Transit Plan but not as to the Financial Plan. The defendants District of Columbia, Walter E. Washington and Kenneth Back, have filed a motion to dismiss the complaint alleging that they are neither necessary nor indispensable parties.
For the reasons herein the Court concludes that: the plaintiffs have standing to challenge compliance with the requirements for the Mass Transit Plan, the sufficiency of the hearing procedures, compliance with the requirements for the Financial Plan and compliance with the Financial Plan itself; plaintiffs' motion for summary judgment should be granted as to the Mass Transit Plan hearings; the defendant Authority's motion for summary judgment should be denied as to the Mass Transit Plan hearings but granted as to the Financial Plan objections and the motion of the defendants District of Columbia, Walter E. Washington and Kenneth Back should be denied.
The contention that plaintiffs lack standing to bring this action has little merit. Plaintiffs do have the necessary status to challenge both the Authority's compliance with the requirements of the Compact and the compliance of the District of Columbia. "* * * [A] compact is after all a legal document * * *" West Virginia ex rel. Dyer, et al. v. Sims, State Auditor, 341 U.S. 22, 28, 71 S. Ct. 557, 560, 95 L. Ed. 713 (1951). And the "meaning and validity of compacts" are subject to judicial review. Id., at 28, 71 S. Ct. 557, 95 L. Ed. 713. To hold that the Compact is an agreement between the political signatories imputing only to those signatories standing to challenge actions pursuant to it would be unduly narrow in view of the direct impact on plaintiffs and other taxpayers.
makes the consent of Congress the only clear, albeit necessary, relationship of the Federal Government with an interjurisdictional compact. But the Constitution
gives to Congress the power to "* * * legislate within the District for every proper purpose of Government. Within the District of Columbia, there is no division of legislative powers such as exists between the federal and state governments. Instead there is a consolidation thereof." Neild v. District of Columbia, 71 App. D.C. 306, 309, 310, 110 F.2d 246, 249, 250 (1940). (Footnotes omitted.) See also, District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S. Ct. 1007, 97 L. Ed. 1480 (1953); Berman v. Parker, 348 U.S. 26, 31, 75 S. Ct. 98, 99 L. Ed. 27 (1954).
Thus the Washington Metropolitan Area Transit Regulation Compact
had "authorized and directed the Board of Commissioners of the District of Columbia to enter into and execute the Authority Compact on behalf of the United States for the District of Columbia. * * *"
(Emphasis added). And Congress " adopts and enacts for the District of Columbia,"
as well as "consents to,"
the creation of the Washington Metropolitan Area Transit Authority. (Emphasis added). The Authority itself is merely an agency of each of the signatory parties
including the United States on behalf of the District of Columbia, supra.10
In view of the federal interest in the Compact, there appears no reason why the general criteria for standing to challenge action under a federal statute should not be employed. Ass'n of Data Processing Service Organizations, Inc., et al. v. Camp., et al., 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow, et al. v. Collins, et al., 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970); Scanwell Laboratories, Inc. v. Thomas, et al., 137 U.S. App. D.C. 371, 424 F.2d 859 (D.C. Cir., filed Feb. 13, 1970); Ballerina Pen Co., et al. v. Kunzig, et al., 140 U.S. App. D.C. 98, 433 F.2d 1204 (D.C. Cir., filed April 24, 1970).
The plaintiffs clearly meet the criteria applied in those cases. The actions of the Authority in condemning their leaseholds would cause them injury in fact; the plaintiffs have alleged that the Authority acted arbitrarily and contrary to its statutory authority; there is no clear and convincing indication of a legislative intent to withhold judicial review
and the interest of the plaintiffs is "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question," Ass'n of Data Processing v. Camp., et al., supra, 397 U.S. at 153, 90 S. Ct. at 830, since the Authority Compact makes provision for consideration of the effects of dislocation on business,
and the plaintiffs raise an issue of due process either under the Authority Compact or the Constitution of the United States.
