July 13, 2016

ART hits another roadblock after judge’s ruling

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Photo Credit: Joe Gratz cc

Mayor Richard Berry’s Albuquerque Rapid Transit project ran into a legal pothole when a state court judge ordered the City Council to – catch this – do its job and give ART opponents a hearing on a procedural, but also substantive, matter regarding the project.

Photo Credit: Joe Gratz cc

Photo Credit: Joe Gratz cc

In what is a relatively rare legal procedure, Bernalillo County District Judge Victor Lopez issued a Writ of Mandamus to the Council ordering it to obey a city law that requires it to give ART opponents a hearing on the refusal of the city’s Landmarks and Urban Conservation Commission to explain why it has refused to explain its decision – or non-decision – in favor or ART.

That body has has twice deferred making a decision on a challenge to ART’s design.

Under city law, the Landmarks Commission is required to issue findings of fact, or explain why it has deferred a matter. And if the Commission declines to issue those findings of fact, the Council is required to hold a public hearing on the matter.

But at its last meeting, the Council declined to give ART opponents a hearing on the the Landmarks Commission’s refusal to explain why it has twice deferred a ruling on a challenge to the design of the ART project in about a mile-long stretch in the East Downtown area.

Instead of giving opponents a hearing, the Council sent the matter back to the Landmarks Commission, which delays the process.

But Lopez said that was improper, and the judge ordered the Council to provide the required hearing on Aug. 1.

In his ruling, Lopez “commanded” the Council to “forthwith … comply with your mandatory, non-discretionary duty established by Albuquerque Code of Ordinance … to schedule an appropriate amount of time on the agenda of the August 1, 2016 meeting to hear” the appeal of the Landmarks Commission’s refusal to explain why it has deferred a decision on the challenge to ART’s design.

Lopez also ordered the Landmarks Commission, which is scheduled to meet Wednesday, July 13, to take no action on the ART matter until the City Council holds its hearing next month.

Attorney Yolanda Gallegos, who filed the suit against the Council last week, said the legislative body refused to follow its own rules even after being given ample warning that a lawsuit was coming.

“It’s a shame that they did not follow the rules when they had every opportunity to do so,” Gallegos said. “They had every opportunity to follow the rules, but they wouldn’t do it.”

The case began in March when the city asked the Landmarks Commission to give it a “certificate of appropriateness” for the design of about a mile-long section of ART in the East Downtown area. ART opponents objected to the city’s request, and at its April meeting, the Landmarks Commission deferred the matter. Under city law, the Commission was required to explain the reasons for the deferral, but gave none, Gallegos said. But no one challenged that deferral, she added.

At its May meeting, the Landmarks Commission again deferred making a decision on the city’s application, and it again refused to explain why. That time, Central Avenue property owner and ART opponent Doug Peterson was in attendance and asked for an explanation for the deferral. When the Commission declined to give one, Peterson appealed to the City Council for a public hearing as is provided by in city ordinance. But instead of holding a public hearing, the Council simply remanded the matter back to the Landmarks Commission.

After that, Gallegos went to court on Peterson’s behalf and asked for the Writ of Mandamus, or an order that the Council do the job it was required to do by law.

Lopez also ordered the city to pay the costs associated with the lawsuit.

“So far, we’re just not seeing that the city understands just how precious and treasured Central Avenue is to the citizens of Albuquerque,” Gallegos said. “They just don’t get it.”

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