trial 
{ibid.). One of the exhibits furnished to defendants, identified as Plaintiffs’ 
Exhibit P-6, consisted of a detailed descriptive listing of 89 substandard roads 
in black neighborhoods of the County. Included as part of the exhibit were 
60 photographs graphically illustrating the inferior condition of many of the 

roads in question.

The trial was scheduled to begin in the district court on June 1, 1972. 
However, the case was settled prior to trial when officials of the County and 
State governments on May 31 and June 1, 1972, respectively, agreed to pro­
vide the principal relief sought by plaintiffs. Since the case did not go to 
trial, the responsibility as between the County and State for the substandard 
condition of roads and attendant facilities in black neighborhoods was not 
resolved through litigation. County and State officials were both named in 
the complaint, however, and relief was sought against them jointly. For 

purposes of settlement, the County and State apportioned the responsibility 
for remedying the discrimination against plaintiffs and two settlement agree­
ments were therefore executed. Under one agreement, Fairfax County agreed, 
inter alia, that over a 3-year period commencing July 1, 1972, it would up­
grade and pave 76 roads located in predominantly black neighborhoods (A. 
34-35).1 Under the other settlement agreement, the State promised to

1 The agreement by its terms referred to the roads listed in Plaintiffs’ Exhibit P-6, except 
those which the State agreed to upgrade. The County states (Br. 9) that there were 75 
roads covered by the settlement agreement, whereas plaintiffs have contended that there 
were 76. The difference is immaterial at this stage, however, since the County has agreed 
that the matter over which the parties differed -  construction o f the Lacy Boulevard ex­
tension — will be performed by it.



5

upgrade and pave six of the roads designated in P-6; this was in addition to 
six roads that the State had voluntarily paved since the filing of the com­
plaint (A. 36-37, 20-22). The two settlement agreements were filed with 
the district court which, on June 1, 1972, entered orders of dismissal as to 
the County and the State (A. 23-26).

Over the 3-year period from July 1, 1972, to July 1, 1975, in which 
the County was to perform its obligations under the settlement agreement, 
improvements on 60 of the 76 roads covered by the agreement (79 percent) 
were never completed (A. 30, 38-45). Finally, the County Board of Super­
visors, at a meeting on April 28, 1975, repudiated the agreement entirely by 
adopting a resolution stating that the County would do nothing further to 
comply with its terms (A. 30).

B. The reopened proceeding

On August 7, 1975, plaintiffs moved in the district court to reopen the 
proceeding by vacating the orders dismissing the action against the County 
and State (A. 27-33). In their motion plaintiffs also asked the court to is­
sue an order requiring the County or State, or both, to upgrade and pave 
the roads covered by the County’s settlement agreement with the plaintiffs. 
The motion noted that the State had complied with its settlement agreement 
with the plaintiffs. However, the complaint had alleged that the County and 
State jointly had deprived plaintiffs of their constitutional rights by failing 
to provide black neighborhoods with services and facilities equal to those 
provided in white neighborhoods. The complaint had also requested that 
the County and State be required jointly to remedy the inequality by up­
grading the services and facilities in black neighborhoods. Therefore, plain­
tiffs in their motion to reopen the proceeding asserted that if, as the County 
claimed, it was prevented from performing its settlement agreement with 
plaintiffs by certain state laws and regulations, the Court should either en­
join the operation and enforcement of those laws and regulations or, alter­
natively, require the State to upgrade the roads covered by the County’s 
settlement agreement.



6

The County and State opposed plaintiffs’ motion to reopen the proceed­
ing, but on January 30, 1976, the district court ordered the dismissal orders 

vacated and the proceeding reopened. Thereafter, discovery proceedings were 
conducted, and on June 21 and 22, 1976, there was a hearing on the merits 
before the district court in which all parties participated and presented evi­

dence in support of their respective positions. The district court, by its mem­
orandum opinion of September 27, 1976, and order of November 26, 1976, 
ruled that the County must perform its settlement agreement with the plain­
tiffs, and that the State is dismissed from the action. In reaching its decision, 
the district court rejected various grounds advanced by the County as to why 
it could not perform the settlement agreement as written, and the court de­
nied the County’s request to modify the agreement (A. 82-88).

C. Present status of the case

There are 43 roads still in controversy in the case; they are named in a 
list attached to the district court’s order (A. 95).2 Thirty-three of the 76 
roads covered by the settlement agreement between the County and plaintiffs 
are no longer in dispute; 25 of the 33 have been upgraded or are being up­
graded by the County for incorporation into the State Highway System; and 
the parties have mutually agreed that upgrading of eight of the roads is not 
warranted at this time.

