Full opinion text
FINDINGS AND OPINION ELMO B. HUNTER, District Judge. This is an action for declaratory and injunctive relief arising out of a highway relocation and improvement project on U. S. Highway 54, a federal-aid primary highway, in Miller County, Missouri. Plaintiffs at all times relevant to this litigation were husband and wife, and were doing business as Osage Outdoor Advertising. Defendant State Highway Commission of Missouri (the Commission) is an entity created under the Constitution and Laws of the State of Missouri, and is authorized to sue and be sued in its own name. § 226.100 RSMo. (1969). The Commission is authorized by Missouri law to exercise the power of eminent domain. Robert L. Hyder, formerly a defendant in this action, was during all times pertinent to this case, and until his retirement on February 28, 1974, Chief Counsel of the defendant Commission and had been appointed and authorized to act pursuant to § 226.060 RSMo. (1969). The federal defendants are Claude S. Brinegar, Secretary of Transportation of the United States (successor to John A. Volpe) and Norbert T. Tiemann, Administrator of the Federal Highway Administration, United States Department of Transportation (successor to F. C. Turner). Plaintiffs allege that they were and are the owners of various outdoor advertising structures (billboards) located pursuant to leases negotiated with the property owners, on property adjacent to U. S. Highway 54 prior to the improvement project. They contend that the property upon which these structures were located was acquired by the Commission for the Highway 54 project, that plaintiffs were required to remove or destroy the structures without any form of compensation, and that the underlying leasehold interests were taken by the Commission without payment of just compensation. Initially, plaintiffs contend the Commission violated various provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601-4655 (1971) (hereinafter, the URA). In this regard they seek an order of this Court requiring the Commission to specifically comply with §§ 301-305 of the URA (42 U. S.C. §§ 4651-4655) with respect to the billboards. In particular, plaintiffs assert that the Commission must purchase the signboards in question and compensate plaintiffs under the provisions of § 302 of the URA (42 U.S.C. § 4652). Second, plaintiffs assert that the Commission took the underlying leasehold interests without due process and without payment of just compensation in violation of the fifth and fourteenth amendments to the United States Constitution and various provisions of Missouri law. In this regard they seek an award of just compensation for the property allegedly taken. Finally, plaintiffs request a review of the determinations of the Secretary of Transportation and the Federal Highway Administration (the federal defendants) approving federal financial assistance for the Highway 54 project. Defendants have moved to dismiss the complaint on several alternative grounds, including lack of jurisdiction, failure to state a claim upon which relief can be granted, and, with respect to the Commission, that this cause is barred by the eleventh amendment to the United States Constitution. By previous order, disposition of these motions was postponed until the trial of the case on the merits. The issues are raised by plaintiffs’ first amended complaint, the answers of defendant thereto, the motions to dismiss of each defendant, and by Standard Pretrial Order No. 2. Trial to the Court commenced on June 3, 1974 and concluded on June 5, 1974. Final post-trial briefs were submitted in November, 1974, and an agreed upon form of Standard Pretrial Order No. 2, including stipulations of facts and admissions of parties, was submitted by the parties on March 4, 1975. Jurisdiction Plaintiffs assert that this Court has subject matter jurisdiction over plaintiffs’ claims under the URA under the provisions of 28 U.S.C. § 1331(a) in that the issues present a federal question and the amount in controversy exceeds the sum or value of $10,000.00. Alternatively, plaintiffs contend that jurisdiction is present under 28 U.S.C. § 1337 as this case arises under an act of the Congress regulating commerce, or under the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Under this alternative theory, plaintiffs assert the pendent jurisdiction of this Court with regard to their claims against the Commission. For the reasons set forth below, this Court has concluded that jurisdiction is present under 28 U.S.C. § 1331(a) as to plaintiffs’ claims against the Commission, as these claims for relief arise under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and the matter in controversy exceeds the sum or value of $10,000.00. The Court has concluded that the eleventh amendment does not bar this action as against the Commission. Concerning plaintiffs’ claims against the federal defendants jurisdiction is present under the Administrative Procedure Act to review the determinations of the federal defendants in funding the Highway 54 improvement project. The Court will decline to exercise pendent jurisdiction with regard to plaintiffs’ claims for just compensation for the underlying leasehold interests. Congress had a twofold purpose in enacting the URA. First, the purpose of the relocation assistance provisions was to establish a uniform policy for treatment of individuals displaced as the result of federal or federally assisted projects. See URA § 201 (42 U.S.C. § 4621). Second, Congress intended the real property acquisition policies sections to bring about uniform nationwide procedures for the taking of property by the federal government or state agencies receiving federal assistance. Will-Tex Plastics Mfg., Inc. v. Department of HUD, 346 F.Supp. 654 (E.D.Pa.1972). The real property acquisition policies of the URA are contained, generally, in §§ 301-305 (42 U.S.C. §§ 4651-4655). Sections 301-304 by their terms apply to federal agencies in the acquisition of real property for federal projects. Section 301 (42 U.S.C. § 4651) establishes nine separate practices and guidelines for federal agencies to follow in the acquisition of real property. Section 302 (42 U.S.C. § 4652) mandates that an agency acquiring real property also acquire an equal interest in any building, structure or improvement on such property which will be required to be removed, or which will be adversely affected by the use of such property, and sets forth a method for compensation to be paid to the owner of any such structure or building. Section 303 (42 U.S.C. § 4653) involves compensation and reimbursement to the owner of property acquired for certain expenses involved in and incidental to the transfer of title to the United States. Section 304 involves payment by the acquiring agency of certain litigation expenses in limited circumstances. Section 305 of the URA (42 U.S.C. § 4655) makes the provisions of the preceding sections obligatory upon the states as a condition to the receipt of federal financial assistance. This section provides as follows: “Notwithstanding any other law, the head of a Federal agency shall not approve any program or project or any grant to, or contract or agreement with, a State agency under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the acquisition of real property on and after January 2, 1971, unless he receives satisfactory assurances from such State