Alta Vista Resident Sues City Over RR Crossing Zone

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Merilu Moreno-Smith stands in front of the median in front of her home. Photo by Page Graham.

Merilu Moreno-Smith stands at the median in front of her home. Photo by Page Graham.

For most residents of the Alta Vista and Beacon Hill neighborhoods, the railroad Quiet Zone, which restricts locomotive engineers from using their train horns in most situations, has been a blessing. For a few residents, however, it has become a nightmare.

Perhaps one of the most deeply impacted is Alta Vista resident Merilu Moreno-Smith, who lives two doors down from the tracks.

Moreno-Smith is a licensed massage therapist who operates out of a studio behind her home. Years ago, she installed a circular driveway so that her clients, many of whom are elderly and have limited mobility, could gain easy access to the studio. That all changed when the City of San Antonio installed a wide, yellow curb in the middle of Elsmere Avenue as part of the Quiet Zone street infrastructure requirements in 2011.

Merilu Moreno-Smith plays with her dog, Honey, in her driveway. Photo by Page Graham.

Merilu Moreno-Smith plays with her dog, Honey, in her driveway. Photo by Page Graham.

Moreno-Smith claims no notice was given to anyone along the affected streets. In January 2013, she received a letter from the City indicating her street would become a one-way entry. The document only had a provision for the recipient to sign it and return it as “consent.” There was no provision for objections or comments, she said.

Diagram of Merilu Moreno-Smith's driveways and nearby railroad crossing. Image created by her attorney, Amirra Dittfurth.

Diagram of Merilu Moreno-Smith’s driveways and nearby railroad crossing. Image created by her attorney, Amirra Dittfurth. Click image to enlarge.

Due to the lack of access, some of her clients have stopped seeking out her services,  having damaged their cars on the median or because they had to park around the corner.

The curb/median was originally longer than the required 100 feet, stretching out in front of each driveway at 112 feet, effectively blocking legal access from or to the adjacent lane.

In an effort to ameliorate the situation in March 2014, the City cut off a few feet of her curb and widened Moreno-Smith’s  her driveway at the entrance points to improve access.

Moreno-Smith said work crews damaged her sprinklers and driveway and behind  debris, which she had to remove at her own cost. Even with the shortened curb, her street is still too narrow for trash and recycle bins collection.

One of the original 12 Quiet Zone crossings in San Antonio, Elsmere is among the narrowest streets along with Hickman and Hollywood. In the case of Hickman Street, the median was reduced to 25 feet long. Hollywood received an exemption and has no curb whatsoever, despite the fact that it is up to 1.5 inches wider in places than Elsmere.

Ironically, even if a curb was placed on Hollywood to the maximum allowable length of 55 feet due to an intersection, no driveways would have been impacted.

Two blocks away, the Hollywood crossing has no median whatsoever. Photo by Page Graham.

Two blocks away from Elsemere Street, the Hollywood Street railroad crossing has no median. Photo by Page Graham.

After the curb was installed, Moreno-Smith sought assistance from the Alta Vista Neighborhood Association (AVNA). She said there was no response.

Seeing no other alternative, Moreno-Smith sought out an attorney and found Amirra Dittfurth, who offered to assist free of charge. Attempts were made on Moreno-Smith’s behalf to contact representatives at the local, state, and federal levels along with representatives for Union Pacific, in the hopes a settlement could be achieved out of court.

In December 2013, Dittfurth prepared to file suit against the City, claiming an “unlawful taking of private property.” Moreno-Smith hesitated to move forward and the suit was not served until several months later.

In this case, the City chose not to utilize its in-house legal department, but instead retaned attorney Michael Hedges. Dittfurth intends to find out the cost to taxpayers of outside counsel in a discovery hearing at some point. Hedges did not respond to requests for comment, and a spokesperson for the City said they could not comment on pending litigation.

“I don’t need money, I need help!”

Moreno-Smith is not seeking financial damages or court costs. She only wants to find a solution to her problem. The most expensive scenario tops out at $22,000 to improve her driveway, add a sidewalk, and shorten the median by 2.5 feet.

“I don’t need money, I need help,” Moreno-Smith said.