In the course of the litigation, the County has offered several reasons in 
an attempt to justify its non-performance of the settlement agreement. A 
principal ground given during the reopened proceeding in the district court 
was that the County had originally believed that the P-6 roads were public 
roads, but had learned upon further examination of land records that many 
of the roads were located on private property. The County contended that 
since it had no authority to expend money to pave private roads, it could

2 The 43 roads are also listed and described in Joint Exhibit 1 prepared for the re­
opened proceeding (A. 146-149).



7

not perform the settlement agreement with respect to any such roads. Plain­
tiffs presented the district court with evidence of the public purpose served 
by the roads questioned by the County, as well as evidence showing that 

many of them had undoubtedly become public by prescription. The district 
court rejected this defense by the County, ruling that the County “can ac­

quire the necessary rights-of-way, if needed for paving and maintenance, by 
gift, purchase, prescription or condemnation . . .” (A. 87). Since the County, 
in its brief to this Court, does not contest that ruling by the district court 
and it does not rely at all on the private ownership argument that it made 
to the district court, presumably this defense to non-performance of the set­
tlement agreement has been abandoned.

As indicated in its brief to the Court, the County claims that 19 of the 
43 roads still in dispute are ineligible for acceptance into the Virginia State 
Highway System. The County further argues that because it is not author­
ized under state law to upgrade roads that will not be incorporated into the 
State System, it has no authority to upgrade the 19 roads in question. Since 
in the County’s view, the agreement is invalid as to those 19 roads, it asks 
this Court to rule that the entire settlement agreement is invalid. Alterna­
tively, the County contends that if the entire agreement is not invalid, it will 
perform its obligation with respect to the remaining 24 roads, provided the 

persons residing on those roads are willing to dedicate sufficient property to 

produce a 30' right-of-way. The County asserts that a right-of-way of that 
width is necessary in order for the roads covered by the settlement agreement 
to be eligible for inclusion in the State Highway System.

It is plaintiffs’ position, as will be shown more fully infra, pp. 19-23, that 
the reasons assigned by the County for not upgrading the 19 roads are wholly 
without merit. Hence, as plaintiffs will show, the district court’s order, to 
the extent that it requires the County to perform the settlement agreement 
according to its terms, should be affirmed. As an initial matter, however, 
prior to consideration of the issues presented by the County’s appeal, plain­
tiffs call to the Court’s attention an overriding issue which has been injected



8

into the case by defendants but with which the district court’s order fails to 
deal. County and State officials now insist that as a condition of paving 
roads in black neighborhoods the roads must have a 30' unobstructed right- 
of-way even though a right-of-way of that width is not obtainable in most 
instances without doing substantial damage to properties and homes of black 
residents. Plaintiffs will show below that the defendants’ demand for a 30' 
right-of-way as a condition of upgrading the roads in question contravenes 
the settlement agreement, and is arbitrary, capricious and in violation of the 
Fourteenth Amendment. Plaintiffs’ specific appeal is from the district court’s 
refusal to include a provision in its order which would have limited the riglits- 
of way for roads improved by the County to existing travelways, except where 
the parties or a majority of the adjacent property owners agree that a wider 
right-of-way should be used (A. 92, paragraph 9).

ARGUMENT

I. THE COUNTY’S AND STATE’S INSISTENCE THAT ROADS IN BLACK 
NEIGHBORHOODS CONFORM TO AN UNREASONABLE RIGHT-OF- 
WAY STANDARD AS A CONDITION OF BEING PAVED VIOLATES 
THE SETTLEMENT AGREEMENT, AND CONSTITUTES ARBITRARY 
AND CAPRICIOUS GOVERNMENT ACTION IN VIOLATION OF PLAIN­
TIFFS’ CONSTITUTIONAL RIGHTS

A. Insistence on compliance with the 30' right-of-way standard 
with respect to the roads in issue is a breach of the settle­
ment agreement

As related supra, under the terms of the settlement agreement entered 
into on May 31, 1972, by the County and plaintiffs, the County agreed to 
upgrade and pave 76 roads in black neighborhoods of the County over a 3- 
year period. Some time during that period, however, the County claims to 
have learned “after an exhaustive study” that it is “prohibited by state law 
from expending funds to upgrade and maintain roads which [are] not elig­
ible for acceptance into the State Secondary Highway System” (Br. 7). Since 
there is allegedly a state requirement that a road have a 30' unobstructed



9

right-of-way as a condition of acceptance into the State System, the County 
claims it cannot improve roads covered by the settlement agreement unless 
they meet that standard. As a matter of fact, it is undisputed that 41 of 
the 43 roads at issue herein do not meet that standard (A. 146-149, column 
3); the County acknowledges in its brief to the Court that compliance with 
the 30' standard “would in most cases have an extremely deleterious effect 
on the affected neighborhoods” (Br. 8).