The Plaintiffs have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult * * * questions * * *." Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962); Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Doremus v. Board of Education, 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (1952).
Decisive weight is further provided by recent decisions which have given relocatees in urban renewal projects under the National Housing Act,
standing to sue to enjoin arbitrary, capricious, or other unlawful or statutorily inadequate actions of agencies administering the program. Norwalk Core v. Norwalk Redev. Agency, 395 F.2d 920 (2d Cir. 1968); Powelton Civic Home Own. Ass'n v. H.U.D., 284 F. Supp. 809 (E.D. Penn. 1968); Western Addition Community Organization, et al. v. Weaver, 294 F. Supp. 433 (N.D. Cal. 1968). Since the Authority Compact
itself provides sufficient basis for these plaintiffs' standing to review the business dislocation provisions of the Mass Transit Plan, the Court need not consider whether all taxpayers of the District are entitled to such standing.
With respect to the Financial Plan, plaintiffs' standing to sue the Authority arises from their long-accepted standing as taxpayers. Massachusetts v. Mellon, 262 U.S. 447, 486, 43 S. Ct. 597, 67 L. Ed. 1078 (1923); Crampton v. Zabriskie, 101 U.S. 601, 609, 25 L. Ed. 1070 (October Term, 1879); Downing v. Ross, 1 App. D.C. 251, 254 (1893); Roberts v. Bradfield, 12 App. D.C. 453, 459, 460 (1898), affirmed Bradfield v. Roberts, 175 U.S. 291, 20 S. Ct. 121, 44 L. Ed. 168 (1899). And as an agency of the District Government supported in part by District taxpayers' revenues,
the Authority should likewise be subject to such taxpayer scrutiny. Regarding the Authority's actions, the plaintiffs show that they are "immediately in danger of sustaining some direct injury as the result of its enforcement, not merely that * * * [they suffer] * * * in some indefinite way in common with people generally." Massachusetts v. Mellon, supra, 262 U.S. at 487, 488, 43 S. Ct. at 601.
Also the Court need not decide whether, as the Authority contends, a taxpayer suit must always be maintained as a class action for the Court is convinced that plaintiffs' action qualifies as a class action and the order of this Court will so designate. The Court agrees with the plaintiffs' observation that "Disinterested persons seldom are inclined to investigate, expose and challenge Government illegality in public projects."
And any inconsistency between the interests of the plaintiffs and those of other taxpayers are minimal and remote.
Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940), cited by the Authority, is clearly distinguishable. There a suit was brought to enjoin the violation of a racially restrictive agreement among private property owners. Accordingly, any obligations under that agreement were restricted to the terms of the agreement and ran only to the other parties to the agreement and not the public at large; and the issue was such that any dispute with the agreement had to be diametrically opposed to all the interests of those seeking to uphold the agreement. Similarly, the other cases cited by the defendant indicate that a class is barred because of adverse interests only where there is "substantial conflict within the class over the very issue in litigation." Mersay v. First Republic Corporation of America, 43 F.R.D. 465, 468 (S.D.N.Y. 1968). It is clear that the plaintiffs' primary interest is to reap the benefits of retaining their locations near the completed subway station, not to delay or prevent construction of the subway.
MASS TRANSIT PLAN "HEARINGS"
Plaintiffs claim that the Transit Authority, in executing the Mass Transit Plan, has denied due process in violation of the express and implied terms of the Authority Compact and the provisions of the Fifth and Fourteenth Amendments of the Constitution, and equal protection in violation of the Fourteenth Amendment. More precisely they object to the alleged failure of the Authority to provide adequate public hearings at which businesses and residents who would probably be dislocated could challenge the Authority's proposals and present alternatives. They also suggest that such hearings are being provided in Virginia and Maryland. Significantly, plaintiffs modified their original position by conceding that, because of the nature of large-scale public works engineering, the initial Mass Transit Plan, adopted March 1, 1968, probably could not, and should not have been more explicit. But they assert that subsequent hearings were required as details of design evolved.
