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Lawyer says state funding in error for I-630, I-30 projects

by Noel Oman | February 20, 2019 at 4:30 a.m.
FILE — Traffic flows along Interstate 630 in Little Rock as construction crews work on a widening project in this Jan. 4, file photo.

Attorneys on opposing sides of a lawsuit challenging the use of state sales-tax revenue on high-profile road construction projects on Interstate 30 and Interstate 630 traded barbs in a sometimes spirited hearing Tuesday before Pulaski County Circuit Judge Alice Gray.

Justin Zachary, the lead attorney for the plaintiffs in the lawsuit, called no witnesses in his bid to win a preliminary injunction, which state highway officials said would halt work on the I-630 project. He pointed to language in Amendment 91 to the Arkansas Constitution limiting spending of certain tax revenue on four-lane highway projects. I-630 is a six-lane thoroughfare while the I-30 work is limited to a section that has six lanes.

"That's the best evidence -- the language itself," he said.

But Rita Looney, chief counsel for the Arkansas Department of Transportation, scoffed at what she saw as the paucity of Zachary's case.

"They can't come in and ask this court for a preliminary injunction without offering any evidence. ... They've made allegations, but they've not presented any evidence of irreparable harm to this court," she said.

At the end of a 3½-hour hearing punctuated by two breaks, Gray asked for additional legal briefs to "give everybody a chance to collect their thoughts" and said a ruling could come late next week.

Zachary, a Conway lawyer, represents five residents who filed suit on Nov. 7. The lawsuit said that a "plain reading" of Amendment 91, which governs much of the money spent under the $1.8 billion Connecting Arkansas program, limits the funding of improvements to four-lane highways or two-lane highways being widened to four lanes.

Connecting Arkansas is a Transportation Department initiative that focuses road construction on regionally significant projects. It is financed in large part by a half-percent sales tax contained in Amendment 91, which voters approved in 2012. The tax is in place for 10 years.

The projects on I-30 and I-630 involve six lanes, which the lawsuit said makes them ineligible to be part of the Connecting Arkansas program.

I-630 between Baptist Health Medical Center and South University Avenue in west Little Rock is in the midst of an $87.4 million widening of the 2.5-mile section to eight lanes.

Construction on a $631.7 million project to improve the I-30 corridor through downtown Little Rock and North Little Rock, including replacing the Arkansas River bridge, is expected to begin next year.

The amendment language defines "four-lane highway improvements" to include "four-lane roadways, bridges, tunnels, engineering, rights of way and other related capital improvements and facilities appurtenant or pertaining thereto, including costs of rights-of-way acquisition and utility adjustments."

The language also includes "the maintenance of four-lane highway improvements constructed with proceeds of the bond" within the definition of "four-lane highway improvements."

The amendment contains other references to four-lane highways, including that the bonds issued as part of the program are payable from the Arkansas Four-Lane Highway Construction and Improvement Bond Account.

"There is simply no basis in Amendment 91 for four to mean anything but four," Zachary told Gray.

But Looney countered that the other language in the amendment, contained references to highways without a number of lanes attached to it. The reference included, among others, the ballot title and the section on intent:

"The state has an outdated and inadequate system of highway funding that is unable to meet the severe and pressing needs to maintain and improve the state's system of state highways, county roads, and city streets."

Over the objections of Zachary, Looney tried to elicit testimony from Scott Bennett, the director of the Transportation Department.

He wrote the report for the Governor's Blue Ribbon Committee on Highway Finance, which recommended improvements on what the report referred to as the Four-Lane Grid System, a system of highways that included the interstate system and highways exceeding four lanes.

Bennett provided staff support for the commission before he was elevated to director in September 2011.

"This report was the basis for Amendment 91," he testified.

But Zachary objected to Bennett's testimony as hearsay because he wasn't a committee member, which Gray sustained.

Zachary also was successful in his objection to Bennett's testimony surrounding a Highway Commission order approved in May 2012 that outlined the projects that would be completed if Amendment 91 passed, which included the work I-30 and I-630.

The order was passed after the Legislature referred the proposed amendment to voters, he said. "It's not relevant."

Zachary's case took hits, too, such as when Gray grappled with "irreparable harm," which is a legal hurdle that must be overcome in establishing the legal basis for a preliminary injunction.

"I don't know that this court can find irreparable harm," the judge said.

"Money is being used outside the purpose of the amendment," Zachary responded. "What we're doing is protecting these funds."

"The only way to stop the money from being spent is an injunction. There's no other way. If we had another way, we'd be pursuing that, too," he added.

At other points in the hearing, Looney suggested the "irreparable harm" would come if construction stopped on I-630, leaving motorists with a narrow, unsafe route and a partially constructed bridge.

Vincent France, an assistant attorney general who is representing Gov. Asa Hutchinson and other elected officials who are defendants in the lawsuit, said he and his children must go through the construction zone every day.

"You're decision isn't made in a vacuum," he told Gray. "There are real-world consequences."

France noted the concrete barriers would remain in place and constitute a danger to the taxpayers who drive on the route.

No matter how she ruled, "the barriers will remain up, anyway," Gray countered.

Metro on 02/20/2019

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