Although in its brief (pp. 7-8) the County refers to the necessity of a 
30' “unrestricted” right-of-way, throughout this litigation it has insisted that 
the right-of-way must be “unobstructed.” Thus, it has demanded as a con­
dition of upgrading these roads the removal from the 30' right-of-way of any 
existing obstructions such as hedges, fences, walls, driveways, trees and utility 
fixtures. At least two houses and, on one road, a church building are located 
within the claimed 30' right-of-way.3 The County has been candid in rec­
ognizing the impact that the 30' right-of-way standard would have on the 
black neighborhoods in the County. Thus, in its Trial Memorandum filed 
June 21, 1976, with the district court,4 it stated:

On many of these roads, upgrading them to State standards 
would require moving fences, hedges, walls, etc., and in three 
instances buildings are within the 30-foot right-of-way. Such 
upgrading would effectively destroy the black neighborhoods 
on whose behalf this suit was originally brought. (Emphasis 
added.)

Having allegedly “discovered” the applicability of the 30' right-of-way 
standard to the roads covered by the settlement agreement, the County has 
attempted to use it as a device to avoid performance of the obligations that 
it agreed to. First, the County proposed modification of the agreement to

 ̂ See County’s Proposed Modification of Settlement Agreement dated October 31, 1975, 
filed with the district court (A. 46-50).

4 Page 7. The Memorandum has been lodged by plaintiffs with the Clerk’s Office of 
this Court.



10

provide that only those roads would be improved in instances where the res­
idents were willing to dedicate a 30' right-of-way. However, as the County 
stated in its Trial Memorandum, supra, to the district court (p. 7):

This proposed modification has been rejected by Plaintiffs be­
cause they know the citizens would refuse to grant the 30-foot 
right-of-way on almost all, if not all, of the . . . P-6 roads . . .

Armed with the knowledge that black residents were almost unanimously 
opposed to granting a 30' right-of-way that would, in the County’s words, 
“effectively destroy” their neighborhoods, the County’s next tactic was to 
try and convince the district court that it should not be required to perform 
the settlement agreement at all because of citizen opposition. The County’s 
representatives conducted a “survey” of the black neighborhoods in which 
they asked property owners whether they were “willing to grant” the nec­
essary right-of-way to meet the 30' standard purportedly required by state 
law. Needless to say, there were very few affirmative responses, so the County 
assembled the results of its inquiries into exhibits which it presented to the 
district court as evidence that the black residents of the County were opposed 
to having their roads improved (A. 53-54, 146-149, columns 16 thru 19).
Even in its brief to this Court (pp. 11-12), the County continues on this 
tack by suggesting that opposition by residents of the black neighborhoods 
as shown by its so-called survey, is a reason for its not being held to its 
commitment under the settlement agreement.

The district court, however, rejected citizen opposition as a defense to 
non-performance of the agreement, and it refused to modify the agreement, 
as the County had sought (A. 87). Instead, the court in its memorandum 
opinion stated that the County must perform the agreement as written. At 
that stage, the County decided on a new strategy for avoiding performance.
In its survey it had asked property owners if they were “willing to grant” 
sufficient property to provide a 30' right-of-way and had received a negative 
response. However, in light of the district court’s decision enforcing the agree­

ment, the County declared its intention to use its condemnation authority



11

to obtain the 30' right-of-way allegedly necessary for the roads to be in­
cluded in the State Highway System. By its terms, the settlement agreement 
recognized that some of the roads, “when improved,” would be eligible for 
inclusion in the State Highway System and the State would then take over 
maintenance; as to the others, the County promised to continue “to main­
tain these streets in a fair and equitable manner” (A. 34, paragraph 2). The 

district court’s construction of this provision provided the rationale for the 
County’s decision to rely on its condemnation authority to obtain the claimed 

30' right-of-way. The court observed that by condemning the necessary rights- 
of-way, the County could insure that the roads would be eligible “for inclu­
sion into the secondary road system, thereby relieving the County from future 
maintenance” (A. 87-88).

This construction of the settlement agreement was clearly contrary to its 
intent, for neither plaintiffs nor the County would have agreed to “effectively 
destroy” the black neighborhoods of Fairfax County in order to upgrade their 
roads. To state the proposition demonstrates its absurdity. Accordingly, as 

related supra, p. 8, plaintiffs requested the district court to include in its order a 
provision which would have limited the rights-of-way for roads improved by 
the County under the agreement to the existing travelways. The County op­
posed the requested provision on the ground that its effect would be “ to en­
join the County from utilizing its powers of eminent domain as it sees fit.”5 
Emphasizing the significance of the issue from its viewpoint, the County de­
clared (ibid.)\

If this Court enjoins the County from acquiring the minimum 
rights-of-way necessary for inclusion in the State System, the 
County will be forced to maintain virtually all of the P. 6 
roads in perpetuity to the great detriment of the citizens of 
Fairfax County.

 ̂ Opposition to Entry o f Order Submitted by Plaintiffs, dated November 12, 1976, 
filed with the district court, p. 3. This document has been lodged by Plaintiffs with the 
Clerk’s Office of this Court.



