Triangle Improvement Council v. Ritchie Brief Amicus Curiae

    <> k f  * ” 2 ^

A * ? '

In the Supreme Courfof the * 
United States
O ctober, Teem, 1970

No. 712

T riangle I m provem en t  C o u ncil , et al.,
Petitioners,

vs.

W il l ia m  S. R it c h Ie , C om m issioner ,
S tate R oad C omm ission
oe  t h e  S tate o f  W est V irgin ia , et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the Fourth Circuit

Brief Amicus Curiae 
of the National Housing and 

Economic Development Law Project

J. A n t h o n y  K lin e  
K e n n e t h  F. P h illips

Earl Warren Legal Institute 
University of California 
Berkeley, California 94720

S O R G  P R IN T IN G  C O M P A N Y  O F  C A L IF O R N IA . 3 4 6  F IR S T  S T R E E T , S A N  F R A N C IS C O  9 4 1 0 5



SUBJECT INDEX
Page 
. 1The Interest of Amicus Curiae

Summary of Argument ..........

Introduction..............................

Argument..................................

I. The Federal Relocation Requirements Apply to Benefit 
and Protect All Residents of a Federal-Aid Highway 
Project Not Yet Displaced on the Date of Their Enact­
ment .......................................................................................

II. In the Absence of a Satisfactory Relocation Plan, 
Evidence of a State Plighway Department’s Ability to 
Provide Adequate Replacement Housing for Particular 
Displacees Is Factually and Legally Irrelevant ...........

Conclusion 33



TABLE OF AUTHORITIES CITED

Cases Pages
Block v. Hirsh, 256 U.S. 135,.......................................................-  25

Concerned Citizens for the Preservation of Clarksville v.
Volpe, No. 30286 (5th Cir.) .......................................................  2

D.C. Federation of Civic Associations v. Yolpe, 316 F.Supp.
754 (D.D.C. 1970) ...................................................................... 20,26

D.C. Federation of Civic Associations v. Volpe, Civil No.
23,870 (D.C. Cir. April 6, 1970) .............................................24, 25

Garrett v. City of Hamtramck, No. 32004 (E.D. Mich. S.D.,
March 7 ,1969 )........................................................ -...................  28

Lathan v. Volpe, No. 8986 (W.D.Wash. 1970) ...........................  2

Northeast Welfare Rights Organization v. Volpe, No. 3437,
(E.D. Wash. 1970) ..... ......... .......... .............. -................ - ......  3

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 
920, (2d Cir. 1968) ................. ....................................... 4,14,19, 28

Powelton Civic Home Owners Association v. Dept, of Hous­
ing and Urban Dev., 284 F. Supp. 809 (E.D. Pa. 1968)

.......................................14,19, 28, 29

Shapiro v. Thompson, 394 U.S. 618............................................. 25

Talbot v. Romney, No. 2402 (S.D.N.Y., August 20, 1970) .......  28
Tenants and Owners in Opposition to Redevelopment v.

Romney, No. C-69-324 (N.D. Cal. April 29,1970) ........ . 19, 28, 29
Thorpe v. Housing Authority of the City of Durham, 393 U.S.

268 ................................................................................................  24

Western Addition Community Organization v. Weaver, 294 
F. Supp. 433 (N.D. Cal. 1968) ...................................  14,19, 27, 28



Table of A uthorities Cited i i i

S ta tu tes  Pages
California Streets and Highways Code, §§ 135.3-135.6....... .....  6
Cal. Stats. 1965 res. eh. 130, p. 5,289 ........... -.......... .......... -.......  6
Public Law 89-574, 89th Cong., Sept. 13, 1966 ...........................  7
Public Law 89-560, 78 Stat. 769, 786 .............. -...........................  18
23 U.S.C.:

§ 133(e) ............. .........................................................- ............... . 22
§ 501 et seq....... ........................ —.......................... - - - - - .......... - • 9
§ 501 .............................................................................-.............. 10, 22
§ 502(1) ..............................      11
§ 502(2) .......... ..... ................................ . ........ ....... ...... 11
§ 502(3) ............. ........... .. ...... -......................... -............. -........  11
§ 508(a) ............. ............................................................. -..........  12
§ 510(a) (b) ................................................................................. 12
§ 1455(c) ..................................................................   28

42 U.S.C.:
§ 1455(c)(1) ...........................................     11
§ 1455(f) and (h) ............................. ............... .....................  22

§§ 2711 et seq. ............ .......... ............ ...................... .................  1



IV Table of A uthorities Cited

Tests a n d  O t h e r  A u th o r ities  Pages

Anderson, The Federal Bulldozer: A Critical Analysis of 
Urban Renewal, 1949-1962 (MIT Press 1964) .......................  44

CCH Urban Affairs Reports, 18,675....................................—-  17

Fried, Grieving for a Lost Home: Psychological Costs of 
Relocation, in Urban Renewal: The Record and the Con­
troversy (J. Wilson, ed. 1966) at 359 .....................................  5

Greer, Urban Renewal and American Cities (Bobbs-Merrill,
1965) ............................................................................................. 14

Hartman, The Housing of Relocated Families, 30 J. Am.
Inst. Planners 266 (1964) .........................................................  5

Hearings before the Subcommittee on Intergovernmental Rela­
tions of the Committee on Government Operations, U.S. 
Senate, on S.l, the Uniform Relocation Assistance and Land 
Acquisition Policies Act of 1969, U.S. Senate, 91st Cong., 1st
Sess., p. 216 ................................................................................. 8

Hearings before the Subcommittee on Intergovernmental Re­
lations of the Committee on Government Operations, U.S. 
Senate, on S.698, S.735, S.458 and S.2981, 90th Cong., 2nd
Sess., pp. 425-427 ....................................................................... 9

Hearings before the Subcommittee on Roads of the Committee 
on Public Works, U.S. House of Representatives, 90th 
Cong., 2nd Sess., on H.R. 17134 and Related Bills, May 23,
1968, pp. 234-235 ...................................................................-..... 14

Hearings before the Subcommittee on Roads of the Committee 
on Public Works, House of Representatives, 91st Cong., 2nd
Sess., on H.R. 16788 and related bills, p. 948 .........  15,16,17, 20

Hearings before the Committee on Public Works, House of 
Representatives, 91st Cong., 1st and 2nd Sess., on H.R.
14898, H.R. 14899, S.l and related bills ............................... 12,13

Highway Relocation Assistance Study, 90th Cong., 1st Sess., 
Committee Print No. 9 (1967) pp. 3 -6 ................. 3, 6, 7, 8, 22, 32

The Legal Lawbreakers: A  Study in Official Lawlessness Re­
garding Federal Relocation Requirements, Citizens Advo­
cate Center (Washington, D.C., July, 1970).........................  5,13



Table of A uthorities Cited v
Pages

Manvel, Housing Conditions in Urban Poverty Areas, report 
prepared for the National Commission o'n Urban Problems, 
Research Report No. 9 (Wash., D.C. 1968), Table 8, pp.
14-19 ............................................-...............................................  33

Memorandum of Secretary of Department of Transportation: 
Implementation of Replacement Housing Policy, January 
15, 1970.........................................................-..............................  !5

National Commission on Urban Problems, Building the Amer­
ican city (1968), p. 112....... .....................................................  3,6

1 Nichols, Eminent Domain § 1.22 [2] (1964)...........................  5
Note, The Interest of Rootedness: Family Relocation and an 

Approach to Full Indemnity, 21 Stan. L. Rev. 810, 803-804
(1969) ........................................................................................... 6

Note, Urban Renewal: Problems of Minimizing and Prevent­
ing Urban Deterioration, 71 Harv. L. Rev. 504 (1959) .......  14

Panuch, Relocation in New York City (1959) ........... ...............  6

Report of the Committee on Public Works, U.S. Senate, to 
accompany Senate Bill No. 3418, the Federal-Aid Highway 
Act of 1968. Report No. 1340, 90th Cong., 2nd Sess., June
28, 1968, pp. 5 -7 .................. -............................... -.............. 10, 20, 21

Report to the Congress by the Comptroller General of the 
United States: Opportunity to Improve Allocation of Pro­
gram Funds to Better Meet the National Housing Goal
(October 2, 1970) ....................................................................... 14

Report, together with Minority Views, of the Committee on 
Public Works, House of Representatives, to accompany 
H.R. 17134, 90th Cong., 2d Sess., House Report No. 1584,
p. 57 .................... -................................. ....... ...............................  31

Roberts, Highway Relocation Planning and Early Judicial 
Review, 7 Harv. Jour, on Legis. 179, 180 (1970) ...............  13,19

Select Subcommittee on Real Property Acquisition, Committee 
on Public Works, House of Representatives, 88th Cong., 2d 
Sess., Study of Compensation and Assistance for Persons 
Affected by Real Property Acquisition in Federal and Fed­
erally Assisted Programs (Comm. Print 1964) .....................  6



VI Table of A uthorities Cited Pages

Tondro, Urban Renewal Relocation: Problems in the Enforce­
ment of Conditions on Federal Grants to Local Agencies,
117 U. Pa. L. Rev. 183 (1968) .........................................  14,17,19

U.S. Advisory Commission on Intergovernmental Relations, 
Relocation: Unequal Treatment of People and Businesses 
Displaced by Governments (1965) ............... .......... -.......... . 6

U.S. Dept, of Commerce, Commerce Today, Table “ 1970 Pre­
liminary Population Count” , October 19, 1970, p. 2 5 ...........  32

Wall Street Journal: February 17, 1970, p. 4, col. 2 
April 7, 1970, p. 1, col. 1 .......

