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Copyright © 2016 Albuquerque Journal

Opponents of Albuquerque Rapid Transit stood on chairs and mocked city executives this year during neighborhood meetings.

They erected signs along the proposed route, filed two lawsuits and asked city councilors stop the project.

But before all that, over the summer, Mayor Richard Berry’s administration offered the federal government this assurance: The project wasn’t likely to generate intense public discussion or controversy, even among a relatively small share of the community.

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That statement – made on an application aimed at avoiding a lengthy environmental review – is now at the center of opponents’ litigation to stop Albuquerque Rapid Transit.

“The answer is just on its face completely incorrect,” said Douglas Peterson, a developer who’s part of a coalition suing to block ART. “Whoever filled it out should have known better.”

The city, in turn, says its answer was accurate based on the public meetings held to that point, in late July.

“As with any major project, people had questions and concerns,” city transit spokesman Rick DeReyes said in a written statement. “However, there was no indication of negativity.”

The $119 million project, mostly funded by the federal government, would create a nine-mile network of dedicated bus lanes and bus stations in the middle of Central Avenue. Construction could start this summer if the Federal Transit Administration grants final approval.

No environmental study

The city’s answer is on something called a “categorical exclusion worksheet” – part of an application asking the FTA to relieve the city from a requirement to launch a lengthy environmental review.

The worksheet includes a series of questions. One of them asks: “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?”

A “yes” answer, the worksheet notes, means the project may not qualify for the exemption.

The city checked the box for “no” and explained that it had conducted a variety of public meetings, “which did not identify intense public concern.”

The city went on to acknowledge to the FTA that there were public questions and concerns about median landscaping, roadway access to businesses and pedestrian safety – all of which, the city said, were addressed in the preliminary design of the project.

The application was filed in late July of 2015. The FTA approved the exemption the following month and recommended the project for funding earlier this year.

‘Arbitrary’ decision

Granting the exemption was a mistake, opponents say.

A lawsuit filed in U.S. District Court this month contends that the FTA’s decision was “arbitrary and capricious.”

The city should be required to perform an environmental assessment or environmental impact statement analyzing the project’s effects on the “human, vehicular and business environment along the Central Avenue corridor, together with its impact on the historic character of Central Avenue and its landmarks,” the lawsuit argues.

Peterson, whose company owns 12 properties along Central, said he and others had already started a letter-writing campaign opposing the project by the time the city applied for the exemption.

“The city should not have made that representation to the feds,” he said in an interview, “and the feds should not have relied on it from the city.”

The city and FTA have not yet responded to the lawsuit in court.

But DeReyes, the transit spokesman, said the project lies almost entirely within streets that are already built, so an exemption from further environmental study was appropriate.

The FTA referred questions to the U.S. Department of Justice, which wouldn’t comment because of the pending litigation.

The plaintiffs in the federal suit are the Coalition of Concerned Citizens to Make ART Smart; two companies with property along the route, 2706 Central Ave. LLC and Fox Plaza LLC; Nob Hill-based consultant Julie Stephens; and Jean and Marc Bernstein, who own the Flying Star restaurants.

The defendants include the FTA, and a series of federal and city officials, including the mayor.

A similar lawsuit is pending in state District Court. That suit, filed primarily by businesses along the western end of the proposed route, also alleges that the FTA improperly failed to require an environmental study.

Both lawsuits cover other ground, too, including allegations that the defendants violated the National Historic Preservation Act.

Neither case has been scheduled for a hearing yet.

Broader debate

Mayor Berry, a Republican in his second term, has made Albuquerque Rapid Transit one of his top priorities.

He and other supporters say the project would provide fast, reliable bus service to a corridor already popular with transit riders and help spur development along the corridor. The project could be the first “gold-rated” system of bus rapid transit in the United States, supporters say.

Major employers along the route, including Presbyterian Hospital and the University of New Mexico, support the project. The Greater Albuquerque Chamber of Commerce and other business groups say it would encourage denser urban development.

Opponents say ART would choke traffic along Central Avenue and disrupt its historic character as the longest remaining urban stretch of the old Route 66.

The project would mean fewer lanes for regular traffic, a necessity to make way for the new bus-only lanes. In some stretches of Central, for example, there would be only one lane for regular traffic in each direction rather than two.