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To compromise or not to compromise, that is the question Longmont leaders must consider when it comes to the overdue commuter rail line that was supposed to connect Longmont to Denver via Boulder.Former Longmont Mayor Julia Pirnack is firmly in the no-compromise...

Longmont on FasTracks: Pursue lawsuit or keep working together?

To compromise or not to compromise, that is the question Longmont leaders must consider when it comes to the overdue commuter rail line that was supposed to connect Longmont to Denver via Boulder.Former Longmont Mayor Julia Pirnack is firmly in the no-compromise...

Longmont on FasTracks: Pursue lawsuit or keep working together?

To compromise or not to compromise, that is the question Longmont leaders must consider when it comes to the overdue commuter rail line that was supposed to connect Longmont to Denver via Boulder.

Former Longmont Mayor Julia Pirnack is firmly in the no-compromise camp. She is trying to get $5,000 together so that a former Colorado Secretary of State can explore whether anyone can viably sue the Regional Transportation District for the lack of a train in Longmont.

Pirnack said in an April 7 interview that since she was one of the people who pushed for Longmont to vote for FasTracks in 2004, she feels that RTD made a liar out of her because the commuter line promised in the FasTracks plan is currently not planned to reach Longmont until 2042.

"I was one of the people who drank the Kool-Aid. I really believed that (RTD) would be honorable and honor the work people did and honor the plan. Here we are more than a decade later and I feel really badly that I somehow misled people because I believed they would deliver what they promised ... I want to hold them to that promise," Pirnack said.

The plan

In 2004, voters in the district approved an additional .4 percent sales tax to the .6 percent sales tax for the FasTracks plan. Part of the FasTracks plan was to build a commuter rail line from Denver to Boulder and terminating in Longmont.

RTD originally planned to negotiate with Burlington Northern Santa Fe for use of the right-of-way along BNSF's existing freight rail lines. But BNSF was only ever willing to give up operating windows on its lines — times when RTD could run its commuter trains that wouldn't interfere with BNSF freight cars.

According to RTD, additional requirements for train cars passed around that time that would have meant that every bridge along the proposed 38-mile corridor would have had to have been raised.

And, added to the increased costs of the project was an unexpected downturn for RTD tax revenues as the Great Recession took hold in 2008 and 2009. RTD representatives have said in the past that the recession also made freight rail traffic cheaper and thus BNSF raised its prices on the operating windows it was willing to offer RTD.

In 2004, RTD officials had estimated that BNSF's cooperation would cost $66 million. A 2012 Denver Post article found that the new estimated cost was $535 million upfront.

The result is that the Northwest rail corridor is currently projected to start when funding is secured, sometime beyond 2040 —36 years after voters approved it. The B Line — which connects Union Station to Westminster — opened in 2016. The B Line is the first part of the projected Northwest rail corridor that is supposed to continue on to Boulder and Longmont.

Exploring a suit

Pirnack said that her plan is to raise $5,000 in order to have former Colorado Secretary of State Scott Gessler explore whether it would be wise to file a lawsuit against RTD for the missing train.

Pirnack said that despite RTD's assurances that it wants to finish the Northwest rail line as much as Longmont wants to see it finished, she is skeptical.

"At the end of the day, I feel like really there was never an intention (from RTD) to do this. To me, this is a classic bait and switch. They won't say that but it'll be after my lifetime," that the rail is built, said Pirnack, who is 60. "Here you've got people like myself who have paid for this thing for half a century and have never gotten a benefit from it, who actively promoted it and got it passed."

Nate Currey, RTD spokesman, said that simply isn't true.

"That narrative has been around for almost a decade because there is this group that is perpetually frustrated and has a real lack of trust with RTD, unfortunately and I understand," Currey said. "We have a legal obligation to build rail and we want to too. The idea that we've been disingenuous about this is just not true. It was never our intent not to build this."

Currey said that RTD's response to possible lawsuits revolving around the Northwest rail is the same as it was in 2015 when people running for Longmont City Council were kicking around the idea.

"Our financial situation has not changed. We have no wiggle room to add any new capacity, especially on a project that size," Currey said.

Pirnack referenced recent reports in The Denver Post that RTD will save money over the long term by refinancing $300 million in federal loans for Union Station in downtown Denver. RTD projected it should save $6 million a year through 2040, or $134 million, according to the Post.

U.S. Rep. Jared Polis issued a news release in February urging RTD to use the money saved to finish the Northwest rail line.

Currey said it would be up to the RTD board of directors on how to allocate the saved money. Two of the 12 directors on the board answer to parts of Boulder County.

Pirnack said she wants to see Longmont or a group of concerned citizens pursue a lawsuit because if RTD was a private business, they would not be allowed to promise a train and deliver more than 30 years later.