14, 15 
15



In the Supreme Court of the 
United States

October Term, 1970

No. 712

T riangle Improvement Council, et al.,
Petitioners,

vs.
W illiam S. R itchie, Commissioner,

State R oad Commission
of the State of W est V irginia, et al.,

Respondents.

On Wrif of Certiorari to the United States Court of Appeals 
for the Fourth Circuit

Brief Amicus Curiae 
of the National Housing and 

Economic Development Law Project

THE INTEREST OF AMICUS CURIAE
The National Housing and Economic Development Law 

Project was established in 1968 as a component of the Earl 
Warren Legal Institute at the University of California at 
Berkeley. It is funded and sponsored by the Legal Services 
Division of the Office of Economic Opportunity pursuant 
to the Economic Opportunity Act. 42 U.S.C. §§ 2711 et seq. 
The chief function of the Project is to serve as a resource 
for the approximately 265 Legal Services projects in 
the country, which are staffed by more than 1800 attor-



2

neys. These attorneys advise and represent approximately 
500,000 low-income clients annually.

Attorneys with the National Housing and Economic 
Development Law Project assist these neighborhood law­
yers in helping their clients in the areas of federally 
subsidized housing programs, private landlord-tenant rela­
tions, federal urban programs, low-income housing produc­
tion, community economic development and other matters 
relating to housing and urban affairs. In addition to assist­
ance in individual cases, the Project attempts to further the 
development of the law in the area of housing and urban 
affairs towards an increasing recognition of the rights 
and needs of low-income persons in the United States.

Since its inception the Project has assisted neighborhood 
lawyers in negotiations with Federal and State highway 
officials in connection with the planned construction of 
federal highways which threaten to destroy low-income 
communities in twelve cities in eight states. In several in­
stances the Project has become co-counsel in relocation suits 
such as that here presented, where such litigation was 
deemed necessary by local counsel and their clients. Two of 
such suits, which arose in Austin, Texas1 and Seattle, Wash­
ington,2 and are now respectively pending appeal in the 
United States Courts of Appeals for the Fifth and Ninth 
Circuits, present factual issues which are in important 
respects virtually identical to those here presented. Indeed, 
in every dispute between an impoverished local community 
to which amicus is providing assistance and State and 
Federal highway officials, the material facts are simply a 
variation of those which occurred in Charleston.3

1. Concerned Citizens for the Preservation of Clarksville v. 
Volpe, No. 30286 (5th Cir.) (pending decision)

2. Lathan v. Volpe, No. 8986 (W.D.Wash. 1970) (as yet un­
docketed in the United States Court of Appeals for the Ninth 
Circuit; Notice of Appeal filed on November 27, 1970.)



Highway projects initially underway in cities across the 
country, which collectively will cause the displacement of 
thousands of impoverished families and individuals, are in 
the same posture as the project involved in this appeal; 
that is, although displacement has still not occurred, cer­
tain preliminary authorizations were obtained from the 
Department of Transportation (DOT)3 4 prior to enactment 
of the Federal-Aid Highway Act of 1968 or regulations 
promulgated thereunder. Whether these prospective dis- 
placees, who were intended to benefit from the 1968 legis­
lation, will nevertheless be victimized by state highway 
departments, may well depend upon the outcome of this 
appeal.

That this appeal presents a question of substantial im­
portance to the low-income persons served by the Project 
is further established by statistical evidence which indicates 
that in recent years the Federal-Aid Highway Program has 
probably destroyed more truly low-cost housing than has 
been built by the public housing program during a compar­
able period.5 As will be shown in this brief, investigations

3

3. E.g., Northeast Welfare Rights Organization v. Volpe, No. 
3437, (E.D. Wash. 1970) (federal-aid highway project in Spokane, 
Washington.)

4. Although numerous functions of the DOT relative to federal- 
aid highways are performed by its constituent agencies, such as the 
Federal Highway Administration and Bureau of Public Roads, 
for purposes of simplification this brief will refer only to the DOT.

5. During the 18 month period from April 1, 1965 to October 1, 
1966, the homes of 49,605 families and individuals were destroyed 
as a result of federal-aid highway construction. The majority of 
the housing destroyed was “ midrange or lower cost housing.”  
Highway Relocation Assistance Study, a study transmitted by the 
Secretary of the Department of Transportation to the Congress as 
required by the Federal-Aid Highway Act of 1966, 90th Cong., 1st 
Sess., Committee Print No. 9 (1967) pp. 3-6. During 1965 and 1966 
the federal government commenced the construction of only 23,000 
units of public housing annually, or 34,500 on an 18 month basis. 
National Commission on Urban Problems, Building the American 
City (1968), p. 112.



and reports by Congress and independent organizations 
have disclosed that, even where the applicability of reloca­
tion requirements is unquestioned, they have been largely 
ignored by the state and federal agencies charged with 
their implementation. Thus, in clear violation of Congres­
sional mandate, public highway officials are exacerbating 
a national housing crisis which has severest consequences 
for the poor generally and the racially oppressed in par­
ticular.6

4

SUMMARY OF ARGUMENT
As the briefs of the parties fully set forth the facts and 

proceedings below, amicus will not repeat them here. Briefly 
stated, and only insofar as the merits are concerned, the 
United States District Court for the Southern District of 
West Virginia, in a decision7 which was affirmed without 
opinion by the United States Court of Appeals for the 
Fourth Circuit,8 dismissed the complaint on two grounds: 
first, that the statutes and implementing regulations enacted 
and promulgated in 1968 were inapplicable since DOT 
approval of acquisition of the right-of-way for the 1-77 
project was granted prior to 1968; and, second, that in

6. As stated in Norwalk CORE v. Norwalk Redevelopment 
Agency, 395 F. 2d 920, (2d Cir. 1968) :

The specific problem is not that non-white displaeees are, on 
the average, poorer than white displaeees. That may be so, but 
it is a more general problem. What we are concerned with is 
that discrimination which forecloses much of the housing 
market to some racial groups, thereby driving up the price 
they must pay for housing. The situation is made worse by 
the fact that most people displaced by urban renewal are 
non white. 395 P. 2d at 931.

7. 314 P.Supp 20 (S.D.W.Va., 1969)
8. 429 F.2d 423 (4th Cir. May 14, 1970). Rehearing en banc 

was denied on July 14, 1970. Judge Sobeloff, joined by Judge 
Winter, filed a dissenting opinion. Id.



any event, adequate replacement housing, on an open racial 
basis, will be available in Charleston for the orderly reloca­
tion of persons displaced by the highway project.

Amicus will not reiterate the forceful arguments pre­
sented in petitioners’ brief and in the dissenting opinion of 
Judge Sobeloff; rather it will primarily confine itself to 
a demonstration that in view of the history of the federal- 
aid highway program and the legislative activities which 
culminated in the Federal-Aid Highway Act of 1968, Con­
gress did not intend to suspend application of that Act 
to projects like 1-77. As will be shown, non-application 
of this Act in the present case would have negative effects 
nationally which should not be allowed to occur in the 
absence of explicit Congressional mandate. Amicus will 
also show that the considerations which were relied, upon by 
the district court were inappropriate and not the statutory 
criteria.