agency that— “(1) in acquiring real property it will be guided, to the greatest extent practicable under State law, by the land acquisition policies in section 301 and the provisions of section 302, and “(2) property owners will be paid or reimbursed for necessary expenses as specified in sections 303 and 304.” Plaintiffs’ primary claim in this case is that the Commission has failed to comply with § 305 of the URA in its real property acquisitions for the U. S. Highway 54 project. In particular, plaintiffs assert that the Commission has failed to comply with the provisions of §§ 301 and 302 to “the greatest extent practicable under State law” as is required by § 305. Defendants contend that federal question jurisdiction cannot be properly invoked pursuant to §§ 301, 302 or 305 for the reason that none of these sections grant any rights to the plaintiffs that are subject to judicial enforcement. In this context they refer the Court to § 102 of the URA (42 U.S.C. § 4602), which provides as follows: “(a) The provisions of Section 301 of Title III of this Act (42 U.S.C. § 4651) create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation. “(b) Nothing in this Act shall be construed as creating in any condemnation proceedings brought under the power of eminent domain any element of value or of damage not in existence immediately prior to the date of enactment of this Act.” With regard to § 102(a), it has been held that this section precludes judicial review of action allegedly taken in violation of § 301, and precludes judicial enforcement of that section. In an exhaustive opinion in Barnhart v. Brinegar, 362 F.Supp 464 (W.D.Mo.1973), Judge William R. Collinson reviewed the entire history of these sections and concluded : “ . . . Congress intended section 102(a) to preclude judicial review of federal and state agency actions under the real property acquisition practices of section 301 of the Act. The intended result is accomplished two ways. First, if one has no rights under section 301, then one cannot be adversely affected or aggrieved by agency action. This bars review of federal agency decisions under the Administrative Procedure Act. Secondly, if one has no rights under section 301, we conclude that an action against a state agency under section 301 does not “arise under” the Constitution or laws of the United States within the meaning of 28 U.S.C. § 1331(a) (1970). Federal question jurisdiction is thus effectively barred. As a matter of compromise, Congress passed section 301 as an expression of congressional policy and entrusted the faithful execution of its stated policy solely to the administrators of the Act.” Barnhart v. Brinegar, supra, at 472. This Court is in agreement with the rationale of Judge Collinson in Barnhart, and it is therefore concluded that jurisdiction cannot be invoked under 28 U.S.C. § 1331(a) or under the Administrative Procedure Act, 5 U.S.C. §§ 702, 704 to consider plaintiffs’ claim that the defendants have failed to comply with § 301. However, plaintiffs’ claims predicated upon alleged violations of §§ 302, 305 of the URA are not subject to the same analysis. First, § 102(a) is expressly limited in its application to § 301, as by its very explicit terms it applies only to that section. A review of the legislative history pertaining to § 102 reveals that this section was enacted pursuant to a compromise between the House and Senate versions of the original bill. This compromise deleted a specific provision of the House Bill barring judicial review of agency action under all sections of the URA. The deleted portion provided that no provision of the URA shall be construed “to give any person a cause of action in any court”. The elimination of that language clearly indicates that the Congress did not intend to prevent judicial review of agency actions under sections of the URA other than § 301. Nor can § 102(b) of the URA be asserted in this case as a bar to judicial review of agency action allegedly in violation of §§ 302, 305. By its explicit terms, § 102(b) requires that nothing contained in the URA shall be construed to create any element of value or of damage not in existence prior to the effective date of the URA, January 2, 1971, “in any condemnation proceedings brought under the power of eminent domain”. The instant action is not a condemnation proceeding brought pursuant to the power of eminent domain, and § 102(b) is therefore inapplicable to this case. Although this is apparently the first instance in which a federal district court has been called upon to enforce the provisions of §§ 302, 305, and to review agency actions under those sections with regard to property acquired after the effective date of the URA, a number of recent eases have held that sections of the URA, other than § 301, are judicially enforceable, and that agency action under those sections is subject to judicial review. See Tullock v. State Highway Commission of Missouri, 507 F.2d 712 (8th Cir. 1974); Jones v. District of Col. RDA, 162 U.S.App.D.C. 366, 499 F.2d 502 (D.C. Cir. 1974); Beaird-Poulan, Inc. v. Dept. of Hys. of La., 497 F.2d 54 (5th Cir. 1974); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971); La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971) affirmed 488 F.2d 559 9th Cir. 1973) cert. den. 409 U.S. 890, 93 S.Ct. 105, 34 L.Ed.2d 147; and Lewis v. Brinegar, 372 F.Supp. 424 (W.D.Mo. 1974). In view of the above, the Court concludes that §§ 302, 305 of the URA are judicially enforceable, and that plaintiffs’ claims against the Commission for injunctive relief under the provisions of §§ 302 and 305 of the URA based upon alleged violations of those sections present a federal question under the provisions of 28 U.S.C. § 1331(a). Further, the jurisdictional amount re-quirement of that section is satisfied m this case. Concerning plaintiffs’ claim against the federal defendants, jurisdiction is present under the Administrative Procedure Act to review the agency determinations. Pursuant to that act, the Court may review final federal agency determinations unless review is precluded by statute or the agency action is committed to agency discretion by law. 5 U.S.C. §§ 701-706 (1970). Review of agency actions under §§ 302, 305 of the URA is not precluded by statute, and the actions of the federal defendants under these sections are not committed to agency discretion. Section 305 requires the federal agency to secure the necessary assurances from the State agency before acting under that section, and § 211(c) of the URA (42 U.S.C. § 4631(d)) requires the amendment of federal-state agreements that were in existence prior to the effective date of the URA to conform to §§ 210 (42 U.S. C. § 4630) and 305 of the URA. Cf. Lewis v. Brinegar, 372 F.Supp. 424 (W.D.Mo.1974). In addition to its assertion of the absence of jurisdiction under federal statutes, the Commission asserts that this action is barred by the eleventh amendment to the Constitution. Although plaintiffs contend that this defense was not timely asserted under Rule 12, F.R.Civ.P., the amendment, where applicable, is sufficiently in the nature of a jurisdictional defect that it may be raised at any stage of the proceeding. An unconsenting state is immune to suit in federal courts by its own citizens under the amendment, as well as suits by citizens of other states or nations. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). However, claims for prospective injunctive relief against state officials are not barred by the eleventh amendment. Edelman v. Jordan, supra; Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Tullock v. State Highway Commission of Missouri, 507 F.2d 712 (8th Cir. 1974). At the time that plaintiffs brought this suit, the signboards in question were located on the property the Commission had acquired for the project. At that time plaintiffs were seeking an injunction prohibiting the Commission from requiring the removal of or removing any of these structures, or from otherwise interfering with any property rights of plaintiffs, until such time as the Commission complied with the provisions of §§301 and 302 of the URA. Therefore, plaintiffs sought only prospective injunctive relief against the Commission. Subsequent to the filing of the initial complaint, plaintiffs and the Commission on April 17, 1972, entered into a stipulation providing that plaintiffs would remove the structures lying within the right-of-way for the U. S. Highway 54 project “without such being in any manner considered as an abandonment or waiver of any rights that they may have with respect to the sign structures or to the premises upon which the sign structures are now located * * * * * * “The state defendants further agree that any such movement shall be without prejudice to any rights of the plaintiffs to compensation with respect to the parcels of land set forth in the complaint or sign structures located thereon within the right-of-way on said project, and shall further be without prejudice to any rights of the plaintiffs to relocation assistance under the provisions of the Uniform Relocation Assistance and Land Acquisition Policies Act or prior law.” The effect of this stipulation is inescapable. The rights and liabilities of the parties with respect to the sign structures were established as of the date of the stipulation. Viewing this matter from that point in time, plaintiffs seek prospective injunctive relief only, and do not claim damages for any prior breach of a legal duty. As such, it is clear that the eleventh amendment does not bar plaintiffs’ claims against the Commission under §§ 302, 305 of the URA. Edelman v. Jordan, supra; Tullock v. State Highway Commission of Missouri, supra; La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), affirmed 488 F.2d 559 (9th Cir. 1973), cert. den. 409 U.S. 890, 93 S.Ct. 105, 34 L.Ed.2d 147. Concerning plaintiffs’ claims against the Commission for just compensation for the alleged taking of the apparent leaseholds, it does not appear, and plaintiffs do not contend, that the matter in controversy with regard to the leases exceeds the sum or value of $10,000.00. Therefore, even though plaintiffs’ claims in this regard present a federal question under the fifth and fourteenth amendments, the original jurisdiction of this Court under 28 U.S.C. § 1331(a) cannot be invoked, and these claims must be considered state claims. See Lewis v. Brinegar, 372 F.Supp. 424, 428 (W.D.Mo.1974). The question presented is whether this Court will exercise its pendent jurisdiction to consider these claims. There is no doubt that this Court has the power to exercise its pendent jurisdiction in this regard. An independent basis of federal jurisdiction is present with regard to plaintiffs’ claims under the URA, the state and federal questions derive from a common nucleus of operative fact (the property interests were taken at the same time the structures were required to be removed), and the claims are such that plaintiffs could ordinarily expect to try them in one judicial proceeding. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). But the doctrine of pendent jurisdiction is not a doctrine of plaintiffs’ right, and need not be exercised in every case where there is power in the federal court to hear the pendent claims. Rather, the exercise of pendent jurisdiction is committed to the sound discretion of the district court under the peculiar facts and circumstances of the particular case at bar. United Mine Workers v. Gibbs, supra, 383 U.S. at 726, 86 S.Ct. 1130. In this case, although the Commission allegedly took plaintiffs’ underlying property interests at the time it acquired the fee interest in the property, and at the time it required removal of the advertising structures located thereon, the claims of plaintiffs relating to these interests are otherwise totally distinct and separate from plaintiffs’ claims relating to the billboards under the URA. For reasons stated infra in this opinion, a compensable real property interest is not a prerequisite to compensation for “structures” under the URA, and for purposes of plaintiffs’ URA claims it is not necessary to determine the exact nature of the property interests held. However, in order to determine whether plaintiffs will succeed on their claims relating to the taking without payment of just compensation of these property interests, those determinations will be necessary. For it is clear that the amount of just compensation, if any, due to plaintiffs for the taking of any particular property interest, as opposed to “structure”, will be determined, at least in part, by the exact nature of the interest plaintiffs held. Plaintiffs, or their agents, negotiated and signed documents entitled “Lease of Ground Space For Signboard” on each property involved. In order to determine the nature of the interest held by plaintiffs in any particular parcel (e. g., a valid lease for a term of years, a tenancy at will or sufferance, or some sort of a license, etc.) it will be necessary to determine, with respect to each arrangement, at least the following: (1) the owners of each property at the time the document was signed; (2) whether all owners of a property signed the document and the effect of the failure of all owners to sign; (3) whether any non-signing owner can be estopped to deny the validity of the arrangement by knowledge of and acquiescence to it; (4) whether agents of the plaintiffs who signed the documents on plaintiffs’ behalf had written authority to do so, and the effect under the Missouri Statute of Frauds of the failure to have such authority, if so; and (5) whether the Commission after acquiring a particular property, can assert any defects in the arrangements that the original property owners could assert. These determinations would require numerous findings of fact unrelated to any questions presented by plaintiffs’ claims concerning the advertising structures under the URA, and would require technical and painstaking application of Missouri law to the facts found with regard to each arrangement to determine the exact interest, if any, held by plaintiffs. Assuming that plaintiffs were determined to have a compensable property interest in one or more of these parcels, a further evidentiary hearing would be required to determine the fair market value of whatever interest had been taken by the Commission. It is apparent that the evidence on that question would differ with respect to each interest. For these reasons, it is the opinion of the Court that the considerations of judicial economy and convenience would not be served by the exercise of pendent jurisdiction over these claims. Therefore, in the exercise of its discretion, this Court declines to exercise its pendent jurisdiction to consider plaintiffs’ claims for compensation for whatever interests or rights