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Arrested Development

Lawsuit over highway interchange suggests pattern of abuse of environmental law by UDOT.



Here’s a story you might be familiar with. If you follow highway and transportation projects, as a lot of Utahns have of late, it’s a story you might be a little too familiar with. It goes something like this:

State and federal agencies want to build a highway project. The environmental consequences of such projects aren’t child’s play, though. So the National Environmental Protection Act requires that construction projects of this magnitude incorporate environmental concerns into their decision-making process.

So it is that the Utah Department of Transportation studies the project for environmental impacts and reports its findings in an environmental assessment report, which also includes alternatives to the project. If those impacts are sizable and notable, the Federal Highway Administration (FHWA) can require an environmental impact statement (EIS), a meticulously detailed document of impacts and mitigating plans to counter those impacts. The EIS is not an end product, just a blueprint for how to solve a transportation problem with a minimum of impacts to the surrounding area. If the effects of the proposed project are no big deal, a finding of no significant impact (FONSI) falls off the press, and the EIS is avoided.

That is what happened recently for a proposed I-15 interchange at 11400 South. The Federal Highway Administration looked the project over, declaring that a FONSI was more in order than the more demanding EIS. Utah’s Department of Transportation concurred.

All the while, a group of suspicious citizens sensed something wasn’t quite right. They attended community meetings, even a few hearings. Getting nowhere, they sent the highway administration and UDOT a letter or two, asking why this factor and that factor seemed to have been overlooked in the agencies’ rather cursory environmental assessment report.

Alas, this, too, got them nowhere. So it was off to court, where Denver’s 10th Circuit Court of Appeals issued an emergency stay of all construction. On the very day that construction was to have started, the claws of several bulldozer blades stood silent. Were it not for millions of taxpayer dollars already spent on a project that still had question marks hovering overhead, you could say those who filed suit saved the day.

Asimilar set of circumstances led to the Legacy Highway debacle, a project that has cost Utah taxpayers millions after a federal judge in Denver ordered construction stopped in November of 2001, ruling that UDOT and the Army Corps of Engineers had produced an inadequate environmental impact statement. Not only did taxpayers foot the $18 million for that incomplete report, they continued to pay the project’s contractor even after construction was halted. For Legacy Highway opponents, who complained as far back as 1998 that UDOT’s environmental impact statement for the project was mere rah-rah puffery, it was an expensive occasion to say “I told you so.”

The parallels to the proposed I-15 interchange at 11400 South are familiar, albeit on a smaller financial scale, and with a lot less publicity: A questionable environmental study is followed by citizen protest and an eventual 10th Circuit Court order halting the project until further review.

It was 1996 when Sandy City went through an interchange justification report that made the rounds through the Federal Highway Administration and UDOT. The area has two freeway interchanges at 10600 South and 12300 South siphoning traffic. But city officials then, and city officials now, wanted another interchange. It hit the bull’s eye through three separate municipalities: Sandy to the east of I-15, South Jordan to the west of I-15, and Draper to the south of 11400 South. As news of the interchange emerged, it was clear that all three municipalities wanted it. Not only was it slated on South Jordan’s master plan, but on UDOT’s as well. The Wasatch Front Regional Council, a collection of municipal governments, also pinned it to its master plan.

It was to arrive in two parts. The first would construct the interchange at I-15. The second would expand and extend 11400 South from 700 West to 1300 West. The second phase would also build a bridge across the Jordan River and a publicly owned portion of the Jordan River Parkway, a designated public park. Once finished, this five-lane highway bisecting a park would displace several historic homes, triple noise levels and carry thousands of cars per day through a community of 119 residences, churches and businesses.

Brad and Nicole Davis, a married couple with professional résumés in high tech, owned a house in Draper close to all this prospective action. But their objections to the proposed interchange went far deeper than the expected “not in my backyard” reflexes. Brad Davis, a computer engineer, looked at the traffic-flow data supporting the project and found it wanting.

“That’s when you start to ask, ‘Is this legal?’ It went downhill from there,” he said. “No one could explain what the need for this interchange really was.”

Part of the need was about sales-tax revenue—and city officials made no bones about it. Wal-Mart purchased a parcel in South Jordan, the northwest quadrant of the future interchange, and had plans there for a big-box store.