INTRODUCTION
The history of relocation assistance is replete with the 

failures of government programs to minimize the terrible 
impact of forced displacement upon the families and indi­
viduals involved.® Eeloeation assistance was unnecessary 
when few displacements occurred and when condemnations 
involved predominantly unimproved land.9 10 But with the

9. See, The Legal Lawbreaker: A  Study in Official Lawlessness 
Regarding Federal Relocation Requirements, Citizens Advocate 
Center (Wash., D.C., July, 1970) and Fried, Grieving for a Lost 
Home: Psychological Costs of Relocation, in URBAN RENEWAL : 
THE RECORD AND THE CONTROVERSY (J. Wilson, ed. 
1966) at 359 and Hartman, The Housing of Relocated Families, 
30 J. Am. Inst. Planners 266 (1964)

10. A Massachusetts statute enacted in 1639 granted authority 
to lay out roads, “ provided always it occasioned not the pulling 
down of any man’s house, or laying open any garden or orchard.”  
1 Nichols, EMINENT DOMAIN § 1.22 [2] (1964)

5



tremendous recent increases in urban populations metro­
politan facilities have become overloaded, the central cities 
increasingly blighted, and large-scale government programs 
have been required to physically rehabilitate the urban 
environment. In their rush to make the necessary physical 
improvements, governments at all levels neglected the 
needs of the persons displaced.11 Typically, government 
officials treated statutory relocation duties as unimportant 
preliminaries to the more dramatic tasks of constructing 
the improvements; displacees were regarded “as unfor­
tunates to whom nothing is owed, but to whom something 
might be given.”12 As problems of displacement and reloca­
tion were compounded, they finally began to receive serious 
study on the federal,13 state14 and municipal15 level.

In the early 1960’s, during a period of intensive construc­
tion of Federal-aid highways, it began to appear that the

6

11. National Commission on Urban Problems, supra., n. 5, p. 153.
12. Note, The Interest of Rootedness: Family Relocation and 

an Approach to Full Indemnity, 21 Stan. L. Bev. 810, 803-804 
(1969).

13. See, e.g., Select Subcommittee on Beal Property Acquisition, 
Committee on Public Works, House of Bepresentatives, 88th 
Cong., 2d Sess., Study of Compensation and Assistance for Persons 
Affected by Real Property Acquisition in Federal and Federally 
Assisted Programs (Comm. Print 1964) ; U.S. Advisory Com­
mission on Intergovernmental Relations, Relocation: Unequal Treat­
ment of People and Businesses Displaced by Governments (1965); 
Highway Relocation Assistance Study, supra., n. 5.

14. In 1965 the California Legislature commissioned the Cali­
fornia Law Bevisio'n Commission to study condemnation and 
relocation assistance. Cal. Stats.1965, res. ch. 130, p. 5,289. In 
part as a result of that study, the Legislature recently enacted 
Highway Relocation Assistance Study, supra., n. 5.

15. See, e.g., Panueh, Relocation in New York City, (1959), 
which was commissioned by the Mayor of New York in 1957.



7
highway program was having a disproportionately adverse 
effect on persons forcibly displaced from housing in the 
path of projjosed highways and was otherwise imposing 
intolerable burdens on certain urban communities and 
neighborhoods. The persons who thus suffered from the 
highway program were invariably poor and frequently 
members of racial minority groups. Thus, in enacting the 
Federal-Aid Highway Act of 1966, Congress directed that 
a study be made of the relocation problem with special 
emphasis on the adequacy of relocation payments and assist­
ance rendered.16 The resultant Highway Relocation Assist­
ance Study was submitted by the DOT to Congress in July, 
1967.17 The Study indicated that about 168,000 individuals, 
families, businesses, farmers and non-profit organizations 
would be displaced during the three-year period commenc­
ing July 1, 1967. About 23 percent would be located in 
rural areas and 77 percent in urban areas. It showed that 
such prospective displacees tended to occupy low-cost hous­
ing.18 19 In this connection, the Study also pointed out that 
“ | m]any State highway departments reported that a major 
difficulty in relocating low or moderate income families is 
the shortage of low-rent housing, “ either public or pri­
vate.”1'9

16. Public Law 89-574, 89th Cong., Sept. 13, 1966.
17. Supra., n. 5.
18. “ Estimates reveal that the greater number of displacements 

will involve the midrange or lower cost housing.”  I  bid., p. 6. 
According to figures contained in the Study, 86,154 of the indi­
viduals and families to be displaced owned their own homes; 
60,796 were tenants. Values of the 86,000 residential properties 
to be taken were: 27% at $6,000 or less; 46% at $6,000 to $15,000; 
and 27% at over $15,000. Rental paid by the 61,000 tenants to 
be displaced were: 41% at less than $60 per month; 43% at $60 
to $110 per month; and 16% at over $110 per month. Ibid., p. 43.

19. Ibid., p. 6.



The relocation problem figured prominently in the con­
gressional hearings on the Federal-Aid Highway Act of 1968 
and related legislation. Moreover, during the course of such 
hearings, Francis C. Turner, then Director of the Bureau 
of Public Roads and now Federal Highway Administrator, 
disclosed that the 1967 Highway Relocation Assistance 
Study had under-estimated the number of displacements 
from housing that would be caused by the construction of 
highways during 1967-1970. Mr. Turner stated that “ in 
fiscal 1968, the Federal-aid highway program alone effected 
some 33,000 displacements. During the present fiscal 1969 
we anticipate about 56,000 displacements in this program.”20 

The magnitude and gravity of the relocation problem was 
indicated also by Lowell K. Bridwell, then Federal Highway 
Administrator-, who in 1968 stated before a Congressional 
committee that:

“ . . . relocation assistance, in my opinion, is one of the 
most serious problems facing us in the Highway Ad­
ministration and the Bureau of Public Roads, and one 
of the most serious problems facing the progress of the 
Federal-aid highway program . . . .  Without question, 
I think any rational examination of the problems that 
we face in the progress of the Federal-aid highway pro­
gram has to have as one of its big parts the problems of 
displacing persons . . . .

“Frequently, homeowners who must relocate face 
higher costs than they had formerly. In some cases, 
this results because there is no suitable housing com­
parable in price to what these owners left. This seems 
likely to be the case for many of those to be relocated 
from highway rights-of-way. . . . 
* # # # # # #

8

20. Hearings before the Subcommittee on Intergovernmental 
Relations of the Committee on Government Operations, U.S. 
Senate, on S.l, the Uniform Relocation Assistance and Land 
Acquisition Policies Act of 1969, U.S. Senate, 91st Cong., 1st 
Sess., p. 216.



“ How serious a problem relocation may be for resi­
dents depends on such matters as their age, income and 
race and on the amount and cost of vacant land and 
replacement housing in the area. In one study of elderly 
homeowners, a majority of the resettled owners stated 
that the displacement had adversely affected their fi­
nancial position.21

The Federal-Aid Highway Act of 1968, 23 U.S.C. § 501 
et seq., (also known as the Highway Relocation Assistance 
Act of 1968, and hereinafter referred to as the “ 1968 Act” ) 
was a direct response to the relocation problem and is en­
tirely addressed to its alleviation. The Committee Report 
which accompanied the Senate bill which was to become the 
1968 Act, stated the results of Senate Hearings on the bill 
as follows:

“Hearings began on December 14, 1967, and were 
concluded on May 28,1968. During the 12 days of hear­
ings, 36 witnesses were heard. These witnesses in­
cluded officials of various Federal agencies; officials 
from State and local governments and agencies; rep­
resentatives of the engineering, highway and urban 
planning, and architectural professions, sociologists 
and others from the academic world, as well as indi­
viduals from other interested groups.

“As the hearings progressed it became obvious that 
the same range of problems was being identified and 
discussed by each witness. It also became apparent 
that these problems fell into [the same areas] . . . .”

“ The most pressing of these problems and the one 
most deserving of the immediate attention of the Con­
gress in the committee’s view is the inequitable treat­
ment of persons or businesses displaced, by highway 
construction. Accordingly, the committee has proposed

21. Hearings before the Subcommittee on Intergovernmental 
Relations of the Committee on Government Operations, U.S. Senate, 
on S.698, S.735, S.458 and S.2981, 90th Cong., 2nd Sess., pp. 425-427.

