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Wednesday, Sept. 23, 2009

Judge Rules Against DOT’s Plans for Waukesha and Washington Counties

The Highway J/164 expansion may not be legal

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Residents of Waukesha and Washington counties won a big victory against state and federal agencies that started to pave paradise in southeastern Wisconsin.

The case, filed in 2005 by the Highway J Citizens Group, U.A., and the Waukesha County Environmental Action League (WEAL), made it all the way up to the U.S. Supreme Court and back to Judge Lynn Adelman’s desk at U.S. District Court for the Eastern District of Wisconsin.

The Waukesha and Washington counties residents alleged that the state Department of Transportation (DOT), the Federal Highway Administration and the Army Corps of Engineers improperly approved a project to expand the Highway J/164 corridor north of I-94 from two lanes to four lanes. Affected communities include the City of Pewaukee, Village of Pewaukee, Village of Sussex, Town of Lisbon, Village of Richfield and Town of Polk.

Last week, Judge Adelman ruled that the government agencies didn’t consider reasonable alternatives to the expansion, didn’t provide a complete review of the environmental impacts of the expansion on the area, and didn’t allow enough public input at an “open house” on the project.

Although a final decision hasn’t yet been filed, Adelman wrote that “I could order defendants to dismantle the completed phases, convert the highway back to a two-lane highway, and to the extent possible, restore the surrounding environment.” He found that he also has the authority to order the Army Corps of Engineers to revoke its permits and require the DOT to restore the land to its original condition.

About 35%, or 10 miles, of the project has been completed.

The attorneys will have a phone conference Oct. 29 to discuss further proceedings.

Robert Jambois, general counsel for the state DOT, said the agency is reviewing Adelman’s description of the facts and his legal conclusions. “Then we’re going to make a decision about what the next step will be, whether we’re simply going to comply with certain portions of the decision or whether we intend to challenge them,” Jambois said. “No decision has been made yet because we’re still doing this rather intensive evaluation of the entire case.”

He said the agency hasn’t been ordered to do anything yet.

Charles Barr, who represented the residents’ groups, said simply that he was “gratified and happy” with Judge Adelman’s decision.

Urban Sprawl, Environmental Damage

Highway J Citizens Group representative Jeff Gonyo said Adelman’s decision was a decisive victory for the grassroots, all-volunteer effort that began in 1999, when the DOT first indicated it would convert the two-lane largely residential highway into a four-lane divided freeway-style road.

“The DOT simply didn’t listen to us,” Gonyo said. “That’s the biggest irritation. Everything that Judge Adelman said in his decision were issues that we brought up 10 years ago to the DOT, and they simply dismissed them out of hand without listening. Had they taken these issues seriously we could have avoided these time-consuming, costly lawsuits.”

Gonyo said the highway expansion was a threat to the residents’ largely rural way of life and the Kettle Moraine environment. “That’s why we’re so passionate about it,” Gonyo said of the decade-long effort supported solely by volunteers and donations.

Gonyo said the filled-in wetlands have caused flooding problems, as well as air and noise pollution and safety concerns.

In his decision, Adelman wrote that “plaintiffs have undoubtedly suffered irreparable harm as a result of the completed phases of the project.”

The agencies did not provide evidence supporting the claim that widening the road would not substantially influence development in the area, Adelman found. Nor did the agencies place the Highway J/164 expansion within the context of other developments in the area that have contributed to urban sprawl.

“Having assumed that the area will continue to urbanize with or without new roads, the [environmental impact statement] acknowledges that this project and others will continue to harm resources, but it essentially advises that, given the existing trend toward urbanization, the environmental harm will come to pass no matter what decision the agency makes,” Adelman wrote.

That wasn’t good enough for the judge.

Adelman also wrote that the agencies didn’t properly review reasonable alternatives, such as using County Y to divert traffic from Highway J/164. “It appears that defendants simply glanced at the map and then formed an off-the-cuff opinion,” Adelman wrote, and then he ordered the agencies to consider the County Y alternative.

Adelman also found that the agencies failed to analyze the project’s impact on air quality, and must do so in the future.

“Judge Adelman basically ruled the whole road to be illegal,” Gonyo said.

Public Hearings That Actually Include the Public

But Gonyo said the biggest victory came from Adelman’s finding that the DOT’s “open house” format doesn’t match “traditional expectations” of a public hearing.

“The format that WisDOT used did not permit members of the public to publicly express their views directly to WisDOT representatives or to other members of the public,” Adelman wrote. Instead, residents could “either dictate their comments in private to a court reporter or complete written comment forms.”

DOT’s Jambois said that “open houses actually provide a more welcoming way for the public to state their views,” especially when compared to this summer’s Town Hall meetings on health care. He said open houses are used across the country because they comply with Federal Highway Administration guidelines for public hearings.

Barr, the plaintiff’s attorney, said that the court should determine the definition of an adequate public hearing. “Just because the agency publishes guidelines for itself does not mean that those guidelines are legally adequate,” Barr said.

Adelman’s ruling on DOT’s “public hearings” could affect projects that are still pending, Barr said.

Gonyo said Adelman’s standard will benefit residents who will be impacted by the Zoo Interchange reconstruction project. “The citizens who live in those areas now have a valuable legal document that they can hold up to the DOT and say, ‘You either follow what Judge Adelman says or we can take you to court,’” Gonyo said. “They can use this decision as a precedent. The DOT is going to have to change the way it does business.”

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