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Coalition of Concerned Citizens to Make Art Smart v. Bautista

United States Court of Appeals, Tenth Circuit

December 13, 2016

COALITION OF CONCERNED CITIZENS TO MAKE ART SMART; 2706 CENTRAL AVENUE LLC, a New Mexico Limited Liability Company; FOX PLAZA LLC, a New Mexico Limited Liability Company; JULIE STEPHENS; JEAN BERNSTEIN; MARC BERNSTEIN, Plaintiffs - Appellants,
v.
FEDERAL TRANSIT ADMINISTRATION OF U.S. DEPARTMENT OF TRANSPORTATION, an Agency of the United States; ANTHONY FOXX, Secretary of the United States Department of Transportation, in his official capacity; ROBERT C. PATRICK, Regional Director for Region VI of the Federal Transit Administration, in his official capacity; DONALD R. KOSKI, Director, Planning and Program Development of the Federal Transit Administration, in his official capacity; CITY OF ALBUQUERQUE, New Mexico, a municipal corporation; RICHARD J. BERRY, Mayor of Albuquerque, in his official capacity; BRUCE RIZZIERI, Director, ABQ-Ride Transit, in his official capacity, Defendants -Appellees, and MARIA BAUTISTA; STELLA PADILLA; JOSEPH AGUIRRE; MILDRED "MIMI" LOPEZ; ARMOND CHAKARIAN; MAX MACAULEY; YARA ESTRADA; LA MICHOACANA RESTAURANT; WESTERN VIEW RESTAURANT; ALBUQUERQUE BARBERSHOP; MIXX RESTAURANT; G-MART CONVENIENCE STORE; RAIN TUNNEL CAR SPA; H & D TIRE SHOP; TURBO TIRESHOP; ROUTE 66 APARTMENTS; EL CHANTE: CASA DE CULTURA, Plaintiffs, and ROBERT J. PERRY; MICHAEL RIORDAN; ALBUQUERQUE CITY COUNCIL; ISAAC BENTON; KENNETH SANCHEZ; PAT DAVIS; KLARISSA PENA; BRAD WINTER; DAN LEWIS; DIANE G. GIBSON; TRUDY JONES; DON HARRIS, in their official capacities as Albuquerque City Councilors; FEDERAL TRANSPORTATION ADMINISTRATION; THERESE MCMILLAN, Acting Administrator of the Federal Transportation Administration, Defendants.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:16-CV-00252-KG-KBM)

          John W. Boyd, of Freedman Boyd Hollander Goldberg Urias & Ward, P.A. (Yolanda R. Gallegos, of Gallegos Legal Group, with him on the briefs), Albuquerque, New Mexico, for Plaintiffs-Appellants.

          J. David Gunter II, Attorney, Environment and Natural Resources Division, U.S. Department of Justice (John C. Cruden, Assistant Attorney General; Tyler L. Burgess, Attorney, Environment and Natural Resources Division, U.S. Department of Justice; and Andrew A. Smith, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, with him on the brief), Washington, D.C., for Federal Transit Administration, Anthony Foxx, Robert C. Patrick, and Donald Koski, Defendants-Appellees.

          Marla L. Lien, of Kaplan Kirsch & Rockwell LLP, Denver, Colorado (Jessica M. Hernandez, City Attorney, and Kristin J. Dalton, Assistant City Attorney, Albuquerque, New Mexico; Lori Potter, Attorney, and W. Eric Pilsk, Attorney, of Kaplan Kirsch & Rockwell LLP, Denver, Colorado, with her on the brief), for City of Albuquerque, Mayor Richard J. Berry, and Bruce Rizzieri, Defendants-Appellees.

          Before TYMKOVICH, Chief Judge, BALDOCK and BRISCOE, Circuit Judges.

          BRISCOE, Circuit Judge.