We do not understand the plaintiffs as claiming that the Authority cannot take their property; nor that this Court should substitute its judgment for that of the Authority, for such would be impermissible. Berman v. Parker, supra, 348 U.S. at 32-36, 75 S. Ct. 98, 99 L. Ed. 27. We do understand the plaintiffs to contend that it is their right and the intent of the Authority Compact that the actions of the Authority should be based on considerations including dislocation, and that residents and businesses affected should have an adequate opportunity to make a meaningful contribution to the Authority's determinations. The Court agrees with this contention but finds it unnecessary to reach any constitutional challenges because it is convinced that the language and clear intent of the Compact require that an affected party have an adequate opportunity to challenge the Authority's proposals as they may adversely affect his or her interests.
The purpose of the Washington Metropolitan Area Transit Authority Compact, was
"to create a regional instrumentality as a common agency of each signatory party, empowered, * * * [ Inter alia ] (1) to plan, develop, finance and cause to be operated improved transit facilities, in coordination with transportation and general development planning for the Zone, * * *" Art. II, § 2.
The Authority Compact provides that the Board of Directors of the Authority, (hereinafter the Board), * * * "shall develop and adopt, and may from time to time review and revise," Art. VI, § 13(a), a Mass Transit Plan which includes "* * * the transit facilities * * *, including the locations of terminals, stations, platforms * * * and the character and nature thereof; (2) the design and location of such facilities; (3) whether such facilities are to be constructed or acquired by lease, purchase or condemnation ; * * *" (Emphasis added). Id. "Transit facilities" is defined to include "* * * stations, terminals * * * and all buildings and structures * * * incidental to or required in connection with the performance of transit service; * * *" Art. 1., § 1(f). "The Board, in the preparation, revision, alteration or amendment of a Mass Transit Plan, shall
"(1) consider * * * impact of transit plans on the dislocation of families and businesses, * * * [and]
"(2) cooperate with and participate in any continuous, comprehensive transportation planning process cooperatively established by the highway agencies of the signatories and the local political subdivisions in the Zone to meet the planning standards now or hereafter prescribed by the Federal-Aid Highway Acts; * * *" Art. VI., § 14(c).
Art. XVI, § 82(a) provides that "the authority shall have the power to acquire by condemnation, whenever in its opinion it is necessary or advantageous to the Authority to do so, any real or personal property, or any interest therein, necessary or useful for the transit system. * * *" (Emphasis added).
The Authority Compact also provides that before a Mass Transit Plan is adopted, altered, revised or amended, it shall be transmitted to at least 11 local and regional entities, Art. VI., § 15(a); further, that "Information with respect thereto shall be released to the public * * * [and after adequate public notice] * * * a public hearing shall be held with respect to the proposed plan alterations, revision or amendment. * * * The Board shall consider the evidence submitted and statements made at such hearing and may make any changes in the proposed plan, amendment or revision which it deems appropriate and such changes may be made without further hearing." Id.
Pursuant to its mandate the Authority held one public hearing in the District and several in both Maryland and Virginia, prior to the March 1, 1968 approval of the Plan.
Uncontradicted portions of the Authority's pleadings leave little doubt that the public was sufficiently aware of the hearings. Notices were published in the daily press, and pre-hearing briefings were conducted by the Authority staff for business and civic groups and for the public. One such briefing was held in the District of Columbia on January 3, 1968 where questioning was conducted by a panel of representatives of various District civic organizations.
Although the District hearings were scheduled to continue for as many days as necessary to accommodate the interested speakers, and many community-oriented organizations were represented, the hearings lasted less than two hours. The testimony of Mr. Frank L. Bias, President of the Connecticut Avenue Businessmen's Association (hereinafter the CABA), of which the plaintiffs are members, constituted only five lines of the official transcript, punctuated by the statement: "'Stop talking. Start digging.'"
In addition to the clear unanimity of community support for the System, and a limitation of ten minutes for each speaker's oral presentation, the brevity of the hearings can be explained by the limitation of the public details of the proposed plan to a specification of the so-called "corridor route" and a general designation of the area in which proposed stations were to be located but without detail as to which properties would have to be taken.
