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Lawsuits Filed Against ART

Lawsuits Filed Against ART

Why didn't the City follow the proper procedure to undertake an extensive and invasive project on Historic Route 66?

Burqueños and Businesses Band Together to Fight Berry’s BRT

BY DENNIS DOMRZALSKI

Two separate groups of residents and business owners filed lawsuits Monday–one in federal court, and one in state District Court–to stop Mayor Richard Berry’s $119 million Albuquerque Rapid Transit Project.

Both lawsuits seek injunctions to stop the 10-mile-long ART project along Central Avenue, and both claim that Berry’s administration and the Federal Transit Administration violated federal laws in approving ART.

The first lawsuit, filed Monday morning in state District Court in Albuquerque, alleges that in approving ART, Berry’s administration and the Federal Transportation Administration violated the National Historic Preservation Act and the federal Administrative Act. It also alleges that the ART project is a public nuisance and constitutes the taking of private property by the government.

The second lawsuit was filed Monday afternoon in U.S. District Court in Albuquerque and alleged many of same things as the state court complaint. It also named Berry and the FTA as defendants.

“The proposed corridor will require the destruction or impact of well over 48 Historic Landmarks that are registered with the National Historic Registry and the destruction of well over 217 trees of historic and environmental significance to the communities involved,” the state court lawsuit said.

“The proposed corridor will require at least 18 months of construction, which will devastate local businesses along the corridor and eliminate their access to customers during construction and after construction, as the project will prohibit left hand turns on Central Avenue.”

The suit also said that the process by which the project was approved by the feds was a sham and that environmental, traffic and historic preservation studies either weren’t done, or were incompletely done.

Named as defendants in the suit are Berry, Chief Administrative Officer Rob Perry, Transit Director Bruce Rizzieri, Chief Operations Officer Michael Riordan, all nine members of the Albuquerque City Council, the U.S. Department of Transportation and the FTA.

The state court lawsuit was filed by Albuquerque attorney John McCall. The federal court suit was filed by Albuquerque attorney John Boyd. Plaintiffs in that suit were business owned by Douglas Peterson, who owns several properties along Central, the Coalition of Concerned Citizens to Make Art Smart, and Jean and Marc Bernstein, owners of the Flying Star restaurants, one of which is on Central and in the ART corridor.

The lead plaintiff in the state court lawsuit, activist Maria Bautista, said the city has ignored the complaints of regular citizens about ART.

“The city of Albuquerque has been overrun by developers and it is time that residents stand up and say, ‘Wait a minute, you have been excluding our vision,’” Bautista said. “The entire Albuquerque community has been locked out of the process. We did everything we could; we went to all the meetings and they totally disregarded their constituents.”

National Historic Preservation Act

The lawsuit said the city and the feds basically ignored the provisions of the National Historic Preservation Act, which requires a thorough study of any historical places along the route by the State Historic Preservation Office Review [SHPPO] process.

The national law “requires that any federally funded undertaking take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register of Historic Places,” the lawsuit said.

“The consultation with SHPPO in this case consisted of two brief letters and no review at all of the well over 48 sites [along the route]. The City appears to have identified over 150 historic landmarks, yet none of them have been the subject of any significant study and the City has counted on no questions from FTA to the City’s cursory two letters to and with SHPPO because the City has assumed there wold be a wide range of public support. This is not the case.”

The lawsuit asks for a “full review of Historic Landmarks and the impact of the project there-on rather than the illegal cursory indication that no significant impacts would occur with regard to Historic Properties.”

The lawsuit also said that the project constitutes a public nuisance. “This project, as planned, would create such devastating effects [on] local businesses that they would be forced out of business,” the lawsuit said. “The overwhelming business response is against this project, yet the City has portrayed positive support to the FTA.”  

In addition, the lawsuit accused city officials of malfeasance. “The eagerness by Albuquerque officials to get the funds in spite of community opposition to a project that requires proof to federal officials of general community support is the essence of malfeasance in office,” the suit added.

The suit asks that the city be barred from spending any money on ART until all the proper studies are done. And, it seeks to bar the city from taking “any and all actions for construction of the ART.”

