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February 13, 1973

CITY OF RYE, NEW YORK et al., Plaintiffs,
Raymond T. SCHULER, as Commissioner, Department of Transportation, State of New York, et al., Defendants

MacMahon, District Judge.

The opinion of the court was delivered by: MACMAHON

This is an action to enjoin corridor public hearings which are required by federal law as a prerequisite for obtaining federal aid for state highways. The challenged hearings are concerned with the location of approach roads to a proposed bridge over Long Island Sound between Rye, New York, and Oyster Bay, New York.

Plaintiffs are several municipalities where the proposed roads may be located, several citizens with homes in the tentative paths of the approach roads, and a civic organization which opposed the proposed bridge. Defendants are the New York State Department of Transportation, the Metropolitan Transportation Authority of the City of New York ("MTA"), the state agencies responsible for the construction of the bridge and approach roads, and William J. Roman, chairman of the MTA.

 Plaintiffs contend that the hearings should be enjoined until the Coast Guard and the United States Congress, if necessary, approve the bridge and until defendants comply with regulations of the United States Department of Transportation ("Department") concerning the hearings.


 The proposed bridge has caused a storm of controversy in New York State for many years, and this action is just one of many legal battles engendered by it. *fn1" Immediately after the commencement of this action, plaintiffs applied by order to show cause for a preliminary injunction. *fn2" It quickly appeared upon the hearing that the application raised troublesome questions of law, as well as issues of fact, requiring a plenary evidentiary hearing. Accordingly, we ordered that the trial on the merits be advanced and consolidated with the hearing on the application for a preliminary injunction, pursuant to Rule 65(a)(2), Fed.R.Civ.P. *fn3"

 Defendants objected to the consolidation because they had not filed an answer. We overruled the objection, directed the entry of an answer containing a general denial and all affirmative defenses appearing from the evidence presented. Rule 65(a)(2) explicitly permits a consolidation "Before or after the commencement of the hearing." *fn4" (Emphasis added.) Defendants have no cause for complaint so long as they are notified of the consolidation some time during the hearing, know that the trial has been advanced and consolidated with the hearing, and that it will be their only day in court. *fn5" We gave clear notice here, before any evidence was taken, and, moreover, reminded counsel before the close of the trial that this was their only opportunity to present evidence before final decision.

 The consolidation was plainly warranted on three grounds. First, the only relief demanded by the complaint is the identical relief requested by the application for a preliminary injunction, i.e., that the hearings be enjoined until compliance by defendants with certain prerequisites. Second, the factual issues raised by the complaint are not only few and simple but identical with those which would be presented upon the trial; the issues were, therefore, susceptible of complete examination upon a trial on short notice and were, in fact, examined thoroughly at the trial. *fn6" Third, the consolidation saved the court and the parties a duplicitous second trial without prejudicing the rights of anyone.

 While the trial did not raise difficult questions of fact, it did reveal troublesome questions of law concerning primary jurisdiction and exhaustion of administrative remedies. Due to inadequate public notice by defendants of the challenged corridor hearings, the instant application was necessarily so rushed that neither side was prepared to aid the court in resolving the difficult questions of law presented. It was, therefore, necessary to stay the corridor hearings pending decision in order to give the court time to research, study and consider the questions raised.

 We turn, now, to the merits of this action.

 Defendants began consideration of the bridge project in August 1972. Yet, after a four-month delay and without any apparent urgency or reason for not waiting another month, they first published notice, on December 18, 1972, of corridor hearings scheduled for January 15 and 17, 1973. The published notice was not only two days' short of the thirty days' notice required by the applicable procedure, *fn7" but, as a practical matter, was further shortened by inclusion of the long Christmas and New Year weekends within the interim twenty-eight day period. The curtailed notice, we think, was inexcusable in light of the unmistakeable purpose of corridor hearings to:

"afford full opportunity for effective public participation in the consideration of highway location and design proposals by highway departments before submission to the Federal Highway Administration for approval. They provide a medium for free and open discussion and are designed to encourage early and amicable resolution of controversial issues that may arise." *fn8"

 We find that "full opportunity for effective public participation" and "free and open discussion" were substantially thwarted, if not deliberately precluded, by defendants' dubious tactics.


 The questions of law raised here cannot be understood nor resolved without reference to the context of the administrative structure and procedures in which they arise. The Department administers federal aid to states for highway construction through the Federal Highway Administration ("FHWA"). *fn9" The first step to obtaining federal aid for highways is the submission of a general state program for the use of the funds to the Department. *fn10" After the Department approves the general program, funds are allocated and the state commences to develop specific plans for projects. *fn11"

 Congress specifically provided for public hearings before the state committed itself to any one plan to ensure public participation in the development of these plans and public comment upon the social and environmental effects of projects. Thus, the governing statute, 23 U.S.C. § 128, provides that whenever a highway involves the

"bypassing of, or going through, any city, town, or village, either incorporated or unincorporated (the state highway department), shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community." *fn12" (Hereafter "§ 128 hearing.")

 Moreover, because the decision to build an approach road to a bridge has a major impact on the environment, the Department is further required to prepare an environmental impact statement to ensure compliance with the provisions of the National Environmental Policy Act of 1969 ("NEPA"), Section 102, 42 U.S.C. § 4332(2)(C). In order to ensure orderly compliance with the § 128 hearing and with NEPA, the Department has issued policy and procedure memoranda providing complex regulations which direct each step that the state must take in holding hearings on the development of its plans and the environmental impact statement. Two memoranda have been issued. The first *fn13" gives the procedure for approval of the location and design of highways. The second *fn14" gives the procedure for compliance with the NEPA requirements.

 As soon as the state commences consideration of specific locations for a project in its program, it must solicit comments on the locations which it is considering from all possibly interested federal, state and local governments, as well as from private groups and individuals. *fn15" When the state has received such comments, it is then required to consider possible locations for the highway and to gather environmental data on those locations. *fn16" The state then chooses tentative locations and evaluates the effect of the project on the environment in a draft environmental impact statement which it prepares. *fn17" If the draft impact statement is approved by a representative of the FHWA division office, it must be made available to the public for comment and copies of it must be sent to specified individuals and groups. *fn18"

 The state is required to give notice of a public hearing on the possible location considered in the draft impact statement, *fn19" and the notice must inform the public of the availability of the draft impact statement, as well as certain other materials for their inspection and copying in ...

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