B-118653, MAY 3, 1971

B-118653: May 3, 1971

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SINCE THE DECISION TO SEEK ALTERNATIVE RIGHTS-OF-WAY FOR I-70N IN THE ROSEMONT COMMUNITY OF BALTIMORE WAS INITIATED AND INSISTED UPON BY THE FEDERAL HIGHWAY ADMINISTRATION (ALONG WITH THE DIRECT PERSONAL INVOLVEMENT OF THE FEDERAL HIGHWAY ADMINISTRATOR). SECRETARY: REFERENCE IS MADE TO YOUR LETTERS OF JULY 31. THIS DECISION WAS CONCURRED IN BY THE MARYLAND STATE ROADS COMMISSION AND APPROVED BY THE FEDERAL HIGHWAY ADMINISTRATION ON JANUARY 17. A TOTAL OF 486 PROPERTIES WERE ACQUIRED BY THE CITY. 249 OF WHICH WERE PURCHASED PRIOR TO THE DECEMBER 24TH DECISION TO BYPASS THE ROSEMONT AREA. STATE AND CITY AUTHORITIES HAVE RAISED THE QUESTION AS TO WHETHER FEDERAL -AID HIGHWAY FUNDS MAY PARTICIPATE IN THE COST OF ACQUISITION OF THE ROSEMONT AREA PROPERTIES AND WHATEVER LOSS MAY BE INCURRED IN THEIR DISPOSITION.

B-118653, MAY 3, 1971

FEDERAL AID HIGHWAY FUNDS - RIGHT-OF-WAY-COSTS ADVISING THAT IN VIEW OF THE UNUSUAL CIRCUMSTANCES OF THE CASE, FEDERAL- AID HIGHWAY FUNDS MAY PARTICIPATE IN THE COST OF ACQUISITION OF PROPERTIES ORIGINALLY ACQUIRED FOR THE RIGHT-OF-WAY FOR AN INTERSTATE HIGHWAY SYSTEM HIGHWAY SEGMENT INCLUDING LOSSES WHICH MAY BE INCURRED IN THE DISPOSITION OF SUCH PROPERTIES AFTER A DETERMINATION TO CHANGE THE LOCATION OF THE SEGMENT IN QUESTION. SINCE THE DECISION TO SEEK ALTERNATIVE RIGHTS-OF-WAY FOR I-70N IN THE ROSEMONT COMMUNITY OF BALTIMORE WAS INITIATED AND INSISTED UPON BY THE FEDERAL HIGHWAY ADMINISTRATION (ALONG WITH THE DIRECT PERSONAL INVOLVEMENT OF THE FEDERAL HIGHWAY ADMINISTRATOR), FUNDS CAN BE USED AS MENTIONED ABOVE.

TO MR. SECRETARY:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 31, 1970, AND MARCH 16, 1971, WITH ENCLOSURES, IN WHICH YOU REQUEST OUR DECISION AS TO WHETHER FEDERAL- AID HIGHWAY FUNDS MAY PARTICIPATE IN THE COST OF ACQUISITION OF PROPERTIES ORIGINALLY ACQUIRED FOR A RIGHT-OF-WAY FOR AN INTERSTATE HIGHWAY SYSTEM HIGHWAY SEGMENT, INCLUDING LOSSES WHICH MAY BE INCURRED IN THE DISPOSITION OF SUCH PROPERTIES, IN VIEW OF A SUBSEQUENT DETERMINATION FOR A CHANGE OF LOCATION OF THE SEGMENT IN QUESTION.

ON SEPTEMBER 11, 1967, THE FEDERAL HIGHWAY ADMINISTRATION (FHWA) AUTHORIZED THE MARYLAND STATE ROADS COMMISSION TO PROCEED WITH ACQUISITION OF RIGHTS-OF-WAY FOR I-70N IN THE ROSEMONT COMMUNITY OF BALTIMORE CITY UNDER A STAGE 1 PROGRAM. IN ACCORDANCE WITH PROCEDURES SET FORTH IN FEDERAL HIGHWAY ADMINISTRATION POLICY AND PROCEDURE MEMORANDUM 21-1 (APRIL 15, 1968), AS AMENDED, THE NOTICE TO THE STATE APPROVING THE STAGE 1 PROGRAM STATED THAT AUTHORIZATION TO PROCEED "SHALL NOT CONSTITUTE ANY COMMITMENT OF FEDERAL FUNDS NOR SHALL IT BE CONSTRUED AS CREATING, IN ANY MANNER, ANY OBLIGATION ON THE PART OF THE FEDERAL GOVERNMENT TO PROVIDE FEDERAL FUNDS FOR THE UNDERTAKING." SUBSEQUENTLY, THE CITY OF BALTIMORE, WHICH HAD ALREADY PASSED A CONDEMNATION ORDINANCE, BEGAN TO ACQUIRE PROPERTIES FOR RIGHT-OF-WAY PURPOSES. UNDER THE ORIGINAL ROSEMONT ALIGNMENT, A TOTAL OF ABOUT 800 RESIDENTIAL PROPERTIES WOULD BE TAKEN FOR CONSTRUCTION OF THE HIGHWAY.