The federal court action alleges that the FTA improperly granted the city a “documented Categorical Exclusion” last August that relieved the city and the FTA of the obligation to perform an environmental impact study for ART. It also alleges that the city provided the FTA “false statements and assurances … that the ART would not significantly impact the foregoing human environmental factors; and b) that the ART would not generate intense public discussion, concern or controversy within any subset of the Albuquerque Community.”

The lawsuit continued: “The City’s assurances to the FTA, together with the FTA’s failure to consider, address and reasonably evaluate those assurances, its failure to provide a reasoned basis for its decision and its violations of its own regulations as described hereinafter, resulted in the City of Albuquerque obtaining the CE from the FTA. Albuquerque and the FTA where thereby relieved, contrary to law, of their obligations to meaningfully assess the impact of ART on the Central Avenue corridor, through an Environmental Assessment or, if later determined appropriate, an Environmental Impact Statement.”

Dennis Domrzalski is news editor of ABQ Free Press. Reach him at dennis@freeabq.com.

(Photo credit: brtabq.com)

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Dennis Domrzalski is managing editor of ABQ Free Press. Reach him at dennis@freeabq.com.
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36 Comments

  • Pete Dinelli
    April 4, 2016, 11:44 am

    Sometimes you need to use a two by four to get governments attention. Too bad the Mayor Berry and the City Council did not listen to the public and do the right thing and put it to a public vote. They were warned repeatedly and loudly about the damage the ART project will do to Historic Route 66 and the damage that will be done to do many businesses along central. Berry and the City Council will have no choice now but to listen to a Court of Law and perhaps a jury.

    REPLY
    • Jordan@Pete Dinelli
      April 4, 2016, 5:19 pm

      We did vote for it, when we elected Mayor Berry and his vision instead of yours, and yes, this was a campaign issue during that time. Maybe you’re just bitter that we rejected your visionless, bleak plan for our city. When I wrote you during the election to know what your opinion of the BRT system was and voiced my support for it, your campaign never responded. Obviously because you had no vision on transit, other than leaving the decrepit Rapid Ride in service instead of replacing it with a higher-quality service. Or maybe you’d be in favor of ART if a democrat had proposed it? Mayor Berry’s campaign not only got back to me, but invited me to go to meetings. As a democrat myself, I can’t help but be proud that Republicans in our government support such a progressive project which will help increase prosperity in our poorest areas. This is a testament to the strength of our city. Obviously you still think it is 1988 and we should build our city in that way, but that’s not the case and your head and heart are in the past. Even if many of us are giving up driving either due to choice (like me) or by necessity, like many in our city. If you were truly a democrat and believed in lifting people up, you’d support this project, but just like many of your generation, you’re selfish and make our party and our city look terrible. Stop pushing this idea that we didn’t vote for it, because we did, and I know I sure did! That’s what a representative democracy is, and the ideas you represented lost. I know you’re against building new infrastructure that will benefit our economy, but build a bridge and get over it. You lost when we voted for Berry and for this project.

      REPLY
      • Pete Dinelli@Jordan
        April 5, 2016, 4:51 pm

        Boo Hoo, Jordon, Boo Hoo, you really hurt my feelings and frankly I am NOT at all sorry for not getting back to you three years ago to change your diaper. You say you are a Democrat, which I seriously doubt, but you voted for Republican Mayor Berry who supported putting restrictions on a woman’s right to choose with his support of the abortion initiative , opposes any increase in the minimum wage, supports and advocates "right to work"legislation, opposes comprehensive immigration reform and who destroyed a once great police department found by the DOJ to have a culture of aggression and paying $40 million dollars involving over 40 excessive use of force cases. But hey Jordon, your going to get a bight shinny new bus to ride dwon central avenue and maybe have enough time to think about what is really important and maybe even about changing you voter registrartion to Republican.