         Plaintiffs, a group of entities and individuals that own businesses or real property located on Central Avenue in Albuquerque, New Mexico, filed this action seeking to enjoin the City of Albuquerque (the City) from proceeding with construction of a rapid transit bus system along Central Avenue. Plaintiffs claim, in pertinent part, that the City and the Federal Transit Administration, from whom the City seeks federal funding for the project, violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act, 54 U.S.C. §§ 300101 et seq., in the course of planning the project. The district court denied plaintiffs' request for a preliminary injunction. Plaintiffs have now filed an interlocutory appeal challenging that ruling. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.

         I Central Avenue and its current public transit system

         Central Avenue in Albuquerque, New Mexico, is a major east-west street that was part of U.S. Route 66 until that highway was decommissioned in 1985. Currently, "[t]he Central Avenue corridor provides direct transit and vehicular access to two major employment/activity centers including the University of New Mexico (UNM) and the Albuquerque Downtown/Central Business District area." App., Vol. 1 at 70-71. UNM's central campus "is bounded on the south by Central Avenue." Id. at 71. "Central Avenue [also] passes through the heart of the Downtown area and is within one to four blocks of almost every major building in the Central Business District." Id. "[T]wo major entertainment districts, " Downtown and an area known as "Nob Hill, " are "located on Central Avenue and are popular destinations for tourists and locals." Id.

         Albuquerque's bus system, known as ABQ RIDE, currently offers three transit routes that "serve Central Avenue: Route 66, Route 766 (Red Line), and Route 777 (Green Line)." Id. at 70. Routes 766 and 777 are part of what is known as "ABQ RIDE's Rapid Ride system." Id. These two routes operate in mixed-flow lanes, meaning that the lanes serve both ABQ Ride buses as well as other types of vehicles. "Central Avenue is ABQ Ride's highest ridership corridor." Id.

         The ART Project

         In order "to improve transit service along Central Avenue, and to improve access to major activity and employment centers located" along Central Avenue, the City has proposed what is known as the "Albuquerque Rapid Transit (ART) [P]roject." Id. "The ART system [will] include[] the construction of a rapid vehicle guideway within the street median [on Central Avenue] and stations spaced at ½ to 1 mile intervals." Id. at 71. "All proposed construction [will be] within the operational right-of-way of Central Avenue, " id., with the exception of "narrow slivers of property at major intersections" that the City intends to acquire, id. at 75. "The traffic signal system for Central Avenue within the project limits will be modified to provide traffic signal priority for ART vehicles." Id. at 72.

         ART buses will, depending upon the particular section of Central Avenue, operate either in mixed-flow traffic (meaning they will utilize the same lanes as other vehicles) or in their own exclusive lanes. Some sections of Central Avenue will feature two exclusive rapid vehicle lanes, while other sections will feature one bi-directional rapid vehicle lane. For example, "exclusive lanes for rapid vehicles will be constructed from Coors Boulevard to Louisiana Boulevard - a distance of approximately 8.75 miles." Id. at 70. These rapid vehicle routes will replace Routes 766 and 777.

         In order to install the ART system, the City plans to make a number of changes to Central Avenue. These include, but are not limited to:

• milling, overlaying, and restriping throughout the project construction limits;
• removing some of the existing medians to accommodate rapid vehicle lanes;
• reconstructing and reconfiguring landscaped medians at several locations; and
• relocating existing street lights from medians to curb side in certain locations.

Id. at 73.

         "Traffic will be affected by three aspects of the . . . project." Id. at 81. These include: (1) "the reduction of general purpose traffic lanes in" certain segments of Central Avenue; (2) "changes to the traffic signal system on Central Avenue to integrate a signal priority system for preferential rapid vehicle operations"; and (3) "median closures that will shift left-turns and U-turns at existing median openings to signalized intersections." Id.

