Judge denies entrance suit
August 30, 2002
A federal district court judge has denied a local group?s claims that the review process that resulted in the proposed Entrance to Aspen violated federal environmental laws.
The decision, issued Tuesday by Chief Justice Lewis T. Babcock, rejects a series of claims made by the Friends of Marolt Park and Open Space in a lawsuit the group filed in May 1999.
The suit asked the court to set aside the 1998 Record of Decision issued by the Colorado Department of Transportation, which identifies two alternatives for the Entrance project, both of which would realign Highway 82 across open space on the west side of town.
?We?re disappointed. We thought we had a really strong case,? said Yasmine de Pagter, president of the Friends of Marolt Park. ?I don?t think we?re done yet. We?re disappointed, but we?re not discouraged.?
Nonetheless, the group has yet to decide whether it will appeal any or all of the ruling, said Dennis Vaughn, treasurer for the Friends.
?The board has not met yet, we haven?t all read the decision and we have to sit down with our attorney, Lori Potter. All that has to be done before we decide what we?re going to do,? he said.
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In a 27-page decision, Babcock concludes the process that led to CDOT?s release of the Record of Decision did not violate either the National Environmental Policy Act or the provision of the National Transportation Act that regulates the use of parkland and open space for highway projects.
?The environmental documents constitute a good faith, objective and reasonable presentation of the subject areas mandated by NEPA,? he wrote.
The lawsuit originally named the city of Aspen, Pitkin County, CDOT Director Tom Norton, and the U.S. Department of Transportation and its secretary as defendants.
One claim against the city, county and Norton was dismissed in August 2000.
A second claim, solely against the city, was the subject of a one-day trial in October 2000. The Friends claimed the city violated its charter by allowing use of open space for a staging area for construction of the Maroon Creek Road roundabout. Babcock ruled in the city?s favor.
Aspen and Pitkin County weren?t party to the remaining claims, which were denied with this week?s decision.
Although Babcock upheld the Record of Decision, the Friends raised questions about two aspects of his ruling in a press release the group issued Thursday.
The Record of Decision allows the construction of a two-lane parkway and light-rail corridor across the Marolt-Thomas open space, linking the roundabout to the upper end of Main Street. The alignment is often referred to as the straight shot, as it bypasses the two 90-degree turns known as the S-curves that currently funnel traffic through the West End. The ROD also allows exclusive bus lanes as a transit alternative until support to fund a light-rail system exists.
Babcock?s decision concludes CDOT met the federal environmental requirements for four lanes of pavement across the open space, with two lanes dedicated to buses.
In his ruling, Babcock notes, ?if, in the future, the City of Aspen voters do not approve the construction of exclusive bus lanes over the Marolt-Thomas Open Space and conversion of that open space for that use, no such improvements will be built.?
City voters, in fact, rejected interim bus lanes in a 2001 vote ? a development that was not part of the case record that Babcock reviewed, as the record was closed in 2000.
In light of that vote, Vaughn questioned whether bus lanes can still be considered a permitted alternative.
?The 2001 election is completely irrelevant to the claims presented,? countered City Attorney John Worcester.
The Friends also suggested the Environmental Impact Statement for the entrance project, which led to the Record of Decision, may be obsolete. The EIS assumes rising traffic volumes to justify the entrance, noted Potter. In fact, those volumes have not materialized.
Traffic volume across the Castle Creek Bridge is averaging about 19,500 vehicles per day, she said.
?That is lower than the stated objective in the EIS, which was to keep traffic volume at 1993 levels ? another critical fact which the judge did not have when he ruled,? Potter said.
Limiting traffic, Worcester pointed out, wasn?t the only objective of the Entrance to Aspen project.
The $62 million entrance project approved by city voters in 1996 ? a two-lane parkway and light rail ? is currently under consideration for future state funding.
The new highway alignment will also be the focus of a November vote in the city and, possibly, throughout Pitkin County.
The Aspen City Council has approved a ballot question that will ask voters whether they prefer the existing highway alignment or the proposed new one across the open space. County commissioners are contemplating asking the same question on a countywide ballot.
If there isn?t voter support for the entrance project, CDOT will take its limited dollars elsewhere, local government officials reason.
The controversial entrance is also the subject of a separate lawsuit filed by the Citizens for A Small Town Entrance. They have asked a 9th Judicial District Court judge to void the city?s recent conveyance of the entrance easement across the Marolt-Thomas property to CDOT.
[Janet Urquhart’s e-mail address is email@example.com]