        REPLY
        • Gregory@Pete Dinelli
          June 12, 2016, 3:44 pm

          Pete, you sound more like a child than Jordan in this exchange.
          I too am a Democrat and I agree with all of your criticisms of the Berry administration. I would also agree that Berry is a crony capitalist and that we citizens of ABQ need to be vigilant to ensure that ART doesn’t turn into a disaster for local businesses and neighborhoods. If that means delaying the project, then so be it.
          But I also agree with Jordan that ABQ needs to step into the 21st century with both and do what we can to:
          – decrease fossil fuel consumption.
          – alleviate automobile congestion.
          – provide access to jobs for poor people in ABQ.
          – Create a more pedestrian friendly environment along the Central corridor in a way that benefits local businesses.
          Stop playing politics Pete and advocate for your city’s future.

          REPLY
          • Lou Ross@Gregory
            July 29, 2016, 7:19 pm

            Walk on central??? Everyone I know who did that ended up stabbed/shot and in hospital or mugged. I avoid driving on it. Certainly do not shop on it, and no multimillion dollar bus line will Change that fact. The better value would be to hire judges and cops (and improve training).

            REPLY
      • Pete Dinelli@Jordan
        April 5, 2016, 5:36 pm

        Boo Hoo, JORDON, Boo Hoo, you really hurt my feelings with your personal attack on me. Frankly, I am very glad I did NOT get back to you to change your little diaper 3 years ago. You say you are a Democrat, which I seriously doubt, which means as a Democrat you voted for Republican Richard Berry who supported limiting a woman’s right to choose by voting for the voter initiative on limiting abortions, who opposed the voter initiative increasing Albuquerque’s minimum wage, who is anti union and advocates "right to work"laws, who opposes comprehensive immigration reform, who has destroyed a once great police department with the Department of Justice finding a "culture of aggression" and paying $40 miillion dollars in 40 police misconduct cases. But hey Jordon, your going to get a shiny new bus to ride so you can have time to think about what really is important and I suggest you think about changing your registration from Democrat to Republican.

        REPLY
      • K@Jordan
        April 5, 2016, 7:34 pm

        What an incredibly immature response. I am a democrat and I’m all for progress in this city. And for those of you wondering who the Plaintiffs are, it will only be a matter of time before it’s public record. Look up one of the listed parties on the nm courts lookup.

        REPLY
        • Pete Dinelli@K
          April 5, 2016, 9:35 pm

          JORDON You sure do not sound much like a Democrat with an attitude that a person who runs for office and looses is not entitled to voice their own opinions and you feel free to express you own claiming progress..

          REPLY
        • Pete Dinelli@K
          April 5, 2016, 9:35 pm

          JORDON You sure do not sound much like a Democrat with an attitude that a person who runs for office and looses is not entitled to voice their own opinions and you feel free to express you own claiming progress..

          REPLY
          • Pete Dinelli@Pete Dinelli
            April 6, 2016, 10:18 am

            PS JORDON: Albuquerque has an extensive history of placing major projects on the ballot for a public vote. The ART project was not on the 2013 municipal election for Mayor. Saying that Berry was elected means everyone who voted for him also voted for the ART project is laughable. A very large percentage of those who voted for Berry, both Democrats and Republicans, and who actually donated big bucks to his million dollar campaign, are aggressively opposing ART, so I suggest you try talking to the 150 or so business owners along Central about how they feel about ART. I know two staunch Republicans who donated $5,000 each to Berry’s campaign, who voted for him and who are Central business and who are now upset with and oppose ART and would never vote for ART.

            REPLY
      • James@Jordan
        April 13, 2016, 9:44 am

        I just had to sign in to say…well said Jordan!!!

        REPLY
  • shopper
    April 4, 2016, 12:16 pm

    No links posted here names these plaintiffs, I’d like that, I protest with my wallet, a biz not interested in advanced public transport, is a biz that’s hurting our environment, their selfishness is cleverly disguised tho’, (they may think) as they advance the petroleum industries (KOCH) agenda, and for that, they need a boycott, who are they ?

    REPLY
    • Realistic Shopper@shopper
      April 4, 2016, 12:52 pm

      Taking Central down to one lane is unacceptable for growth and will only HURT businesses. I would join that lawsuit in a heartbeat.