they may have held in the property upon which their advertising structures were located. Accordingly, those claims will be dismissed without prejudice. Background of the Controversy U. S. Highway 54 in Miller County, Missouri, is and at all times relevant to this case was a federal-aid primary highway, approved as such by the Federal Highway Administration (or its predecessor, the Bureau of Public Roads) and by the Commission, and is part of the state highway system of Missouri. On July 10, 1959, the Chief Engineer of the Commission submitted to the Bureau of Public Roads a request for program approval for a project to improve Highway 54 in Miller County for a distance of approximately thirteen miles from just east of Eldon, Missouri. This project, originally denominated Project No. F~306(4), was initially approved by the Bureau of Public Roads on September 8, 1959, and the Commission was authorized to proceed with preliminary engineering. On May 12, 1966 the Commission approved a five year program for highway development that included project No. F-54-3(11), which had originally been denominated project No. F-306(4). In June of 1967, the Commission requested approval of a change in termini of project F-54-3(ll) to split out that portion between the Camden County line and State Route Y, for an early contract letting. This change was approved by the Bureau of Public Roads and the split-out portion was denominated project No. F-54-3(17). On May 20, 1970, the Commission and the Federal Highway Administration entered into a Federal-Aid Project Agreement for a project denominated F-54-3(23). This agreement was made for the purpose of right-of-way acquisition for project F-54-3(ll) from State Route V north to 1.0 miles west of State Route FF, and provided for federal funds in the amount of $108,000.00 out of a total estimated project cost of $181,000.00. (Henceforth, this project and agreement shall be referred to as the right-of-way project and agreement) . This agreement was modified several times. On August 31, 1970, the total estimated cost was increased to the sum of $431,000.00, with the federal portion increased to $233,000.00, due to additional “ROW” (right-of-way) costs. For the same reason the agreement was modified on October 20, 1970 to provide for a total cost of $506,000.00 and a federal share of $271,000.00. On February 3, 1971, the agreement was again modified due to a “revised ROW estimate” to provide for a total cost of $541,670.00, with no increase in federal funding. Finally, on August 27, 1971 the project agreement was modified for the final time. The description of the termini was changed to U. S. Highway 54 from State Route V north to % mile east of State Route 52. This reduced the length of the project from 10.600 miles to 6.261 miles. The cost was increased to $646,000.00 and the federal share increased to $336,714.00. On June 10, 1971, the Commission formally gave its approval to the right-of-way project, and directed its chief counsel to acquire the needed right-of-way by purchase, or if necessary, by condemnation. On November 15, 1971, the Commission requested approval from the Federal Highway Administration to split-out that portion of Project F-54-3(ll) for which the right-of-way had been acquired (pursuant to the right-of-way project and agreement, project F-54-3(23)) for an early letting of the construction contract. The construction project so described was denominated project No. F-54-3(26) (the construction project) and was approved by the Federal Highway Administration on November 24, 1971. On February 16, 1972, a formal Federal Aid Project Agreement was entered into by the Commission and the Federal Highway Administration for the construction project. The agreement, referring to the construction project now as project No. EMP-F-54-3(26), called for an estimated total cost of $5,736,344.00, of which the federal share was $2,867,897.00. The right-of-way needed by the Commission for the Highway 54 improvement program included property adjacent to the old Highway 54 right-of-way, and specifically included land located on parcels denominated by the Commission as parcels No. 4, 14, 38, 43, 44, 49, 51, and 52. The right-of-way needed on each of these parcels included land located within 660 feet of the old Highway 54 right-of-way, between State Route V and State Route 52 in Miller County. In 1968 the Commission gave assurances to the Federal Highway Administration that it would comply with all provisions of Chapter 5 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 501 et seq. The Commission did not, however, implement the provisions of this act to displacements of outdoor advertising structures. The Commission, in a series of letters to the Federal Highway Administration in 1971 and 1972, agreed to, and gave assurances that it would fully comply with all provisions of the URA on all Federal-Aid highway projects in Missouri with regard to property acquired for such projects after January 2, 1971. In particular, in a letter to Mr. H. S. Hickman, Division Engineer of the Federal Highway Administration on February 4, 1971, Mr. Thomas A. David, then Director of Highways of the defendant Commission, stated that: “The following assurances are formally presented to you pursuant to Section 305 of Public Law 91-646 (42 U. S.C. § 4655). 1. In the acquisition of real property, the State Highway Commission will be guided to the greatest extent practicable under the laws of the State of Missouri, by the land acquisition policies contained in Sections 301 and 302 of the above-described Public Law 91-646.” (42 U.S.C. §§ 4651 and 4652) In response to an inquiry from Mr. Hickman, Mr. David again assured him on February 12, 1971, that the Commission would comply with sections 301-305 of the URA. And, in subsequent correspondence from Mr. David to Mr. Hickman the Commission further assured the Federal Highway Administration that it had and would comply with sections 301 and 302 on all property acquired after January 2, 1971. Section 305 assurances were formally accepted by the Federal Highway Administration in May of 1972. Plaintiffs’ twenty-four sign structures involved in this case were located on those portions of parcels No. 4, 14, 38, 43, 44, 49, 51 and 52 that the Commission acquired for the Highway 54 improvement project right-of-way. These signboards had been erected and were being maintained (prior to the Commission acquiring these properties) pursuant to agreements between plaintiffs and the property owners. The Commission initially appraised each of these properties prior to January 2, 1971, the effective date of the URA. Plaintiffs’ sign structures were present on these properties at the time that these appraisals were conducted, and the Commission was aware that plaintiffs owned or claimed to own these structures. In making these appraisals, the Commission did not make any separate determinations as to the in place value, enhancement value, salvage value, or cost of moving any of plaintiffs’ structures, for the reason that the Commission considered each of these structures to be violative of one or more provisions of the 1965 Missouri billboard act (§§ 226.500-226.600 RSMo 1969), and subject to removal from the premises without compensation. As such, the Commission appraised the properties without taking into consideration plaintiffs’ sign structures in any way, and then proceeded to negotiate