Complaint and request for Preliminary Injunction final draft.pdf

8/18/2019 Complaint and request for Preliminary Injunction final draft.pdf

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From: Joe Monahan [email protected]: Re: Complaint and request for Preliminary Injunction final draft

Date: April 4, 2016 at 2:35 PMTo:

DRAFT, CHECKING FOR ERRORS AND WILL FILE.

STATE OF NEW MEXICO

SECOND JUDICIAL DISTRICT COURT

COUNTY OF BERNALILLO

MARIA BAUTISTA, STELLA PADILLA,JOSEPH AGUIRRE,MARGARET “MIMI” LOPEZ, ARMOND CHAKARIAN,MAX MACAULEY, YARI ESTRADA, individuals,LA MICHOACANA RESTAURANT,WESTERN VIEW RESTAURANT, ALBUQUERQUE BARBERSHOPMIXX RESTAURANT, G-MART CONVENIENCE STORE,RAIN TUNNEL CAR SPA, H&D TIRE SHOP,TURBO TIRESHOP, ROUTE 66 APARTMENTS,LA FAMILIA AUTO AND TIRE REPAIR,EL CHANTE: CASA DE CULTURA,

CASE NO. __________________

Plaintiffs,

vs.

THE CITY OF ALBUQUERQUE,RICHARD J. BERRY, Mayor of Albuquerque,ROBERT J. PERRY, Chief Administrative Officer of Albuquerque, BRUCE RIZZIERI, Director of Transportation,MICHAEL RIORDAN, Chief Operations Officer of Albuquerque

THE ALBUQUERQUE CITY COUNCIL,ISAAC BENTION, KENNETH SANCHEZ, PAT DAVIS,KLARISSA PENA, BRAD WINTER, DAN LEWIS,DIANE G. GIBSON, TRUDY JONES AND DON HARRIS,In their official capacities as Albuquerque City Councilors,UNITED STATES DEPARTMENT OF TRANSPORTATION,ANTHONY FOXX, Secretary of Department of Transportation,FEDERAL TRANSPORTATION ADMINISTRATION,THERESE McMILLAN, acting administrator of the Federal Transportation Administration,

mailto:[email protected]:[email protected]:[email protected]


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ROBERT PATRICK, Regional Director of the FederalTransportation Administration, District Six.

Defendants.

COMPLAINT AND APPLICATION FOR PRELIMINARY INJUNCTION

COME NOW Petitioners through their attorney, John McCall, to request this Honorable

Court issue an Injunction prohibiting Respondents City of Albuquerque, et al. (City Defendants)

and United States Department of Transportation et al. (Federal Defendants) from proceeding to

violate the National Historic Preservation Act and Administrative Procedures Act, from creating

a Public Nuisance, taking property of Plaintiff-Petitioners and to prevent malfeasance and

violation of City Ordinances regarding traffic and street sector plans. This application is made

pursuant to the following jurisdictionally applicable laws: 16 U.S.C.S. § 470f, National Historic

Preservation Act (NHPA) NMSA 2002, 30-8-1 (New Mexico Public Nuisance), State ex rel.

Village of Los Ranchos v. City of Albuquerque, 119 N.M. 150, 165, 889 P.2d 185 (1995), NMSA

2002, ______ (Sewer Facility Condemnation), Arrellano v. Lopez , 81 N.M. 389, 467 P.2d 715

(1970), and SCRA 2002, 1-066 of the New Mexico Rules of Civil Procedure. As Grounds

Petitioners state:

BACKGROUND

1. The subject of this lawsuit involves Central Boulevard in Albuquerque, New

Mexico, one of the most historic and well known iconic roads in the United States known by It’s

historic name “Route 66.” Route 66 has been the subject of a TV show dating from the 1950s,

songs such as get your kicks on Route 66 and is featured in many famous renditions byPhotographers and Artists alike who seek out its unique Neon signage and its historic

landmarks, over 150 of which have been identified as subject to being affected by the

Respondent’s Project.

2. Respondents seek to implement a Federal Start Grant for funding $70 million

dollars in chan es to Central or Route 66 in order to create a modern bus s stem aimed to carr


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passengers along the Route 66 Corridor of Central from San Mateo or Louisiana Blvd. on the

east to to Coors Boulevard on the near west side of Albuquerque. Respondent City of

Albuquerque Defendants have made claims that the single line bus route will transform

Albuquerque in the face of an expected 440,000 person increase in population over the next 25

years.