It seemed like a rush job, too. With so much environmental and community impact at stake, for UDOT and the Federal Highway Administration to issue a FONSI instead of an EIS on the project seemed almost absurd. The Davises attended the public meetings, wrote letters to UDOT and the Federal Highway Administration, then finally, in January 2000, filed suit. Both agencies, the Davises felt, had shirked the legal requirements of NEPA, failing to produce an environmental assessment report of any worth.

“UDOT basically turned to us and said that their environmental assessment was just fine and that we were a bunch of farm hicks,” Nicole Davis said. “It really chaps our hides that state and federal agencies conspired to break the law. They looked us in the face on more than one occasion and lied.”

Kent Player joined the Davises in their suit, as did four other residents of the area.

“It was not a good plan. I did not see evidence of long-range planning in it,” said Player, who lives almost across the road from the Davises’ home. “It would have had a major exit dumping a whole lot of traffic down a lane you couldn’t even split down the middle. I just said, ‘You guys can’t do this. It’ll kill us. You’re dumping a whole lot of traffic onto something that’s essentially a cow trail.’ They said, ‘Well, that’s the city’s problem.’ Once I found out a little more and attended court sessions of them trying to defend their plan, I found there was no defense. They didn’t follow the proper sequence.”

Oh, but they did, said U.S. District Judge Tena Campbell, who denied a preliminary injunction of the case. The Davises and their lawyer, Jeffrey Appel, a noted environmental attorney, appealed Judge Campbell’s ruling to the 10th Circuit Court in Denver, which issued an emergency stay on all construction of the interchange in July 2001 and agreed to hear an appeal by early September 2001. After a year’s review of 10,000 documents, the 10th Circuit Court in June 2002 officially reversed Judge Campbell’s ruling, sending the case back to Utah’s federal district court with a preliminary injunction barring further construction pending resolution of the case. By this time, UDOT, under the authority of the Federal Highway Administration, had purchased 20 to 25 acres of land in the area for an estimated $8 to $10 million—a UDOT spokesperson wasn’t sure of the acreage or dollar amount—even though they had no guarantee they’d be able to use it.

The agencies might have guessed that results wouldn’t be better the second time around. The decision came just seven months after UDOT and the Federal Highway Administration had gotten their collective butts kicked by the Denver court over the Legacy Highway. In both cases, finger-pointing landed in the direction of an incomplete, inadequate environmental study. In the case of the proposed 11400 South interchange, the 10th Circuit Court outlined five major flaws of the environmental assessments: a dearth of consideration for alternatives to the project; an inadequate consideration of impacts; failure to address the impacts of the project’s construction time-line; failure to satisfy the requirements of an interchange near a public park and historic sites; and, lastly, vague and unsubstantiated conclusions.

But legal lists are never more interesting than the particulars behind them. Environmental assessments and their consequent findings of either an EIS or FONSI can begin in several ways, but it’s routinely the Federal Highway Administration that reviews and eventually accepts or rejects them. In this case, the 10th Circuit Court found evidence that Sandy City required its engineering firm to prepare a FONSI from its environmental assessment, rather than let the assessment itself determine whether a FONSI or an EIS was appropriate. In other words, key players allegedly had their minds made up in advance.

The court also found that, even though the Federal Highway Administration had been warned in a memo by its law firm that the environmental assessment gave short shrift to project alternatives, it signed on to Sandy City’s inadequate assessment regardless. And in this case, the court document states, the Federal Highway Administration “failed to conduct a sufficient independent review” of the initial work that went into the environmental assessment and its biases in favor of a FONSI.

When UDOT protested that delaying interchange construction would inflict “significant financial penalties,” the court scoffed, calling those costs self-inflicted. The agency should have given more care to ironing out the project’s environmental issues before entering into business contracts. “In this sense, the state defendants are largely responsible for their own harm,” according to the court ruling.

The 10th Circuit Court took issue with the traffic studies used in support of the interchange’s necessity. The same report used by UDOT and the Federal Highway Administration to justify the project also points out that traffic benefits might just as easily be obtained by expanding capacity at the existing interchanges of 12300 South and 10600 South and construction of a new highway crossing at 9800 South. Why had that alternative been glossed over?

