ART Boondoggle Now Faces Legal Scrutiny

For nearly two years, skeptics, critics and opponents have assembled an impressive arsenal of arguments against Albuquerque Rapid Transit, the proposed dedicated busway along Central Avenue.

The mayor, seven of nine city councilors and the city’s transportation bureaucrats don’t care.

Adamantly committed to the project, and unpersuaded by intense public opposition and a plethora of policy-grounded objections, ART’s overseers have forged ahead. They’ve dedicated municipal-bond revenue to the busway. They’ve asked for, and secured, White House approval for $69 million in federal subsidies. And they had planned to begin construction in May.

But last month, two significant obstacles to ART emerged. One lawsuit, filed in state court, lists a number of small businesses and residents as plaintiffs. Another, filed in federal court, is backed by the “Coalition of Concerned Citizens to Make ART Smart,” an “unincorporated association,” as well as Jean and Marc Bernstein, the owners of the Flying Star restaurants.

The state complaint filed last month said Route 66 is “one of the most historic and well-known iconic roads in the U.S.,” and ART will impact “over 150 places on the National Historic Register.” The National Historic Preservation Act “requires that any federally funded undertaking” consider the impact on “any site, building, structure or object that is included in or eligible for inclusion in the National Register of Historic Places,” the suit said. But the analysis of ART’s threat to history was perfunctory, the suit alleged. Plaintiffs requested “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.” In addition, the complaint charged that ART would “constitute a complete nuisance and interference with the rights of the existing businesses to continue to contract with their customers and to function.”

The state complaint is strong. Its federal counterpart is stronger. The federal lawsuit charges that the city misrepresented the facts when it asked the Federal Transit Administration for an exemption to the requirement that ART account for its environmental footprint. Central Avenue isn’t known for rich wildlife, but the issue isn’t biology — traffic congestion, traffic patterns, economic vitality and the like, in an urban area must be assessed. Yet Washington approved the city’s request for an exclusion.

It gets worse. In its request to relax environmental scrutiny, according to the federal suit, the city answered “no” to the question: “Is the project likely to generate intense public discussion, concern or controversy, even though it may be limited to a relatively small subset of the community?” Whoa. Last summer, when the city applied for its exemption, the city was well aware of mounting citizen and business opposition. (And since then, resistance has only intensified.)

The federal complaint tacks on a number of other counts, including (like the state case) violation of the National Historic Preservation Act; violation of the state-level Prehistoric and Historic Sites Preservation Act; and nonconformity with the city’s “Complete Streets Ordinance,” which mandates that “the need to move vehicles efficiently” must be balanced with “placemaking, pedestrian-friendliness, historic preservation and economic development,” according to the suit.

We’ve long known that ART is wrong for Albuquerque. The corridor doesn’t have anywhere near the population density to support bus rapid transit. The project would severely reduce mobility by creating more traffic congestion, and is all but certain to put many Central Avenue restaurants and shops out of business. And Washington is nearly insolvent, with no surplus funds to spend on a dubious transit project in a city suffering from a high crime rate and subpar job growth.

Thanks to the state and federal lawsuits, we now know that ART has an even darker side. The city’s proposed busway likely violated federal law, a state statute and a local ordinance. Albuquerque’s residents and businesses should not have had to resort to the courts to block a proposal that’s sure to prove disastrous to both transportation and economic development in their struggling city. But let’s hope that the legal actions, however costly and time-consuming, help put a permanent end to Albuquerque’s budding bus boondoggle.

D. Dowd Muska is research director of New Mexico’s Rio Grande Foundation, an independent, nonpartisan, tax-exempt research and educational organization.