Triangle Improvement Council v. Ritchie Response of Petitioners to Brief in Opposition to Petition for Writ of Certiorari

    I n  t h e

Qlnurt of
O ctober T e e m , 1970 

No. 712

T riangle  I m pro v em en t  CouNorL, et al.,
Petitioners,

V .

W illiam  S . R it c h ie , Com m issio n er , S tate R oad 
C om m ission  oe t h e  S tate op W est  V irg in ia , et al.,

Respondents.
O N  P E T IT IO N  EOR A W R IT  OP CERTIORARI TO T H E  U N IT E D  STATES 

COU RT OP A PPEA LS FO R T H E  P O U B T H  C IR C U IT

RESPONSE OF PETITIONERS TO BRIEF OF THE 
FEDERAL RESPONDENTS IN OPPOSITION TO 

PETITION FOR A WRIT OF CERTIORARI

J ack  G reenberg  
J am es M . N abrit , III 
M ic h a e l  D avidson 
J eppr y  a . M in t z

10 Columbus Circle 
New York, New York 10019

J o h n  L. B oettn er , J r .
1116-B Kanawba Boulevard, E. 
Charleston, West Virginia, 25301

A . A ndrew  M acQu e e n  III 
1026 Quarrier Street 
Charleston, West Virginia, 25301

Attorneys for Petitioners
T hom as J .  O ’S ullivan  
P eter  M. C ollins  

Of Counsel



TABLE OF CONTENTS

PAGE

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

Argument ......................................................................  2

C o N cn T JS io N  ............................................................................................................  5

A p p e n d i x .......................................................................................................



I n  t h e

OIntart x d  tlĵ  M n x U h
OcTOBEE T er m , 1970 

No. 712

T riangle  I m pro v em en t  C o u n c il , et al.,
Petitioners,

V .

W illia m  S . R it c h ie , C o m m issio n er , S tate R oad 
C om m ission  oe t h e  S tate op W est  V ir g in ia , et al.,

Respondents.

O N  P E T IT IO N  FO R A W R IT  OP CERTIORARI TO T H E  U N IT E D  STATES 

COU RT OP A PPEA LS FO R  THE, F O U R T H  C IR C U IT

RESPONSE OF PETITIONERS TO BRIEF OF THE 
FEDERAL RESPONDENTS IN OPPOSITION TO 

PETITION FOR A WRIT OF CERTIORARI

Opinions Below

Since the filing of the petition, the opinion of the district 
court (Pet. App. la-25a) has been reported at 314 P. Supp. 
20,‘ and those of the Court of Appeals at 429 F.2d 423.

 ̂The Brief in Opposition erroneously identifies that citation 
containing the order and dissenting opinion of the Court of Ap­
peals on petition for rehearing en ianc. Eespondents’ Brief, p. 1 
(hereinafter cited as R.B. —).



Argument

The federal respondents identify the questions presented 
as whether the Department of Transportation correctly con­
strued its own regulation regarding the requirement of a 
relocation plan, and whether the district court’s findings 
relating to the availability of relocation housing is clearly 
erroneous. E.B. 2. This is a substantial variance from the 
issue presented in the petition and throughout the litiga­
tion and as identified by the Court of Appeals. The peti­
tioners have always asserted that the original regulations 
promulgated by the Department constitute an erroneous 
application of the underlying statute, the 1968 amendments 
to the Federal Aid Highway Act, 23 U.S.C. §501, et seq. 
The question of the construction of regulations arose only 
when the Department changed its regulations regarding 
relocation during the pendency of the appeal. (Pet. App. 
60a-63a.) Recognizing this. Judges Sobelofi: and Winter, 
dissenting from the denial of rehearing en banc, stated, 
without contradiction: “The sole issue on this appeal is 
whether federal law requires submission of a detailed relo­
cation plan as insisted by appellants.” (429 P.2d at 424; 
Pet. App. 37a-38a.) Answering this question in light of the 
new regulation. Judge Sobeloff, again without contradiction, 
states:

There is, of course, no dispute within the court that 
appellants’ [petitioners’] position on the applicability 
of the 1968 amendments has now become the law and 
that comprehensive relocation plans are required be­
fore construction can be approved. Rather, my breth­
ren seem to think that the new regulation, expressly 
recognizing the plaintiffs’ rights under the 1968 amend­
ments, has somehow eliminated the need for relief . . .
. . .  On the contrary, the defendants’ refusal to award 
the plaintiffs their rights cries out for redress. (Id. at 
426; Pet. App. 41a-42a.)



Once so clarified/ it can be seen that these are not “non­
recurring issues of diminishing importance.” (R.B. 9.)® 
Rather the issue is one of fundamental importance, not 
simply to the residents of the Triangle, but to the admin­
istration of justice. Here the Court of Appeals has inter­
preted the new regulations of the administrative agency as 
upholding petitioners’ legal position—that a relocation plan 
is required. 429 P.2d at 426; Pet. App. 41a. Nonetheless, 
that court affirmed the district court’s opinion which was 
based on a discarded regulation, and granted no relief to the 
petitioners. It is one thing for the courts to declare that the 
law is not in your favor. It is quite another for the

 ̂Errors of the same nature are found elsewhere in Respondents’ 
Brief. The opening statement describes this action as seeking “to 
prevent the construction” of the highway (R.B. 2). That claim was 
abandoned in the district court. Respondents assert that petitioners 
relied in the district court on provisions of an Instructional Memo­
randum of the Department of Transportation to sustain their posi­
tion that a relocation plant was required. (R.B. 4.) In fact, I.M. 
80-1-68, the memorandum referred to, specifically excluded projects 
such as the one here from its coverage (§5(b); Pet. App. 52a.) 
Petitioners asserted that the memorandum incorrectly interpreted 
the statute, by denying it retroactivity. The district court rejected 
this, relying on the principle of deference to the administrator’s in­
terpretation of the statute he is enforcing, 314 P. Supp. 29-30; Pet. 
App. 19a-21a. During the pendency of the appeal, the Department 
changed its regulations, giving the relocation requirement retro­
active effect. Pet. App. 60a-63a. It was this change in the law 
that led the dissenting judges in the Court of Appeals to assert 
that the panel opinion adopting the reasoning of the district court 
“logically cannot serve” to dispose of the issue, under the principle 
of Thorpe v. Housing Authority, 393 U.S. 268, 281. 429 P.2d at 426 ; 
Pet. App. 41a.

