Monroe County Conservation Council, Inc. v. Volpe

Civil 1971-338 (W.D.N.Y. December 30, 1971)

The Secretary of Transportation acted within the scope of his authority when he determined that there is no feasible or prudent alternative to the use of the Genesee Valley Park lands for the location of the Rochester Outer Loop and that all possible planning for the minimization of harm to the park had been done. This determination was not arbitrary or capricious. NEPA's requirements with respect to this highway undertaking have been satisfied. A design hearing was not required because design approval occurred prior to imposition of a design hearing requirement. Defendant's motion for summary judgment is granted.

Counsel for Plaintiffs
Wayne M. Harris
226 Powers Building
Rochester, New York 14614

Counsel for Defendant
Michael R. Wolford Ass't. U.S. Attorney
Federal Court House
Rochester, New York 14614

[2 ELR 20015]

Burke, J.

Plaintiffs by notice of motion filed July 27, 1971 moved for a preliminary injunction. The plaintiffs by notice of motion filed September 27, 1971 moved for summary judgment in his favor. All the motions came on for argument before this court on October 14, 1971. Both parties have filed written briefs.

FINDINGS OF FACT

1.This action brought by the plaintiffs is considered to be a proper class action.

2. The Rochester Outer Loop, also known as Route 47, is a highway being constructed by the New York State Department of Transportation and financed in part by the Federal Highway Administration.

3. A segment of the Outer Loop, about 4.25 miles long, is proposed from the existing interchanges at Scottsville Road on the west to Winton Road on the east, crossing the Genesee River and Red Creek near its confluence with the New York State Barge Canal and crossing the Barge Canal about 1/2 mile east of East Henrietta Road.

4. This segment is proposed to cross Genesee Valley Park along the Barge Canal corridor for a distance of 3200 feet; 2200 feet of said highway is to be on a viaduct over the park area.

5. On May 7, 1971, the Secretary of Transportation, John A. Volpe, approved the construction of the segment through Genesee Valley Park pursuant to the authority vested in him by Title 49, U.S.C. Section 1653(f) and Title 23, U.S.C. Section 138.

6. In his decision, the Secretary determined: (1) There were no feasible or prudent alternatives to the construction of said highway; (2) The proposal included all possible planning to minimize harm to the park resulting from such use.

7. The decision of the Secretary was within the scope of his authority, was not arbitrary nor capricious and was within his discretion and in accordance with law, and complied with the necessary procedural requirements.

8. No federal funds have been requested for said project, although the federal government has approved the steps taken to date on the proposal in anticipation of the request for federal funds from the State of New York.

9. The Secretary and the Department of Transportation and the Federal Highway Administration have complied with the National Environmental Policy Act of 1969, as contained in Title 42, U.S.C. Section 4332 and the regulations issued by the Federal Highway Administration and the Department of Transportation for implementation of said Act.

10. The determination by the Secretary, encompassed within his findings dated May 7, 1971, show the review of other alternatives to the proposed location, including the area to either the north or south of the park and other routes that would cross the park at other areas. The prior construction to the east and west of the project had already fixed the proposed corridor. A route to [2 ELR 20016] the north would not be prudent due to the extensive housing and location of the University of Rochester, Strong Memorial and Rochester State Hospitals. The proximity of the airport precludes the proposal of a highway location that would by-pass the park to the south. The other alternatives that were reviewed by the Secretary and eliminated, went through the park and would require the removal of extensive housing and would have a much greater damaging effect on the park area than the proposed route. The Secretary has found upon reasonable grounds that there are no feasible alternatives and that the alternatives considered involved unique problems.

11. The determination of the Secretary contained in the 4(f) statement of his decision of May 7, 1971 was made in accordance with law and the review required was given by the appropriate officials using proper standards.

12. The public hearing of January 24, 1966, was held in conformance with Title 23, U.S.C., Section 128 and the Policy and Procedural Memorandum 20-8. The "design approval" was made on February 7, 1967. Since "design approval" was given prior to the effective date of the revised Policy and Procedural Memorandum 20-8 and within three years from the date of the public hearing, no new hearing was required. The applicable regulations have been complied with by the state and federal agencies.

13. The requirements of the National Environmental Policy Act of 1969 were complied with by the federal agencies involved. The defendant complied to the fullest extent possible with the applicable guidelines for implementation of the National Environmental Policy Act of 1969.

14. The New York State Department of Transportation applied for a permit on August 28, 1970 for approval of construction of a bridge over the Barge Canal, but did not apply for a permit to construct a bridge over the Genesee River. The Genesee River at the point where the bridge is planned is not navigable. No permit to construct the bridge is required.

CONCLUSIONS OF LAW

1. Plaintiffs' motions for a preliminary injunction and for summary judgment in their favor are denied.

2. Defendant's motion for summary judgment in his favor is granted upon the ground that there is no genuine issue as to any material fact and that the defendant is entitled to judgment in his favor as a matter of law.

3. Submit judgment in accordance herewith on notice on a regular motion day.