      REPLY
    • Realistic Shopper@shopper
      April 4, 2016, 12:52 pm

      Taking Central down to one lane is unacceptable for growth and will only HURT businesses. I would join that lawsuit in a heartbeat.

      REPLY
    • Realistic Shopper@shopper
      April 4, 2016, 12:52 pm

      Taking Central down to one lane is unacceptable for growth and will only HURT businesses. I would join that lawsuit in a heartbeat.

      REPLY
    • Realistic Shopper@shopper
      April 4, 2016, 12:52 pm

      Taking Central down to one lane is unacceptable for growth and will only HURT businesses. I would join that lawsuit in a heartbeat.

      REPLY
    • Realistic Shopper@shopper
      April 4, 2016, 12:52 pm

      Taking Central down to one lane is unacceptable for growth and will only HURT businesses. I would join that lawsuit in a heartbeat.

      REPLY
    • James@shopper
      April 4, 2016, 1:23 pm

      I’m just gonna use my brain and guess here, but I suppose "they" might be any of the several Nob Hill businesses that ALREADY have anti-ART flyers and banners in their shop windows. You apparently do not shop there anyway…

      REPLY
    • Sal Gonzales@shopper
      April 4, 2016, 2:17 pm

      I couldn’t agree more Shopper. Get us the names of the businesses that are against advancement and I will organize a boycott against them. When I posted on Facebook about the businesses that were against the ART only one responded. The Shade Tree Café. and we know how that turned out. I’m tried of a few people from Lead and Coal, putting themselves in front of the betterment of Albuquerque.

      Pete Dinelli’s work on Safe City Strike Force was questionable and it sounds liable. It had to be settled in court and costthe taxpayers of this city, but at a recent City Council meeting when asked you were angry that the time you worked with the City was questioned by a Councilor. I find it funny that you spend so much time attacking the sitting Councilor’s and Mayor but when pressed you respond by attacking the Councilors for questioning you. Seems like a double standard. Anyways anything you say went out the door at that meeting.

      REPLY
      • Pete Dinelli@Sal Gonzales
        April 5, 2016, 7:07 pm

        SAL GONZALES: Nothing questionable about the Safe City Strike Force going after meth labs, crack houses, slum lords and crime invested properties, but you seem to think so. What was highly questionable was the Berry Administration settling out of court on a highly questionable claim after I retired, preferring to roll over for political reasons and gain without defending. What you characterized as anger was in fact me reacting to the Council not giving me an adequate opportunity to respond. Sanchez and Benton were downright rude to the public. The double standard is the Councilors demanding respect but not showing any to voters and the public. Have a nice day.

        REPLY
    • vj@shopper
      April 29, 2016, 3:47 pm

      Here are the Plaintiffs. It’s only a matter of public record.

      MARIA BAUTISTA, STELLA PADILLA, JOSEPH AGUIRRE, MILDRED"MIMI" LOPEZ, ARMOND CHAKARIAN,
      MAX MACAULEY, YARI ESTRADA, individuals, LA MICHOACANA RESTAURANT, WESTERN VIEW RESTAURANT, ALBUQUERQUE BARBERSHOP, MIXX RESTAURANT, G-MART CONVENIENCE STORE, RAIN TUNNEL CAR SPA, H&D TIRE SHOP, TURBO TIRESHOP, ROUTE 66 APARTMENTS, EL CHANTE: CASA DE CULTURA,

      REPLY
  • Citizen
    April 4, 2016, 1:42 pm

    Funny the free press decided not to post an actual link to the complaint. and 1) how is building in the middle of the road the illegal seizure of property. 2)The plaintiffs also failed to realize that imminent domain is NOT illegal seizure when justly compensated. 3) If their customer loyalty is such that it wouldnt survive construction, which would be done in phases and not all at once, of a section of the ART miles away, then maybe they should rethink their business practices.

    REPLY
  • Citizen
    April 4, 2016, 1:42 pm

    Funny the free press decided not to post an actual link to the complaint. and 1) how is building in the middle of the road the illegal seizure of property. 2)The plaintiffs also failed to realize that imminent domain is NOT illegal seizure when justly compensated. 3) If their customer loyalty is such that it wouldnt survive construction, which would be done in phases and not all at once, of a section of the ART miles away, then maybe they should rethink their business practices.