9



legislation, . . .  as reported, which will aid significantly 
in reducing the hardship of those who suffer private 
injury for the public benefit. 
* * * * * * *

“ The evidence showed . . . that, because urban inter­
state highways 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 pro­
grams.

“In this regard it was pointed out that often when 
persons are displaced from these areas there is no 
housing or replacement property available for their 
relocation. People are thus forced to move, but have 
no place to go; or if other housing or replacement 
housing does exist, it is usually well beyond their finan­
cial capabilities. The evidence clearly shows that there 
is a definite need for procedures which provide for 
comparable replacement housing and property at the 
time such displacement occurs.”22 (Emphasis added.)

In enacting the 1968 Act, Congress included the following 
“declaration of policy” in the first section thereto (23 U.S.C. 
§ 501) :

Congress hereby declares that the prompt and equi­
table relocation and reestablishment of persons, busi­
nesses, farmers, and non-profit 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 dispropor­
tionate injuries as a result of programs designed for 
the benefit of the public as a whole. Therefore, Con­
gress declares that relocation payments and advisory

22. Report of the Committee on Public Works, U.S. Senate, to 
accompany Senate Bill No. 3418, the Federal-Aid Highway Act 
of 1968. Report No. 1340, 90th Cong., 2nd Sess., June 28, 1968, pp. 
5-7.

1 0



assistance should be provided to all persons so dis­
placed in accordance with the provisions of this title. 
(Emphasis added.)

In order to effectuate this declaration of policy, Section 502 
of the 1968 Act provides that the Secretary of the DOT 
shall not approve any Federal-aid highway project which 
will cause the displacement of any person or business unless 
he received “ satisfactory assurances” from the State high­
way department that “ fair and reasonable relocation and 
other payments shall be afforded displaced persons” j23 that 
“ relocation assistance programs . . . shall be afforded to 
displaced persons” ;24 and, most important of all, that:

within a reasonable period of time prior to displace­
ment there will be available, to the extent that can rea­
sonably 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 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 individuals 
and reasonably accessible to their places of employ­
ment.25

Section 508 of the 1968 Act requires each state to provide 
“a relocation advisory assistance program” which shall in­
clude such measures, facilities or services as may be neces­
sary or appropriate in order “ to determine the needs, if 
any, of displaced families and individuals . . . for relocation

23. 23 U.S.C. §502(1).
24. 23 U.S.C. §502(2).
25. 23 U.S.C. § 502(3). As is discussed infra, n. 75, this statute, 

like a number of others pertaining to displacement from various 
federal programs, was modelled after and is almost identical to the 
federal statute governing urban renewal relocation. 42 U.S.C. 
§ 1455(e)(1).

1 1



assistance,”26 27 28 and to assure that the requirements of Sec­
tion 502 can be met.

Pursuant to specific statutory authorization,27 the Sec­
retary of the DOT issued detailed regulations which define 
and expand the provisions of the above statutes. Initially 
these regulations were contained exclusively in DOT In­
structional Memorandum (“ IM” ) 80-1-68, dated September 
5, 1968, issued two weeks after the effective date of the 
1968 Act. Thereafter, IM 80-1-68 was amended on several 
occasions, primarily to make certain adjustments in pro­
visions relating to relocation payments28 and to conform 
other provisions to requirements of the Civil Eights Act 
of 1968.29

These fairly enlightened relocation requirements have 
unfortunately had little effect in the actual administration 
of the federal-aid highway program. Eeeent hearings before 
the House Committee on Public Works30 revealed that in 
the informed opinion of the independent experts who testi­
fied, the DOT had “ engaged in, and knowingly tolerated, 
a pattern of pervasive evasion” of the relocation statutes.31

26. 23 U.S.C. § 508(a).
27. 23 U.S.C. § 510(a) (b).
28. On October 2, 1968, paragraph 9c(2) of the IM was revised 

to make certain owner-occupants eligible for a payment of up to 
$1,500 for use as rent supplement or down-payment on the purchase 
of a dwelling.

29. On November 15, 1968, various provisions of paragraph 5 
of the IM were revised to require that the replacement housing to 
be provided displacees must be “ available to persons without regard 
to race, color, religion or national origin.” See, e.g., IM 80-1-68, 
paragraph 5a(5).

30. Hearings before the Committee on Public Works, House of 
Representatives, 91st Cong., 1st and 2nd Sess., on H.R. 14898, H.R. 
14899, S.l and related bills.

31. Ibid., Statement of Edgar S. Cahn, pp. 370-379. Dr. Cahn’s 
statement contained the following conclusion:

1 2



Similarly, a comprehensive and heavily documented report 
on relocation recently issued by a citizens organization in 
Washington, D.C. also concluded that the DOT and HUD 
had “ lawlessly” and consistently ignored federal relocation 
requirements.32 The DOT’s noncompliance with federal law 
and its own regulations in connection with highway reloca­
tion has thus proved remarkably similar to the dismal and

13

The history of statutory relocation requirements—twenty 
years of them—is that they are ignored, they are evaded, they 
are not enforced. Codification of the hodgepodge that now 
exists and creation of a uniform procedure drawn from the 
best features of various agencies will not and cannot, standing 
by itself, change the fundamental historical fact that the Ex­
ecutive branch pursues a more fundamental relocation proce­
dure :

“ See no evil; hear no evil; speak no evil.”
For, let us be very candid, the Executive branch— and par­

ticularly TIUD and DOT—have long engaged in, and knoAV- 
ingly tolerated, a pattern of pervasive evasion of statute after 
statute, congressional mandate after congressional mandate, 
and court case after court case.

The record leaves no room for doubt regarding relocation 
requirements. For the past twenty years there has been a pat­
tern of official lawlessness on the part of the Federal Govern­
ment which must be arrested.

It can hardly be said that Congress has been coy or ambig­
uous regarding the duty of the federal government and the 
priority importance it assigned to adequate relocation. On six 
separate occasions Congress has stated and then restated its 
wishes, each time in more stringent, explicit and mandatory 
terms.

See also statement of Yale Rabin, urban transportation planning 
consultant and member of the American Institute of Planners, 
Ibid., pp. 479-485; and statement of Gerald P. Norton, first vice 
president, Metropolitan Washington Planning and Housing Associa­
tion, Ibid., p. 187.

32. The Legal Lawbreakers: A  Study in Official Lawlessness Re­
garding Federal Relocation Requirements, Citizens Advocate Cen­
ter (Washington, D.C., July, 1970) See also, Roberts, Highway 
Relocation Planning and Early Judicial Review, 7 Harv. Jour, on 
Legis. 179,180 (1970).



extraordinarily well documented record of non-enforcement 
of almost identical urban renewal relocation requirements.33

The inability of the DOT to compel state highway depart­
ments to comply with the relocation requirements of the 
1968 Act and implementing regulations soon become ap­
parent, not only to independent observers and the affected 
public, but as well to some senior federal Highway officials.34 
In a press conference on February 16,1970, reported in the 
Wall Street Journal, Secretary Volpe announced that “Fed­
eral efforts will be stepped up to insure that the 1968 
highway laws’ provisions for decent housing are enforced” 
and that “ the availability of adequate replacement housing, 
either already built or planned, must be assured for initial 
federal approval of any [highway] project, and the new 
housing must be built before construction is authorized.”35

14

33. See, e.g., Report to the Congress by the Comptroller General 
of the United States: Opportunity to Improve Allocation of Pro­
gram Funds to Better Meet the National Housing Goal (October 2, 
1970); Tondro, Urban Renewal Relocation: Problems in the En­
forcement of Conditions on Federal Grants to Local Agencies, 117 
U. Pa. L. Rev. 183 (1968); Note, Urban Renewal: Problems of Min­
imizing and Preventing Urban Deterioration, 71 Harv. L. Rev. 504 
(1959); Anderson, The Federal Bulldozer: A  Critical Analysis of 
Urban Renewal, 1949-1962 (MIT Press 1964); Greer, Urban Re­
newal and American Cities (Bobbs-Merrill, 1965). See also Nonvalk 
CORE v. Nonvalk Redevelopment Agency, 395 P. 2d 920 (2d Cir. 
1968); Powelton Civic Home Owners Association v. Dept, of Hous­
ing and Urban Dev., 284 F. Supp. 809 (E.D. Pa. 1968); and West­
ern Addition Community Organization v. Weaver, 294 F. Snpp. 
433 (N.D. Cal. 1968).

