April 4, 2016

ART opponents file lawsuits to stop project

Albuquerque Rapid Transit

Andy Lyman

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.

Albuquerque Rapid TransitBoth 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.

This piece originally appeared on the ABQ Free Press website.

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 DirectorBruce 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.

Note: This piece was updated to reflect a second lawsuit.