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Favoritism Probe for Road Project

By Colleen Heild
Copyright © 2009 Albuquerque Journal
Journal Investigative Reporter

          "Hi Commish! I know you're getting pressure from our friend to resolve Mr. Atencio's issue. I know it is taking a while but it by no means (is) being ignored. It is being redesigned completely to address his concerns."
        That e-mail from a top New Mexico Department of Transportation official has helped reignite an inquiry into whether an Española businessman whose property is needed for a $68 million road project received special treatment from the state.
        DOT officials redesigned a portion of the planned reconstruction of U.S. 84-285 last fall after receiving complaints from restaurant owner Luis Atencio. Atencio is one of more than 40 property owners whose northern New Mexico land is needed for project right of way. So far, he has refused to sell.
        State Transportation Secretary Gary Girón asked for the internal investigation on May 26 after e-mails surfaced showing that DOT second-in-command Rebecca Montoya and Jim Franken, vice chairman of the state Transportation Commission, got involved in Atencio's right-of-way fight earlier this year. The "Hi Commish" e-mail was sent from Montoya to Franken on Jan. 5.
        This is the second time in six months the DOT's office of inspector general has looked into the allegation of special treatment.
        The earlier inquiry, requested by the Federal Highway Administration, concluded that no laws were broken but that it was "futile" to try to the answer the favoritism question.
        The Journal obtained the e-mails, which were detailed in a story in the Rio Grande Sun, and other documents through a public records request.
        The records show:
        The DOT redesigned part of the project after a meeting was held in House Speaker Ben Lujan's Roundhouse office nearly a year ago. Lujan, Atencio, then-DOT Secretary Rhonda Faught and two other highway officials attended.
        The DOT took the unusual step of paying for a new appraisal after Atencio said he didn't like the first one. Typically, property owners who disagree with an appraisal pay for their own or share the cost.
        Franken asked one of DOT's division directors to "accommodate" Atencio's request for a redesign and new appraisal. Montoya's e-mail was apparently a response to Franken. She didn't identify the friend, but Franken told the Journal it was Santa Fe County Clerk Valerie Espinoza.
        The DOT says the redesign saved taxpayers nearly $175,000 by cutting nearly half of the amount of land needed from Atencio.
        The new design is safe, the DOT says. But the revision sharpened the curve so much that proposed speed limits had to be lowered from 40 to 25 mph. Warning signs for motorists approaching the curve will also be required, documents show.
        Additional costs associated with the redesign and the additional appraisals are estimated to be at least $16,500.
        DOT officials say it is not uncommon for road plans to change based on input from property owners.
        Working with a landowner "to make reasonable accommodations" can avoid costly legal battles, Girón wrote in a recent Journal guest column.
        But a condemnation proceeding on Atencio's property seems imminent.
        Atencio initially didn't want the state to take so much of his land. Now he's not happy with the $80,000 or so being offered for the smaller parcel, which is to be used for a frontage road and other improvements.
        Atencio told the Journal the state's offer was "peanuts."
        He says Lujan is a friend who was merely representing a constituent.
        As for the DOT, Atencio added, "They've made my life miserable."
        Meeting arranged
        Four miles north of the property in question is Atencio's Española restaurant, El Paragua, which has garnered national reviews since it opened in 1966. Above the restaurant cash register is a photo of Atencio sitting at a table between Lujan and a smiling Gov. Bill Richardson.
        Atencio said he received no special treatment because of his relationships with Lujan, Franken or the governor, who appoints members of the transportation commission.
        Federal election records show Atencio and his wife contributed $3,500 to Richardson's run for president in 2007. And, last year, he pumped nearly $3,000 into the successful race for Congress by Lujan's son in the 3rd Congressional District.
        Asked about those contributions, Atencio said, "Don't I have a right to contribute to good candidates?"
        Farther south, at the corner of U.S. 84-285 and La Puebla Road, is a 3.7-acre parcel on which sits a chapel Atencio built nine years ago. West of the chapel is about one-third of an acre of vacant land the DOT is seeking.
        The DOT right-of-way lead agent, Angela Sandoval, contacted Atencio last August to make him an offer for the property based on an appraisal several months earlier.
        Atencio informed her the plans were being redone, she wrote in a report, and she found it odd he knew about it before she did.
        Atencio told her a meeting had been held a month earlier at Lujan's office during which DOT officials said "they would have the design changed in order to minimize impact to his property," Sandoval's report said.
        Atencio told the Journal last week that the original design would have put the new highway access road too close to a well.
        Faught, in a Journal phone interview, said she proposed the redesign during the meeting.
        "I don't always meet with property owners, but if I'm called by a legislator to come down and meet with a property owner, I will," said Faught, who retired last December.
        Lujan told the Journal that Atencio "was having trouble with anybody listening to him from the Department of Transportation, and I arranged a meeting between him and the secretary so he could explain to the secretary what he was concerned about and the takings of his property. That was the extent of my involvement."
        Lujan said he doesn't have the time to get involved in everyone's right-of-way problems but he did talk to one other property owner who was concerned about the DOT taking his land for the highway project.
        Lujan said Atencio was the only landowner, however, for whom he arranged a meeting with the DOT.
        Lujan himself has property along U.S. 85-285 that the DOT wants for right of way and has resisted selling.
        "I understand that we can't stop progress, but the fact of the matter is I am interested in them taking as little property as possible from property owners," he said.
        Thanks in advance
        The report by right-of-way agent Sandoval shows that, in the months that followed her meeting with Atencio, two top DOT officials — the division director of her bureau, Lawrence Barreras, and project development engineer Steve Rodriguez — took over discussions with Atencio.
        Federal law requires right-of-way discussions to be documented, but no such reports from Barreras or Rodriguez were turned over in response to a Journal request for information.
        After a second appraisal based on the reduced parcel came in at about $88,000 last December, Atencio wanted another appraiser.
        On Jan. 5, Franken sent an e-mail to Barreras.
        "Thank you in advance for accommodating Mr. Atencio in his request for a different design and different appraiser on his property. Mr. Atencio is a good ally of the department, and it is good politically that we try to help people instead of alienating them. We need to help him."
        Franken said the friend was Espinoza, who contacted him on Atencio's behalf. "It was not really pressure," he added.
        "We get requests from constituents all the time that feel they're maybe not getting a fair shake from the department," said Franken, who represents a different highway district in northeastern New Mexico.
        "I've known Mr. Atencio with the El Paragua for a long time. He knew I was on the commission and he asked me to help him."
        Espinoza said Friday that she had talked to Franken, and she called Atencio a "dear, dear friend." She said she believed "he's been jerked around."
        She said, "Nobody was trying to do any political favors. We were trying to help a constituent."
        Barreras ordered a third appraisal, this time by a different appraiser new to the project.
        Several longtime DOT officials have said they couldn't recall the state paying for a subsequent appraisal for a dissatisfied property owner.
        The new appraisal came in about $3,000 less than the second appraisal.
        Franken said Atencio didn't agree with that amount either, "so I think we're proceeding with condemnation."
        Other cases
        The DOT has wasted no time in taking several other property owners to court to obtain right of way for the project.
        For instance, Charles L. Romero said he was operating Romero's Mobile Home park off U.S. 84-285 near Atencio's property when the DOT approached him about buying more than an acre. He asked the DOT for a redesign or a swap of property, but to no avail.
        He refused to sell, and, within three months, the state had filed a condemnation lawsuit. He has now had to move his business entirely.
        "I lost 90 percent of my business because I had to move," Romero said last week.

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