34. The fact that the DOT was running into “ revolt”  by state 
highway departments disinclined to comply with new federal hear­
ing procedures was noted by Alan S. Boyd, then Secretary of 
Transportation, at Congressional hearings. See Hearings before the 
Subcommittee on Roads of the Committee on Public Works, U.S. 
House of Representatives, 90th Cong., 2nd Sess., on H.R. 17134 and 
Related Bills, May 23,1968, pp. 234-235.

35. Wall Street Journal, February 17, 1970, p. 4, col. 2. This 
article also quotes “ department sources” as adding that: “ In many 
instances . . . highway projects have moved along without replace­
ment housing being made available to those whose homes are in a 
road’s path, or the quality of replacement housing provided has 
been low.”  Ibid. The Wall Street Journal article is reproduced 
in Hearings before the Committee on Public Works, House of Rep­
resentatives, supra, n. 30, p. 478.



15
He added that,

. . .  in accordance with the Civil Eights Act of 1968, 
efforts will be made to see that all replacement housing 
is fair housing, meaning open to ail persons regardless 
of race, color, religion, national origin or sex, under 
the new Department policy.36

Two months later, on April 6, 1970, Secretary Yolpe 
convened another press conference at which he was reported 
as “ insisting that any highway projects that would demolish 
houses be held up until decent replacement housing is 
assured.”37 38 Less than a week later, on April 10, 1970, the 
Secretary put the power of his office behind his public 
statements by issuing DOT Circular Memorandum dated 
April 10, 1970 entitled Relocation Assistance-Availability 
of Replacement Housing.88 This Circular Memorandum, 
which by its terms applies to all Federal-aid highway 
projects authorized prior to May 1, 1970 on which dis­
placement has not been completed, states in material part 
as follows (emphasis added):

36. Ibid. The article also ascribes to Department of Transporta­
tion “ sources” the explanation that “ this means, for example, that 
if a Negro is forced to move from a black ghetto because of a new 
highway and doesn’t want to move into another all-black area be­
cause he’s concerned that the homes may be low-grade ones, he must 
be provided with integrated housing.”

37. Wall Street Journal, April 7, 1970, p. 1, Col. 1 (Emphasis 
added.) See also Memorandum of Secretary of Department of 
Transportation: Implementation of Replacement Housing Policy, 
January 15, 1970, and statement of Frank C. Turner, Administra­
tor of the Federal Highway Administration, at Hearings before the 
Subcommittee on Roads of the Committee on Public Works, House 
of Representatives, 91st Cong., 2nd Sess., on TI.R. 16788 and related 
bills, p. 995.

38. This Circular Memorandum is the one referred to below in 
the dissenting opinion of Circuit Judge Sobeloff, 429 F. 2d 423 at 
425 n. 5, although Judge Sobeloff inadvertently noted the date of 
the subject Memorandum as March 27, 1970. In fact, March 27th 
was the date of the “ White Circular Memorandum” which was su­
perseded by the Circular Memorandum of April 10th.



The division engineer shall not authorize any phase of 
construction (clearance of right-of-way regardless of 
of how 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 
authorised, 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 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 finan­
cial means of the families and individuals dis­
placed.

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

of employment.
f. Adequate to accommodate the displacee.

Since issuing the April, 1970 regulations, the Secretary 
has publicly testified that “ [t]he construction of urban 
freeways has been a disruptive force in some of our urban 
areas and perhaps accelerated the process of central city 
decay.”39 This is understatement—particularly in view of 
the fact that the billions upon billions of dollars regularly

16

39, Hearings before the Subcommittee on Roads of the Commit­
tee on Public Works, House of Representatives, supra, n. 37, p. 948.



17
appropriated for federal-aid highways40 far exceed the 
funds available for urban redevelopment and subsidized 
housing programs. These latter programs are thus unable 
to repair the human and physical damage wrought by the 
overfinanced bulldozers of state highway departments.

There are a number of obvious reasons for the failure of 
the DOT and state highway departments to even approach 
compliance with the relocation requirements. First, as in 
the case of federal programs administered by other execu­
tive departments,41 the DOT is in the position of relying 
almost entirely on state officials not only to develop the 
specific standards implementing the relocation require­
ments, but also to provide the information necessary to 
determine in advance whether the statutory criteria can 
be met. The success of these state officials will depend, not 
upon their success in relocating displacees, but in com­
pleting highway projects as rapidly as possible. To com­
pound the problem, the DOT also depends upon state high­
way officials for the information necessary to evaluate 
state compliance with the standards in carrying out reloca­

40. The cost of completing the Interstate System, as submitted 
to Congress in 1968, was $56.5 billion. Report of the Committee on 
Public Works, U.S. Senate, supra., n. 22, p. 3. A  total of $5,044 
billion was made available for obligations of the federal-aid high­
way program for only the nine month period from July 1, 1969 
through April 1, 1970. CCH U b b a n  A ffa irs  R eports , 18,675. A 
total of $1.25 billion is available for obligations during just the first 
quarter of fiscal 1971. Ibid., 18,759. The colossal cost of the high­
way program may also be illustrated by the fact that 20 miles of 
planned highway in Chicago will cost approximately $1 billion. 
Hearings before the Subcommittee on Roads of the Committee on 
Public Works, House of Representatives, supra, n. 38, p. 955. The 
distribution of funds among the states is published in DOT Instruc­
tional Memorandum 30-5-70.

41. See, Tondro, supra., n. 33, p. 198.



tion 42 This wholesale turnover of the highway program to 
state officials likely to adopt a biased view of the relocation 
problem43 reflects the DOT’S response to pressures on it­
self. The state highway department, not politically impo­
tent or racially oppressed displacees, is the DOT’s recur­
ring “ client” ; without state highway departments’ willing­
ness to undertake further projects, certain constituent 
agencies of the DOT would find it difficult or impossible to 
continue operating.44 45 But by identifying so closely with one 
point of view, the DOT in its supervision of relocation, has 
become yet another regulatory agency now controlled by 
the very interests it was designed to regulate.

A further reason for the failure of enforcement of the 
relocation requirements emerges out of the fact that 
“ [t]hose involved with the problem on the state level 
are usually state highway department engineers with prac­
tically no training or experience in understanding and 
dealing with the complex social and economic problems of 
the displaced person.”40 If officials of local redevelopment 
agencies, who are far more experienced with the problems 
of relocation46 and more regularly concerned with it, can

18

42. See IM 80-1-68, paragraph 7a(3) and 7 b (l).
43. As stated in Hartman, supra, n. 9, at 280:

[0]ne must question whether local authorities are free to 
judge and report on the results of their relocation operations 
in an objective and impartial manner. In effect, the local 
agency may have no choice but to issue extremely positive re­
location reports: anything less than this might produce legal, 
political, and technical conflicts and could slow up or curtail 
the entire rebuilding effort, which is the principal goal of the 
authority and its program.

44. See Eoberts, supra., n. 32, at 191.
45. Ibid., pp. 181-182.
46. The urban renewal relocation requirements were initially 

enacted as part of the Housing Act of 1954, P.L. 88-560, 78 Stat. 
769, 786.



be lax with the rights of displacees,47 it is unlikely that 
highway officials are apt to be more assiduous in their 
responsibilities. Because of their inexperience and desire 
to avoid matters which may hinder or delay the construc­
tion of a highway, it has been suggested that highway 
officials “may attempt to gain initial approval for their 
proposed projects by submitting false or obsolete data 
concerning relocation to the [DOT].”48

ARGUMENT
I. The Federal Releccrtism Requirements Apply to Benefit and 

Protect All Residents of a Federal-Aid Highway Project Not 
Yet Displaced ©n the Dote ©f Their Enactment.

Amicus will not here reiterate the compelling arguments 
amply set forth in petitioners’ brief and in Judge Sobel- 
off’s dissenting opinion below in support of application 
in this case of the 1968 Act and implementing regulations. 
Such application is warranted, however, not only by the 
plain statutory and regulatory language, the legislative 
history and relevant deeisional law, but as well by the

19

47. See Tenants and Owners in Opposition to Redevelopment v. 
Romney, No. C-69-3'24 (N.D. Cal. April 29, 1970) where the court 
noted that “ [t]he evidence . . .  is overwhelming in establishing that 
[officials of HUD and the local redevelopment agency] have not 
met the mandate of Congress laid down in [the urban renewal relo­
cation statutes . . . which] make it abundantly clear that Congress 
intended residents of blighted areas to be beneficiaries, not victims, 
of urban renewal.”  Slip Opinion, pp. 31-32. See also, Norwalk 
CORE v. Norwalk Redevelopment Agency, 395 P. 2d 920 (2d Cir. 
1968); Powelton Civic Home Owners Association v. Dept, of Hous­
ing and Urban Dev., 284 P. Supp. 809 (E.D. Pa. 1968) and West­
ern Addition Community Organization v. Weaver, 294 F. Supp. 
433 (N.D. Cal. 1968).