3. Respondent City of Albuquerque is seeking to obtain the Federal Start funding

from FTA for a Transit Oriented Development (TOD) grant by representing to the FTA that there

is wide public support for the project and the project will meet the other requirements of such a

Start grant, however, the required public support is largely manufactured and fictional and this is

becoming apparent in the short period of time the majority of the public has been aware of the

project since “pocket of poverty” funds were proposed for expedited use in the project in

February of 2016. Since that time the City’s representation of popular support in Its

documentation for FTA has been belied by an outpouring of opposition from all parts of the City

most particularly from the proposed rapid transit corridor.

4. The proposed corridor will require the destruction or impact on well over 48

Historic Landmarks that are registered with the National Historic Registry and the destruction of

well over 150 trees of historic and environmental significance to the communities involved.

5. The proposed corridor will require at least 18 months of construction which will

devastate local business along the corridor and eliminate their access to customers during

construction and after construction as the project will prohibit left hand turns on Central Avenue,

a main transportation corridor for traffic coming from other locations beside the slender corridor

itself which will still be served by a failing and underfunded bus system throughout the rest of

the City of Albuquerque.

6. The proposed corridor will require changes to the property around local

businesses and homes along the route and will dramatically impact traffic Lead and Coal

Avenues and on Lomas Boulevard.


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. e propose corr or w un amen a y c ange e c arac er o ou e rom

the pavement to the iconic scenery along the Route and will permanently impact business from

Louisiana to Coors Blvd.

8. The Plaintiff-Petitioners in this lawsuit oppose the corridor for these reasons and

are requesting the Court issue a Preliminary and a Permanent injunction against the project due

to the failure of the project to follow State and Federal Law.

PARTIES TO THE LAWSUIT

9. The Plaintiff-Petitioners are all citizens who either use the bus system, are

taxpayers residing in the City of Albuquerque, patrons of the historic and cultural landmarks

along the route or businesses that will be adversely affected. They also include citizens in the

surrounding three block radius whose safety, health and welfare are at risk due to the failure to

properly prepare for or study the impacts of the project on traffic and other considerations in the

affected neighborhoods, in which 45 neighborhood associations are officially opposed to the

project.

10. Petitioners 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 and La Familia Auto and Tire Repair are each

independent for profit businesses owned and operated with their respective agents each located

in the State of New Mexico and they are each located on the proposed corridor for the ART

Project on Central Avenue.

11. Petitioner El Chante: Casa De Cultura is located at 8th and Park Streetdirectly

abutting Central Avenue at the roundabout that ends the downtown area and it is a non-profit

licensed and operated in the State of New Mexico based in the City of Albuquerque.

12. Maria Bautista and Stella Padilla are citizens of Albuquerque who pay taxes and

are active in the preservation of local history and culture in all of its forms including

architectural, botanical and economic. They have worked to save the special character of

Albuquerque and Route 66 throughout their lives.


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13. Doctor Joseph Aguirre is a life-long resident of Albuquerque who lives on his

property in the Lead and Coal Corridor ADDRESS? - He is a longtime participant in

community issues and has been an advocate along with concerned citizens on Lead and Coal for

safer traffic conditions on the two one way streets that run parallel to Central and which catchmuch traffic from Central that has resulted in deaths, injuries and other problems affecting all of

the residents of that area. His group is also opposed to the ART project.

14. Petitioner-Plaintiff “Mimi” Lopez is an elderly patron of the bus system and

resident near Rio Grande Boulevard on a route that will be affected by the ART Project and

which is already underserved. She works with clients who cannot gain employment because of

the failure of the bus system to provide regular transportation they can use to commute to work

in Albuquerque.

15. Petitioner-Plaintiff Armond Chakarian is a resident of the area affected by the

ART Project and is opposed to the project’s affect on his neighborhood.

16. Petitioners Max MaCauley and Yari Estrada are residents of Albuquerque and

regular patrons of the bus system and they are opposed to the ART Project and its effect on

transit throughout the City of Albuquerque because it will focus all improvements on a narrow

area of the system and will fail to provide sufficient not provide any resources for the overly

stressed system in place throughout the greater metropolitan area.

17. Respondents City of Albuquerque and Albuquerque Transit are the entities

responsible for implementing the ART Project.

18. Respondent’s Mayor of Albuquerque Berry, Chief Administrative Officer Perry,

Chief Operations Officer Riordan and Transit Director Rizzieri are all in charge of the

implementation of the ART Project and the studies or lack of studies completed in anticipation

of It’s completion and implementation.

19. Respondent City Councilors are all the legislative body responsible for voting to

implement the ART Project and have voted to implement the project in a 7-2 vote with


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.

DOT and FTA Respondents for approximately 70 million dollars in funding for the project.