with the property owners to purchase the needed right-of-way over each parcel involved. The right-of-way needed on parcel No. 4 was acquired on December 3, 1970, and right-of-way needed on the remaining parcels was acquired on various dates in April, May, and June, 1971. The Commission acquired the right-of-way over each parcel herein involved by negotiated purchase with the fee owners. No amount of the sum paid to any property owner as just compensation for the property purchased included any amount for the sign structures located on such property, either separately or as such structures might increase the fair market value of such property. And, even though the right-of-way over parcels 14, 38, 43, 44, 49, 51, and 52 was acquired after the effective date of the URA, no new appraisals were conducted for the reason that the Commission considered the previously made appraisals to have been in substantial compliance with the provisions of the URA. Both prior and subsequent to the acquisition of the right-of-way plaintiffs and the Commission corresponded on various occasions concerning plaintiffs’ sign structures located on the property acquired. In essence, the Commission sought the removal of these structures by plaintiffs without compensation, and plaintiffs asserted a right to be compensated. No agreement was reached, and the Commission in January of 1972 advertised for bids for the construction of the Highway 54 project. Plaintiffs thereupon filed the complaint in this case. On April 17, 1972 plaintiffs and the Commission entered into the stipulation previously described. Pursuant to that stipulation, as the construction reached the area of any particular sign or signs, these structures were removed, at the cost of the plaintiffs. Applicability of the URA Plaintiffs contend that the Commission failed to comply with § 305 of the URA in that it failed to comply with § 302 to the greatest extent practicable under Missouri law when it attempted to require plaintiffs to remove their sign structures from the Highway 54 improvement project right-of-way without compensation. The initial question presented is whether § 305 applied to the Highway 54 right-of-way project under which the Commission purchased the property upon which plaintiffs’ signs were located. Pursuant to § 221(a) of the URA (42 U.S.C. § 4601 note) the provisions of the URA were generally effective on January 2, 1971, the date of enactment. However, under § 221(b) § 305 applied to a State on that date only to the extent that such state was able under its laws to comply with § 305. Both the express language of § 221(b) and the legislative history of this section clearly indicate that if a state was able under its law to comply with § 305 on January 2, 1971, then that section was fully applicable to such State on that date. To the extent that a State was unable under its law to comply with any portion of § 305 on that date, § 305 applied except only insofar as State law expressly prohibited compliance. In this case the parties have agreed that on and after January 2, 1971, Missouri law did not prohibit the Commission from complying with the URA, including §§ 302 and 305 It further appears that the Commission did have specific statutory direction and authority to comply with § 305 as of January 2, 1971. In pertinent part, § 226.150 RSMo. (1969) provides as follows: “The Commission is hereby directed to comply with the provisions of any act of congress providing for the distribution and expenditure of funds of the United States appropriated by congress for highway construction, and to comply with any of the rules or conditions made by the bureau of public roads of the department of agriculture, or other branch of the United States government, acting under the provisions of federal law in order to secure to the state of Missouri funds allotted to this state by the United States government for highway construction. . . . ” This section has been interpreted by the Missouri Supreme Court as requiring and authorizing the Commission to comply with all provisions of any act of Congress or administrative regulation upon which federal funds for highway construction may be conditioned, even if compliance would cause the Commission to violate the express terms of Missouri statutes. Logan v. Matthews, 330 Mo. 1213, 52 S.W.2d 989 (1932). For these reasons the Court concludes that under Missouri law the Commission was able to comply with § 305 of the URA on and after January 2, 1971 on all federally-assisted projects. Thus, § 305 was fully applicable to the Commission on and after that date. § 221(a), (b). Cf. Beaird-Poulan, Inc. v. Dept. of Hys. of La., 497 F.2d 54 (5th Cir. 1974) (U.S.App. pndg.). In pertinent part § 305 provides as follows: “Notwithstanding any other law, the head of a Federal agency shall not approve any program or project or any grant to, or contact or agreement with, a State agency under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the acquisition of real property on and after January 2, 1971, unless he receives satisfactory assurances from such State agency that— (1) in acquiring real property it will be guided, to the greatest extent practicable under State law, by the land acquisition policies in section 301 and the provisions of section 302 . . . .” It is apparent that Congress intended that § 305, if applicable to a state on January 2, 1971, be applicable to all property purchased or acquired by a state agency on a federally assisted project after that date, even if the initial project agreement between the federal and state agencies was entered into prior to that time. Clearly, Congress intended the URA to apply to federal and federal aid projects as of the date of its enactment, regardless of when the program or project under which property is acquired was initiated. The legislative history of § 221 demonstrates that Congress intended eligibility for benefits to rest upon enactment of the URA as to all property acquired after its effective date. This congressional intent is further evidenced by § 211(c) (42 U.S.C. § 4631(c)) which in pertinent part provides as follows: “Any grant to, or contract or agreement with, a State agency executed before the effective date of this title, under which Federal financial assistance is available to pay all or part of the cost of any program or project which will result in the displacement of any person on or after January 2, 1971, shall be amended to inelude the cost of providing payments and services under sections 210 and 305. . ” (Emphasis supplied.) Congress required by this section that federal-state project agreements pre-dating January 2, 1971 be amended to include the costs of payments and services under § 305 so that those payments and services would be provided on ongoing projects. The federal-state aid agreement under which the Commission acquired the needed right-of-way for the Highway 54 project is that type of agreement required to be amended by § 211(c). It is therefore concluded that § 305 applied to all property acquired by the Commission on and after January 2, 1971 for the U.S. 54 improvement project right-of-way. See Beaird-Poulan, Inc. v. Dept. of Hys. of La., 497 F.2d 54 (5th Cir. 1974) (U.S.App. pndg.). Will-Tex Plastics Mfg., Inc. v. Dept. of HUD, 346 F.Supp. 654 (E.D.Pa.1972); Rubin v. Dept. of HUD, 347 F.Supp. 555 (E.D. Pa.1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971) and