12

At the hearing on plaintiffs’ motion that the district court include a provi­
sion in its order restraining the County from exercising its condemnation 

powers in the manner specified, the court stated: “I am not going to do
that,” explaining that in its view the County “can acquire the right-of-way 
by condemnation, but they don’t have to do it.”6 7

The County’s declaration that it will use its condemnation authority to 
acquire 30' rights-of-way for the roads in issue, even if it means destroying 
the black neighborhoods, is obviously in contravention of the settlement agree­
ment. What the County is banking on, of course, is that the residents of 
the neighborhoods will be so solidly opposed to the idea and choose instead 
to leave the roads in their present state, that the County will then be able 
to cite such opposition as justification for not improving the roads/ This 
would, of course, be a negation of the settlement agreement. It is clear, there­
fore, that the County is following a course of conduct that nullifies and thus 
breaches the settlement agreement. Since this reopened proceeding was brought 
for the express purpose of obtaining specific performance of the agreement, 

the district court should have enjoined the County from continuing to breach 
the agreement by its insistence that conformity with the 30' standard is a 
condition of upgrading the roads in question. The court had ample warrant 
for providing such relief as a means of specifically enforcing the settlement 
agreement. For it is well settled that where, as here, a party to an execu­
tory agreement breaches it by conduct which is wholly inconsistent with the 
agreement and which will have the effect of preventing performance, the other

6 Transcript of hearing, November 12, 1976, on Plaintiffs’ Motion for Entry of Order 
Pursuant to Court’s Opinion, pp. 21, 9. (This transcript was not prepared in time for in­
clusion in the Appendix, but it is on file with this Court.

7
That is the reason the County places so much emphasis on the stipulation entered 

into by the parties during the hearing before the district court (Br. 12, 28-31). That stip­
ulation is merely recognition that, as a practical matter, in the event of a court ruling 
that the roads covered by the settlement agreement are subject to the 30' right-of-way 
standard, plaintiffs would have to drop their efforts to get any road improved where most 
of the residents were unwilling to dedicate a right-of-way of that width.



13

party is entitled to equitable relief at once in the form of a decree of spe­
cific performance. Dixon v. Anderson, 252 F. 694 (C.A. 4, 1918); Two-Way 
Tronics, Inc. v. Greater Washington Educational Television Ass’n, 106 Va. 110, 
141 S.E. 2d 742, 746-747 (1965).

B. State laws that are unreasonable, arbitrarily and capriciously 
administered, and racially discriminatory are not a defense 
to the County’s breach of the settlement agreement

As shown supra, the County relies on provisions of state law for its con­
tention that it lacks authority to spend money to upgrade any road that is 
not eligible for inclusion in the State Highway System, and that in order to 
be included in the State System a road must have a 30' unobstructed right- 
of-way. Defendant Fugate, the state official who administers the State High­
way laws, supported the County’s interpretation of the state statutes through­
out the district court proceeding. As we show below, the state laws cited by 
the County and State do not provide a valid defense to the County’s breach 
of the settlement agreement and, hence, are not an obstacle to the district 
court’s granting plaintiffs the specific performance decree that they seek. The 
30' right-of-way standard relied on by the defendants, as we will show, is an 
arbitrary and unreasonable requirement; it is arbitrarily and capriciously ad­
ministered; and it serves to perpetuate historic inequities between black and 
white neighborhoods of Fairfax County. Accordingly, the district court has 
“not merely the power but the duty to render a decree which will so far as 
possible eliminate the discriminatory effects of the past as well as bar like 
discrimination in the future.” Louisiana v. United States, 380 U.S. 145, 154 
(1965). Accord: United States v. Warwick Mobile Home Estates, 537 F.2d
1148, 1150 (C.A. 4, 1976). And it “is apparent that remedies to overcome 
the effects of past discrimination may suspend valid state laws.” Carter v. 
Gallagher, 452 F.2d 315, 328 (C.A. 8, 1971), cert, denied, 406 U.S. 950. 
Accord: Bradley v. School Board o f  Richmond, Virginia, 324 F. Supp.
396, 400 (E.D. Va., 1971), rev’d on other grounds, 462 F.2d 1058 (C.A.

4, 1972), affd  412 U.S. 92 (1973); Gautreaux v. Chicago Housing Authority,



14

342 F. Supp. 827, 829-830 (N.D. 111., 1972), a ffd  480 F.2d 210, 214- 
215 (C.A. 7, 1973), cert, denied, 414 U.S. 1144; Haney v. County Board 
o f  Education o f  Sevier County, 429 F.2d 364, 368-369 (C.A. 8, 1970). 
Since plaintiffs do not challenge the validity of the statutory provisions re­
lied on by defendants, but only their application in the circumstances of 

this case, there is no need for a three-judge district court, for a single judge 
may provide “an equitable remedy for unconstitutional state administrative 
behavior . . . under concededly constitutional state statutes.” Costello v. Wain- 
wright, ___ U.S. ___, 45 U.S.L.W. 3632 (1977).