SUBSEQUENTLY, CONSIDERABLE CONTROVERSY AROSE CONCERNING THE ALIGNMENT OF THE INTERSTATE SYSTEM HIGHWAY SEGMENTS TO BE BUILT THROUGH THE CITY. THE CITY THEREUPON EMPLOYED FOUR CONSULTING FIRMS, KNOWN AS THE URBAN DESIGN CONCEPT ASSOCIATES (ASSOCIATES). BECAUSE OF THE UNIQUENESS OF THE USE OF THESE FIRMS, THE FEDERAL HIGHWAY ADMINISTRATOR DESIGNATED A REPRESENTATIVE TO WORK WITH THE ASSOCIATES IN ORDER THAT THE WASHINGTON, D.C., OFFICE OF THE BUREAU OF PUBLIC ROADS COULD BE FULLY ADVISED OF THEIR WORK.

ON OCTOBER 18, 1968, THE ASSOCIATES ISSUED A REPORT RECOMMENDING THAT THE ROSEMONT COMMUNITY BE BYPASSED. ON OR ABOUT NOVEMBER 1, 1968, THE THEN FEDERAL HIGHWAY ADMINISTRATOR, MEETING WITH STATE AND LOCAL OFFICIALS, AGREED TO A RESTUDY OF THE ROSEMONT LOCATION BUT CAUTIONED THAT FEDERAL- AID HIGHWAY FUNDS COULD ONLY PARTICIPATE IN THE PURCHASE OF THAT PORTION OF THE RIGHT-OF-WAY THAT WOULD ACTUALLY BE UTILIZED FOR THE HIGHWAY.

ON DECEMBER 24, 1968, THE BALTIMORE CITY AUTHORITIES FINALIZED THEIR DECISION TO BYPASS THE ROSEMONT AREA AND NOT TO USE THE PROPERTIES ACQUIRED FOR HIGHWAY PURPOSES. THIS DECISION WAS CONCURRED IN BY THE MARYLAND STATE ROADS COMMISSION AND APPROVED BY THE FEDERAL HIGHWAY ADMINISTRATION ON JANUARY 17, 1969.

ON JANUARY 22, 1969, BALTIMORE OFFICIALS WROTE OWNER-OCCUPANTS OF THE ROSEMONT COMMUNITY OF THE DECISION TO BYPASS THE AREA, STATING THAT: "THE CITY STILL RECOGNIZES ITS COMMITMENT TO PURCHASE THE HOUSES OF OWNER- OCCUPANTS LIVING IN THE CONDEMNATION LINE *** ." A TOTAL OF 486 PROPERTIES WERE ACQUIRED BY THE CITY, 249 OF WHICH WERE PURCHASED PRIOR TO THE DECEMBER 24TH DECISION TO BYPASS THE ROSEMONT AREA.

STATE AND CITY AUTHORITIES HAVE RAISED THE QUESTION AS TO WHETHER FEDERAL -AID HIGHWAY FUNDS MAY PARTICIPATE IN THE COST OF ACQUISITION OF THE ROSEMONT AREA PROPERTIES AND WHATEVER LOSS MAY BE INCURRED IN THEIR DISPOSITION.

YOUR POSITION IS THAT FEDERAL-AID HIGHWAY FUNDS SHOULD PARTICIPATE IN ACQUISITION COSTS, INCLUDING RELOCATION ASSISTANCE AND ADDITIVE COSTS RELATING THERETO, TO THE EXTENT SUCH COSTS EXCEED THE PROCEEDS DERIVED FROM DISPOSITION. HOWEVER, YOU WOULD EXCLUDE THEREFROM REHABILITATION COSTS NECESSARY TO MAKE THE PROPERTIES SALEABLE; ANY LOSSES ATTRIBUTABLE TO THE NEGOTIATED SALE OF PROPERTY AT LESS THAN FAIR MARKET VALUE; AND COSTS AND LOSSES ATTRIBUTABLE TO PROPERTIES ACQUIRED SUBSEQUENT TO THE DECISION OF DECEMBER 24, 1968, TO BYPASS THE ROSEMONT AREA.

