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Threat of litigation no reason to stall Legacy

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Since Nov. 16, 2001, I have been frequently asked why the Utah Department of Transportation moved ahead with construction of the Legacy Parkway project even though the department was aware that special interest groups were considering litigation to stop construction.

The answer is that there was no reason not to begin, and there was every reason to begin. South Davis County faces some of the state's worst traffic congestion. If I-15 closes for any reason, there is no viable alternative roadway from North Salt Lake to Farmington. Many will remember when we had a tanker fire on I-15 and travelers were stuck on the highway for up to six hours. In an emergency situation, this is unacceptable. Legacy Parkway is needed to meet existing traffic demands, as well as to be an integral part of Davis County's long-term solution for traffic congestion, which also includes mass transit — including commuter rail — and freeway expansion.

Through an arduous, five-year approval process — including extensive involvement with the general public and special interest groups — all of the issues were exhaustively aired. There were compromises and project improvements. The Legacy Parkway project was modified to minimize adverse environmental impacts and maximize environmental enhancements, as demonstrated by UDOT's 2,098-acre Legacy Nature Preserve.

Construction on the Legacy Parkway began in the spring of 2001, after obtaining permission from every state and federal agency whose permission was required. The department even entered into a signed agreement with the plaintiffs allowing construction to begin in the north interchange area.

While we were aware that potential litigation might cause a work stoppage, the threat of legal action is an occupational hazard for any public works project. If the threat of potential litigation was the deciding factor, it's likely that few, if any, major transportation projects — highways or mass transit projects — would ever get under way.

During the recent I-15 project in Salt Lake County, for example, right-of-way litigation was pending up until the final months of the project. Lawsuits were threatened by the attorneys of concerned business owners at nearly every interchange on the project. Had we waited to begin that project until every threat of litigation had been withdrawn, the I-15 project would still be in its infancy, if under way at all, instead of being complete and fully functional — ahead of schedule and under budget.

The real issue surrounding the Legacy Parkway is need. It is needed, just as commuter rail and light rail are needed, just as bus system improvements are needed and just as an expanded I-15 is needed to serve Davis County's population today and in the future.

It's called a shared solution, and it's what we've been working toward for years. Because the fact is, within 20 years, transportation needs in Davis County will tax capacity even with the addition of Legacy Parkway, expansion of I-15 and mass transit improvements.

The bottom line on the Legacy Parkway project is that we went through an established and rigorous approval process to build a much-needed project. We obtained the approvals necessary and began work. Opponents to the project exercised their right to challenge it in the courts, and our progress is now on hold.

Unfortunately, there are costs associated with the current delays. But the fact of the matter is, accepting the risk for such costs is a normal and accepted part of doing business — not just at UDOT but at other departments of transportation around the country. It would be unrealistic to expect the contractor to bear the costs of a legal delay. Similarly, it would be fiscally imprudent to build that cost into contracts so that taxpayers have to pay the cost of potential litigation whether or not it actually occurs. That is why we accept the risk and then do everything we can to avoid a legally imposed work stoppage.

Still, after nine months of favorable court rulings, a temporary stay was entered in the case of Legacy Parkway. Since that time UDOT has worked diligently to minimize the costs of this delay, keeping in mind that restarting the project contract after a modest delay could be more expensive than keeping the contractor "on" with a modified set of work tasks. The department's highest priority has been to manage this temporary stay both to control the budget and to assure that the much-needed Legacy Parkway can be put back on schedule.

We have moved forward on the Legacy Parkway project when we were legally authorized to do so. Likewise, we have stopped work when the courts told us to. We are taking steps to manage this interim period prudently. And, once the courts allow, we will be prepared to finish the work we have already started on this vital project.

John Njord is executive director of the Utah Department of Transportation.