It is true that Section 33.1-230 of the Code of Virginia (1950) provides 
that a road in the State Highway System shall have a right-of-way no less 
than 30' wide and that under the statutory scheme, in order for a road to 
be maintained by public funds, it must be part of the State Highway System. 
However, the record of this case shows that these statutory requirements are 

honored as much by their breach as their observance. The record also shows 

that they are administered arbitrarily and capriciously and in a racially dis­
criminatory manner. Thus, undisputed evidence obtained by plaintiffs on the 
basis of a limited investigation of white neighborhoods in Fairfax County re­
veals numerous instances where roads that are part of the State Highway Sys­
tem do not have the 30' unobstructed right-of-way claimed by the County 
to be necessary for inclusion in the State System. Nine such roads were 
identified by plaintiffs for the district court and the list, with accompanying 
photographs illustrating the narrow condition of the roads, was introduced as 

Plaintiffs’ Exhibit l l . 8 Although the State, in seeking to defend its statu­
tory provisions, showed that six of the roads identified by plaintiffs had

O
Plaintiffs’ Exhibit 11 is not included in the Appendix because o f the difficulty of re­

producing the photographs. However, the exhibit is on file as part of the record before 
the Court. The nine roads identified in the exhibit are: Old Chesterbrook Road (State 
Rte. 690); Langley Lane (State Rte. 1901); Malta Lane (State Rte. 1921); Harvey Road 
(State Rte. 1920); Kirby Road (State Rte. 695); Kent Road (State Rte. 899); Southdown 
Road (State Rte. 890); Hunting Creek Road (State Rte. 1325); Griffin Drive (State Rte. 
1355). Griffin Drive is in a black neighborhood and is one of the roads paved by the 
State under its settlement agreement with plaintiffs (A. 36).



15

dedicated rights-of-way of 30 or more feet,9 the evidence is unrefuted that 
because of numerous obstructions such as fences, trees, walls, and utility fix­
tures, the right-of-way actually used for the roads is far less (Plaintiffs’ Ex­
hibit 11, A. 125, 136, 137). Moreover, with respect to three of the narrow 
roads that are identified in Plaintiffs’ Exhibit 11,10 the State concedes the 
absence of a dedicated right-of-way in each instance, but contends that there 
is an “asserted” or “claimed” 30' right-of-way that exists by virtue of Sec­
tion 33.1-184 of the Code of Virginia (1950) (A. 59-60, 80-81). However, 
the State’s contention is baseless for Section 33.1-184 provides that where a 
public road is created by prescription “in the absence of proof to the con­
trary the width shall be presumed to be thirty feet.” The Virginia cases 
hold that the presumption that a road established by prescription has a 30' 
width is rebutted where obstructions are located within the right-of-way. 
Since each of the three roads referred to has obstructions in its right-of-way, 
if the road was established by prescription as the State claims, it is only as 
wide as the roadbed or traveled portion of the roadway used by the public 
for the prescription period, plus any “side ditches and slopes.” Board o f  
Supervisors o f  Tazewell County v. Norfolk & W. Ry. Co., 119 Va. 763, 91 
S.E. 124, 128-129 (1916). Accord: District o f  Columbia v. Robinson, 180 
U.S. 92, 100 (1901); Virginia Hot Springs Co. v. Lowman, 126 Va. 424, 101 
S.E. 326, 328 (1919); City o f  Danville v. Anderson, 189 Va. 662, 53 S.E.2d 
793 (1949). So it is with the roads subject to the settlement agreement. The 

right-of-way established by prescription is only as wide as the unobstructed 

roadway.

In any event, even an “asserted” or “claimed” right-of-way of 30 feet 
is a meaningless concept if the usable right-of-way is appreciably less because 
of obstructions. At most it suggests that if the government ever decides that 

it needs the full 30 feet, it has a right to take it. However, the government

9 Langley Lane, Harvey Road, Malta Road, Southdown Road, Kent Road and Hunting 
Creek Road (A. 59-60).

old Chesterbrook Road, Kirby Road and Griffin Drive (A. 59-60).



16

always has the right, without regard to how a road is created, if increased 
traffic or other needs dictate, to use its condemnation powers to acquire 

additional right-of-way for the purpose of widening the road.

It is clear, therefore, that although the 30' right-of-way standard may 
serve as a useful goal in road building, and indeed, on newly constructed mod­
em roads a wider right-of-way may be required, the State’s administration of 
the standard is very flexible and the standard is in effect waived under a va­
riety of circumstances. It is waived in the sense that on many roads the 30 
feet claimed “by the State may be occupied by major obstructions. In white 
neighborhoods and when it serves the State’s convenience, the claimed 30 
feet may be completely obstructed, except for the width of the pavement.

No such leniency has been shown, however, by the County and State in 
the instant case. Rather, acting arbitrarily and capriciously, they have de­

manded without exception that all roads in black neighborhoods covered by 
the settlement agreement have a 30' unobstructed right-of-way as a condition 
of being upgraded and paved.