         Thus, "[t]raffic capacity will be reduced in some segments" of Central Avenue "as a result of traffic lane reductions." Id. at 75. Further, because "[t]he rapid vehicle lanes will have limited access to other vehicles, . . . access to the businesses and other development on Central Avenue will be less than currently exists." Id. The City alleges, however, that "[r]easonable access to all businesses will be maintained with left turn/U-turn access provided at signalized intersections." Id. "In general, left turn/U-turn access [will be] spaced approximately every one quarter mile from Coors Boulevard to Louisiana Boulevard." Id.

         The ART project will pass "through four historic districts." Id. at 86. "The stations in these districts have been designed without canopies to avoid any visually prominent features." Id. "There are [also] 127 historic properties within the project [area] that are listed, eligible for listing, or have an undetermined eligibility to the [National Register of Historic Places]." Id. "No property from any of the historic buildings will be directly impacted or altered by the project." Id.

         The City's request for a Small Starts grant from FTA

         The Federal Transit Administration (FTA), a federal agency that is a division of the United States Department of Transportation (DOT), administers the "Small Starts" program as part of its Capital Investment Grant Program, which supports locally planned transit projects. See 49 U.S.C. § 5309(b); 49 C.F.R. § 611.101. By statute, Congress has encouraged the use of "small start project[s] utilizing buses . . . in a defined corridor . . . that emulate the services provided by rail fixed guideway public transportation systems." 49 U.S.C. § 5309(a)(3), (h).

         There is conflicting information in the record concerning whether the City has submitted a Small Starts grant application to the FTA. According to the City, it did so on July 13, 2015, and its alleged purpose in doing so was to seek approximately $69, 000, 000 in Small Starts funds. Such funding, according to the City, would comprise approximately 55% of the estimated construction cost of $126.2 million. In contrast, the FTA asserts that the City has yet to file a formal Small Starts grant application. FTA Aplee. Br. at 13 n.2. Consequently, the FTA asserts, it "has not yet made a final decision whether to award a grant" to the City for the ART Project. Id.

         The City's and FTA's NHPA analysis

         Federal funding for the ART Project, should it occur, would subject the ART Project to analysis under the National Historic Preservation Act (NHPA), 54 U.S.C. § 300101 et seq. Specifically, Section 106 of NHPA imposes a procedural requirement that, before approving a "federally assisted undertaking, " a federal agency "shall take into account the effect of the undertaking on any historic property." Id. § 306108. A "historic property" is any property that is "in, or eligible for inclusion in, " the National Register of Historic Places. Id. § 300308. The agency must consult with the relevant State Historic Preservation Officer (SHPO) to identify those properties, identify any adverse effects that a proposed project might have on them, and then evaluate modifications to the project that would avoid, minimize, or mitigate those adverse effects to the SHPO's satisfaction. See 36 C.F.R. §§ 800.3-800.6; Valley Cmty. Pres. Comm'n v. Mineta, 373 F.3d 1078, 1085 (10th Cir. 2004).

         The City, aware that it intended at some point to seek federal funding for the ART Project, began the SHPO consultation process on June 4, 2014. The City was assisted in this process by Jeffrey Fredine, an environmental planner, historian, and cultural resource specialist who worked for a private consulting firm. On June 4, 2014, the City met with employees from the New Mexico Historic Preservation Department (HPD), which acts as the SHPO for purposes of NHPA. "That meeting included a discussion of the nature and extent of [the ART] Project and consideration of detailed drawings of ART, including changed lane configurations, streetscape improvements, and station construction, to understand what impact [the] ART [Project] would have." App., Vol. 4 at 538. The SHPO "suggested that a variable [area of potential effect (APE)] should be defined around each proposed station site based on the level of historic integrity at each location and the amount of previous documentation that exist[ed] for each area." Id., Vol. 12 at 1705.

