U.S. District Court Judge Kenneth Gonzales has scheduled a two-day hearing July 27-28 in Albuquerque on two lawsuits that are asking him to enjoin the city and the Federal Transit Administration from moving forward on the project
A poll that shows a majority of Albuquerqueans oppose the proposed ART Project
If the judge rules that the FTA violated federal environmental and historic preservation laws in granting the city a $69 million Small Starts transit grant, the project would most likely be dead for this fiscal year
UPDATED Thursday, July 14:
There are now two petitions circulating seeking to stop Mayor Richard Berry’s Albuquerque Rapid Transit project through the public referendum process. One would make the entire stretch of Central Avenue through the city a historically protected right of way, which would bar the city from building ART stations in the middle of the street, and the second would prohibit the city from spending any money on ART, no matter where it comes from.
BY DENNIS DOMRZALSKI
It’s as if there are two parallel universes: business owners along Central Avenue who hate Mayor Richard Berry’s Albuquerque Rapid Transit plan and want it killed, and Berry himself who seems oblivious to the ferocious opposition and who wants ART built no matter what.
Despite two lawsuits seeking to stop ART, a rejection of the project by the New Mexico Restaurant Association, a poll that shows a majority of Albuquerqueans oppose it, and recommendations by Congressional appropriations committees that ART funding be cut, Berry continues to forge ahead.
In his universe, the $119 million ART will be the best project of its kind in the nation, and it will transform Central into a hipster corridor and lead to billions of dollars in new investment. Berry continues to plan on spending ART money that Congress has yet to appropriate.
But on July 27, those two parallel universes will collide in a federal courtroom, where a judge will be asked to decide which of those universes becomes Albuquerque’s official reality.
U.S. District Court Judge Kenneth Gonzales has scheduled a two-day hearing in Albuquerque on two lawsuits that are asking him to enjoin the city and the Federal Transit Administration from moving forward on the project.
It’s not known how quickly Gonzales will rule after the hearing is over, but it’s probable Berry won’t be able to begin construction in late July as he has insisted can be done.
The lawsuits allege that the FTA improperly granted the city an exemption from preparing, at the minimum, an assessment of ART’s environmental impact on the nine-mile stretch of Central that would be subject to construction, and that federal and state historical preservation laws were violated as well.
The city argues that all laws were obeyed, that ART was properly approved by the FTA in a lengthy vetting process, and that it held numerous public meetings over the past several years to gain public input on the project.
Gonzales will have to decide the case on a narrow set of standards that apply to the administrative record and whether the FTA followed its own rules in granting the city an exemption from having to do an environmental study.
The judge’s options
The lawsuits are asking Gonzales to block the FTA from funding the project and to prevent the city from beginning construction or spending any federal funds on it. They are also asking Gonzales to rule that the FTA violated the National Environmental Policy Act, the National Historic Preservation Act, and state and local historic preservation laws. They allege that the FTA improperly gave the city an exemption from having to do an environmental study.
The judge can do a number of things, including stopping the project cold and ordering the FTA to order the city to do an environmental assessment – something that could delay ART for months. If the initial environmental assessment concludes that a full environmental impact study – a much more comprehensive and time-consuming process – is needed, the project would be halted for the foreseeable future.
If the judge rules that the FTA violated federal environmental and historic preservation laws in granting the city a $69 million Small Starts transit grant, the project would most likely be dead for this fiscal year.
If Gonzales rules that the city and FTA violated no laws, construction could potentially begin within a few days because the project’s main contractor, Bradbury Stamm Construction, has already issued bids for subcontractors. But that’s iffy because Congress has actually to appropriate any money for ART and it isn’t expected to pass a budget until the late fall.
Even if Gonzales allows the city to begin construction, ART faces a potential devastating hurdle: not enough money.
The city originally asked the FTA for $80 million for the project, but the agency recommended only $69 million in President Obama’s 2017 budget. The federal budget year begins Oct. 1.
Now, appropriations committees in both the Senate and the House have recommended cutting ART’s budget. The House committee wants to shave $19 million from ART and give it just $50 million. The Senate’s money committee has recommended that the 10 Small Starts projects across the country – of which ART is one – be cut about 40 percent more from the package than what the House wants to spend.
If those cuts occur, it would put ART “back to square one,” said Albuquerque City Councilor Pat Davis, who supports the project. And even if they don’t, there’s still a question of how construction could begin because Congress isn’t expected to approve a federal budget until late fall. It means, that, technically, the city doesn’t yet have any of the $69 million promised for ART, and might not have any of it until November, at the earliest.
Junked in 19 years?
In mid-June, attorney Yolanda Gallegos, who represents plaintiffs in one of the lawsuits, revealed that the city’s own application to the FTA for ART funding said the project would create traffic congestion on Central where there currently isn’t any. In an Orwellian sort of logic, the city’s application posits that the way to relieve that congestion in the future would be to junk ART.