Further, the fact that the right-of-way on many State roads contains ob­
structions wholly unrelated to the structure or purpose of the road itself, is 
evidence that the 30' standard is totally arbitrary and that a functional road 
can be built and maintained on a right-of-way that is substantially less than 
30 feet wide. Plaintiffs’ expert witness, Consulting Engineer David M. Glancy, 
testified without contradiction that only 16 feet of pavement are needed for 
the passage of two cars, and that roads can be built without “any more right 
of way than the amount of the paved travelway” (A. 125-126). There are 
a number of ways that drainage can be handled on such a road, including 
the use of subsurface drains and catch basins (A. 137). Indeed, the Virginia 
State Highway standards call for a pavement of 16 feet where there is a 30' 
right-of-way, and the County asserted in the district court that a “ 16 foot 
minimum width pavement is the appropriate one” for the black neighborhoods 
involved here.11 It is clear from the evidence, therefore, that the 14 addi­

11 Opposition to Entry of Order Submitted by Plaintiffs, supra, at p. 2.



17

tional feet that the County and State allege is needed in order to pave the 

roads under the settlement agreement is in reality an arbitrary requirement 
bearing no relation to what is actually necessary in order to build a usable 
road.

In the circumstances presented here, the 30' right-of-way standard serves 
also as an arbitrary and unreasonable obstacle to eliminating disparities be­
tween the roads in white and black neighborhoods of Fairfax County. The 
roads at issue here serve black enclaves or ghetto-like settlements which have 
existed in Northern Virginia for many years, dating back to the days when 
this part of the State was a rural farm area. Blacks were forced to settle in 
such neighborhoods because historically they could not purchase other prop­
erty as the result of discriminatory real estate practices and the prevalence 
of restrictive racial covenants which, until recent years, were judicially en­
forceable. Because the amount of land available to blacks was limited and 
because of their generally depressed economic status, when blacks subdivided 
land for their own use — often among heirs — it was not customary to ded­
icate land for roads, let alone for 30' rights-of-way. Unlike whites, blacks 
had no incentive to dedicate public roads, because as the result of discrimi­
natory policies and practices by local government officials, they had little 
expectation that the roads in their neighborhoods would be paved.

Nevertheless, over the years many of the private easements and outlet 
roads that were provided in black neighborhoods have acquired the charac­
teristics of public roads, and have become public by prescription. See cases 
cited supra, p. 15. So it is with the roads here at issue. They all serve the 
needs of the residents of the neighborhoods by providing them with access 
to their homes. They also provide access for public service and emergency 
vehicles such as police, fire, garbage and mail, as well as various kinds of 
commercial vehicles. The roads also serve the needs of pedestrians, because 
sidewalks are generally nonexistent in the black neighborhoods. Furthermore, 
of the 41 roads that the County claims cannot be paved because they lack 
a 30' right-of-way, the undisputed evidence shows that (A. 146-149):



18

17 roads were maintained by the County with public funds before 
this action was brought;

28 roads are identified by name signs installed by the County;

19 roads serve as the right-of-way for publicly-owned water mains;

13 roads serve as the right-of-way for publicly-owned sewer lines;

7 roads have publicly-owned fire hydrants installed along them;

14 roads have street lights installed on them;

30 roads serve as the right-of-way for utilities such as electric and 

telephone.

These facts show beyond doubt that the 41 roads in question have all 
the characteristics of public roads and perform the functions of public roads. 
Further, the County in the past has treated them as public roads by expend­
ing public funds to improve and maintain them, and by using them as rights- 
of-way for publicly-owned utilities. Clearly, it is arbitrary and capricious for 
the County, although it has expended public money on these roads in past 
years, now to assert that it cannot spend the money necessary to pave them 
because they are ineligible for the State Highway System. Even if the roads 
are not eligible for the State System, the County certainly has money avail­
able from its funds for public works to provide for the health, safety and 
general welfare of its black citizens by paving their roads. Plaintiffs submit, 
therefore, that if the roads do not qualify for the State System, the County 
can, under its general police powers, upgrade and continue to maintain the 
roads as provided for in paragraph 2 of the settlement agreement. Certainly, 
it is far better from the standpoint of the residents of these neighborhoods 
that their roads be paved, even though they are too narrow for the State 
System, than that they be forced to continue living with them in their pres­
ent substandard condition. If this Court does not rule in this case that the 
black residents of the County are entitled to relief from the muddy, dusty, 
rutted and pot-holed roads that they have had to cope with for so many



19

years, the state statutory requirement will always stand as a bar to upgrading 
the roads and their inferior condition will be perpetuated in years to come 
without any foreseeable possibility of improvement.12

II. THE EXCUSES GIVEN BY THE COUNTY FOR ITS REFUSAL 
TO CARRY OUT ITS COMMITMENT UNDER THE SETTLE­
MENT AGREEMENT TO UPGRADE AND PAVE ROADS IN 
BLACK NEIGHBORHOODS WERE PROPERLY FOUND BY THE 
DISTRICT COURT TO BE WITHOUT MERIT