Dittfurth motioned in court for mediation. According to the record of this hearing, Hedges indicated there were 130 residents in this particular Quiet Zone that were affected by the medians. If the City had to ameliorate every one of their issues, it would potentially cost $7.5 million dollars, he estimated. In the eyes of the City, this represents a potentially expensive cost, given the number of Quiet Zones around town.

Diagram of proposed improvements to Moreno-Smith's driveway. Courtesy image.

Diagram of proposed improvements to Merilu Moreno-Smith’s driveway. Image created by her attorney, Amirra Dittfurth.

The lawsuit was sent into mediation, which ultimately failed. Moreno-Smith and Dittfurth would not comment on the exact outcome or reason why.

More recently, according to Dittfurth, she came to the conclusion that the neighborhood association acted as a municipal entity. As such, she added them to the lawsuit in July.

In response, AVNA hired its own attorney. Attorney John Bustamante was retained as pro bono counsel. In a statement, he wrote: “The Alta Vista Neighborhood Association has been dragged into a suit between the City and one of its residents. The Association is not a proper party to this suit and so is seeking to be dismissed from the case. In pursuit of this goal, the Association removed the case to the federal court and filed for dismissal.”

In a subsequent interview, Bustamante said his primary goal is to remove AVNA from the lawsuit because it is “not a state actor.”

Bustamante said that AVNA was brought into the suit after the statute of limitations deadline. The move to federal court means a decision will likely take longer, but it also tends to be more decisive in such cases, he said.

He will be attending the AVNA meeting at Mark Twain Middle School on Sept. 30 at 6:30 p.m. to answer questions from neighborhood residents.

The creation of a railroad Quiet Zone is a bureaucratic nightmare. Everyone from the Neighborhood Association, the City, the Federal Railroad Administration, and Union Pacific are involved. It is a time-consuming and challenging process. As such, it’s practically a miracle that Quiet Zones get created in the first place.

The criteria for each crossing is quite complex. Street width and traffic flow are key components, but the results can be baffling. Why, for instance, was Hollywood exempted, but Elsmere got a longer median?

Quiet zone infrastructure in these cases seem to be applied indiscriminately. A side effect of Moreno-Smith’s lawsuit may be that the City reevaluates how they are handled.

Work crews upgrading the UP tracks at Hickman, which has the shortest median of all. Photo by Page Graham.

Work crews upgrade the track crossing at Hickman Street, which has the shortest median of all. Photo by Page Graham.

 

*Featured/top image: Merilu Moreno-Smith stands at the median in front of her home. Photo by Page Graham.

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Railroad Crossing Quiet Zone to Relieve Residents

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17 thoughts on “Alta Vista Resident Sues City Over RR Crossing Zone

    • Thank you for speaking to issues NOT raised by either party to this disagreement. Must have a lot of time on your hands 🙂

    • “Ms. Moreno-Smith did everything that was required at that time (1995) to legally build and operate a HOME-BASED business (home-based businesses differ from truly “commercial” businesses (such as storefronts, malls, restaurants, etc.) in what is required of them to operate. As for what zoning says now- it’s not relevant to how she set it up then, and she has not been asked by the city, or any other authority, to vacate or change in any way in the years since. Furthermore, and most importantly, even if the business did not exist, the placement of the median would still be a terrible violation to her personal use and enjoyment of her home- a right guaranteed to everyone by the State and US Constitutions.”

      • I sympathize with Moreno-Smith, but there is no constitutional right to make a left turn out of your drive way. I doubt that her injury is compensable.

        This article doesn’t mention it, but the predominate feature of quiet zones is that most crossings have been closed. Lots of property owners end up on dead-end streets with no cul de sacs. That’s not good either. But the alternative is to let the trains blow their whistles virtually continuously as the pass through the neighborhood (a federal requirement). There’s no free lunch.

    • Zoning is a way to regulate land to prevent nuisances and ALSO to encourage productive land use. I don’t know her or her district, but many residential zones would allow those types of businesses. many times it has to do with how many workers and/or visitors you have at a time. I’m old enough to remember when Doctors have home offices in small towns just like accountants, attorneys. Even Mike Brady had clients over!!!

