Purple Line Construction Notification Process Under Fire

Governor, transportation secretary said rapid start to construction needed due to delays caused by lawsuit


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Georgetown Branch Trail supporters gathered Monday to protest the trail's closure

Alan Bowser - provided photo

Gov. Larry Hogan and state Transportation Secretary Pete Rahn defended Thursday the rapid start to construction on the Purple Line as criticism mounted over the short public notice about Tuesday’s closure of the Georgetown Branch Trail for tree removal and construction staging.

“I think we were delayed for over year with a ludicrous lawsuit and we were paying millions of dollars in late penalties for not moving forward,” Hogan said at an unrelated ceremony in the Rockville area when asked whether he thought the construction process was moving too rapidly. “We’re not moving too fast at all. It’s been much too slow. I would have preferred to start a year ago.”

Officials including Montgomery County Council President Roger Berliner and Sen. Chris Van Hollen have criticized the public notification process for the light-rail line’s construction. The state’s private contractor on the project, Purple Line Transit Partners, closed the trail five days after announcing it would be closed for four to five years for construction.

Both local officials support the Purple Line, the 16.2-mile light-rail line that will run from Bethesda to New Carrollton when completed. Part of the line is set to be built along the 3.5-mile trail running from Bethesda to Silver Spring.

The state is moving forward rapidly with construction even though the U.S. Court of Appeals in Washington, D.C., continues to weigh a U.S. District Court judge’s order for a new environmental analysis to determine the impact of Metro’s ridership decline and safety issues on expected Purple Line ridership.

The order by Judge Richard Leon, who last year revoked the project’s federal approval, is part of an ongoing lawsuit filed in 2014 by longstanding opponents of the light-rail project. The appeals court reinstated the project’s federal approval in July, which allowed the state to secure a $900 million funding agreement with the federal government and commence construction.

A new lawsuit brought by the same longtime Purple Line opponents that brought the first legal challenge is asking Leon to halt tree cutting on the trail, expected to begin this month. Leon is hearing that lawsuit, which was filed Tuesday.

In a letter Thursday sent to Rahn, Van Hollen wrote “the project appears to be off to a rocky start.”

“I recognize that the delay in the commencement of construction caused by litigation has created planning and other logistical difficulties,” Van Hollen wrote. “Nonetheless, it is imperative that the state agencies and [Purple Line Transit Partners] do all they can to ensure that the affected communities are engaged and informed and that impacts are minimized.”

Berliner on Wednesday wrote to Rahn asking why the notification requirement for the trail closure included in the state’s contract with Purple Line Transit Partners was reduced from 30 days to seven.

Rahn, who also attended Thursday’s ceremony to name the Intercounty Connector after former Gov. Robert Erhlich, said in response to reporters’ questions that the change was made after the contractor and the state reached a mutual agreement to do so. He said he did not know when the change was made. He also said local communities such as the Town of Chevy Chase and trail users, which have protested the sudden closure, shouldn’t have been surprised the trail was closed this week.

“I find it hard to believe that anyone thought the trail wasn’t going to be closed after a year of litigation,” Rahn said. “I believe it’s common knowledge. We have been talking about this. There have been meetings. The fact is we need to get the project going and I do not believe the notice that was given was inadequate.”

Rahn said notification requirements were altered for the trail closure and for construction activity to occur near the Arliss Street tunnel and also at the Prince George’s County site where the project’s groundbreaking took place last week.

“I’ve got to stress that we are having to make up for nearly a year in delay caused by the lawsuit,” Rahn said. “It cost taxpayers’ money for delays. Frankly, it would cost the public far more than is reasonable to have waited another 30 days to have started work when the public clearly would have seen that construction is going to start.”

When asked whether other parts of the contract could be changed by mutual agreement—such as the placement of sound walls or other amenities—Rahn said such commitments would not be changed.

 “I don’t see [the Maryland Transit Administration] or [Maryland Department of Transportation] agreeing to something like removing sound walls,” Rahn said. “I think there’s a huge difference between physical commitments and something like notification on a closure.”

Berliner said in an interview with Bethesda Beat on Thursday that the state should immediately make public all changes to the contract.

“The public that we represent in Montgomery County relies upon documents and commitments made,” Berliner said. “If those commitments are altered, there is an absolute obligation to make the public aware of them.”

He questioned whether there are other changes to the contract that haven’t been made public.

“Let us know what other changes there may be and we can decide if they’re significant or not,” Berliner said, noting that Rahn misjudged “how shocking it was to the community to have the trail closed in such short order.”

“This has started off on the wrong foot,” Berliner said. “Every step along this torturous path has to be done with great sensitivity, transparency and outreach.”

Rahn would not say whether the new lawsuit filed this week will impact the contractor’s plans to begin specimen tree removal along the trail on Sept. 18.

On Wednesday, Leon asked an attorney representing Maryland whether the contractor could postpone the cutting until Sept. 24 to give the judge time to consider a request from the longtime Purple Line opponents for an injunction to halt construction on the trail.

Rahn said the state would respond to Leon later Thursday.

Rahn also said officials are not considering whether to reopen parts of the trail or to create pathways to destinations such as to Bethesda-Chevy Chase High School. He said the trail will be better once it’s rebuilt along the line as planned.

Town of Chevy Chase Mayor Mary Flynn said the state did not notify the town about the trail closure and she dismissed officials’ explanation for the lack of notice.

“I don’t know how they can say this was all because of the lawsuit,” Flynn said. “It’s not like the lawsuit snuck up on them. This is not good business and not good government. I want to know when things were changed. I want to know why there was no outreach to local officials.”

At the event, Rahn questioned the Town of Chevy Chase’s concerns over the trail closure.

“I find it interesting that Chevy Chase refused to put up signs to designate the alternate route for the trail,” Rahn said. “If Chevy Chase is concerned about this, they should cooperate with helping people know how to get through their community.”

Flynn said the town is working with the county to establish an alternate trail route on its streets, but that construction began before an agreement could be reached. She noted the town has not opposed the Purple Line since 2015 and is not a party to the lawsuits.

“The way they’re rolling this out, blaming the town for this—it’s childish,” Flynn said. “If they want people to believe in this project, they need to do it right … I hope we can work this out. I’m confident that we can, but it’s a two-way street.”

UPDATE - 4:50 p.m. - The state responded to Leon's request to delay tree cutting to Sept. 24 by saying doing so would cost an estimated $6.1 million because it would require an approximately two-week shutdown for the local tree-cutting operators. The state also said in the court filing that the plaintiffs' request for a temporary restraining order would prohibit earth moving and tree cutting along the length of the Purple Line route, not just the trail.

The state did however say it would wait until Sept. 20, two days after tree cutting was scheduled to start, so Leon can rule on the broader preliminary injunction request, which is scheduled for a hearing Sept. 19.

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