         On June 14, 2014, the City and the SHPO "conducted field reconnaissance of the entire [ART] [P]roject area, " id., Vol. 12 at 1705, in order "to assess firsthand how ART might affect historic resources, " id., Vol. 4 at 538. The City and SHPO determined that the ART Project would not physically touch or use any historic resource. But the SHPO nevertheless "identified eight areas of potential concern that could constitute or contribute to an historic district or cultural landscape." Id., Vol. 12 at 1705. The City and the FTA ultimately "defined a variable APE for each specific [ART] station location." Id., Vol. 12 at 1705. "Generally, the APE include[d] 300 feet on either side of intersections within the eight areas identified as having the most historic integrity within the [ART] [P]roject area, and 100 feet on either side of the intersections outside of these areas." Id. at 1705-06. "The potential for possible effects to be considered" in those areas "would be in [the] visual impacts at the station locations and how that might affect the historic setting of a property." Id., Vol. 24 at 3049-50. The SHPO ultimately agreed that this was the appropriate APE.

         The City then "conducted a detailed review of the APE to identify historic and cultural resources." Id., Vol. 4 at 538. This review "process identified 138 historic or potentially historic properties in the APE that could be affected by [the] ART [Project]." Id. at 538-39. The City's study culminated in a March 12, 2015 "Cultural Resources Inventory." Id., Vol. 13 at 1731. On April 6, 2015, the FTA transmitted the Cultural Resources Inventory to the SHPO and asked the SHPO "to concur in [the] FTA's finding that [the] ART [Project] would not have any adverse effect on any historic resource, primarily due to the lack of physical use on any historic property and limited scope of construction." Id., Vol. 4 at 539.

         On April 8, 2015, the SHPO refused to concur, "citing concerns over the visual impact of three ART [Project] stations on surrounding historic districts." Id. The FTA, the City, and the SHPO subsequently "met and discussed the . . . SHPO's concerns regarding visual impacts." Id. The SHPO "made clear that its concerns were limited to the visual impact of the canopies over three specific stations - Rio Grande, 15th Street, and Walter Street - because of the historic significance and integrity of the surrounding neighborhood." Id.

         On June 25, 2015, the FTA sent an "Addendum Cultural Resources Inventory" to the SHPO that "memorialized the commitment of the City and [the] FTA to eliminate the canopies at the three stations in response to address [the SHPO's] concerns." Id. "The letter included renderings of the redesigned stations." Id.

         On July 7, 2015, the SHPO "issued a letter concurring with [the] FTA that [the] ART [Project] would not have any adverse effects on any historic or cultural resources." Id.

         The ART Project - Categorical Exclusion

         The nature and amount of the Small Starts grant that the City is purportedly seeking from the FTA also subjects the ART Project to analysis under the National Environmental Policy Act (NEPA). More specifically, the FTA, before awarding any grant money, is required to assess the environmental impacts of the ART Project, consider alternatives with less environmental impact, and evaluate whether the benefits of the project would exceed its impact on the environment.

         On or about August 17, 2015, the City applied to the FTA for a "documented exception from the requirement that the City or the FTA prepare an environmental impact statement (EIS) or environmental assessment (EA). In support of its application, the City prepared and submitted a "[Categorical Exclusion] Worksheet, " which was, in essence, "an extensive, 1, 174-page environmental review package." Id. at 536.

         On August 26, 2015, the FTA sent a letter to the City informing it that the FTA had completed its review of the City's application and "ha[d] determined that the proposed ART [P]roject me[t] the criteria for Categorical Exclusion [(CE)] in accordance with 23 CFR Part 771.118(d)." Id., Vol. 1 at 112. The FTA also confirmed that it had "determine[d] the project w[ould] result in a 'no adverse effect' on historic properties" under NHPA, and it noted that the "SHPO concurred with this determination on July 7, 2015." Id.

         The FTA's Letter of No Prejudice

         As noted, the FTA alleges that it "has not yet made a final decision whether to award a grant" to the City for the ART Project. FTA Aplee. Br. at 13 n.2. Nevertheless, on July 18, 2016, the FTA issued to the City a "Letter of No Prejudice" (LONP). Id. at 866. "The LONP provides the opportunity for the City immediately [to] spend up to $59 million dollars that is eligible for reimbursement by the FTA for the ART [P]roject." Id.

