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November 24, 1970

THE BOOTERY, INC., et al., Plaintiffs,

Parker, District Judge.

The opinion of the court was delivered by: PARKER

PARKER, District Judge.

 In this action plaintiffs, two District of Columbia taxpayers, both operators of businesses and leaseholders of property situated along one of the lines of the proposed Metropolitan Area Subway Line (hereinafter the System), bring suit against the Washington Metropolitan Area Transit Authority (hereinafter Authority or WMATA) as well as the District of Columbia and certain of its officials.

 They seek a declaratory judgment that the Authority created by virtue of the Washington Metropolitan Area Transit Authority Compact *fn1" (hereinafter the Authority Compact) has failed, in various ways, to fulfill properly its statutory obligations regarding public hearings concerned with the location and design of subway stations and regarding a plan for financing the proposed subway system. They further seek to enjoin the Authority from proceeding with construction and entering into further obligations. Injunctive relief is also sought against the District of Columbia, Walter E. Washington, Commissioner, and Kenneth Back, Finance Officer, to prohibit further disbursement of funds or creation of additional obligations to expend funds for the System until the alleged deficiencies are remedied, including de novo consideration of alternative proposals for station access points.

 The plaintiffs present three general challenges: the Mass Transit Plan (hereinafter the Transit Plan) *fn2" was illegally adopted on March 1, 1968, since it failed to specify precise locations for station access points and further failed to give proper consideration to the possible dislocation of families and businesses affected by station site location; the public hearings were deficient, both in violation of the language of the Authority Compact, 5th and 14th Amendment due process, and 14th Amendment equal protection guarantees; and financing proposals for constructing the System were illegal because the Financial Plan does not contain the specification required by the Compact, the proposed methods of financing are inadequate and unrealistic, and requirements of the Plan have not been complied with.

 The Authority questions the plaintiffs' standing to bring suit. It further contends that the Compact does not require that the Mass Transit Plan designate the specific properties to be taken for station access points or that the access points be the subject of a public hearing for the adoption of a Mass Transit Plan; and that the public hearings held prior to the adoption of the proposed Mass Transit Plan, or in any event, the post-hearing evaluation procedure of the Board, satisfied the requirements of the Compact. It also asserts that the long-range financial capacity of a municipality to support massive public works projects cannot be challenged by the plaintiffs, is not reviewable by this Court, and constitutes an improper collateral attack on the validity of the bond referenda held by the various jurisdictions. The Authority also contends that a taxpayer's suit must be maintained as a class action, but that the plaintiffs represent interests adverse to those of taxpayers generally in the District of Columbia, and therefore, the action may not be maintained as a class or taxpayer's action.

 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.

 The Constitution *fn3" makes the consent of Congress the only clear, albeit necessary, relationship of the Federal Government with an interjurisdictional compact. But the Constitution *fn4" 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 *fn5" 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. * * *" *fn6" (Emphasis added). And Congress " adopts and enacts for the District of Columbia," *fn7" as well as "consents to," *fn8" the creation of the Washington Metropolitan Area Transit Authority. (Emphasis added). The Authority itself is merely an agency of each of the signatory parties *fn9" 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 *fn11" 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, *fn12" and the plaintiffs raise an issue of due process either under the Authority Compact or the Constitution of the United States. *fn13" 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, *fn14" 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 *fn15" 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, *fn16" 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." *fn17" 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.


 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.

"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 ...

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