La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), affirmed 488 F.2d 559 (9th Cir. 1973), cert. den. 409 U.S. 890, 93 S.Ct. 105, 34 L.Ed.2d 147. Compliance with Section 305 Plaintiff’s claims against the federal defendants rest upon their assertion that the federal defendants failed to secure the required satisfactory assurances from the Commission under § 305 with respect to the Highway 54 right-of-way acquisition project. In this context it will also be necessary to determine whether the right-of-way acquisition agreement was amended to include the cost of services under § 305 as required by § 211(c). In the absence of proper assurances and amendments, the federal defendants would be acting illegally in funding this project after the effective date of the URA. Cf. Lathan v. Volpe, 455 F.2d 1111 at 1126 (9th Cir. 1971). Similarly, plaintiffs assert that the Commission has failed to comply with the provisions of § 305 in that it did not give satisfactory assurances under § 305, did not comply with the assurances it did give with respect to plaintiffs’ sign structures, and in any event did not comply with the requirements of § 305. Regarding the question of the assurances under § 305, Mr. David’s letter of February 4, 1971 to Mr. Hickman specifically assured the Federal Highway Administration that the Commission would be guided to the greatest extent practicable under State law by the provisions of §§ 301 and 302. The February 12, 1971 letter, while indicating what the present practice of the Commission was with respect to the various rights of landlords and tenants on property to be acquired, did not indicate that Missouri law required such a practice on property acquired by negotiable purchase. The subsequent correspondence completely assured the Federal Highway Administration that the Commission was totally able to and would comply with the provisions of § 302 on all property acquired after the effective date of the URA on federally assisted projects. With respect to the assurances required by § 305 regarding compliance with § 302, these assurances were satisfactory. Thus, plaintiffs’ claim against the federal defendants founded upon the alleged failure to secure statisfactory § 305 assurances with regard to § 302 is without merit and cannot be sustained. However, as indicated above, the Commission did assure the federal defendants under § 305 that it would comply with the provisions of § 302 to the greatest extent practicable under Missouri law as to all property acquired on federally assisted projects on and after January 2, 1971. The Commission was therefore obligated to comply with the provisions of § 302 to the greatest extent practicable under Missouri law with respect to all property acquired for the Highway 54 right-of-way project after January 2, 1971. Cf. Tullock v. State Highway Commission of Missouri, 507 F.2d 712 (8th Cir. 1974). It is plaintiffs’ contention that § 305 required the Commission to purchase from plaintiffs the signboards in question pursuant to § 302(a) and to compensate plaintiffs for such signboards under the provisions of § 302(b)(1). Those sections provide as follows: “(a) Notwithstanding any other provisions of law, if the head of a Federal agency acquires any interest in real property in any State, he shall acquire at least an equal interest in all buildings, structures, or other improvements located upon the real property so acquired and which he requires to be removed from such real property or which he determines will be adversely affected by the use to which such real property will be put. “(b)(1) For the purpose of determining the just compensation to be paid for any building, structure, or other improvement required to be acquired by subsection (a) of this section, such building, structure, or other improvement shall be deemed to be a part of the real property to be acquired notwithstanding the right or obligation of the tenant, as against the owner of any other interest in the real property, to remove such building, structure, or improvement at the expiration of his term, and the fair market value which such building, structure, or improvement contributes to the fair market value of the real property to be acquired, or the fair market value of such building, structure, or improvement for removal from the real property, whichever is the greater, shall be paid to the tenant therefor.” The Court finds correct plaintiffs’ assertion, which defendants do not seriously contest, that outdoor advertising structures of the type of plaintiffs’ signboards are “structures” or “improvements” within the meaning of § 302. Further, it is clear that with respect to these signboards the plaintiffs are “tenants” within the meaning of § 302(b)(1). It is undisputed that the Commission required plaintiffs’ signboards to be removed from the property acquired for the sole reason that these structures were situated within the right-of-way for the Highway 54 project. Therefore, as the Commission purchased the underlying property, full compliance with § 302 would appear to require the Commission to purchase the signboards from plaintiffs and compensate plaintiffs under the formula stated in § 302(b)(1). The § 305 assurances given by the Commission with respect to compliance with § 302 require the Commission to comply with the provisions of § 302 to the greatest extent practicable under Missouri law. The parties have agreed that on and after January 2, 1971 Missouri law did not prohibit the Commission from specifically complying with all provisions of § 302 on property acquired by negotiated purchase on federally assisted projects. Further, under § 226.-150 RSMo. (1969) the Commission had specific authority to comply with all provisions of § 302. Hence, compliance with the provisions of § 302 “to the greatest extent practicable under State law” would appear in this case to be total compliance with that section. The Commission contends, however, that its assurances under § 305 do not require it to purchase plaintiffs’ sign structures. This contention is predicated upon the Commission’s assertion that all of plaintiffs’ sign structures involved herein had been erected and/or were being maintained in violation of one or more provisions of the 1965 Missouri billboard control statutes (hereinafter, the 1965 Act) and as such it was not “practicable” under Missouri law for the Commission to purchase these structures and compensate plaintiffs as provided in § 302. Therefore, the Commission asserts, it has complied with § 302 “to the greatest extent practicable” under Missouri law notwithstanding its refusal to purchase plaintiffs’ structures, and accordingly has not violated § 305 or its assurances thereunder as suggested by plaintiffs. For the reasons set forth below, the Court has concluded that this contention cannot be sustained. The 1965 Act was passed in response to the enactment by Congress of the Highway Beautification Act, 23 U.S.C. § 131 et seq. The purpose of the 1965 Act was to regulate the use of billboard advertising adjacent to certain highways in the State, and to comply with the requirements of the Beautification Act. Substantially all of the 1965 Act was repealed, and new provisions enacted, on March 30, 1972 (the 1972 amendments). The Commission initially asserts that all of the signs involved in this case were violative of the 1965 Act in that plaintiffs had not acquired permits