Project Connect is about to have its big day(s) in court. Specifically I mean the core element of Project Connect, Austin’s proposed light rail system. This is also the latest lawsuit challenging the legality of policies passed by City Councils when Steve Adler was Mayor. That was from January 2015 to January 2023. As we have covered here, the City has been on a legal losing streak when sued over policies from the Adler era; see here and also here.
The lead attorney challenging Project Connect is Bill Aleshire, former Travis County Judge from January 1987 through December 1998. Aleshire has been victorious in several cases against the City — sometimes as the lead attorney and other times as part of a legal team. In this case Aleshire is working with co-counsel Rick Fine.
The plaintiffs are familiar Austin names as well: former State Senator Gonzalo Barrientos, current Travis County Commissioner Margaret Gomez, former Austin City Council Member Ora Houston, Susana Almanza, longtime leader of PODER (People Organized in Defense of Earth and her Resources) and Dirty Martin’s, the famed burger joint on Guadalupe near 29th Street — along the path of the proposed light rail line.
The suit is specifically against the sitting Austin Mayor and City Council and the Austin Transit Partnership Board (both in their official capacities). The Austin Transit Partnership (ATP) is the organization put together by the City and Capital Metro to oversee design and construction of the light rail line.
As part of that deal the City has agreed to turn over funds to ATP from the City property tax increase (8.75-cent per $100 valuation, a 20.78% tax increase) approved by voters in 2020 to pay for the rail system. In the lawsuit Aleshire maintains that this is “the biggest property tax increase in the history of the City of Austin.”
The plaintiffs maintain that this funding arrangement is not allowed under state law — at least not in the manner that the Adler Council did it — and are seeking to void it. One of their points is that the election was not framed as a bond election, yet the Austin Transit Partnership is planning to issue bonds and incur debt.
The plaintiffs also cite an opinion from the Office of Texas Attorney General Ken Paxton to buttress their case that the financing mechanism is not legal under Texas law.
In addition to challenging the funding mechanism the plaintiffs also maintain that the ATP Board and the City Council violated their “Contract With the Voters” by slashing the size and scope of the project due to cost overruns; rendering the planned light rail system much smaller than what was promised to voters. If Aleshire and the plaintiffs win on either of these points it would be crippling for Project Connect and could possibly lead to a new election, potentially a bond election as soon as November.
Of course the fact that Aleshire has clobbered the City on more than one other case related to policies from the Adler era doesn’t automatically mean that the City is going to be on the losing side again. After all, even the worst teams win sometime. And each case is different with differing legal circumstances.
The court date in the ongoing case is June 17 at 10 AM before Judge Eric Shepperd.
The City Fights Back
In a January KUT-Austin Monitor story, Mayor Kirk Watson defended the rail project, saying: “The voters of Austin spoke loud and clear in 2020 when they overwhelmingly approved the funding mechanism needed to build, maintain, and operate light rail. Some folks didn’t like what the voters had to say, and they’ve tried to kill this project first in the Legislature and now in the courts.” Watson also led the ATP board in passing a series of legal amendments earlier this year that are apparently meant to address issues in the lawsuit.
Some folks didn’t like what the voters had to say, and they’ve tried to kill this project first in the Legislature and now in the courts.”
mayor kirk watson
Watson is correct that the plaintiffs, at least some of them, were against Project Connect during the election, and that some Project Connect opponents tried unsuccessfully to get it overturned at the Legislature. On the other hand the core of the plaintiffs’ legal argument is that the current version of Project Connect is only a shell of what was promised and that Austin voters “are not getting anything close to the benefit of the bargain they made in the Project Connect ‘Contract With the Voters.’”
The fact that the rail project has been drastically scaled back is not in dispute. The estimated cost of the original proposal ballooned from $5.8 billion approved by voters in November 2020 to $10.3 billion by 2022; a 77% increase, close to double the original estimate. In response, ATP began a process to scale back the system. The ATP Board, the City Council and the Capital Metro Board all approved the scaled back version in June 2023.
Whether that is a legal problem for the City and ATP is a central legal question in the case.
Did “Overpromising” Create Legal Problems for Project Connect?
In March 2023, when ATP announced the plans to scale back the rail system, ATP Executive Director Greg Canally engaged in a moment of frankness and leveling with voters. “The days of overpromising are over,” Canally proclaimed. He added, “We’re going to be transparent about our cost and how we’re going to live within our budget.” Canally was clearly attempting to be straightforward and announce a new, more transparent era for Project Connect. His statement, however, could also be read as an acknowledgement that those who convinced voters to approve the system (then Mayor Steve Adler, the City Council and Capital Metro) were “overpromising” and not being “transparent.”
It should come as no surprise that this is something Aleshire seized upon. In the lawsuit Aleshire cites Canally’s quote and describes it as “an admission. . . that voters were misled in November, 2020 when they approved the city tax increase.” Aleshire continues, “On June 6, 2023, the Austin City Council and ATP drastically amended The Voter Contract without even seeking voter authorization or reducing the Project Connect Tax. They unilaterally adopted a Replacement Plan, that in the context of consumer-protection law would be called a ‘bait and switch’ because it is so inferior to what voters ‘bought.’”