The County’s appeal to this Court from the district court’s order raises 
only the limited issue of whether the County was properly required by the 
district court to upgrade 19 of the 43 as yet unimproved roads covered by 

the settlement agreement. The County contends that it should not be bound 
by the agreement as to those 19 roads, because 16 of them are either totally 
or partially ineligible for acceptance into the State System, as they do not meet 
the minimum requirement for service, and because three of the roads have 
structures (in two instances houses and one instance a church) within the 
30' right-of-way required by the State Highway System. As for two of the 
19 roads, the County makes the additional argument that it cannot improve 
them in any event because they extend partially outside of the geographic 
jurisdiction of Fairfax County (Br. 19-20, 10-11, 13).

Of the County’s three categories of objections to upgrading the 19 roads, 
we have already discussed the second, supra (pp. 8-19), where we demon­
strated the lack of merit to the County’s reliance on the 30' right-of-way 
standard. Therefore, the County’s claim that it cannot upgrade three desig­
nated roads13 because there are structures within the 30' limit is plainly base­

1  ̂ it should be noted that if the Court rules for the defendants, even the 17 roads for 
which the County provided minimal maintenance before this action was brought {supra, p. 
18) will no longer receive such service. The County informed the district court that it will 
not continue to maintain such roads, because under its newly discovered understanding of 
the state statutes it would be “illegal” for it to expend public funds to maintain roads that 
are not in the State System. Opposition to Entry o f Order Submitted by Plaintiffs, supra, 
at p. 4.

1 Porter Street, Clearview Drive and Tinners Hill Road (County br. 11).



20

less. Since these three roads are among the group of 41 roads discussed su­
pra, there is no need to discuss them further here.

It borders on the frivolous for the County to assert that it cannot up­
grade two of the roads, Tinners Hill Road and Rynex Drive, because they are 
not entirely within Fairfax County; Tinners Hill Road crosses the County’s 

boundary with the City of Falls Church and Rynex Drive is on the boundary 
between the County and the City of Alexandria.14 Every state and local 
community in the United States has inter-jurisdictional roads and Fairfax 
County has dozens of roads that cross its boundaries to the adjacent coun­
ties of Arlington, Prince William and Loudoun and the cities of Alexandria 
and Falls Church. Inter-governmental cooperation obviously is necessary and 
commonly utilized in order to make appropriate provision for roads and other 
services in such circumstances. Indeed, the record here shows that Tinners 
Hill Road carries public water and sanitary sewer lines. Rynex Drive carries 
water and sanitary sewer lines and has fire hydrants installed on it (A. 146- 
149). The sanitary sewer on Rynex Drive is shown by the evidence to have 
been installed by the Fairfax County Government (A. 149, Plaintiffs’ Exhibit 
5). If the installation of public utilities such as these can be accomplished 
on roads that cross the County’s boundaries, it strains credulity for the County 
to assert that it cannot work out arrangements with neighboring jurisdictions 
to pave these two roads. In any event, even if the local jurisdictions cannot 
agree on means to upgrade and pave the two roads, the State Government 
with its superior authority and power can surely see to it that the needs of 
its citizens are met by arranging for the pavement of the roads, particularly 

where, as here, such action is necessary to redress racial discrimination.

14 The County also seeks to be relieved from its promise to pave Tinners Hill Road 
on the ground that it does not have a 30' right-of-way and Rynex Drive is claimed to 
have insufficient service to be accepted into the State System (County br. 11).



21

Among the standards of the State Highway System which the County 
claims to have “discovered” after “exhaustive study” during the 3-year com­
pliance period provided for by the settlement agreement is a purported re­
quirement that a road serve at least three houses per mile in order to be in 
the System (Br. 7-8). Based on this alleged discovery, the County claims that 
16 of the roads covered by the settlement are wholly or partially ineligible 
for the State System because they serve fewer than three houses per mile.15 
The record reveals the County’s reliance on this issue as a means of avoiding 
its obligations under the settlement agreement to be patently pretextual. It 
was therefore properly rejected by the district court for lack ot merit.

When this action was first before the district court there were 17 roads 
listed in Plaintiffs’ Exhibit P-6 which were described in the exhibit as having 
fewer than three houses on them. Defendant Fugate’s own pretrial statement 

dated May 5, 1972, stipulated that one of those roads, Minoso Drive (State 
Rte. 4969) had only one house on it, that it was part of the State System 
and that it would be paved that summer -  in 1972 (A. 22). Another road, 
Mary Alice Place, was shown in P-6 to have only two houses on it, but it 
has since been upgraded and paved, and is now in the State System (A. 46, 
Plaintiffs’ Exhibit 1 (formerly P-6)). Four of the roads listed in Exhibit P-6 
which the County has objected to upgrading under the settlement agreement 
because of alleged failure to meet the State’s service requirement -  Poplar 
Lane, Haney Lane, Suncrest Lane and Valentine Street -  had been specifi­
cally designated by the County before this action was brought to be upgraded 
in 1972 for acceptance by the State Highway System (A. 146-147, 49, Plain­
tiffs’ Exhibit 5).16 It is difficult to reconcile the County’s projected plans