The city’s data shows that after ART’s dedicated bus lanes are built down the center of Central, 15 intersections along the route in the morning rush hour will be more congested than they are now. During the afternoon rush hour, that number increases to 32 intersections, Gallegos said. And by 2035, congestion would be so bad that ART’s dedicated bus lanes would have to be ripped out and the street returned to full traffic lanes.
“Under 2035 build conditions, many intersections will perform deficiently due to insufficient capacity or green time for general purpose traffic, or other physical constraints,” the city’s grant application says. It identified at least eight intersections that would be congested.
The application went on to say how that future congestion could be alleviated: “Changing the ART lane to a general purpose lane could be a possible mitigation. However, as a result [of] converting [an] ART lane to general purpose lane it will increase ART delay and deteriorate its performance.”
Tearing up ART in 19 years wouldn’t be a big deal if it were merely a matter of re-striping the streets lanes to accommodate more automobile traffic. But ART involves ripping up pretty much all the medians along a nine-mile stretch, building raised bus stations along the street’s two center lanes, eliminating hundreds of left-hand turn lanes, and ripping out 217 mature trees.
The environmental exemption
The lawsuits against ART could hinge on the way the FTA gave the city a pass, or a “categorical exclusion” from having to assess the project’s impact on the environment and businesses.
One of the FTA’s criteria for issuing a categorical exclusion is that there is no major opposition to a project. The exact wording of that section is: The project is “not likely to generate intense public controversy, discussion or concern, even among a small subset of the community.” In its application for the exemption, the city certified that there was no intense public controversy.
To ART opponents, that was a lie, especially considering heated public hearings where hundreds of people opposed the effort. And, of course, there are two lawsuits opposing it. While the FTA was reviewing the city’s application, it received hundreds of post cards opposing it and a petition in opposition appears to be gaining momentum – based on a survey of petition “ballot boxes” appearing in businesses up and down Central.
Lack of public support
Business owners along Central have been displaying “Stop ART” signs in their businesses for months. Opposition intensified earlier this month when the New Mexico Restaurant Association came out against the project and asked its members to contribute money to the legal effort against ART.
Art “will destroy some already struggling businesses and compromise an important section of the National Scenic Byway. There are over 148 restaurants affected by the proposed construction on Central and none of them had a voice in the plans of this massive project,” the NMRA said.
Supporters of the petitions are hoping they can gather enough signatures from registered voters in the city to put the matters to voters.
The first petition is being pushed by Donald Clayton, a 67-year-old anti-ART activist who said the transit project “bends rationality and logic” and will destroy historical features of Route 66. The second is being circulated by Steve Schroeder, a Central Avenue business owner.
“In Albuquerque, there’s 95 percent of the town where you can do ART [without altering or destroying historical areas], and two areas—Old Town and Route 66—that people are passionate about and that are historically important to the heart and soul of Albuquerque,” Clayton said. “They’re taking the 5 percent that is historically important and totally destroying it.”
Schroeder, owner of the Nob Hill Music store, said he’s angry because Berry’s administration hasn’t listened to the concerns of Central Avenue business owners about ART. “We’ve had no real opportunity to have any input on this,” Schroeder said. “We are trying to show our disapproval and our displeasure with the lack of the city’s effort to include us.” Schroeder received permission from the City Clerk’s office on Wednesday to begin circulating his petition.
Schroeder’s petition would put a proposed ordinance before voters that would ban the city from spending any money on Art. The petition reads: “There will be no expenditures of monies, nor incurring of debt by the mayor, city council and any other entity or designee for the ART project, including, but not limited to approving the spending and allocation or appropriation of any existing municipal, state, federal monies, bonds, gross receipts tax, lodgers tax or any other source allocated for the project known as Albuquerque Rapid Transit.”
Both men need a little more than 14,000 valid signatures to get their measures on the ballot. And even if they get the signatures, it’s not likely either one will get on November’s general election ballot. That’s because of time constraints and because there might not be room on the ballot for them. If they have to wait until next year’s municipal election, the issues could be moot because ART will already have been built, or stopped by lawsuits against it.
“There is no question that construction on Central Avenue will negatively impact restaurants along the route in the short term. But of even greater concern is the negative impact the badly designed ART will have on businesses along Central Avenue over the long term,” the association said.
A recent poll found that 28 percent of the city’s registered voters support ART, while 79 percent say it should be put to a public vote. The poll by Carroll Strategies, an Albuquerque public relations firm, said that 25 percent of registered voters believe ART will boost the city’s economy, and only 23 percent said they would use it after it is built.
Dennis Domrzalski is an associate editor at ABQ Free Press. Reach him at email@example.com
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