Even the Environmental Protection Agency, the custodian of the Environmental Protection Act requiring environmental assessments before highway construction begins, sent a September 2000 letter to UDOT and the Federal Highway Administration warning them that the project’s direct impacts may not have been properly identified and assessed. “The EPA’s viewpoint on this issue is undeniably relevant,” according to the court decision.

The 10th Circuit Court also had a stinging aside for the prior decision of Judge Campbell. During the appeal hearing, UDOT and the Federal Highway Administration offered a graph and map of anticipated growth in and around the project area, but failed to show how the building, or absence, of the project would affect growth.

“That map,” according to the 10th Circuit Court ruling, “merely confirms plaintiff’s claim that the 11400 South corridor remains in large part an island of open space in a sea of development. Defendants’ refusal to study the possibility that the relatively unspoiled nature of this local area might be due, at least in part, to the present lack of a major roadway through it is arbitrary and capricious, and the district court abused its discretion in ignoring this factor in its analysis.”

Jeffrey Appel sees a pattern that follows Utah transportation projects almost like a dark shadow. When UDOT drilled its way through a mountain as part of the Provo Canyon Highway, the project ran into problems with landslides and water run-off, and was penalized for environmental violations impacting the Provo River. For a 1.2 mile project, it was also extremely expensive at $45.5 million. Due to an inadequate environmental impact statement, the Legacy Highway project is now starting from scratch. The struggle over 11400 South adds another to the list.

“I’ve been concerned for a number of years about UDOT’s apparent unwillingness to let the NEPA process do its job,” Appel said. “NEPA represents a planning tool that would, if properly applied and implemented, find the most cost-effective and environmentally conscious approach to meet a given purpose and need for a traffic improvement. In my experience, UDOT has consistently decided which project they want and then manipulated the NEPA process to reach that pre-selected alternative. As a result of that approach, we have needlessly wasted tens and tens of millions of dollars during fairly difficult economic times and ended up with projects that cost far more than they should have because proper science was not done. The perfect example of the latter problem is the Provo Canyon Highway. As to 11400 South, this overt bias was duly noted by the 10th Circuit.”

The 10th Circuit Court’s thunder was, in a sense, stolen. As luck, fate or chance would have it, UDOT secured more money for the 11400 South project just days before the 10th Circuit Court ruling in June 2002, allowing it to enlarge the scope of the interchange. Instead of extending the interchange to 1300 West, it could now be taken as far as Redwood Road. As a result, UDOT and the Federal Highway Administration scrapped the original environmental assessment and its FONSI just days before the Denver court’s ruling. It would be hard to argue that the ruling didn’t vindicate the original concerns of the Davises, Player and four other plaintiffs. But because it was now essentially a different plan, the practical effect was to send the whole project back to square one.

In October of last year, U.S. District Judge Paul Cassell was assigned to re-hear the case. When UDOT said it wanted to go ahead with the expanded project, but this time with an EIS at the helm, Cassell declared the complaint moot.

Nicole Davis has her own thoughts on why the FONSI suddenly disappeared. “I think, potentially, that UDOT asked the highway administration to withdraw it because doing so would give them more control over the project,” she said. “My guess is that they accelerated that once they saw the 10th Circuit Court’s decision coming down.”

What’s left today, almost a year after the 10th Circuit Court’s decision to send the case back to the U.S. District Court in Utah, is a variety of sentiments. For the Davises and their attorney, it’s a sense of lingering distrust. If UDOT and the Federal Highway Administration couldn’t do this project right the first time, what makes everyone so sure they can do it right the second time by scrapping the FONSI and starting anew by conducting an EIS? They may yet file another appeal back to the Denver court.

Amid all the enthusing, questioning, and possible future wrangling is the property along 11400 South Street itself. If it weren’t smack dab in the middle of three municipal lines, any fair observer would swear it looks like a little bit of post-war Bosnia. A house on the north side of the frontage road caught fire late last year. Others are boarded up. Some of the properties were condemned by UDOT. Others were bought. No homeowners were evicted from their houses, but a few renting tenants were.