from the Commission for the erection and/or maintenance of these structures. The Commission contends that eleven of the sign structures were violative of the 1965 Act only for this reason. The evidence establishes that prior to the time the Commission acquired the right-of-way over the parcels involved herein, plaintiffs had not applied for or acquired permits under the 1965 Act for any of their structures located on the acquired parcels. Plaintiffs were aware, generally, that the Commission considered billboards maintained without permits to be violative of the 1965 Act. Plaintiffs had not applied for permits because they believed the 1965 Act to be invalid and unenforceable for various reasons, including both statutory and constitutional grounds. And, assuming the 1965 Act to be valid, plaintiffs questioned, inter alia, whether permits were required for valid pre-existing uses, and whether the Commission had ever promulgated and filed with the Missouri Secretary of State regulations for implementation of a permit system, as plaintiffs believed the 1965 Act required before the permit provisions became applicable. Although the Commission was aware of plaintiffs’ position, no administrative or judicial proceedings were ever instituted to attempt to enforce the permit provisions with respect to plaintiffs’ signs. On June 1, 1970, Chief Counsel Hyder wrote to plaintiffs and advised them that for the Highway 54 project the Commission had acquired the properties upon which plaintiffs' signs involved herein were located. The letter then stated as follows: “Please be advised that these billboards are unlawful, and you are directed to remove them immediately or the State Highway Commission will do so and recover the costs from your firm.” At the time this letter was sent, the Commission had not acquired any of the properties herein involved. Plaintiffs responded by a letter from Glenn Whitman to Chief Counsel Hyder requesting the Commission to furnish proof of title, and advising that upon receipt of such proof plaintiffs would give the matter further consideration. At this time neither plaintiffs nor the Commission attempted to remove the signs. Through a series of letters between counsel for plaintiffs and the Commission in the summer of 1971, after the Commission had acquired the right-of-way over the parcels involved herein, plaintiffs attempted to secure compensation for their sign structures which were required to be removed for the highway project. In this correspondence the parties discussed the possibility of the Commission bringing an enforcement or declaratory judgment action in state court to determine the permit question, but no such action was ever filed. On November 4, 1971 the plaintiffs submitted under protest applications and fees for permits for each of the structures involved in this case, but no permits were issued as Chief Counsel Hyder had directed employees of the Commission not to accept permit applications for existing signs after July 1, 1971. The 1965 Act was in effect at all times pertinent to this case prior to the institution of this action. Under the express provisions of that act, unlawful advertising structures were defined, and the procedure for removal of such signs without compensation specified. Section 226.580 RSMo. (1969) provided as follows: “Unlawful advertising shall be any sign, display, or device which violates the provisions of sections 226.500 to 226.600 (the 1965 Act). The state highway commission shall give thirty days’ notice by certified mail to the owner of the sign, display, or device which is illegal, to remove same if illegal, or to cause it to conform to the provisions of sections 226.500 to 226.-600 if it is an authorized sign, display or device. In the event the owner of the sign, display, or device involved fails to act within thirty days, as required in the notice, the state highway commission shall remove the sign, display, or device at the expense of the owner thereof.” Under the clear provisions of this section, Missouri law authorized removal of a sign structure without compensation only if the required notice was given and the sign owner failed to timely take the action specified in such notices. The only notice sent to plaintiffs regarding the removal of their signboards was the June 1970 letter from Chief Counsel Hyder. This letter failed to satisfy the requirements of Section 226.-580. First, the letter was not mailed by certified mail as required by the statute. Second, and more importantly, the letter failed to advise plaintiffs of the basis for the asserted illegality of these signs, and did not advise plaintiffs that they could prevent the removal of their signs without compensation by causing them to conform to the provisions of the 1965 Act within thirty days, i. e., by acquiring permits. Under these circumstances, it is clear that the Commission could not have removed plaintiffs’ signboards without compensation for failure to acquire permits as the Commission had failed to comply with the notice requirements of § 226.580 prior to removal. Thus, the Commission cannot assert plaintiffs’ alleged failure to cause these structures to conform to the permit regulations of the 1965 Act as a basis for refusing compensation when such structures are required to be removed for highway construction purposes. Furthermore, plaintiffs did submit permit applications for all sign structures involved herein in November of 1971. Permits were refused ostensibly because Chief Counsel Hyder had directed employees of the Commission to refuse permit applications for existing structures after July 1, 1971. But this determination of Chief Counsel Hyder cannot be considered to bind plaintiffs or restrict their rights in any way. Nothing contained in the 1965 Act authorized any cutoff date for the submission of permit applications. The Commission was authorized by the 1965 Act to promulgate rules and regulations for implementation and administration of a permit system. § 226.530 RSMo. (1969). But the authority to promulgate those rules was granted only to the Commission, not to its Chief Counsel. And even assuming that Chief Counsel Hyder did have authority to promulgate rules on behalf of the Commission, his decision to impose a cutoff date for permit applications was not filed with the Secretary of State of Missouri. Section 226.530 specifically provides that no rules or regulations for implementation or administration of a permit system shall be effective until thirty days after being filed with the Secretary of State. Thus, the Commission could not validly refuse to issue permits upon plaintiffs’ applications on the basis of Chief Counsel Hyder’s direction. Cf. Missouri Dental Board v. Riney, et al., 429 S.W.2d 803 (Mo.App.1968) The 1972 amendments to the 1965 Act were effective March 30, 1972, after the institution of this litigation but prior to the stipulation under which the signs were removed. Amended § 226.550 provides that signs existing prior to March 30, 1972 that were valid except for failure to have a permit shall not be considered unlawful signs, and the Commission was directed to issue permits for such structures within ninety days if application for permits was made. Plaintiffs timely submitted such applications. Thus, at the time the sign structures were removed, the Commission was prohibited by Missouri law from asserting the unlawfulness of plaintiffs’ signs