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ART project clears major legal hurdle

ALBUQUERQUE, N.M. — The city of Albuquerque won another legal ruling Tuesday allowing its crews to continue building a bus rapid transit system on Central Avenue, the old Route 66.

In a 55-page opinion, the 10th U.S. Circuit Court of Appeals affirmed a lower-court ruling that allowed construction of the $119 million project to proceed. The three-judge panel rejected a host of legal arguments offered by opponents of the project – largely centering on whether the city and Federal Transit Administration had violated environmental and national historic preservation laws in planning the project.

The judges concluded that opponents failed to prove it would be in the public interest to halt construction of the project, among other findings.

Albuquerque Rapid Transit has been a priority of Mayor Richard Berry, with support from a 7-2 majority of the City Council.

“ART is a world-class project that will cohesively connect Albuquerque via the Central Avenue,” Berry said in a written statement. “I understand that change is not easy, and if it were, it would not be worth it. I encourage everyone to watch the project unfold as it makes our city a more connected and vibrant place to live.”

Defending against the lawsuit, nonetheless, has been expensive. The city has authorized up to $425,000 to pay the Denver-based law firm of Kaplan, Kirsch and Rockwell for work on the project.

Mayoral spokeswoman Rhiannon Samuel said the city will evaluate its options for recovering its legal costs.

Yolanda Gallegos, an attorney for the Coalition of Concerned Citizens to Make ART Smart, a group critical of the project, said the coalition and other plaintiffs are reviewing their legal options.

“We continue to believe that the effects of ART’s design on Central Avenue’s businesses and adjoining neighborhoods were never meaningfully assessed and that any reasonable assessment would have shown the harm this project will do to our city, to historic Route 66 and its adjoining residential neighborhoods,” she said in a written statement.

Gallegos noted that the FTA has said it would review a traffic analysis and other information submitted by the plaintiffs.

“We remain hopeful that the FTA will weigh the new evidence it was presented with at trial and carry out the full review this project deserves,” she said.

Crews already are building a nine-mile network of bus-only lanes and bus stations in the middle of Central Avenue, between Coors and Louisiana. The new buses could be running by late next year.

But hurdles remain.

In arguments before the 10th Circuit, the FTA said it has not yet approved a $69 million “Small Starts” grant that is critical to financing construction, and Congress hasn’t yet adopted a budget that would fund the grant.

It also isn’t clear whether opponents of the project – including business and property owners along the route – will continue their legal fight.

The Berry administration, in any event, contends there’s almost no risk of the city failing to get the federal money eventually. The FTA has issued a letter allowing the city to start spending money to carry out the project, with reimbursement to come later if the federal funding is approved.

No project at a similar stage has ever failed to get the money, city officials say.

Berry and other supporters of ART say it would improve the reliability of mass-transit service in a critical urban corridor and trigger redevelopment along Central. Supporters include the University of New Mexico and Presbyterian Hospital, major employers along the route.

Opponents, in turn, say the creation of bus-only lanes would choke traffic along Central and damage its car-friendly charm, pushing customers away from local businesses.

Among their key arguments in the federal lawsuit is that the FTA improperly granted the project an exemption from rules that would normally require a detailed environmental assessment or study. The plaintiffs also accused the city of misleading the FTA about the potential impact to the environment and neighborhoods along Central.

But the 10th Circuit rejected those arguments. The judges noted that construction will occur primarily within the existing boundaries of Central Avenue and that the city made changes to the design of some bus stations to address concerns raised by historic-preservation officials.

“I am pleased both the federal district and the appellate courts have seen the merit of this catalytic project to allow us to move forward,” Berry said.

In late July, U.S. District Judge Kenneth Gonzales refused to order a halt to construction. Granting a preliminary injunction to stop ART, he said, would require meeting a series of strict legal tests, and the plaintiffs hadn’t succeeded in meeting their legal burden.

The 10th Circuit on Tuesday agreed, affirming Gonzales’ ruling.