in the letter of the elements that constituted design approval, such as 200 scale plans and proposed profiles.
It is to be borne in mind that the term "design approval" did not exist until the promulgation of PPM 20-8 on January 14, 1969. In view of the foregoing, it is obvious that Swick and Kellum are in agreement that the equivalent of design approval had been complied with in 1968. As the Court of Appeals has pointed out in this case, if such approval had been given by August 23, 1968, no further hearings relative to design approval would be required, and cited Concerned Citizens of Marlboro v. Volpe, 459 F.2d 332 (3d Cir. 1972), and Wildlife Preserves, Inc. v. Volpe, 443 F.2d 1273 (3d Cir. 1971). In the latter case it was held that Section 128(a) of the Federal Aid Highway Act and PPM 20-8 did not apply retroactively to projects which had received Federal design approval or its equivalent prior to their promulgation.
To this court the evidence clearly indicates that the documents involved, including 200 scale plans, submitted by the state on May 21, 1968 and approved by F.H.W.A. on August 2, 1968, considered the following elements: "A preliminary set of plans, major stream crossings, land requirements, numbers of lanes, interchanges, overpasses, underpasses, railroad separations and proposed profiles". These elements are those considered by the F.H.W.A. when determining whether to approve the design of a highway. Comparison of the documents submitted (G-1, G-2, G-3) in 1968 with the map, GS-1, and the construction plans, G-14a, G-14b, demonstrates that there has been no significant change in the design of the segment since August 2, 1968.
Plaintiffs here are concerned that the construction of this segment will in some way influence the proposed northward extension from the I-295 connection through Hopewell Township itself. This segment, however, while shifting the connecting ramps between I-95 and I-295 in a northerly direction toward its easterly end and thus departing from the alignment of proposed Route 129, returns to the original alignment as it approaches Federal City Road. They are also concerned with the construction of four culverts which were installed and would assist in controlling water problems in the construction northerly to Hopewell Township if that route is ever approved. These are only minor changes and do not indicate any unreasonable action on the part of defendants, but rather, a concern for the taxpayers' money should the northward extension to Hopewell Township ever be constructed. It is to be noted that that section of highway would require design approval before it can be undertaken.
The testimony revealed that at the time of the hearing in excess of forty percent of the segment had been completed. Therefore, the equities clearly favor the defendants considering the granting or the denial of an injunction. The individual plaintiffs all reside at least three miles from the construction site, and although living in the general vicinity of the proposed northern extension of I-95 between I-295 and I-287, the completion of this segment will not coerce that proposed extension if, as has been pointed out, it is ever completed. In fact, this court got the distinct impression during the hearing that the proposed northerly extension through Hopewell Township is their main concern, even in this action.
Accordingly, the application for a permanent injunction is denied.
The above shall constitute the court's findings of fact and conclusions of law under F.R. Civ. P. 52(a).
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