48. Roberts, supra., n. 32, p. 180. The practice of submitting in­
accurate and often deliberately misleading data concerning reloca­
tion is authoritatively reported as widespread among local redevel­
opment agencies. See, e.g., Tondro, supra., n. 33, p. 194, and author­
ities therein cited and discussed.



fact that non-application of the law in this ease would 
have a terrible impact nationally upon thousands of impov­
erished displaeees—an effect not intended by Congress,

During its deliberations on the 1968 Act, Congress 
understood that the planning and construction of federal- 
aid highway projects was an exceedingly lengthy process 
and that, for example, 8 to 10 years may elapse between 
the initial proposal of a particular project and actual 
construction.49 During this protracted period the state 
highway department must seek and obtain from the DOT 
“ corridor” or route approval and, subsequently, design 
approval. Each of these approvals can be given only 
after the highway department has held appropriate 
public hearings.50 Thereafter, the state must submit “plans, 
specifications and estimates” limited to the acquisition of 
right-of-way.51 Lastly, the DOT must approve new and 
different “plans, specifications and estimates” regarding 
the construction stage.52 It is this last approval which 
constitutes “ final approval.” Such approval 'was never 
given with respect to 1-77, and that highway project has 
therefore never been finally approved. Therefore, the state­
ment in the District Court’s opinion that the 1-77 project 
“ was finalized some five years ago”53 is legally unfounded 
and misleading.

49. Report of the Committee on Public Works, U.S. Senate, 
supra., n. 22, p. 10. On June 10, 1970, Secretary Yolpe testified 
at congressional hearings that urban interstate projects, such as 
1-77, would normally require 6 years of planning and construction. 
HEARINGS before the Subcommittee on Roads of the Committee 
on Public Works, House of Representatives, supra., n. 37, p. 979.

50. DOT Policy and Procedure Memorandum 20-8
51. DOT Policy and Procedure Memorandum 21-7.
52. For a detailed description of some of the factual and legal 

distinctions between corridor approval, design approval, acquisition 
approval and construction or “ final”  approval, see D.C. Federation 
of Civic Associations v. Volpe, 316 F.Supp. 754, 774 et seq., (D.D.C. 
1970)

53. 314 F. Supp. at 31

2 0



2 1

It must be emphasized in this connection that the majority
of highway displacements invariably occur during the 
actual construction stage. (And it is for this reason that 
numerous prospective displaeees are still resident in the 
Triangle area notwithstanding the fact that the DOT 
approved acquisition of right-of-way for 1-77 approximately 
four years ago.) Thus it is highly significant that, pursuant 
to paragraph 7b of IM 80-1-68, the state highway depart­
ment’s relocation plan may be submitted to the federal 
division engineer just prior to proceeding with con­
struction.54 55

Since the DOT has not granted construction approval 
for the subject portions of 1-77 on the effective date of the 
1968 Act, and since no residents of the Triangle area 
had been displaced at that time, application of paragraphs 
5 and 7 of IM 80-1-68 would have imposed no serious 
burden on the project. In view of the fact that completion 
of the project will, in any event, probably require many 
years, delay of a few months still would be a relatively 
small price to pay for the protection thus afforded dis­
plaeees.

On June 28, 1968, the date the 1968 Act was reported 
out of the Senate Committee, there were 8,500 federal-aid 
highway projects underway which, like the 1-77 project, 
had received design or right-of-way acquisition approval 
but were not yet in the construction stage.56 Collectively

54. Paragraph 7b states in material part as follows: 
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.. . .  (Emphasis added)

55. Report of the Committee on Public Works, U.S. Senate, 
supra.,, n. 22, p. 3.



these projects will cause (or may in part already have 
caused) over 100,000 residential displacfimen±s»Si,,The ma­
jority of sucK'displacees were low-income persons,®7 pre­
cisely those of pre-eminent concern to Congress.®8 There­
fore, had Congress intended to deny the benefits of the 1968 
Act to displacees of on-going projects, it must be assumed 
such an intent would have been expressed in the statute— 
as it was expressed in similar statutes on analogous occa­
sions.56 57 58 59 Since such an intent was not expressed, it must 
be presumed not to have existed.

Not only does the 1968 Act contain no language restrict­
ing application to highway projects initially commenced 
after its effective date, but the regulations promulgated 
pursuant to the Act justify the conclusion that such re­
striction was never even contemplated by the DOT. The 
terms of Paragraph 2b(2) and (3) of DOT Instructional 
Memorandum 80-1-68 (which state that provisions of the IM

56. The Highway Relocation Assistance Study, supra., n. 5, 
stated, at p. 5, that 146,950 families and individuals would be 
displaced during the three-year period commencing July 1, 1967. 
In view of the length of the highway planning process, it must be 
assumed that the projects causing these displacements received 
most preliminary approvals prior to August 23, 1968.

57. Ibid., p. 6.
58. See 23 U.S.C. § 501 and Report of the Committee on Public 

Works, U.S. Senate, supra., n. 22, p. 7, wherein the Committee 
noted that “ because urban interstate highways 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. ’ ’

59. As noted elsewhere by petitioners, Congress specifically 
prohibited the application of the 1962 highway relocation amend­
ment to projects approved prior to its enactment. 23 U.S.C. 
§ 133(e). And in adopting relocation requirements for urban 
renewal which are very similar to those here at issue, Congress 
expressly stated that the new requirements did not apply to 
projects in which HUD had already approved planning grants. 
See also, § 106(f) and (h) of the Housing Act of 1949, 42 U.S.C. 
1455(f) and (h), which pertain to replacement housing facilities 
for persons displaced by urban renewal projects.

22



23
are applicable to projects “ authorized” before August 28, 
1968 on which individuals and families have not been dis­
placed) make it eminently clear that these regulations were 
intended to apply to all highway projects from which, as 
of the effective date of the statute residents were yet to 
be displaced, regardless of when they received initial fed­
eral authorization. This conclusion is further supported 
by the terms of Paragraph 5a of IM 80-1-68 which provides 
that no state highway department shall be authorized to 
proceed with “ any phase of any project which will cause 
the displacement of any person. . . . ,” until it has furnished 
satisfactory assurances concerning relocation. (Emphasis 
added.) The first sentence of paragraph 5b of the IM, 
which standing alone might warrant the opposite con­
clusion, is immediately qualified in the next following 
sentence, which provides that the state “ will pick up the 
sequence at whatever point it may be in the acquisition 
program” on the issuing date of the regulations. On Sep­
tember 5, 1968 (the date of issuance of IM 80-1-68) West 
Virginia highway authorities had not received federal 
authorization to proceed with construction of the subject 
portions of 1-77, the “phase” which would cause displace­
ment, and the project was still in the acquisition stage. No 
residents of the Triangle area had been forcibly displaced 
at that date. The conclusion is therefore inescapable that 
the relocation requirements were intended to apply with 
full force to the 1-77 project as part of the “ sequence” to 
be “picked up” at whatever point it may have been in the 
acquisition stage.