The pre-hearing information made available to the public indicated only that
"Stations will be located in areas readily accessible to the greatest number of people in residential areas and to jobs in commercial centers. Consideration was given in spacing stations to provide optimum service by eliminating unnecessary stops so as to assure fast running times. Near downtown, stations were located near job centers to attract the greatest number of walkin passengers. In residential areas, the stations were designed to be accessible to pedestrians, but also to facilitate fast and efficient feeder-bus access. At suburban stations, parking lots will be provided for those persons wishing to reach the system by automobile, either as a driver or as a passenger."
In deciding whether the Authority's reading of the Compact is not reasonable or lacks rational foundation, the Court will apply an attitute of reasonable strictness because of the severe result of depriving the plaintiffs of their property. Gulf Oil Corporation, et al. v. Hickel, et al., 140 U.S. App. D.C. 368, 435 F.2d 440 at 444 (D.C. Cir., filed Oct. 19, 1970). Thus, while the hearings that were provided may have been satisfactory at that stage of the planning process, the trend of judicial decisions leads this Court to interpret the Authority Compact as requiring more. In Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), the Supreme Court, requiring states to afford an evidentiary hearing to public assistance recipients prior to termination of payments, extended the doctrine that "'the fundamental requisite of due process of law is the opportunity to be heard.'" at 267, 90 S. Ct. (Citation omitted).
In D.C. Federation of Civic Ass'ns, Inc., et al. v. Volpe, et al., 140 U.S. App. D.C. 162, 434 F.2d 436 (D.C. Cir., filed April 6, 1970), holding that Section 23 of the Federal-Aid Highway Act of 1968,
requires a public hearing for residents of the District of Columbia with regard to the so-called Three Sisters Bridge, dicta by Associate Judge Wright emphasized that while "the right to participate in a highway hearing is not the exact equivalent of the right to vote on the project * * * the similarities are strong." Id., 434 F.2d at 442. "This formal, regularized procedure, with due notice to all concerned, subjects officials to the differing views of competing interest groups and forces them to take account of prevailing views while the project plans are still being formulated." Id., 434 F.2d at 442 (Footnote omitted.) (Emphasis added.)
The provisions of the Authority Compact that property taken be "necessary or useful," Art. XVI, § 82(a), supra, and that the Board's proposed Plan designate whether facilities are to be "constructed or acquired by lease, purchase or condemnation," Art. VI, § 13(a)(3), strongly indicate a concern that a taking be soundly justified and that those likely to be affected be so apprised prior to the date of hearings. See Powelton Civic Home Owners' Ass'n v. H.U.D., supra, 284 F. Supp. at 831. The decisions of the Authority must be based on a complete record expressing the views of all recognized interests, particularly those interests expressly recognized by the Compact. Id., at 832. Even the Congressional debates indicate a concern for the "political responsibility and responsiveness" of the Authority.
And while we need not consider plaintiffs' claim that certain public hearings provided to Maryland and Virginia citizens involved sufficiently more detail of design and location than that provided to District citizens as to amount to a denial of equal protection guarantees, the specificity evident from the Transit Authority Metro Memo, No. 21, Oct. 1970,
concerning recent hearings in Alexandria supports the possibility of the requested procedure.
Flexibility should be accorded the Authority in determining the precise nature of such hearings on the basis of technical considerations.
Of course additional pre-hearing and post-hearing technical consultation with the Authority Staff -- as was apparently true to a limited degree in the instant case -- would also be appropriate. Cross-examination would be pointless and possibly engender animosity in what should be a cooperative fact-finding hearing, but counsel and experts for the parties should be given an opportunity to criticize the Authority's proposals and to present their own alternatives and respond to criticisms of those alternatives. Clearly distinguishable is Powelton Civic Home Owners' Ass'n v. H.U.D., supra, 284 F. Supp. at 829-830, where the court's refusal to require adversary hearings was based largely on the fact that urban renewal relocations would involve large numbers of relocatees in each hearing. Here the Authority will be confronted with only relatively few displacees for any one station; and the hearings for the various stations will be spread throughout several years as design and construction progresses along the proposed routes.
