River v. Richmond Metropolitan Authority

359 F. Supp. 611, 5 ERC 1353, 3 Envtl. L. Rep. (Envtl. Law Inst.) 20556, 5 ERC (BNA) 1353, 1973 U.S. Dist. LEXIS 13753
CourtDistrict Court, E.D. Virginia
DecidedMay 7, 1973
DocketCiv. A. 12-73-R
StatusPublished
Cited by50 cases

This text of 359 F. Supp. 611 (River v. Richmond Metropolitan Authority) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
River v. Richmond Metropolitan Authority, 359 F. Supp. 611, 5 ERC 1353, 3 Envtl. L. Rep. (Envtl. Law Inst.) 20556, 5 ERC (BNA) 1353, 1973 U.S. Dist. LEXIS 13753 (E.D. Va. 1973).

Opinion

MEMORANDUM

MERHIGE, District Judge.

This is an action challenging the proposed construction of a limited access expressway into the downtown area of the City of Richmond, Virginia. The plaintiffs are the James River and Kanawha Canal Parks, Inc. (hereinafter referred to as “Canal Corporation”), a non-profit Virginia corporation, the objectives of which are the preservation and restoration of the James River and Kanawha Canal, and Douglas C. Deaton, a contributing member of the corporation who has used the James River and Kanawha Canal for recreational purposes. 1 There are four groups of defendants :

1. The Richmond Metropolitan Authority (hereinafter, RMA), a corporate, political subdivision of the Commonwealth of Virginia, empowered to plan, construct and maintain public highways within the Richmond metropolitan area, and its general manager, George W. Cheadle;

'2. Thomas J. Bliley, Jr., and William J. Leidinger, Mayor and City Manager, respectively, of the City of Richmond (hereinafter, “Richmond defendants”);

3. Douglas B. Fugate, Commissioner of the Virginia Highway Commission (hereinafter, “Virginia defendant”);

4. Claude S. Brinegar, Acting Secretary of the United States Department of Transportation, and Harold C. King, Division Engineer for Richmond of the Federal Highway Administration (hereinafter, “United States defendants”).

In addition to these four sets of defendants, the Carillon Civic Association, representing the homeowners of an area through which the Expressway is scheduled to pass, has been allowed to intervene as a party defendant.

*616 The action is one for a declaratory judgment and injunctive relief. The legal claims on which it is based are summarized as follows:

1. Due to alleged federal involvement in the planning and construction of the Downtown Expressway, the defendants must adhere to certain federal statutory requirements in the construction of the road. The following provisions are cited by the plaintiffs: Sections 101(b) and 102(2) of the National Environmental Policy Act, 42 U.S.C. §§ 4331(b) and 4332(2); 2 sections 128, 134 and 138, Federal-Aid Highways Act, 23 U.S.C. §§ 128, 134 and 138, 3 and Policy and Proce *617 dure Memorandum 20-8, 23 C.F.R. App. A, promulgated to implement section 128; Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f); 4 Section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f, 5 and a regulation promoted thereunder, 36 Fed.Reg. 3312 (February 20, 1971).

2. Because the proposed expressway allegedly requires an encroachment upon navigable waters of the United States, the defendants must apply, pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401 and 403, 6 to the Corps of Engineers and the Secretary of the Army for a construction permit.

*618 3. The Ninth Amendment to the United. States Constitution establishes the right to a non-degraded environment and to the preservation of parklands and historic structures, which right would be violated by the defendants’ construction of the Downtown Expressway.

4. By their acts, the defendants have deprived the plaintiffs of life, liberty and property without due process of law in contravention of the Fifth and Fourteenth Amendments. These claims are levelled against RMA, Richmond and the Virginia defendants pursuant to 42 U.S. C. § 1983.

5. The construction of the Downtown Expressway would be violative of Article XI, § 1 of the Virginia Constitution. 7

The complaint was filed on January 9, 1973, one day before RMA intended to offer for sale revenue bonds to finance the Expressway. The uncertainty of the litigation required RMA to postpone the sale. Because of the unstable condition of the bond market and because RMA had secured a very favorable interest rate on the sale, the defendants sought to expedite this matter in any way possible, in order that the sale of the bonds might be rescheduled as soon as possible. The plaintiffs agreed to such an expeditious proceeding and further agreed with the defendants that an evidentiary hearing might well be avoided. Accordingly, both sides have submitted motions for summary judgment, accompanied by a considerable number of exhibits, depositions and lengthy memoranda. It is these motions with which the Court is primarily concerned. Two other groups of motions, both contested, -are also ready for determination, however. One is a motion by the plaintiffs to amend their complaint. The second is a group of motions by the several defendants to require the plaintiffs to furnish security to cover the costs and damages that may be incurred by the defendants because of litigation. Since the aggregate requests exceed Thirty Million Dollars, the Court assumes that the various defendants seek protection from a drastic increase in interest rates on the bonds which might occur during the delay caused by this litigation. Before turning to the specific legal claims and defenses made by the parties in their various motions, the Court deems it appropriate to examine the background of the Downtown Expressway and of the James River and Kanawha Canal.

BACKGROUND

Downtown Expressway 8

The genesis of the Downtown Expressway was a report presented to the Richmond City Council on June 30, 1965, by the Committee on Trafficways, creat *619 ed by . the Council. The essence of the report was that there was a major demand for traffic arteries along a north-south corridor from Bryan Park on the north side of Richmond to the Chippenham Parkway on the south side of the James River and along an east-west corridor from the Richmond-Petersburg Turnpike in downtown Richmond to Par-ham Road on the west side of Richmond.

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Bluebook (online)
359 F. Supp. 611, 5 ERC 1353, 3 Envtl. L. Rep. (Envtl. Law Inst.) 20556, 5 ERC (BNA) 1353, 1973 U.S. Dist. LEXIS 13753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/river-v-richmond-metropolitan-authority-vaed-1973.