    REPLY
    • Someone who actually rides the bus. @Citizen
      April 4, 2016, 3:05 pm

      That is ridiculous. I have used the mass transit system in Albuquerque for years and I vote that the ART project stops. If you actually walked around Nob Hill, you’d have known that all local store owners are against it. The Guild is going to die because of this, Satellite is already closed, and big brand crap is going to fill the void. Do you want to update the transit system? Get more busses running North and South. There are already four busses that run on central, three of them exclusively. Don’t act as though you know what you are talking about. If you’d have hit up central at all in the last year, you’d have and idea of how many are worried about their future because the mayor is an asshat

      REPLY
    • Someone who actually rides the bus. @Citizen
      April 4, 2016, 3:05 pm

      That is ridiculous. I have used the mass transit system in Albuquerque for years and I vote that the ART project stops. If you actually walked around Nob Hill, you’d have known that all local store owners are against it. The Guild is going to die because of this, Satellite is already closed, and big brand crap is going to fill the void. Do you want to update the transit system? Get more busses running North and South. There are already four busses that run on central, three of them exclusively. Don’t act as though you know what you are talking about. If you’d have hit up central at all in the last year, you’d have and idea of how many are worried about their future because the mayor is an asshat

      REPLY
    • Meghan Plunkett meggyplunk@gmail.com @Citizen
      April 4, 2016, 3:46 pm

      Why is Mayor Barry barreling this through when we desperately need another bridge across the river, and a fully staffed Police Department.
      This will not increase ridership. Better routes and better hours will increase ridership.
      This whole sham smells of a brother-in-law deal.

      REPLY
  • Doubled Up
    April 4, 2016, 2:49 pm

    Like most important issues, this one is complicated. Do we want to improve our transit system and also improve Albuquerque? Yes. Did the Mayor and City Counsel ram this down our throats? Absolutely. Does it smell of a cash grab for a few developers and contractors? Yes. Is it fully thought out and conceived taking into account the actual needs and wants of the citizens of Albuquerque? No. The current plans call for fossil fuel burning buses! What about the existing bus system that, by all accounts, is already most efficient via the Central corridor? I am all for making our City more livable and cleaner. I am for quality growth. I am not for some poorly designed, ill conceived waste of money. Money that could be used on education, fighting homelessness and childhood poverty, hiring quality police officers, better training for our police, existing road and commuter systems, community outreach, etc. The budget also only takes into account an estimate of the cost to build the system. Does it take into account the amount to run it? Will it be an albatross around our collective necks if it is as poorly designed and conceived as it appears to be? There are too many serious questions to just push this through and hope for the best. The quality of analysis and planning is absent and so is my support until we get those both improved dramatically. Kudos to the plaintiffs for fighting back against what appears to be nothing but pork barrel politics as usual.

    REPLY
    • Mike Blessing@Doubled Up
      April 4, 2016, 5:50 pm

      Remember the Berry Runner (and the 50-mile bike path around Albuquerque) when Berry throws his hat into the 2018 gubernatorial ring, and starts talking about himself as a "fiscal conservative."

      REPLY
    • Business owner@Doubled Up
      April 7, 2016, 6:23 am

      Well said double up and bus rider. The local business owner are not against
      progress. We want ART to work for the city not in a area that already has two bus systems. Progress is not a bus with a pretty name going nowhere …………

      REPLY
    • Business owner@Doubled Up
      April 7, 2016, 6:23 am

      Well said double up and bus rider. The local business owner are not against
      progress. We want ART to work for the city not in a area that already has two bus systems. Progress is not a bus with a pretty name going nowhere …………

      REPLY
    • Business owner@Doubled Up
      April 7, 2016, 6:23 am

      Well said double up and bus rider. The local business owner are not against
      progress. We want ART to work for the city not in a area that already has two bus systems. Progress is not a bus with a pretty name going nowhere …………

      REPLY
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