At the outset of the project, UDOT recognized early on that the area held historic significance. More than 100 years ago it was known as Crescent, a collection of farms and homesteads making up one of the first pioneer settlements in the south part of the Salt Lake Valley. When Crescent’s heydays fizzled in the 1930s, its remaining structures stood as prime examples of a community where residential and agricultural developments evolved side by side. The Utah State Historical Society is charged with preserving such areas where at all possible, pragmatic and desired.

The Society agreed with UDOT that the site and several of the homes had historic value. Preservation, as it turned out, wasn’t possible when so many people wanted to see the interchange built.

“One possibility was moving the project some distance down,” said Roger Roper, deputy state historic preservation officer with the Utah State Historical Society. “But they had their traffic studies, and everyone agreed that a build was what was needed. It’s a different story when a city opposes it, but when everyone is saying ‘yes, yes, yes we want it,’ it’s hard.”

Instead, UDOT and the Historical Society worked to sell as many of the houses as they could, offering to help buyers transport them off the property. But the buyers never showed up, and once turned over to UDOT, the houses quickly became vandalized.

“It was a learning process. It didn’t work out perfectly,” Roper said. “Some of our plans were really like Monday morning quarterbacking. None of us had ever tried something like this before. I think everyone was surprised, too, by how much vandalism occurred.”

Roper doesn’t blame UDOT. At least the presence of some preservation plan showed, he believes, that the department wanted to be “more than just pavers of asphalt.”

As a resident, Player drives past the languishing properties several times a day. Less than six months ago, after the house fire, UDOT finally fenced it off. Player has asked why the structures aren’t just torn down. The answer he said he’s received, that UDOT can’t do anything with the property because of the lawsuit, hasn’t set well. “It’s a hazard right now. It’s an issue, and I don’t get good answers,” Player said. “Some of them were good houses and could have had people living in them for several more years. But that’s done now. The houses are trash.”

UDOT can’t say when the houses might be razed, only that it’s listening to the concerns of residents and the municipalities. “We want to be a good neighbor in any community we’re in. There are also requirements on how to maintain property. We’re trying to find that balance,” said Joe Kammerer, a project manager with the department.

Player is hoping for balance of a different kind, maintaining suspended hope that the transportation agencies may yet do the project correctly. But he must first see a study that persuades him of the need for the interchange. “I suppose that eventually 11400 South will cross the valley. But as to whether or not it’s needed right now, I don’t think we have good studies to show one way or the other,” Player said.

The Federal Highway Administration, which manages and reviews all documents and processes in coordination with UDOT, won’t exactly admit that someone, somewhere failed to dot all i’s and cross all t’s. Rather, it’s better to say that the 10th Circuit Court “pointed out some more issues that needed to be addressed,” said David Gibbs, division administrator for the Federal Highway Administra-tion’s Utah office.

“As an agency of the government, we’re charged to follow the NEPA process,” Gibbs said. “That doesn’t mean that people can’t disagree with what we do. That’s basically it. You make the best decisions on the facts of the project.”

The issues brought to fore in the 10th Circuit Court ruling, Gibbs said, will be taken into account when UDOT and the highway administration proceed on a new EIS for the 11400 South project.

Angelo Papastamos, the first project manager for the 11400 South interchange, wasn’t the least surprised to find the Davises filing suit over UDOT’s environmental assessment.

“Not at all,” Papastamos said. “We had been working with them from day one. They didn’t want the project to happen, and they were going to do whatever they could to stop it.”

The Davises find it ironic that Papastamos now leads UDOT’s Context Sensitive Solutions Program, which helps ensure community involvement and input regarding transportation projects and proposals, apparently to prevent suits such as the Davises’ before they get started. Nicole Davis said she and her husband never wanted to stop the project no matter what. They simply wanted UDOT and the Federal Highway Administration to follow the law as spelled out by NEPA: study the area of proposed construction for environmental impacts, then solve the transportation problem in “the least impactful manner.”

“This was never about stopping it at all costs,” Nicole Davis said. “It was about making sure our agencies follow the law in its totality.

“I think Angelo was not sensitive to the concerns of this community at all. He basically acted as if we had no recourse to UDOT’s plans.”

