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2d 697
48 A.L.R.Fed. 898
The Transit District's demonstration project will provide several new types of
6 application for a grant or loan under this chapter to finance the acquisition,
Any
construction, reconstruction, or improvement of facilities or equipment which will
substantially affect a community or its mass transportation service shall include a
certification that the applicant
7 has afforded an adequate opportunity for public hearings pursuant to adequate
(1)
prior notice, and has held such hearings unless no one with a significant economic,
social, or environmental interest in the matter requests a hearing;
8 has considered the economic and social effects of the project and its impact on
(2)
the environment; and
9 has found that the project is consistent with official plans for the comprehensive
(3)
development of the urban area.
10
Notice
of any hearings under this subsection shall include a concise statement of the
proposed project, and shall be published in a newspaper of general circulation in the
geographic area to be served. If hearings have been held, a copy of the transcript of
the hearings shall be submitted with the application.
11
The Transit District concedes that the certification required by this subsection
was not included in its application. The second is 49 U.S.C. 1602(e), which
provides:
12 financial assistance shall be provided under this chapter to any State or local
No
public body or agency thereof for the purpose, directly or indirectly, of acquiring any
interest in, or purchasing any facilities or other property of, a private mass
transportation company, or for the purpose of constructing, improving, or
reconstructing any facilities or other property acquired (after July 9, 1964) from any
such company, or for the purpose of providing by contract or otherwise for the
operation of mass transportation facilities or equipment in competition with, or
supplementary to, the service provided by an existing mass transportation company,
unless (1) the Secretary finds that such assistance is essential to a program, proposed
or under active preparation, for a unified or officially coordinated urban
transportation system as part of the comprehensively planned development of the
urban area, (2) the Secretary finds that such program, to the maximum extent
feasible, provides for the participation of private mass transportation companies, (3)
just and adequate compensation will be paid to such companies for acquisition of
their franchises or property to the extent required by applicable State or local laws,
and (4) the Secretary of Labor certifies that such assistance complies with the
requirements of section 1609(c) of this title.
13
STANDING.
14
15
The district court held that the plaintiffs have standing to maintain this suit. We
agree. Plaintiffs are "likely to be financially injured," F.C.C. v. Sanders
Brothers Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 84 L.Ed. 869 (1940),
quoted in Association of Data Processing Service Organizations, Inc. v. Camp,
397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), by the approval of the
grants and thus satisfy the case or controversy requirement of Article III of the
Constitution. Plaintiffs also satisfy the nonconstitutional "zone of interests" test
for standing. See Association of Data Processing Service Organizations, Inc. v.
Camp, supra, 397 U.S. at 153, 90 S.Ct. 827. They fall within the "zone of
interests" protected by 1602(d) because they are members of the Westport
"community"; they are "arguably within the zone of interests" protected by
1602(e) because they are, at least arguably, a "mass transportation company."
SUBSECTION (d).
16
17
18
We read the Act differently. By its own terms, 1602(d) applies to "(a)ny
application . . . under this Act" for a grant which, if implemented, meets certain
objective criteria. This language suggests that the categories overlap a
demonstration project is exempt from sections other than 1605 only if its
nature is such that it does not meet the criteria those sections establish. Thus, a
demonstration project may or may not involve "the acquisition . . . of facilities .
. . which will substantially affect a community or its mass transportation
service." If it does not, then 1602(d) need not be complied with; if it does,
however, the requirements of that subsection cannot be avoided merely because
the project is a demonstration. We are confident that Congress meant what it
said when it wrote "(a)ny application . . . under this Act" and set forth objective
criteria. It intended each project to be treated according to its impact, not just its
type.
19
Under our reading of the statute, therefore, the impact of each proposed mass
transportation project upon its community must be evaluated. The trial judge
found that the Transit District's project "is a demonstration project only and
does not involve the more significant commitment of resources and more
substantial effect on the community necessary to bring the hearing and
certification requirements of 1602(d) into play" (footnote omitted). Because
this finding is based on the erroneous view that 1602 and 1605 are mutually
exclusive, it cannot stand. It is clear that this demonstration project involves
"the acquisition, construction, reconstruction, or improvement of facilities or
equipment" and "will substantially affect" Westport and its mass transportation
service. Indeed, it is difficult to imagine how the implementation of a $600,000
project involving the purchase of eleven twelve-passenger vans, at a cost of
over $150,000, in a town of less than 30,000 inhabitants could fail to have a
substantial effect on the community and its mass transportation service. In fact,
that appears to have been the very intent of those who designed the project.
Appellees try to minimize the impact of the project by pointing out that it is
merely a two-year demonstration. We find this approach unpersuasive. The
demonstration may well be the start of a long-term program. The Transit
District's new vans are not going to evaporate after two years; after they are
demonstrated, they will likely become a permanent part of Westport's mass
transportation service. Furthermore, two years can be a very long time for some
citizens of Westport. Given the present state of plaintiffs' financial condition, it
appears unlikely that it could survive this two-year program. It cannot be
denied that the elimination of one of the two independent, traditional,
exclusive-ride taxi services in Westport, together with the substitution of a new
$600,000 project, would constitute a "substantial" effect on the community or
mass transportation of Westport. Accordingly, 1602(d) must be complied
with. We note, however, that on the facts of this case compliance should be a
22
The purpose of the change in the definition of "mass transportation" was "to
allow greater flexibility in developing and applying new concepts and systems
in urban mass transportation programs." S.Rep.No.90-1123, 90th Cong., 2d
Sess. 76-77; see H.R.Rep.No.1585, 90th Cong., 2d Sess. 65-66, reprinted in
(1968) U.S.Code Cong. & Admin.News, pp. 2873, 2940-41. Congress does not
appear to have intended to include conventional taxi service within the changed
definition, for such service cannot by any stretch of the imagination be
considered a "new" concept or system.
23
24
UMTA
has consistently included within (the) definition (of "mass transportation")
any form of collective transportation service which is regularly available to the
public; i. e., any service which cannot be reserved for the private and exclusive use
of particular individuals or private groups. . . . Hence, fixed-route bus or rail services
and paratransit services such as dial-a-ride, jitney, shared-ride taxi, neighborhood
transit, subscription bus service and other types of shared-ride transportation services
which are available to the public or to special categories of users (such as elderly and
handicapped persons) on a regular basis are considered by UMTA to be "mass
transportation services." Services which can be reserved for the exclusive use of
individuals or private groups, either by the operator or the first patron's refusal to
permit others to be picked up, such as exclusive-ride taxi service, charter services,
sightseeing services, employer van-pool programs, car rental services, for-hire
limousines and private ambulance services are not deemed to be "mass
transportation" services for purposes of the UMT Act. (emphasis added).
25
CONCLUSION.
26
27
In view of our decision that there has been a failure to comply with 1602(d),
the judgment of the district court is reversed in part and the case is remanded
The plaintiffs argued in the district court, as they have in this Court, that the
destruction of their business that will result if the project is implemented will
amount to a "taking" without just compensation in violation of the Fifth and
Fourteenth Amendments to the United States Constitution. It is well established
that there is no right to be free from governmental competition. See Tennessee
Elec. Power Co. v. T.V.A., 306 U.S. 118, 138-39, 59 S.Ct. 366, 83 L.Ed. 543
(1939). Plaintiffs' argument based on an alleged statutory right under 49 U.S.C.
1602 to be free from competition in the absence of compliance with the
requirements of that section is evaluated in our discussion of subsections (d)
and (e) of that section