         The plaintiffs

         The plaintiffs in this action, all of whom own businesses or property located on Central Avenue in Albuquerque, New Mexico, include the following:

• The Coalition of Concerned Citizens to Make Art Smart is an unincorporated association that was formed to "improve bus transit along Central Avenue [in Albuquerque, New Mexico, ] without harming the businesses, shops, restaurants, neighborhoods and property values and to prevent the ART project from going forward as designed." App., Vol. 1 at 42-43.
• 2706 Central Ave., LLC, is a New Mexico limited liability company that owns property at the corner of Central Avenue and Girard Street in Albuquerque. Id. at 43.
• Fox Plaza, LLC, is New Mexico limited liability company that owns a shopping plaza at the southwest corner of Central Avenue and Pennsylvania Street in Albuquerque. Id.
• Julie Stephens owns and operates a consulting firm located in the Nob Hill area of Albuquerque in the Central Avenue corridor. Id.
• Jean and Marc Bernstein are the owners of Flying Star Restaurants. Id. One of their restaurants is located on the south side of Central Avenue in the Nob Hill area. Id.

         The complaint

         On April 4, 2016, plaintiffs filed a complaint for declaratory, statutory, and injunctive relief against the FTA, the Regional Director for Region VI of the FTA (Robert Patrick), the Director of Planning and Program Development of the FTA (Donald Koski), the City, the mayor of the City (Richard Berry), and the Director of ABQ-RIDE Transit (Bruce Rizzieri).[1] Count I of the complaint sought review under the Administrative Procedure Act (APA) of the FTA's decision under NEPA to grant a CE in connection with the ART Project. Count II of the complaint alleged that the FTA and the City failed to properly consider and evaluate the impact the ART Project "would have on the historical integrity of Route 66 and its adjacent historic resources, " and that the FTA and the City thereby violated . . . [NHPA]." Id. at 63. Count III of the complaint alleged that the City violated the New Mexico Prehistoric and Historic Sites Preservation Act by failing to "properly consider and evaluate the impact that the ART project would have on the historical integrity of Route 66 itself and the historic sites adjacent to it." Id. at 64. Count IV of the complaint alleged that the City violated its own Complete Streets Ordinance because "[t]he ART [P]roject does not balance the need to move vehicles efficiently with the other context sensitive outcomes the City was required to consider" under the ordinance. Id. at 66. Plaintiffs allege in their complaint that the ART Project will have a significant impact on both travel patterns and the human environment along Central Avenue. Id. at 54. In particular, plaintiffs allege that the ART project will have the following detrimental impacts:

• The reduction of all eastbound and westbound traffic to single lanes "will significantly disrupt and alter traffic patterns throughout the Central Avenue corridor . . . because those single lanes will become choked, forcing traffic . . . into adjacent residential neighborhoods . . . . The result will be not just to snarl and divert traffic but to alter the quiet, residential character of neighborhoods adjacent to Central Avenue." Id. at 48.
• "[E]xisting 'local' buses that must travel along the remaining single lanes of east and west-bound non-ART traffic will not have space to move out of the lane of traffic when they receive or discharge passengers, resulting in what is likely to be a 'blockade' of traffic by the local buses." Id. at 48-49.
• "The redirection of traffic by the clogging of single lanes will direct traffic away from the restaurants, shops and businesses on Central that depend on vehicle access and presence in the neighborhood for their financial survival." Id. at 49.
• The "[e]limination of most left turns on Central Avenue will necessarily eliminate convenient access to businesses, shops and restaurants along Central, reducing customer volume and endangering the success of those businesses, shops and restaurants and the jobs of their employees." Id.
• The elimination of most left turns on Central Avenue will also "forc[e] many delivery trucks and vans into residential areas to 'circle' back to delivery ...

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