20. Respondents Department of Transportation (DOT) and Secretary Foxx and

Federal Transit Authority (FTA), Acting Administrator McMillan and Region Six, Director

Patrick, are the federal government’s administrators of the grant funding that has spurred the

rapid and inarticulate response by the City of Albuquerque.

COUNT I – VIOLATION OF THE NATIONAL HISTORIC PRESERVATION ACT

21. Respondent’s project will directly or indirectly affect over 150 Places on the

National Historic Register as Landmarks that are subject to protection and State Historic

Preservation office Review. These landmarks also require local review for authorization of the

project and neither the appropriate SHPPO review occurred nor did the local review occur

before the City Council voted to allocate funds and to tell the FTA that the City was prepared to

enter into the project.

22. Section 106 as amended applies to require FTA and City review as long as those

Parties retains the authority to make funding approvals pursuant to the grant and loan contract.

23. The National Historic Preservation Act, 16 U.S.C.S. § 470 et seq. requires that

any federally funded undertaking take into account the effect of the undertaking on any district,

site, building, structure or object that is included in or eligible for inclusion in the National

Register of Historic Places.

24. The consultation with SHPPO in this case consisted of two brief letters and no

review at all of the well over 48 sites including the Monte Vista Firestation, the Highland

theater, Tingley development in the Silver Hills Neighborhood (a historic Landmark itself) and

many trees and vegetation planted by Mayor Emeritus Clyde Tingley’s move to develop Silver

Hills. The City appears to have identified over 150 historic landmarks, yet none of them have

been the subject of any significant study and the City has counted on no questions from FTA of

the City’s cursory two letters to and with SHPPO because the City has assumed there would be a

wide range of public support. This is not the case..


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25. No study of any significance was done on the impact of radically changed traffic

patterns in Silver Hills and around the other historic landmark properties along the route.

26. The only Traffic studies include simulations of traffic in the year 2017, and one

projecting to the year 2035 without any serious consideration or concern from changing traffic

patterns off of one of the major arterials for the Sector Plan and the City’s transportation grid.

27. The Affected Historic Landmarks other than the Silver Hills neighborhood

include the Fire Station (Southwest Pueblo style anchoring the Nob Hill area) and the Monte

Vista Elementary School(Mediterranean, Revival, Spanish Colonial, Renaissance and Beaux-

Arts). These landmarks are affected by increased traffic and by construction projects associated

with the ART project designed to tear up the frontage in front of the Landmarks.

28. The Plaintiff-Petitioners request 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.

29. Plaintiff-Petitioners request the Court oversee compliance with the NHPA

throughout any further project review and provide for any attorneys fees associated with this

action.

COUNT II – PUBLIC NUISANCE ALL PARTIES

30. The Plaintiffs seek to condemn right of ways and private properties and expend

taxpayer funds in an unlawful manner to pursue the unpopular and illegal goal of financing a

large burden on the taxpayers and businesses of Albuquerque.

31. This project, as planned, would create such devastating effects local business that

they would be forced out of business. The project woud further disrupt the local economy in the

areas of the project so as to constitute a complete nuisance and interference with the rights of the

existing businesses to continue to contract with their customers and to function. The

overwhelming business response is against this project, yet the City has portrayed positive

support to the FTA.

32. The interference with traffic on a primary Artery would destroy the Arteries’


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effectiveness without replacing it with any viable alternatives thus causing a violation of the

City’s Sector Plan governing Street placement in dense population areas.

33. The nuisance would also force all truck traffic onto Silver Avenue, a designated

bike path and Lead and Coal Avenue where Plaintiffs live and commute and where the City has

repeatedly violated its duty to provide for public safety to prevent accidents and traffic flows

that cannot be safely handled by either Lead or Coal Avenue and which they were never

intended to handle as they have been operated as two way streets in accordance with prior legal

iterations of the sector plan.

34. The City and It’s federal funders have ignored the health, safety and welfare of

residents on Lead and Coal Avenue in failing to provide any alternatives for traffic on Lead and

Coal that are legal or safe and by failing to address repeatedly raised concerns on these streets

regarding excessive speed, too many accidents, repeated accidents into homes such as the one

destroying a home at the corner of Carlisle and Coal/Lead and the repeated failure to address

any of the concerns prior to the pendency of this project in violation of Respondent’s duties to

address legitimate health, safety and welfare issues related to traffic in the City and specifically

within the parameters of the ART Project.

35. The City and the FTA seek to alter the traffic flows to such an extent their actions

are clearly a nuisance as defined by law and a nuisance per se in their blatant disregard for the

zoning, traffic flow and other ordinances and laws of the City of Albuquerque and the State of

New Mexico passed to enforce the rights of citizens to be free of Government actions that create

a nuisance.