15 The 16 roads are listed in the County’s brief at p. 11.

16 Specified funds had been allocated under the County’s public works budget for the 
planned improvements and they had been assigned the following work project members: 
Poplar Lane, WN-37; Haney Lane, WA-32 and WA-61; Suncrest Lane, WA-34; Valentine 
Street, WH-65. During the reopened proceeding in the district court the parties agreed 
to drop Valentine Street from the suit (A. 91).



22

to upgrade these four roads for acceptance in the State Highway System with 
the claim it now makes that they do not meet the State’s service requirement. 
Indeed, the inconsistent positions that the County has taken with respect to 
these four roads is strong evidence that the County’s entire service require­
ment argument is merely a poorly conceived excuse seized upon as an after­
thought in the hope of avoiding performance of the settlement agreement.

Further, the County has failed to produce evidence to show how the 

specific roads that it questions fail to meet the State’s purported service re­
quirement. Thus, of the eight roads that the County claims are totally in­
eligible for the State System, the undisputed facts show that seven of them 
are less than 900 feet long, and the eighth one, Marlewood Drive, is 1200 
feet long (Plaintiffs’ Exhibit 1, stipulation dated April 20, 1976). Each of 
these eight roads has either one or two houses on it (A. 146-149). Since 
there are 5,280 feet in a mile, simple arithmetic indicates that the houses 
on the streets are adequate to satisfy the State’s claimed rate of three per 
mile as a condition of a road’s acceptance in the State System.

It is significant that each of the roads claimed by the County not to 
meet the State’s service requirement has been recognized for years as serving 
an important function in the neighborhood where it exists. Thus, 6 of the 
16 roads have been marked by the County with street name signs, 10 of 
the roads carry public utility poles, 5 have street lights, 4 serve as the right- 
of-way for public water mains, 3 have fire hydrants and 2 carry sewer lines. 
Further, 3 of the roads were maintained by the County before this action 

was brought (A. 146-149).

In sum, the County has failed completely to sustain its defense that it 
should not be compelled, because of the State’s service requirement, to up­
grade 16 of the roads covered by the settlement agreement. Not only does 
the evidence fail to support its claim that 8 of the roads are totally inelig­
ible for the System, but its claim that 8 of the roads are “partially ineligi­
ble” (Br. 11) is too vague and indefinite to constitute a proper defense to 
performance of the settlement agreement. Hence, it was justifiably rejected



23

by the district court. The record shows that the 16 roads serve important 
needs of the communities where they are located and their upgrading is es­
sential to remedying the historic inequality between white and black neigh­
borhoods of the County. The question of whether these roads are in the 
State Highway System or not has nothing to do with the County’s obliga­
tion to improve them, since, as we have seen, the determination of whether 
a road should be in or out of the State System is so arbitrarily and capri­
ciously made that it is not constitutionally valid. Hence, the County may 
not rely on acceptance in the State System as the test of whether it should 
be required to upgrade and pave these 16 roads. See cases cited supra, 

pp. 13-14. Further, as shown supra, p. 11, under paragraph 2 of the settle­
ment agreement, the County agreed to upgrade and continue to maintain 

any roads not accepted in the State System. No reason has been shown why 
the County should not be held to this commitment. Finally, even if it 

should be determined that for some reason the County is not to be held 
to its commitment with regard to a particular road, that does not justify 
its non-performance of the remainder of the settlement agreement.



24

CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that with respect 
to the matters raised by the County’s appeal (No. 77-1190), the district court’s 
decision be affirmed. With respect to the issue raised by plaintiffs’ appeal 
(No. 77-1248), plaintiffs request that this case be remanded to the district 
court for entry of a further order restraining the County and State from re­
quiring that roads covered by the settlement agreement, as a condition of 
being upgraded and paved, have a 30' right-of-way. Plaintiffs further respect­
fully urge that in the event the Court concludes that the County lacks legal 

authority to improve the roads covered by the settlement agreement, the Court 
should remand the proceeding to the district court to devise a remedy by 
which the State would be responsible for remedying the disparities in the 
condition of roads in white and black neighborhoods of Fairfax County.

Respectfully submitted,

ALLISON W. BROWN, JR.
Suite 301
1345 E Street, N.W.
Washington, D.C. 2004r

ROBERT M. ALEXANDER 
2011 South Glebe Road 
Arlington, Virginia 20004

Attorneys for Plaintiff-Appellees 
and Cross-Appellants

JACK GREENBERG 
JAMES M. NABRIT, III 
10 Columbus Circle 
New York, N. Y. 10019

O f Counsel

April 1977.