But this is not the end of our inquiry for the Authority has alleged that the plaintiffs' own alternative proposals and the plaintiffs' criticisms of the Authority Staff's proposals received fair and adequate consideration. The Court must therefore determine whether these plaintiffs have in fact been prejudiced by a lack of the type of hearings the Court prescribes today.
The Authority's answers to interrogatories submitted by the plaintiffs indicated that as early as "the fall of 1967, * * * various drawings of that period indicated that a portion of the area occupied by plaintiffs would be needed for access. [However, all] such indications were tentative and * * * the staff did not definitely know that plaintiffs' leaseholds would be required until the real estate certification was made by the Office of Engineering on November 21, 1969."
A station access plan was approved by the National Capital Planning Commission (hereinafter the NCPC), the central planning agency for the Federal and District Governments,
on January 11, 1968,
and shortly thereafter the Authority made a request for a preliminary title binder for the space occupied by plaintiffs.
On November 4, 1969 the Transportation Committee of the NCPC held a public hearing to consider the Authority's final design for the Farragut North Station. At two later meetings
the Authority Board considered an alternate CABA proposal, earlier submitted to the NCPC Transportation Committee, and a critical Staff analysis. Plaintiffs' counsel were present at the latter three meetings, but were unprepared to respond to criticisms of the CABA plan on December 11 because of the uncontradicted allegation that no notice had been given of the Staff's position, and were not allowed to respond on December 24.
Plaintiffs were formally advised by certified mail dated February 11 and 17, 1970, respectively, that the Authority's final design plan had been approved and that their leaseholds would be taken.
The Court need not examine plaintiffs' allegations that the Authority Staff was biased and unfair in its treatment of plaintiffs and the latters' alternative proposal, for it is clear that the Board has shirked its responsibility by providing inadequate opportunity for the plaintiffs to address the Board itself. Great deference must be given to the Staff expertise, particularly in a hearing confined to factfinding rather than adjudication or rule making. But although prejudice on the part of the Staff will not be presumed, it is at least arguable that the Staff has a vested interest in encouraging the acceptance of its own painstakingly developed proposals, especially when the disagreeable possibility of having to revise one's own plans would be compounded by the adverse reactions sure to be generated by any additional delay of construction and correspondingly increased costs. Counterbalancing of such bureaucratic pressures is at the heart of the purpose of public hearings.
Nor can the Authority now claim that the work has progressed too far for additional hearings concerning the proposed Farragut North Station. It is clear that a proper hearing was the responsibility of the Authority. And, considering the few potentially involved properties in the area, it is conceivable that as early as the Fall of 1967, but certainly by the Fall of 1969, the Authority's options were sufficiently narrowed to permit the Board's solicitation of the views of the plaintiffs and similarly situated parties. The plaintiffs are entitled to a public hearing conducted by the Board and de novo consideration by the Board of the CABA proposal.
THE FINANCIAL PLAN
With respect to the approved Financial Plan, as amended, November 20, 1969,
the plaintiffs challenge its validity on several grounds. They allege that it does not contain the specifications required by the Compact; that the Plan is inadequate because the proposed revenue bonds cannot be marketed within the six percent rate prescribed by the Compact; that the required Service Agreements and other financial agreements are not fully completed; that pending litigation in Virginia challenging limitations on bond interest rates may interfere with bond marketing; and that bond referenda were illegal because the Financial Plan was not yet available for public perusal.
The Authority Compact states that
"* * * as far as possible, the payment of all costs shall be borne by the persons using or benefiting from the Authority's facilities and services and any remaining costs shall be equitably shared among the * * * participating * * * governments in the Zone. The allocation among such governments of such remaining costs shall be determined by agreement among them * * *." Art. VII, § 16.