36 The illegal expenditure of funds without proper notice and under false pretenses

regarding community support, business support, false traffic studies and failure to conduct any

Historic Review or Environmental Review pursuant to a waiver erroneously obtained from FTA

and erroneously granted would be a public nuisance and would result in the destruction of a

cherished, priceless historic landmark and priceless landmark areas of great extent due to the


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and landmarks once they are gone. The Petitioner’s in this matter would suffer extensive

damages to their health safety and welfare and to their ability to continue any viable commercial

activity in threatened commercial areas.

37. As a result of the clear existence of this nuisance created by the City and the FTA

in violation of the laws of the City and the State preventing illegal traffic, speeding, overweight

traffic and any kind of serious danger to public health, safety and welfare, Petitioners request

that the City and the FTA be enjoined from proceeding with the project as planned and that the

Court either enter a permanent injunction or Order the project to conduct studies that include

real review of traffic problems, effects on local business that are not questioned by all involved,

and certifications that any project will not create massive illegal activity and economic losses in

the zones around the Central/Route 66 corridor.

COUNT III – ILLEGAL CONDEMNATIONS AND TAKINGS SOUGHT BY THE

CITY AND PAID FOR BY FTA

38. The Business and Non-profit Plaintiffs in this matter all stand to lose significant

business and business related properties and right of ways as a result of the plan to widen streets

for buses and to continue on street Parking on Central which is an absolute must for business

survival without the wholesale creation of new parking structures.

39. These Plaintiffs seek relief from the illegal and unlawful taking of their property

without due process during the planning and public hearing stage and without due process

during the phases of further planning and construction by all Respondents. The creation of a

public nuisance using federal, state and City funding to do so and the proposed condemnations

of right of ways and private property held by the business plaintiffs in this matter is a violation

of the Plaintiff-Petitioner’s fundamental rights to own property and to be free of illegal

government activity that creates a direct threat to public safety, health and welfare as well as the

rights to contract and to be free from malfeasance and misfeasance by government officials.

40. Plaintiff-Petitioners seek to enjoin and to further prohibit illegal activity or legal


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activity that is a public nuisance to the citizens of the community and which is resulting from

failures to properly notify people and businesses of the impacts proposed in a timely manner and

the failure to properly review and prepare the project in question due to the rush to receive

federal funding that is de-limited by federal guidelines and political considerations.

41. Plaintiff-Petitioners also seek compensation for damages resulting from illegal

condemnations and damage to historic landmarks, including Route 66 itself and the areas around

Route 66 that are subject to this project. These damages include the damages to their business

and damages resulting from the loss of the value of these priceless landmarks and the nature of

the route itself which is a priceless historic legacy. Therefore, the activities of the City and the

FTA create an irreparable harm to priceless public resources, including the existing businesses

and communities impacted by the FTA and City’s efforts to quickly ram a project with large-

scale impact down the throats of Plaintiffs and their fellow citizens.

42. The project itself, given the complex construction parameters is guaranteed to put

local businesses out of business as has been the case with prior projects in the same area that

suffered from having to replace older infrastructure and deal with local traffic patterns that can’t

be accommodated in the same way freeway projects can. The taking of an entire business whenalternative strategies have not been reviewed or discussed in public with the community would

be a violation of the right to be free from an unjust and unlawful taking.

COUNT IV – MISFEASANCE – EXPENDITURE OF FUNDS WITHOUT

PROPER APPROVAL OR REVIEW

43. The public officials who are guilty of proceeding with this project to obtain

federal funding, or to otherwise achieve reward for narrow segments of the City community can

be considered as malfeaseance or misfeasance in office due to the fundamental denial of the

communities concerns about the project and the effort to avoid all required reviews or the

necessary public approval associated with a Start Grant funding.

44. The eagerness by Albuquerque officials to get the funds in spite of community

opposition to a project that requires proof to federal officials of general community support is


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the essence of malfeasance in office.

45. Petitioners are entitled to enjoin such actions and to an Order of the Court finding

Malfeasance or misfeasance and awarding appropriate damages, costs and fees.

REQUEST FOR PRELIMINARY INJUNCTION

46. In addition to the allegations and requests for injunction above, the Petitioners

allege the taking of their land, the public right of way and other takings without just

compensation for purposes of implementing the ART as now planned, will cause irreparable

harm to their interests in preserving historic landmarks, historic businesses, the current local

business culture along Central Avenue from one end to the other, and will irretrievably destroy

the viability of the local businesses essential to Albuquerque’s identity.