Moreover, as petitioners have shown, even indulging the 
unwarranted assumption that the first sentence of para­
graph 5b of the IM should be read as if in a vacuum to 
justify non-application, the issuance of DOT Circular Mem­
orandum dated April 10, 1970, while the appeal below was



pending, would still operate to effectively require applica­
tion. Thorpe v. Housing Authority of the City of Durham.®0

The instant appeal is not the first in which an appellate 
court has been asked to rule upon application of the 1968 
Act and implementing regulations to a particular project 
commenced prior to their enactment. In D.C. Federation 
of Civic Associations v. Volpef1 which involved the Three 
Sisters Bridge project in Washington, D.C., one of the 
issues confronting the Court of Appeals for the District 
of Columbia was whether a so-called “ design public hear­
ing” required by new DOT regulations must be held in 
view of the alleged fact that the DOT had given design 
approval prior to the effective date of the regulations. 
The district court never reached this issue, since it granted 
summary judgment for appellees after concluding that 
the alleged violations of the 1968 Act and regulations would 
not be considered because “ Congress intended that the 
District of Columbia commence construction of the Bridge 
project as soon as possible, and that no further planning or 
hearing requirements of Title 23 need be complied with.”60 61 62 
The court of appeals reversed this lower court decision 
and remanded for a factual determination whether location 
approval was obtained prior to the effective date of the 
regulations. Circuit Judge Wright, writing for the ma­
jority, pointed out that

Since these road projects may irreparably affect or 
destroy basic rights—for example, the basic right of 
a citizen to live in his home—we must carefully and 
meticulously scrutinize any proposal which would deny 
to some their federally created right to influence the 
course of a highway in their neighborhood to determine

60. 393 U.S. 268
61. Civil No. 23,870 (D.C. Cir. April 6,1970)
62. Ibid., Slip Opinion, p. 2

24



25

whether this discrimination is “ necessary to the ac­
complishment” of the congressional objective—a fed­
erally financed interstate highway system.83

In a separate concurring opinion Judge Bazelon recog­
nized that there was some ambiguity in the 1968 Act as to 
whether particular provisions were intended to apply to 
the Three Sisters Bridge Project. He agreed that the am­
biguity should be resolved in favor of application, not only 
because there were no “ explicit criteria” in the statute justi­
fying non-application to that particular project, but as well 
because such an interpretation

. . . avoids treating District residents less favorably 
than all other citizens with respect to the federal 
highway system. . . . Apart from constitutional con­
siderations, we should not lightly presume that Con­
gress has deprived District residents of an oppor­
tunity afforded to all other citizens, at least in the 
absence of the clearest legislative mandate, which is 
lacking here.63 64

While the facts in the D.C. Federation case are not per­
fectly analogous to those here presented, the reasoning of 
Circuit Judges Wright and Bazelon is nevertheless highly 
relevant. Respondents would deny to residents of the Tri­
angle protections and benefits which may well effect their 
basic right to decent, safe and sanitary housing. This Court 
has frequently recognized that adequate housing is “ a 
necessary of life.”65 And by determining where one lives, 
housing also determines access to jobs, education and 
recreation. Therefore, where, as here, a statutory scheme

63. Ibid., Slip Opinion, p. 14
64. Ibid., Slip Opinion, pp. 2-3 (separate concurring opinion 

of Bazelon, J.)
65. Bloch v. Ilirsh, 256 U.S. 135, 156; Shapiro v. Thompson, 

394 U.S. 618,627.



involves such a fundamental Iranian need, this Court must 
“ carefully and meticulously” scrutinize a proposed inter­
pretation which would deny to many thousands of poor 
persons the federally created right to adequate relocation 
housing.86

It is interesting to note that upon remand of D.C. Fed­
eration the district court also rejected the statutory inter­
pretation again sought by DOT officials. After considering 
at length the extensive testimony of such officials, including 
that of Secretary Volpe himself, and after recognizing “the 
deference which it must give to the interpretation of ad­
ministrative regulations by the administrative officials who 
promulgate and enforce them”,66 67 68 the court nevertheless 
rejected their proposed interpretation as “unreasonable 
and inconsistent with the purpose of [the regulations.]”88 
In effect, then, both the court of appeals and the district 
court considered the basic rights of the affected public 
too important to be ignored on the basis of highly technical, 
and indeed specious, arguments concerning the purported

66. As also pointed out by Judge W right:
I f  we were to accept appellees interpretation of Section 23, 
we would be confronted with difficulties, possibly of con­
stitutional magnitude. The provisions [of the 1968 Act] listed 
above are the essential safeguards which Congress has estab­
lished, on a nationwide basis, to ensure that massive freeway 
projects are not constructed unless there has been a good 
faith effort on the part of the state and local planners to 
take community needs and resources into consideration . . . . 
The Secretary of Transportation is charged with overseeing 
the planning and may not approve road projects, thus allow­
ing them to be built with federal funds, until he finds that 
all these considerations have been properly taken into account. 
D.C. Federation of Civic Associations v. Volpe, supra, Slip 

,  Opinion, pp. 5-6
67 D.C. Federation of Civic Associations v. Volpe, 316 F.Supp. 

754, 784 (D.D.C. 1970)
68. Ibid., 316 F.Supp. at 785.

26



2 7

“non-retroactivity” of regulations designed to protect the 
public interest. This Court must do no less.

IS. in the Absence of a Satisfactory Relocation Plan, Evidence 
of 0 State Highway Department's Ability to Provide Adequate 
Replacement Hsissing for Particular Displacees Is Factually 
and Legally Irrelevant.

In proceedings below the district court apparently relied 
upon the testimony of federal and state highway officials 
that “appropriate” replacement housing could be found, 
and that “no one will he displaced unless suitable (i.e., 
decent, safe, and sanitary) and lawful relocation housing 
is available . . ,”6S The district court also concluded that 
“adequate relocation housing, on an open racial basis, 
will be available in the Charleston area for an orderly 
relocation of the displacees from the interstate highway 
corridor.”69 70 These statements are not only erroneous as a 
matter of fact, as petitioners demonstrate, but are judg­
ments which must in the first instance be made by the 
Secretary of the DOT, not the courts.71 Moreover, and

69. 314 F. Supp. at 30.
70. Ibid., at 31
71. The proper function of the courts in relocation eases such 

as this was stated in Western Addition Community Organisation 
v. Weaver, 294 F. Supp. 433, 441 (N.D. Cal. 1968):

This injunctive relief does not mean that this court is pre­
sumptuously attempting to administer the complexities of 
urban redevelopment. That is not the function of the court 
nor is the court administratively equipped to do so. Nor 
does it mean that this court is attempting to substitute its 
judgment for that of the Secretary concerning the “ satis- 
factoriness”  of the local agency’s relocation plan.

Our decision simply means that the court can and should 
see to it that the Secretary complies with the requirements of 
the federal statute, and his own regulations, not merely in 
form hut in substance, and that the administrative discretion 
vested in him by law is not arbitrarily abused, as in this 
case, hut is reasonably exercised with some substantial basis 
in fact to support it. Such is the traditional function of the 
court upon review of administrative action of the kind here 
involved.



perhaps most important, the district court did not base 
its judgments about the availability of relocation housing 
on relevant statutory criteria.

The 1968 Act was designed, not simply to insure that 
displacees were adequately rehoused, but as well to insure 
that such relocation did not generate untoward repercus­
sions in local housing markets. It is for this reason that 
the regulations require development of a “ relocation pro­
gram plan”72 73 which, among other things, takes into con­
sideration concurrent displacement from other federal, 
state or local programs and private activities as well as 
competing demand generally.78

Paragraph 7 of IM 80-1-68, which pertains to planning 
for the relocation program, relates in many respects to 
Section 508 of the 1968 Act. This section, like Section 502, 
was modelled after Section 105(c) of the Housing Act of 
1949,74 which concerns urban renewal relocation.75 Because 
the urban renewal planning, administration, and evalua­
tion guidelines are older, and have received far more 
judicial attention76 than those regarding federal-aid high­
ways, the urban renewal cases are highly relevant for

72. DOT Instructional Memorandum 80-1-68, para. 7
73. Ibid., para. 7(c)
74. 23 U.S.C. § 1455(c)
75. This early relocation statute was also the model for similar 

statutes relating to other federal housing programs. See, e.g., 
42 U.S.C. § 1415(7) (b) (iii) (public housing) ; 42 U.S.C. § 3307(a) 
(demonstration cities program ); and 49 U.S.C. § 1606(a) (urban 
mass-transportation program).

76. See, e.g., Nonvalk CORE v. Norwalk Redevelopment Agency, 
395 F. 2d 920 (2d Cir. 1968); Powelton Civic Rome Oivners 
Civic Association v. Department of Rousing and Urban Develop­
ment, 284 F. Supp. 809 (E.D. Pa. 1968); Western Addition 
Community Organization v. Weaver, 294 F. Supp. 433 (N.D. Cal. 
1968) ; Garrett v. City of Hamtramck, No. 32004 (E.D. Mich. 
S.D., March 7, 1969) (unreported decision) ; Tenants and Owners in 
Opposition to Redevelopment v. Romney, No. C-69-324 (N.D. Cal. 
April 29, 1970); Talbot v. Romney, No. 2402 (S.D.N.Y., August 
20,1970).