® Even if the issue were limited to the retroactivity of the 1968 
amendments, the impact would be substantial. Of the proposed 
9000 miles of the interstate highway system which was not yet con­
structed when the statute was enacted, much had passed the stage 
of “authorization to acquire” being granted. 1968 U.S. Code Cong. 
Adm. News 4046. If the statute does not protect the people affected 
by these projects, many of which are in congested urban areas, it 
will have little meaning.



courts to find that the law entitles you to relief, but to re­
fuse to grant it.^

Finally, respondents suggested that the finding of the 
district court that relocation housing is available makes it 
unnecessary to be concerned with the question of whether 
the law requires a relocation plan, since in any event peti­
tioners are being protected. This is untrue on two grounds: 
First, it is the Department’s own regulations, based on 
their experience in relocation (see Pet. 17 n. 8), which de­
fine the requirement of “satisfactory assurances” in the 
statute as calling for comprehensive relocation planning. 
I-M 80-1-68 (7) (Pet. App. 52a-55a). Second, the finding 
of the district judge was based largely on general assur­
ances which he took in “good faith.” 314 F. Supp. 30; Pet. 
App. 22a. These self-serving declarations of the highway 
officials were contrary to documentary evidence submitted 
by petitioners (Plf. Exh. No. 12; Tr. 414-15), and even in 
the best light were based on the experience of relocating 
2000 predominantly rural white persons state wide, bearing 
little relation to the problems of placing a large number of 
poor black persons in a saturated and discriminatory hous­
ing market.® Moreover, if it is indeed true that relocation 
housing is available, the preparation of a plan should be a 
simple matter. The concerted resistance of respondents 
throughout this litigation strongly suggests that the plan

 ̂It is little wonder, under these circumstances, that the residents 
of the Triangle took to “self help” measures to stop the bulldozers 
from destroying their homes. New York Times, July 13, 1970, p. 
62, col. 1.

® One of the programs which, it was asserted, would ease the re­
location problem, was the availability of rent supplements. (Tr. 
412-15.) However, as the letter attached as Appendix A to this 
response indicates, rent supplements have been denied because the 
only replacement housing available, although more expensive, did 
not meet the federal standards.



would demonstrate the lack of such housing, and justify 
petitioners’ demand for compliance with the 1968 amend­
ments.®

CONCLUSION

W h eb efo eb , f o r  th e  fo re g o in g  re a so n s , a n d  f o r  th o se  
s ta te d  in  th e  p e t i t io n  in  ch ie f, a  w r i t  o f  c e r t io r a r i  sh o u ld  
be g ra n te d .

Respectfully submitted.

J ack  Gebenbbeg  
J am es M . N abeit , III 
M ic h a e l  D avidson 
J e efey  a . M in tk

10 Columbus Circle 
New York, New York 10019

J o h n  L. B o ettn ee , J e .
1116-B Kanawha Boulevard, E. 
Charleston, West Virginia, 25301

A . A ndeew  M acQxjeen III 
1026 Quarrier Street 
Charleston, West Virginia, 25301

Attorneys for Petitioners

T hom as J .  O ’S ulliv a n  
P et e e  M . C ollin s  

Of Counsel

® Two examples should make the distinetion clear. The district 
court relied on the availability of public housing, without finding 
that the displacees were eligible. 314 F. Supp. at 31, Pet. App. 23a; 
see R.B. 5-6. The plan would require such a finding. Second, re­
spondents point to the delay in a planned urban renewal project 
as easing the housing shortage (R.B. 8). At best, this would mean 
that the highway displacees could move, for a short time, to hous­
ing already slated for demolition for the renewal project. A com­
prehensive plan would consider these long range implications.



APPENDIX A

[ s e a l ]

WEST VIRGINIA DEPARTMENT OF HIGHWAYS
O FEICB OF T H E  D ISTR IC T E H G IN E E B  

F IR S T  D ISTR IC T

1340 Smith Street 
Charleston, West Virginia 

25301

William S. Ritchie, Jr.
Commissioner

Layman Smith 
District Engineer

June 12, 1970

Mrs. Dorothy Collins 
709% Bullitt Street 
Charleston, West Virginia

Re : Project 1-77-3 (66) 100 
Parcel No. 1-1

Dear Mrs. Collins:
As a result of the inspection of your replacement prop­

erty, the Department cannot approve your application for a 
replacement housing payment. Attached are the minimum 
requirements for a decent, safe and sanitary property as set 
forth in the Federal Highway Act of 1968. The structure 
you are now occupying does not meet the standards that are 
cheeked on the enclosed form.

In the event you should move to unotluir proj)(irty witliiii 
one year after you moved from the above captioned |)ai'C(d

la



2a

and the new property meets the attached requirements or if 
you change your present dwelling to meet these require­
ments, the Department will reconsider your application.

Very truly yours,

LCM/A/c
Enclosure

/s /  L. C. McCann 
L. C. McCann
District Eight of Way Agent



MEILEN PRESS IN C  — N. Y. C 219