"To me, if you're not going to do what you promised, you either refund the money like any good business would or you do it. You build it," Pirnack said.

'A phased-in approach'

Joan Peck, who won her seat on Longmont City Council in 2015 partly on a promise to push RTD to finish the Northwest commuter rail line, said she doesn't see an appetite for suing RTD.

Suing RTD doesn't seem viable right now because Longmont and other cities along the corridor are working with RTD on a phased-in approach to the commuter rail, Peck said.

A year ago, Longmont City Council and staff held a regular meeting with RTD officials. As usual, the subject of the Northwest rail corridor sparked passionate discussion. Councilman Brian Bagley told RTD that all he was hearing from its side was "excuses." Councilman Gabe Santos said "Longmont still has not seen dime one" from FasTracks.

RTD FasTracks Teammember Henry Stopplecamp said at that meeting that the biggest sticking point to moving forward was the Northwest rail corridor service plan. The original plan called for 55 trains per day.

"There isn't a commuter rail line in the United States that operates so frequently for so few people," Stopplecamp said in 2016.

The Longmont City Council said that fewer trains per day to start would be OK. They set a plan in motion to start talking with the other cities to see if they would be OK with redoing the service plan.

"A train in the morning and a train at night with bus during the day? It's something to get started on and get momentum," Bagley said in that 2016 meeting.

Peck said that over the past year, those discussions have moved forward, but RTD and the cities aren't ready yet to go public with a reduced service plan until every city has given its OK.

"As far as suing, I don't see any appetite on that at all on council. I've talked to our City Attorney, Eugene Mei, and we could sue, but it's not winnable. It would be a waste of our resources. I prefer working with RTD," Peck said in a phone interview while waiting for a RTD bus to Denver. "A lawsuit would be a last resort, perhaps, but we're not anywhere close to that point."

Longmont Assistant City Manager Shawn Lewis said in an emailed statement that city staff think they have positive momentum with RTD right now and a lawsuit against RTD at this point would be counterproductive.

"For the last several months, staff from Longmont, Boulder, Boulder County, Broomfield, Louisville and Westminster have worked closely with RTD staff to design potential routes, begin cost estimation on those routes and redesign stations to reduce capital and operating costs in order to start a phased service option significantly sooner than 2042," Lewis said in the email.

Bagley, who is a lawyer, agreed that the time isn't right for a lawsuit.

"We don't want to go to war with RTD because they do provide some great services to our town. We need to be diplomatic about it," Bagley said at a multi-modal transportation event on Thursday.

"There might be a more appropriate legal action where we could look into it at the state level in reference to how soon they're required to adhere to a statute that was approved and voted on by our people. But what that looks like, I don't know."

Mayor Dennis Coombs, who was running for re-election in 2015, said then that he thought lobbying RTD was preferable over suing the district. Asked about Pirnack's request of the council, he said the council isn't ignoring her, they're just dealing with other issues.

"I want to bring it up and discuss it and then do a vote (in council) on whether we should spend the $5,000 or not. I want to get input from (Assistant City Attorney) Dan Kramer and our legal staff to look at that because I don't want to throw good money after bad if it doesn't look like it's going to succeed," Coombs said, while cycling.

Lewis said that city staff had not received a request from City Council to place Pirnack's request on a future council agenda.

'At least what you bought'

Pirnack said she doesn't want "partial rail.' She wants what was promised in 2004.

"If you don't want to build that exact model, then you talk with the people and say 'OK, this is at least as good. This is at least what you bought,'" Pirnack said, adding that she didn't think Bus Rapid Transit is a good enough solution. "I've sat in snow, in accidents, even in a dedicated lane for hours (on a bus.) That doesn't happen with trains. There's a baseline below which I don't believe we should go just because they don't want to deliver."

Pirnack rides RTD buses to Denver from Longmont four days a week for her job as director of College in Colorado. Longmont Councilwoman Bonnie Finley, similarly, takes the bus to Denver four days a week for her job with the Colorado Association of Commerce and Industry.

In 2015, when Finley was re-running for her seat, she said that she thinks a lawsuit against RTD is in order.

"I have not wavered on my position that we should sue RTD for breach of contract," Finley said in 2015.

Finley, reached Wednesday, said simply "I still am" when asked about whether she supported suing RTD.

Gessler, reached Friday afternoon, said that it's too early for him to speculate on the legal merits of a possible suit against RTD.

"What I will say is that there seems to be a lot of frustration," Gessler said. "At minimum, if the government asks for a tax raise, they should spend that money on what they said they're going to spend it on. One would hope that we don't have to go down the legal road. From a policy standpoint, one would hope they'll do the right thing."

Karen Antonacci: 303-684-5226, antonaccik@times-call.com or twitter.com/ktonacci

Our editors found this article on this site using Google and regenerated it for our readers.

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