BART announced in February 2009 that it was moving forward on a $225 million contract to construct the subway portion of its planned extension to Warm Springs, which will tunnel under Central Park in Fremont. The 5.4-mile extension south of the existing Fremont terminal station will be the first stage of BART to Silicon Valley. Furthermore, VTA has announced that notwithstanding the passage of 2008 Measure B in Santa Clara County, BART to Silicon Valley will still be built in phases — and that the agency only intends to apply for federal New Starts funding to build BART as far as Berryessa Station. This proposed first phase would include only two of the six proposed stations and would completely postpone the expensive subway tunnel under Downtown San Jose. In the meantime, though, an additional wrinkle has developed. As we have mentioned before, in order to complete the funding portfolio for Warm Springs, the Metropolitan Transportation Commission diverted $91 million of Regional Measure 2 funds to Warm Springs, away from Dumbarton Rail, on the ground that the Warm Springs project was ready to go, but that Dumbarton was not yet ready. This decision has resulted in Dumbarton Rail being postponed indefinitely. Furthermore, the Alameda County Transportation Improvement Authority approved an over $220 million contribution to Warm Springs. These two contributions, combined, sum up to about one-third of the total project cost for Warm Springs. A lawsuit has now been filed against MTC and ACTIA, protesting the legality of both MTC’s swap of funds and ACTIA’s contribution to the Warm Springs extension. The challenge was filed by former BART Directors Sherman Lewis and Roy Nakadegawa, along with TRANSDEF. (TRANSDEF is a local transportation, environmental, and smart growth advocacy group that has quarreled with MTC over updates to the Regional Transportation Plan. TRANSDEF has also in the past year filed a lawsuit against the California High-Speed Rail Authority concerning the Altamont-Pacheco route alignment dispute, and again for recount of votes on 2008 Measure B, the sales tax for BART to Silicon Valley.)
The Warm Springs challenge is based on two primary arguments. One argument centers on ACTIA’s obligation under Alameda County’s 2000 Measure B. In particular, ACTIA’s Expenditure Plan states that construction funds for Warm Springs may not be used “until full funding for the rail connection to Santa Clara County is assured.” As we reported earlier this week, VTA will apply this year for $750 million of New Starts money from the Federal Transit Administration, in order to build the segment from Warm Springs to Berryessa. These federal dollars account for almost one-third of the cost of the Berryessa extension, and so the complaint filed by TRANSDEF argues that this chunk of money should not be deemed to be “assured” until the federal government actually commits to providing it. Firm financial commitment from the federal government would occur only later, upon execution of a Full Funding Grant Agreement.
The second argument concerns the level of flexibility that MTC has to shift bridge toll revenue between projects. Both Warm Springs and Dumbarton Rail are projects within the Regional Traffic Relief Plan, and thus both are eligible to receive RM2 funds. In addition, MTC is authorized to shift funding between RM2 projects if it determines that a certain project is unrealistic. However, if such funding is shifted, it must be shifted to another project “within the same corridor.” In this case, funding was shifted from Dumbarton, a legitimate transbay corridor, to Warm Springs, which does not lie along a bridge corridor. The two projects serve different purposes. Dumbarton Rail would add an additional east-west transbay rail link; along with a planned intermodal rail/bus hub in Union City, Dumbarton Rail would enhance connectivity for several regional rail services (BART, Caltrain, Amtrak, and ACE) that currently operate in a disjointed fashion in the South Bay. Warm Springs, on the other hand, is a single-station north-south stub extension that would exacerbate BART’s current difficulty with transbay capacity, but without the benefit of enhanced regional connectivity.
Dumbarton Rail alignment; courtesy of BayRail Alliance.
Warm Springs and Dumbarton are in the same general region within the Bay Area, but the relevant question to ask is whether they are “within the same corridor.” If they are, then MTC acted within its discretion by shifting $91 million from Dumbarton to Warm Springs. These two projects will clearly have different effects on transit effectiveness in the region. But a nuance here is that the objective of collecting RM2 bridge toll revenue in the first place was to implement projects that would relieve traffic congestion. It seems then that a reasonable interpretation of “same corridor” boils down to asking whether a certain transit project would have the effect of relieving congestion within the “same corridor” as another transit project. Seen in that light, the correct question to ask is not necessarily whether Warm Springs and Dumbarton are themselves positioned within the same corridor, but rather, whether they would both mitigate congestion in the same corridor. A strictly literal reading of the language “same corridor” seems to suggest that MTC acted in error by transferring the funds; but the latter interpretation weighs more favorably on the side of MTC.
The relief sought in this challenge is an injunction, to withdraw the funding allocations to the Warm Springs extension.