IN VIEW OF THE NEED FOR PRELIMINARY ENGINEERING SURVEYS AND RIGHT-OF WAY ACQUISITION TO MOVE FORWARD FAR IN ADVANCE OF ACTUAL HIGHWAY CONSTRUCTION, YOU STATE IN YOUR LETTER:

"IT IS BELIEVED THAT IT WOULD BE UNJUST FOR THE FEDERAL HIGHWAY ADMINISTRATION, HAVING APPROVED THE ROSEMONT LOCATION AND AUTHORIZED THE STATE TO PROCEED WITH THE RIGHT-OF-WAY ACQUISITION, TO DENY FEDERAL PARTICIPATION IN THIS CASE. SUCH A DENIAL WOULD BE INCONSISTENT WITH THE FEDERAL HIGHWAY ADMINISTRATION'S INDUCEMENT TO OR INFLUENCE UPON THE STATE TO ACT, TO THE PREJUDICE OF THE STATE.

"TO DENY FEDERAL-AID HIGHWAY FUND PARTICIPATION IN THIS CASE WOULD AMOUNT TO PENALIZING THE STATE FOR GIVING RECOGNITION TO THE SOCIAL AND ENVIRONMENTAL GOAL THAT THE BUILDING OF HIGHWAYS WILL CAUSE THE LEAST DISRUPTION OF HUMAN AND NATURAL RESOURCES, A GOAL EMBODIED IN FEDERAL LAW AND CURRENT NATIONAL POLICY."

CITY AND STATE OFFICIALS SIMILARLY ARGUE THAT IT WOULD BE INEQUITABLE TO PERMIT THE FEDERAL HIGHWAY ADMINISTRATION, HAVING APPROVED THE ROSEMONT LOCATION AND HAVING AUTHORIZED THE STATE TO PROCEED WITH RIGHT OF-WAY ACQUISITION, TO INVOKE THE SAVINGS CLAUSE CONTAINED IN THE STAGE 1 APPROVAL TO DENY THE PARTICIPATION OF FEDERAL-AID HIGHWAY FUNDS IN THIS MATTER, SINCE -

" *** THE CITY OF BALTIMORE, STATE ROADS COMMISSION, THE POLICY ADVISORY BOARD, AND THE BUREAU OF PUBLIC ROADS AND FEDERAL HIGHWAY ADMINISTRATION ACTED IN CONCERT IN THE DECISION TO BYPASS THE ROSEMONT COMMUNITY, AND THE OBVIOUS MUTUAL OBJECTIVE WAS TO MINIMIZE THE IMPACT OF SAID DECISION ON THE RESIDENTS THEREIN. *** "

IT IS FURTHER SUBMITTED THAT THE DECISION TO BYPASS THE ROSEMONT AREA IS CONSISTENT WITH AND, TO SOME EXTENT RESPONSIVE TO, THE EXPRESSED INTENT OF CONGRESS, EMBODIED IN SECTION 24 OF THE FEDERAL-AID HIGHWAY ACT OF 1968, ENACTED AUGUST 23, 1968, 23 U.S.C. 128, THAT IN SELECTING ROUTES FOR HIGHWAYS, THE STATE CONSIDER "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."

UNDER THE PERTINENT STATUTES IT IS THE ULTIMATE RESPONSIBILITY OF THE STATE TO SELECT THE INTERSTATE SYSTEM HIGHWAY ROUTE BEST SUITED TO ITS NEEDS, AND THE STATUTORY ROLE OF THE FEDERAL GOVERNMENT IS TO APPROVE OR DISAPPROVE THE STATE'S PROPOSALS. SEE CHAPTER 1 OF TITLE 23, UNITED STATES CODE. THUS, AS A GENERAL RULE, WHEN A STATE PROPOSES A ROUTE ALTERNATIVE TO ONE ALREADY SELECTED BY THE STATE AND APPROVED BY FHWA, THE LEGAL RESPONSIBILITY FOR ANY CHANGE IN PLANS RESTS WITH THE STATE AND IT MUST ACCEPT THE FINANCIAL BURDEN OF ITS DECISION, EVEN THOUGH FHWA OFFICIALS MAY WORK WITH STATE OFFICIALS IN SELECTING AN ALTERNATIVE ROUTE, FEDERAL-AID HIGHWAY FUNDS PARTICIPATE IN THE COSTS OF THE STUDY OF ALTERNATIVES AND FHWA FINALLY APPROVES AN ALTERNATIVE ROUTE.