29

purposes of interpreting the highway relocation guide­
lines. Many of the urban renewal relocation cases empha­
size that whether a local agency has complied with federal 
relocation requirements is not to be determined solely on 
the basis of whether it can find adequate replacement hous­
ing for particular displacees (and certainly not on the 
basis of undocumented speculations such as were relied 
upon below). For example, in Powelton Civic Home 
Owners Association v. Dept, of Housing and Urban Dev.,11 
the court observed that:

In determining the availability of satisfactory reloca­
tion facilities, the Secretary’s inquiries will be directed 
towards the ascertaining of general statistical facts: 
What are the general conditions in the new housing 
market? What are the competing demands from other 
housing consumers? What are the general needs of the 
displaced families? [citations] The peculiar problems 
of one individual or of one family within the project 
site will not be relevant to the Secretary’s determina­
tion.78

As in the context of urban renewal, West Virginia highway 
officials’ purported ability to obtain adequate replacement 
housing in Charleston for displacees of 1-77 is not the sole 
or even the most important test under the 1968 Act. For even 
assuming this goal could be achieved, the costs of achieving 
it might well be to deprive others of housing who are equally 
in need, drive up rents, decrease mobility, and further 
impact the Charleston housing market. Unless a state high­
way department has gathered and evaluated information 
concerning concurrent displacement and other factors relat- 77 78

77. 284 F. Supp. 809 (B.D. Pa. 1968)
78. Ibid, at p. 829. See also, Tenants and Owners in Opposition 

to Redevelopment v. Romney, No. C-69-324 (N.D. Cal April 29, 
1970) Slip Opinion, p. 31.



ing to the local demand for and supply of housing, there can 
be no assurance that even the successful relocation of 
displacees will not create a new housing problem or worsen 
an existing one.

So far as is shown by the record, respondents have no 
reliable information on relevant vacancy rates in Charles­
ton; no current information on rent ranges or prices of 
available housing; no information concerning the amount 
of available housing which conforms to housing codes and 
is “ decent, safe and sanitary” ; no information on the num­
ber of otherwise available housing units to be demolished 
as a result of urban renewal, code enforcement or private 
development; no information on the proximity of available 
housing to public transportation; and no information on 
whether and, if so, how much housing is available without 
regard to race, color, religion or national origin. Similarly, 
respondents submitted no accurate and up to date informa­
tion as to the rent ranges or sale prices which are within the 
financial means of persons to be displaced from the Tri­
angle; no information on the location of their places of 
employment; and no information as to special housing 
needs of particular displacees. Finally, respondents have no 
data concerning competing demand for available housing 
generated by concurrent displacement from urban renewal, 
code enforcement, other government and private activities 
or simply by the natural increase of demand over supply 
such as is occurring in most urban areas. Without these 
findings, which pursuant to the regulations must be sub­
mitted to the DOT79 along with a statement of the basis 
upon which they were made,80 neither the Secretary nor

79 DOT Instructional Memorandum paras. 7 a (l) (2 ) , 7b (l) 
(2 )(3 )

80. Ibid., para. 7a(3)

30



31

the courts can rationally determine whether displacees 
can be absorbed into existing and adequate replacement 
housing without impacting the local housing market. Since 
this information was never submitted to the DOT, nor 
presumably even obtained, the district court’s judgment 
that respondents were in “ substantial compliance” with the 
1968 Act was without any foundation in the record and 
an abuse of judicial discretion.

On the basis of what they saw as “ urban suicide in the 
Nation’s capital”81 some members of the legislative com­
mittee which reported out the House version of the 1968 
Act included in the Committee Report their views in opposi­
tion to certain provisions in the bill. These included the 
following dire predictions of the effect highway displace­
ments would have on the city.

Many thousands of District families will be unneces­
sarily displaced, and the burden of this forced disloca­
tion will bear heaviest, and cause untold hardship, on 
low-income and middle-income families. The majority

81. Since 1940, the central city (“ Federal City” ) area has lost 
one-third of its population. Row houses have been replaced with 
new highways and parking lots. The city’s housing shortage is des­
perate. More than 60 percent of the central business district is now 
devoted to highways and off-street storage of motor vehicles.

Throughout the District, 30 percent of the land area is preempted 
by highways, while only 35 percent is privately owned, tax yielding 
property. The sprawl generated by past highway construction led 
to the loss, between 1948 and 1963, of one-fourth of the city’s retail 
establishments. By 1960, over 44 percent of the city’s wage earners 
resided and paid taxes outside of the city.

In return for its investment, the city has received increased smog, 
more traffic fatalities, a drastic loss of patronage in its public 
transit system, an ever-worsening housing crisis, and permanent, 
scars on residential neighborhoods and monumental areas where 
older highways have been widened or new highways forced through 
to make room for more auto commuters.

Report, together with Minority View's, of the Committee on Pub­
lic Works, House of Representatives, to accompany H.R. 17134, 
90th Cong., 2d Sess., House Report No. 1584, p. 57.



of these families will be nonwhite, and the difficulties 
they would have in obtaining substitute housing are 
well known.

The District does not provide any facilities for relo­
cation of these people. Public housing in the District 
has no room for them, if they are eligible, since there 
already is a waiting list of many thousands of families. 
The relocation assistance provided in H.R. 17134 will 
not solve the housing shortage or make the refugees 
from Washington’s freeways more welcome in the 
suburbs. These meager bounties cannot begin to pay 
the highways’ cost to the people of the District in dis­
location of their lives and destruction of their urban 
values.82

Whether such pessimism about the bill which became the 
1968 Act will prove justified remains to be seen. The point, 
however, is that the evidence before Congress generated 
serious doubts among many legislators as to whether the 
relocation provisions of the Act, assuming they would be 
enforced, were sufficient to protect, not just displacees, 
but the cities of the Nation.

Of all cities in the United States, the negative effects of 
highway displacement may be potentially most disastrous 
in Charleston. Although 1970 census figures show that 
thirty-three states have greater populations than West 
Virginia,83 it was reliably estimated that only eight states 
had more residential displacements caused by the construc­
tion of federal-aid highways during a three-year period just 
ended.84 Moreover, Charleston, which is one of the areas in

82. Ibid., p. 58.
83. U.S. Dept, of Commerce, Commerce Today, Table “ 1970 

Preliminary Population Count” , October 19, 1970, p. 25.
84. Highway Relocation Assistant Study, supra, n. 5, Table 

6, p. 42. The only states which had more residential displacements 
are California, Indiana, Maryland, Michigan, Missouri, New Jersey, 
New York, Ohio, and Pennsylvania. Ibid.

32



the state where the number of displacements is likely to be 
greatest, has been in the throes of a housing crisis for some 
time. For example, according to 1960 figures, 48 percent of 
all housing units in Charleston were in “poverty areas” ; 83 
percent of such housing consisted of “ substandard units” 
and 69 percent was “ overcrowded”.85

The national urban crisis, exemplified in Charleston, is in 
no small part compounded of the fact that urban programs 
have mindlessly ignored the broad problems they create by 
focusing only on the frequently narrow ones they were 
designed to cure. In this manner the federal-aid highway 
program has in the past magnified a national housing 
problem to an extent unjustified by the production of addi­
tional and relatively unnecessary highways. Congress in­
tended to rectify this situation by enactment of the 1968 A ct; 
and in view of the magnitude of the problem which Congress 
perceived, it clearly intended that the relocation provisions 
of the Act were to apply to projects where, as in Charleston, 
displacees and the city might still benefit.

CONCLUSION
For the foregoing reasons, and for additional reasons 

set forth in the briefs of petitioners and in the dissenting 
opinion below, it is respectfully submitted that the judg­
ment below should be reversed and the case remanded to 
the district court with instructions that further displace­
ment be enjoined until respondents have prepared a reloca­
tion plan in accordance with law.

Respectfully submitted,

J. A n t h o n y  K l i n e  
K e n n e t h  F. P h i l l i p s

National Housing and Economic 
Development Law Project

33

85. Manvel, Housing Conditions in Urban Poverty Areas, report 
prepared for the National Commission on Urban Problems, Re­
search Report No. 9 (Wash., D.C. 1968), Table 8, pp. 14-19 of 101 
metropolitan areas in the United States with populations in 1960 
of over 250,000, only 25 had worse figures than Charleston in this 
respect.