“They (City Council and ATP Board) unilaterally adopted a Replacement Plan, that in the context of consumer-protection law would be called a ‘bait and switch’ because it is so inferior to what voters ‘bought.’”
Lawsuit against project connect
The City and ATP, however, maintain that they have done nothing wrong or illegal. In a motion for declaratory judgment lawyers representing the City and ATP argue: “The City made clear that the Project Connect System Plan was a long-term vision and reserved discretion to further refine Project Connect as designs advanced.” They explain cost overruns as follows: “Following the passage of Proposition A, as ATP moved from conceptual design toward a preliminary design and engineering package for the Light Rail Components, dramatic increases to the preliminary cost estimates began to surface, primarily fueled by the effects of the COVID-19 global pandemic, which were only beginning to appear at the time of the November 2020 election. Three significant cost drivers had grown with the changed economy and advancing design: (i) increases in real estate costs, (ii) inflation and construction cost escalation, and (iii) scope refinement through advancing design.”
“The City made clear that the Project Connect System Plan was a long-term vision and reserved discretion to further refine Project Connect as designs advanced.”
From City of Austin and Austin Transit Partnership response to lawsuit
The City and ATP also maintain that they had every right to scale back the system without an election, due to the overruns; “On June 1, 2023, the City Council and Capital Metro Board of Directors both adopted the Austin Light Rail Implementation Plan. This action was fully authorized by the Companion Resolution (a resolution passed by the 2020 Council when they set the ballot), in which the City reserved discretion to modify Project Connect and the sequencing of its components with the joint concurrence of City Council and the Capital Metro Board of Directors.” They add, “The City and Capital Metro followed cost estimating methodologies that were in keeping with industry practices.”
As to the Attorney General’s opinion on the financing mechanism, the City and ATP argue that the Attorney General’s Office has approved similar financing arrangements in other cases.
The City-ATP response also repeatedly uses the same argument that Watson made in his public statement, that the project was approved by voters and that opponents who lost in the election are still trying to kill it. For instance they write, “Voters overwhelmingly approved Proposition A and the vision for Project Connect.” That was with “57.97% voting in favor” with “an overall turnout of approximately 71% of registered voters, setting a record for the number of votes cast in a City election.”
They conclude, “The Austin Light Rail Implementation Plan is consistent with the City’s contract with its voters.” They ask that the Judge “grant a declaratory judgment” and throw out the plaintiffs’ case.
The Realities of Project Connect Outside the Courthouse
The lawsuit and the City-ATP request for a declaratory judgment are even more complicated than I have been able to relate above. The result will come down to legal and judicial rulings which we would be unwise to try and predict here. From both political and governance standpoints, however, the suit seems pretty devastating. Let’s take a look at that.
The result will come down to legal and judicial rulings which we would be unwise to try and predict here. From both political and governance standpoints, however, the suit seems pretty devastating.
Shortening the Main Line
Voters were told that the core rail line, dubbed the “Orange Line” would stretch from Guadalupe and US 183 south to Stassney and South Congress. Along the way it would pass through the University of Texas area and downtown. Under the revised plan it will still serve the UT and downtown areas, but will only stretch from Guadalupe and 38th Street to Oltorf and South Congress. That’s 9.8 miles now compared to 20.2 miles advertised to voters. (The map below, from the lawsuit, shows the originally planned Orange and Blue lines with blue marks drawn to show the reduced boundaries of the system.)
A map from the lawsuit showing the originally proposed Orange and Blue Lines with blue marks drawn to show the diminshed reach of the planned system now
The deleted section north of 38th Street to US 183 is now listed on ATP maps as “Austin Light Rail Phase 1 Priority Extension,” although no funds for such an extension have been identified.
South Austin gets even more of the short end. The once abandoned section from Oltorf to Stassney is now listed at “Future Light Rail,” also with no identifiable funding source.
Dreams of a “Downtown Transit Tunnel” Drift Into the Ether
Also promised to voters was a “Downtown Transit Tunnel.” That was meant to make train movement downtown more efficient and out of traffic. As a pre-election brochure from the City explained, “Light rail is proposed to travel underground downtown. The City expects operating rail service beneath the streets to increase the system’s travel time reliability and to be safer than operating at street level.”
The tunnel was envisioned to include connections to other trains, retail and restaurants, wide pedestrian corridors and lots of art.
The downtown transit tunnel, turned out to be one of the biggest parts of the cost overruns. It was scrapped completely. That means trains will now have to be in traffic going through downtown — barring some other above ground solution.
Not Quite to the Airport – Maybe an Uber from There
Another line, the Blue Line, was promised to serve the Austin airport; the airport being a particularly popular option in public surveys. The Blue Line would run the same route as the Orange Line from N. Lamar and US 183 to downtown. Then it would turn east, run through the Rainey Street area, cross the river and then run along Riverside Drive through Montopolis, then to the airport.
Under the new plan the line won’t quite get to the airport. Instead it stops just past Montopolis, at a stop called “Yellow Jacket.”