HOWEVER, YOU ADVISE IN YOUR LETTER OF MARCH 16 THAT "IT IS CLEAR THAT THE DEPARTMENT'S INVOLVEMENT IN THIS CASE WAS SUBSTANTIAL AND WENT BEYOND WHAT MIGHT BE EXPECTED IN THE TYPICAL CASE." YOU STATE THAT THERE WAS A GREAT DEAL OF CONSULTATION BETWEEN OFFICIALS OF YOUR DEPARTMENT AND STATE AND LOCAL OFFICIALS REGARDING THE SOLUTION TO WHAT HAD BECOME A VERY EMOTIONAL ENVIRONMENTAL AND SOCIAL ISSUE INVOLVING THE HIGHWAY'S LOCATION. FURTHER, YOU STATE THAT THERE WAS EXTENSIVE FEDERAL PARTICIPATION THROUGHOUT THE RESTUDY WHICH EVENTUALLY LED TO ABANDONMENT OF THE ROSEMONT CORRIDOR. BUT, ACCORDING TO YOUR MARCH 16 LETTER THE FACTOR WHICH CONTRIBUTED MOST TO THE UNIQUENESS OF THIS CASE WAS THE PERSONAL INVOLVEMENT OF THE FORMER FEDERAL HIGHWAY ADMINISTRATOR IN INITIATING THE RESTUDY AND INSISTING ON AN ALTERNATIVE. YOU STATE IN THIS REGARD THAT:

"THE UNIQUENESS OF THE ROSEMONT CASE RELATES TO THE INITIATION OF A SUGGESTION AND INSISTENCE BY THE FEDERAL HIGHWAY ADMINISTRATION THAT ALTERNATIVES TO THE ROSEMONT LINE FOR I-70 N SHOULD BE EXPLORED. LOWELL K. BRIDWELL, THE THEN FEDERAL HIGHWAY ADMINISTRATOR, INDICATED AT THE ABOVE CITED MEETING BETWEEN CITY, STATE, AND FEDERAL OFFICIALS THAT HE WOULD INSIST ON A REEVALUATION AND ALTERNATIVE TO THE ROSEMONT LINE. THIS UNUSUAL INITIATIVE ACTIVITY ON THE PART OF THE FEDERAL HIGHWAY ADMINISTRATION RESULTED FROM ITS CONCERN WITH THE OPPOSITION OF THE ROSEMONT COMMUNITY. THE FEDERAL HIGHWAY ADMINISTRATION RARELY INITIATES AND ACTIVELY PURSUES A LINE CHANGE AFTER PROPERTY ACQUISITION FOR THE HIGHWAY HAS COMMENCED. ADDING TO THE UNIQUENESS OF THE ROSEMONT CASE WAS THE DIRECT PERSONAL INVOLVEMENT OF THE FEDERAL HIGHWAY ADMINISTRATOR IN THE REQUEST TO SEEK AN ALTERNATIVE ALINEMENT TO THE ROSEMONT LINE.

"IT IS OUR VIEW THAT OTHER SITUATIONS, AS DESCRIBED ABOVE, WHERE THE FEDERAL HIGHWAY ADMINISTRATION, WITH PERSONAL INVOLVEMENT OF THE FEDERAL HIGHWAY ADMINISTRATOR, INITIATES A REQUEST FOR REEXAMINATION OF AN ALINEMENT AFTER ACTUAL ACQUISITION OF PROPERTIES FOR THE HIGHWAY HAS COMMENCED ARE UNLIKELY TO OCCUR AGAIN ANYTIME SOON."

IN SUMMARY, YOU INDICATE THAT A VARIETY OF FACTORS, INCLUDING, IN PARTICULAR, THE INTENSITY OF THE DEPARTMENTAL EFFORTS TO INITIATE A RESTUDY OF THE ROSEMONT CORRIDOR AND TO HAVE AN ALTERNATIVE ROUTE SELECTED AND THE UNIQUE AND UNUSUAL NATURE OF THE PERSONAL INVOLVEMENT OF THE FORMER FEDERAL HIGHWAY ADMINISTRATOR, COMBINE TO MAKE THIS AN UNUSUAL CASE IN WHICH BALTIMORE'S CLAIM SHOULD BE PAID.

IN LIGHT OF THE FOREGOING FACTS AND CIRCUMSTANCES, AND PARTICULARLY SINCE A SIMILAR SITUATION IS NOT LIKELY TO OCCUR AGAIN, AS WELL AS YOUR AFFIRMATIVE RECOMMENDATION THAT FEDERAL-AID HIGHWAY FUNDS SHOULD PARTICIPATE IN THE RIGHT-OF-WAY COSTS IN THE ROSEMONT CORRIDOR, WE WOULD NOT OBJECT TO FEDERAL-AID HIGHWAY FUNDS PARTICIPATING IN THE ACQUISITION COST OF THE ROSEMONT AREA PROPERTIES AND WHATEVER LOSS MAY BE INCURRED IN THEIR DISPOSITION TO THE EXTENT RECOMMENDED IN YOUR LETTER OF JULY 31, 1970.