47. As a result of the proposed ART Project, Petitioners are seeking to prevent the

irretrievable commitment of public funds in an unlawful manner and to preserve the aesthetic,

conservation, commercial, recreational, scientific spiritual, ecological, economic and historic

qualities of Historic Route 66 and the communities and business along the Route.

48. Each business plaintiff in this matter is directly on Route 66 and faces the same

results as do many other potential co-Plaintiffs along the Route and other litigants who are also

seeking to file for relief.

49. Plaintiffs are likely to succeed on the merits of their National Historic

Preservation Act claim against the Respondents because the Respondents have failed to submit a

proper review of historic landmarks to Respondent FTA. Nor has a proper review of the

Environmental Impact of the project been conducted as is noted in another lawsuit likely to be

contemporaneous with this one.

50. Plaintiffs are likely to succeed on the merits because of the failure to properly

notifiy the community and to provide for properly noticed and public hearings on this project.

51. Plaintiffs are likely to succeed on the merits of their NHPA claims against the

City because the City failed to truly identify the level of community opposition to the ART


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Project and actually misrepresented the problems and opposition to the FTA and federal officials

during the process of negotiating this grant.

52. Plaintiffs are likely to succeed on the merits of their Due Process claims against

the City because the actions of the City have denied the Plaintiffs their opportunity to comment

on the impacts of the ART Project on local business along the route and the impact on historic

landmarks, zoning, traffic planning, pollution and other negative impacts on health, safety and

welfare.

53. Petitioners can show irreparable harm because the condemnation of their

property and the taking of their business will irreparably injure the viability of the local

businesses on the route and permanently destroy the quality of life and health safety and welfare

of resident Plaintiffs seeking to prevent further injuries and violations of local ordinances and

regulations. This threatened harm would impair the Court’s ability to award damages

subsequent to a trial on the merits.

54. Petitioners can show irreparable harm because allowing the City to proceed with

the condemnation of properties and taking of business due to the shutdowns for construction and

would allow for immediate construction of the ART Project in violation of the NHPA and the

Administrative Procedures Act along with the National Environmental Policy Act and

Petitioners’ due process rights under the New Mexico and United States Constitutions. This

threatened harm would impair the Court’s ability to award damages subsequent to a trial on the

merits.

55. Petitioners can show irreparable harm because allowing the City to proceed with

the condemnation of Property and shut downs of business will allow for immediate commitment

of very large amounts of State and Federal taxpayer funds in an unlawful manner. This

threatened harm would impair the Court’s ability to award damages subsequent to a trial on the

merits.

56. The potential injury to Petitioners outweighs whatever harm the Respondents

may suffer because the Respondents will benefit from following proper procedures for obtaining


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any grant funds and from properly reinforcing and funding the existing bus system which is also

subject to a lawsuit by the Bus Drivers Union to shut down any federal grant funding for failure

to negotiate in good faith with the Union representatives of the bus drivers.

57. The potential injury to Petitioners also outweighs whatever harm the

Respondents may suffer because the unlawful or reckless commitment of large sums of

irrevocable funding for this project will injure Petitioner taxpayers and further injure

Respondents.5

58. The issuance of the Injunction would further the public interest as expressed by

the agricultural, environmental, conservationist and good government citizens’ groups that are

supportive of this litigation because the public has an interest in enforcement of the NHPA and

NEPA act and in seeing that government does not act in disregard of the interests of taxpayers or

without notice and an opportunity to be heard as to matters of public import. Focusing on the

public interest means considering "whether there are policy considerations that bear on whether

the order should issue." Wright & MIller, supra at §§ 2948. Enforcing the law serves the public

interest.

59. Petitioners are requesting that the Respondents be prohibited from expending any

funds or taking any action in state or federal court to pursue the ART Project until they meet all

state and federal requirements for taking the land, expanding the wastewater treatment plant site

and constructing new wastewater treatment facilities.

WHEREFORE, Petitioners respectfully request this Honorable Court issue it’s

Injunction declaring the actions of the City and the Mayor null, void and unconstitutional and

commanding the Respondents to cease any and all actions for construction of the ART.

Petitioners further request the relief they seek in their Complaint including the following:

1) Compliance with all State and Federal funding requirements for any ART project

planning and construction.


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ordinances along with other state and federal laws governing development, traffic and public

health, safety and welfare.

3) An award of damages attorneys fees and any other relief that is deemed just and

proper by the Court.

Respectfully Submitted,

LAW WORKS LLC

______________________

John McCall Attorney for Plaintiff/Petitioners 120 Tenth St. NW Suite B

Albuquerque NM 87102 (505) 256-1998


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Documents

Complaint and request for Preliminary Injunction final draft.pdf