The Davises’ thorough scouring of UDOT’s activities has uncovered evidence, they believe, that UDOT has not always acted in good faith. Court documents show that the state transportation agency finalized two eminent domain orders for immediate occupancy of two properties on the proposed construction site after the 10th Circuit Court of Appeals issued an emergency stay of all construction. The orders were finalized Aug. 8 and 10, 2001. The Denver court issued its stay July 9, 2001.

Such actions are well within the parameters of the court order, said project manager Kammerer. “It [the court stay] only relates to construction, not the purchase of right of way. That’s pretty clear in this case,” he said.

For the Davises, it’s proof that UDOT’s determination to pursue the project remains crystal clear. “If you’re not supposed to construct, why would you condemn and purchase property?” Nicole Davis asks. “Especially when the court says you’re not following the law?”

Evelyn Tuddenham, public involvement coordinator for UDOT, insists that the department has no hard and fast plans for the 11400 South area following the rulings of Judge Cassell and the 10th Circuit Court. “We don’t know what we’re going to do. Truly we don’t. That’s one of the things we’ve been very staunch about,” Tuddenham said. “We’re looking at whatever is out there to give us clues about what will work and what the people want.”

That’s easier said than discerned. But discerning the desires of surrounding municipalities is easy. While the Davises have never found UDOT’s traffic studies in support of the project convincing, the city of Sandy needs no convincing at all. Traffic and congestion regularly rank in the top-five concerns of Sandy residents, and it’s convinced that an additional interchange will spread cars more evenly and quickly.

Sandy, for the most part, is built to capacity. But surrounding cities like Draper, South Jordan, Riverton and even the northern end of Utah County have seen significant growth, putting traffic pressure on the city, said Nick Duerksen, assistant for community development in Sandy.

“There’s no doubt the interchange would add another point of access to our commercial areas, but the primary aim is just to get existing traffic down and get better access to and from existing areas,” Duerksen said.

The reverse seems true for nearby South Jordan and Draper. They, too, welcome any diminishing of traffic as a result. But they also relish increased access, in this case to planned big-box developments. South Jordan’s anticipated Wal-Mart aside, Draper City Manager Eric Keck said big-box retailers along the Draper area of the interchange are in the pipeline, although he can’t name names.

“We are obviously supportive of the interchange because it will promote economic development around the corners of our boundaries,” Keck said. “Beyond that, if we don’t improve 11400 South, the 123rd interchange will need to be widened to some ungodly width to handle all that traffic.”

Clark Labrum, development services director for South Jordan, chimes in as part of the 11400 South interchange fan club. It’s about sales-tax proceeds and better east-west access for your constituents. South Jordan’s Wal-Mart is not a done deal. Even if it were, South Jordan could still use the interchange. “I think it would be mutually beneficial to all three cities, really,” Labrum said.

Given its size, controversy and, so far, perpetual ability to attract publicity, Legacy Highway has a more neatly defined beginning, middle, and possible end than does the proposed interchange at 11400 South. A lot of weeds will have grown around those houses by the time UDOT expects to issue its EIS some two and a half years from now. By that time, foes and fans of Legacy might have finally settled their differences, even as the Davises and other plaintiffs might start a new round of contention.

For Brad and Nicole, it’s been a lesson about how to handle the arrogance of transportation agencies and a study in citizen diligence.

“As a citizen, it has been very chilling for me. I call UDOT a rogue agency. I’m happy to say that publicly, because they look at the facts and then do what they want,” Nicole said. “We have an agency that’s been criticized twice in nine months by a higher court, and no one in our legislative branch seems to have asked for an accounting of that agency, and that surprises me.”

Keck empathizes with the plaintiffs in the case, even as he sees the proposed interchange as an inevitability. Checks and oversight on such a project are welcome and only right. Stopping the march of urbanization is something else altogether. Keck looks at the boarded up houses and charred remains and sees an interchange just waiting to be built. “It is unfortunate. It’s unsightly. It’s also why we’re hoping the project will move more quickly so we can see all that cleaned up,” he said.

“I think it [the interchange] will eventually transpire in the next five years. It’s needed, it’s necessary. I don’t know any other way around not making it happen,” Keck said. “But it really would require an EIS. I think UDOT should have done the right thing, and now they will.”

Nicole Davis is not so sure. “This is not something we’ve taken lightly,” she said, referring to the time and money she and her husband have put into the case. “If they can do this here, where else can they do it?”