on the basis of plaintiffs’ failure to acquire permits. For these reasons, it is concluded that the Commission cannot assert the failure of plaintiffs to secure permits for the structures in question as a basis for declining to purchase the structures and compensate plaintiffs as provided by § 302 of the URA. As to all signs considered unlawful only because of the failure of plaintiffs to secure permits, it is therefore apparent that the Commission failed to comply with its assurances under § 305, as it was practicable under Missouri law to comply with § 302. In addition to the contention that plaintiffs failed to acquire permits, the Commission asserts that signs numbered 55, 14, 33, 34, 35, 37, 39, 43, 45, and 18 unlawful for other reasons. Each of these structures was originally erected prior to January 1, 1968. As such, it is conceded that these structures did not on the date of erection violate the provisions of the 1965 Act, which regulated erection and maintenance of billboards after January 1, 1968. Section 226.520 RSMo. (1969). The Commission contends, however, that these signs became unlawful subsequent to that date by being maintained in violation of the various lighting, size, or spacing requirements of the 1965 Act, and that therefore the Commission could not pay compensation for their removal. This contention cannot be sustained. As with the alleged failure to acquire permits, violations of the lighting, size, or spacing requirements of the 1965 Act are subject to being remedied so as to bring any such structures into compliance with the 1965 Act. The only method under Missouri by which the Commission could have required removal of these signboards without compensation was under the provisions of § 226.580. As previously stated, this section requires that the Commission send a notice to the sign owner specifying that the sign structure is unlawful, and that unless defects are remedied within thirty days the Commission would remove the signs without compensation. No such notice was given by the Commission. Furthermore, under the 1965 Act the Commission could not require a structure to be removed for violation of the Act, if lawfully erected, until the end of the fifth year after it became in violation of the Act, or until July 1, 1970, if the sign structure was non conforming on August 4, 1966. § 226.560 RSMo. (1969). In this case, there is no evidence to suggest that any of these signs failed to conform to the provisions of the 1965 Act as of August 4, 1966. And, no evidence was adduced with reference to any of these structures which would establish that the required five years had elapsed prior to the time the Commission attempted to require the removal of these signs without compensation. It therefore appears that the Commission was prohibited by Missouri law from requiring that any of the structures previously mentioned be removed without compensation at the time that such removal was attempted. Thus, for the foregoing reasons, the Commission cannot assert plaintiffs’ alleged failure to comply with the provisions of the 1965 Act as a basis to deny compensation to plaintiffs for sign structures numbered 5, 6, 11, 12, 13, 14, 18, 22, 23, 27, 30, 33, 34, 35, 37, 39, 43, 45, 47, 49, and 55. As such, in failing to comply with § 302(a) and § 302(b)(1) of the URA with respect to these structures the Commission violated its assurances under § 305 of the URA. The remaining sign structures are signs numbered 20, 25, and 38, which were originally erected after January 1, 1968, the effective date of the restrictions set forth in the 1965 Act. The Commission asserts that these structures were violative of the 1965 Act at the date of erection, and therefore the Commission need not compensate plaintiffs for the required removal of these structures. Plaintiffs contend that these structures did comply with the various provisions of the 1965 Act. However, with regard to these three structures also the Commission failed to comply with the requirements of § 226.-580 RSMo. (1969). No notice specifying that these particular sign structures violated the provisions of the 1965 Act, and advising plaintiffs that the Commission would require their removal without compensation unless these structures were brought into compliance with the 1965 Act within thirty days was sent to plaintiffs. Absent compliance with § 226.580, Missouri law does not authorize the Commission to require removal of nonconforming sign structures without compensation. For the above-stated reasons, it is concluded that the Commission cannot assert the failure to plaintiffs to comply with the provisions of the 1965 Act as a basis for refusing compensation to plaintiffs for their outdoor advertising structures located on those parcels acquired after January 1, 1971. With regard to the structures located on these parcels compliance by the Commission with § 302 of the URA “to the greatest practicable under” Missouri law is total compliance with the provisions of that section. It is therefore apparent that the Commission failed to comply with its assurances under § 305 of the URA in failing to acquire the signboards in question under the provisions of § 302(a) of the URA and in failing to compensate plaintiffs therefor under the provisions of § 302(b)(1) of the URA. Parcel No. J As noted previously, the provisions of the URA do not apply to the structures (signs numbered 5 and 6) located on parcel no. 4, as that property was acquired by the Commission prior to January 1, 1971. Will-Tex Plastics Mfg., Inc. v. Dept. of HUD, 346 F.Supp. 654 (E.D.Pa.1972); Rubin v. Dept. of HUD, 347 F.Supp. 555 (E.D.Pa.1972). However, the URA preserved rights and liabilities under prior acts, and in this case it appears that plaintiffs are entitled to relocation benefits for signs numbered 5 and 6 under the provisions of the Federal-Aid Highway Act of 1968. The URA repealed numerous statutes superseded by the URA, including the Federal-Aid Highway Act of 1968, 23 U.S.C. §§ 501-511 (1968). URA § 220(a) (10, 11). Section 220(b) of the URA, however, provides that rights or liabilities under prior acts are not affected by the repeal. Further, § 221(c) of the URA provides that the repeals made by § 220(a) shall not be effective as to any State in which § 305 is not effective. The Federal-Aid Highway Act of 1968, Public Law 90-495, 23 U.S.C. § 501-511 set forth a program of relocation assistance for persons displaced by federal or federal-aid highway programs. It was effective on August 23, 1968, as to all persons displaced on and after that date except that §§ 502, 505, 507, and 508 (23 U.S.C. §§ 502, 503, 505, and 508) were not effective as to any State unable under its own laws to comply until July 1, 1970, when it became fully effective as to all states. See 23 U.S.C. § 502 note. It is therefore apparent that 23 U.S.C. §§ 501-511 were fully effective in Missouri on the date that parcel no. 4 was acquired by the Commission, in December of 1970. 23 U.S.C. § 502 provided that before the Secretary of Transportation may approve a federal-aid highway project he must receive satisfactory assurances from the State highway department that, among other things, “fair and reasonable relocation and other payments shall be afforded to displaced persons in accordance with sections 505, 506, and 507 of this title.” Such assurances were given by the Commission in letters to the Federal Highway Admi