(The graphic below is a rendering of the then proposed “Downtown Transit Tunnel” at the Republic Square Station. It comes from a 2020 Capital Metro slideshow provided as public infomation during the election. Note that near the top right is a sign for a train to the airport. Shops and restaurants are also shown along the corridor of the tunnel. The train to the airport and the entire tunnel idea have been eliminated from the plan due to cost overruns.)
Montopolis Gets the Maintenance Yard in New Plan
The failure to extend to the airport also appears to have resulted in the maintenance yard for train cars and the light rail system being designated for a site near Montopolis area neighborhoods (see large green dot in the southeast of the map at the very top). During the election no site was determined for the maintenance yard. According to the plaintiffs, a September 2020 “methodology study” ranked the site low. They quote the study saying that was in part because, “It is adjacent to housing which would likely be viewed as an incompatible use by the adjacent neighborhood.”
Now that site is in the plan as the future location of the maintenance yard for Austin’s light rail project.
Green Line to Colony Park No More
A third line was promised from downtown to East Austin’s Colony Park. Called the Green Line, this was a key part of Project Connect’s focus on equity and serving the “BIPOC (Black Indigenous and People of Color)” community. The Green Line was included in 2020 promotional materials which said it would be designed and built in years 8 through 13 of the project. (The Orange and Blue lines would be designed and built in years 1 through 9.)
Here’s a note on a slide (see below) from a “Summer 2020” Capital Metro slideshow called “Project Connect System Plan Overview:” “The Initial Investment includes commuter rail service from Downtown Station to Colony Park.”
In the new plan the Green/Colony Park Line has been scrapped entirely. The Green Line is still shown on ATP maps, but does not even get the “Future Light Rail” designation given to the Oltorf to Stassney and 38th to US 183 lines. Instead an ATP map now identifies it as “Proposed Light Rail (see map of new system at top),” even though it was identified on official documents during the election as part of the “Initial Investment.” (Below is another slide from Capital Metro’s “Summer 2020” slideshow which was shown as public information as the election approached. This slide shows a map of the Green Line to East Austin, including Colony Park, and lists some attributes of the line.)
This slide from Capital Metro’s “Summer 2020” slideshow which was shown as public information as the election approached. This slide shows a map of the Green Line to East Austin, including Colony Park, and lists some attributes of the line.
So, regardless of the court outcome, Austin’s planned rail system is already only a fraction of what was promised to voters. If the court rules in favor of the City and ATP, then the diminished system will likely move forward. On the other hand, if the Court rules in favor of Aleshire and the plaintiffs, voters could face a new election asking them to approve the scaled down system for at least the same amount of money. That would be a tough decision, even for some strong backers of rail.
Rail and Me
In closing, I want to acknowledge that I have been a longtime supporter and advocate for light rail in Austin. A fundamental reason I believe in rail is that I have ridden systems around the country and seen that they work, and that they provide an alternative to dependence on the automobile.
I was even fortunate enough to ride successful systems around the world: including the Japanese Shinkansen/bullet train; in Mexico City; Vancouver, British Columbia; and in London; Paris and Amsterdam. In the United States I have ridden successful systems in Portland, Oregon; Seattle; Washington D.C.; New York City; in California, CalTrain, San Francisco MUNI and Bay Area Rapid Transportation (BART); and last, but definitely not least, in Dallas and Houston.
While these systems differ in various ways, they all provide a way to get around and explore these cities and regions without a car. That is except for the Shinkansen, a national system, which to me is an almost unbelieveably wonderful way to explore Japan; with more traditional trains picking up the slack where the Shinkansen does not go.
I believed that a rail system was possible in Austin and that it could help provide an alternative to our dependence on the automobile, while helping address climate change. Transportation is Austin’s weakest point on climate change, as we are almost totally car dependent, with all the greenhouse gas emissions that brings.
I was on both the City Council and the Capital Metro board when a comprehensive rail plan was put before voters in 2000. I was deeply involved in putting the system together and campaigning for its approval. I still think the rail plan in 2000 could have been a breakthrough in Austin transportation. It didn’t happen though. Instead voters narrowly turned down the plan, the same night that Al Gore and George W. Bush deadlocked in the presidential election.
I cannot of course know for sure that the system we proposed in 2000 would have worked or whether it too would have suffered massive cost overruns, or whether some combination of the two would have ensued. I do know that none of the Council or Board members, nor the head of Capital Metro, were holding back from telling the voters about any pending cost overruns, nor were we log rolling various features into the rail plan that would likely win votes, but were unaffordable. I am not convinced that the same is true with Project Connect.
One major factor in the 2000 defeat of light rail was the clever slogan used by opponents: “Costs Too Much, Does Too Little.” While I still disagree that would have been the case in 2000, it sure appears to apply to the 2020/2024 version. And, like I said, if there’s another election the choice would be difficult for even the strongest backers of rail.
(This story was updated to correct the tax increase number in paragraph 5 and to correct that the planned northern terminus of the line is at Guadalupe and 38th Street, instead of Lamar and 38th. I apologize for the errors.)
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