      I hope she wins her lawsuit and one of the court instructions is to remove all those barriers throughout the city. They have lowered the value of her property, made her driveway useless, and how exactly do they help with noise? Keep the elderly she treats away from the tracks so they won’t get hit by a train they can’t hear??!? And the way it was handled it sounds terrible, they look bad, and I would think pose a driving hazard.

      Also, you might want to reconsider your 2 wrongs make a right value system of street justice. We need MORE mixed-use in San Antonio to make a walkable city. MORE home business, MORE mix of residential and commercial. Why make all these elderly with limited mobility drive she helps everywhere??!!

  1. Wow!! I have the same problem as her!!! Roosevelt and Steves. The 18 wheelers servicing What-A-Burger across the street have to swing wide to avoid the same kind of median jutting across the driveway and the only way most of them can make the turn is to come up onto my property…The medians also make the intersection look ugly and ill kept from the tire marks all over it, the knocked down reflector stanchions and the chips of cement bit off by too many car wheels.

  2. I understand Ms. Moreno-Smith’s frustration that the cheese was moved, but her place of business, and her home, is located on a two-way street. The article infers that her she and her clients have been unnecessarily burdened by the quiet zone median by restricting her and her clients’ access to her home and place of business.

    Although the access to the her house and business has changed from the previous street configuration, both she and her clients continue to have unrestricted access to her driveway, albeit from only one direction, namely west to east. The inconvenience of her and her clients driving one or two blocks to navigate the quiet zone median is petty, compared to the mitigating effects of suppressed train horn noise in quiet zones. Ask the other “130 residents” affected by the calming effects of this newly established quiet zone how the median impacts their quality of life.

    It is obvious from this article that those residents that have a stake in the quantitative increase in the quality of life in this neighborhood (the AVNA), through the implementation of a railroad quiet zone, see this tempest in a teapot for what it is.

    Although Mr. Graham and Ms. Moreno-Smith view this issue as an “unlawful taking of private property,” it seems that I, and their neighbors, the AVNA, view it as an act of insolence and selfishness. Why else would one act to remove a newly established railroad quiet zone in such a densely inhabited area?

    Mr. Graham and Ms. Moreno-Smith do not get, and do not deserve, any sympathy in their efforts. When, and if, they can show the quiet zone has increased the risk of rail grade crossing injury, they ‘ll have standing. Otherwise, both of them should stfu.

    • Bart, I think you have misunderstood the story. You make the implication here that Merilu is against the Quiet Zone. That isn’t the case. I think the article is fairly clear in making the point that the placement of the barriers is somewhat indiscriminate. As all of us in Alta Vista know, the process to get the QZ was circuitous and time consuming for all involved. As with any bureaucratic maze of obstacles, common sense is often left at the curb. Moreno-Smith’s situation is an unfortunate example.

    • Please allow me to clarify. As a journalist, I am merely writing about a situation. Her attorney is the one who is framing this as an “unlwaful taking of private property.” I ain’t never used fancy language like that in my entire life.

      I should also disclose that I live two blocks from the same railroad tracks, far enough that the noise from train horns was more atmospheric than a nuisance. I actually miss sitting on the front porch in the evening and hearing the trains blow their horns. However, I understand the plight of those who live closer to the tracks and was myself a supporter of the effort to create a Quiet Zone.

      In any case, I will state for the record that Moreno-Smith is not against the Quiet Zone, she simply wants better access to her driveway to help facilitate access for her elderly clients. Her business is completely legitimate, despite the implications some folks have made.

  3. I wonder how relaxing a massage can be when a train blares so close to her home? This may hurt business in the short run for those patrons who can’t figure out how to access the property, but may help in the long run by new customers who want a quiet relaxing massage… Just a thought..

  4. While the city should address this access issue for an existing business, the quiet zone in Alta Vista has been a blessing. Listening to the train horns all night was a blight on the entire neighborhood.

  5. I’ve lived in Beacon Hill and Altavista for 40 years. On Craig 2 blocks from the Train. On Woodlawn 3 blocks from the Train. On Craig (again) 1 Block from the Train. On Craig, (yet again) 4 houses away from the Train. And on Rosewood 8 houses from the Train. My grandparents lived at Aganier and Ashby, literally within walking feet distance from the train. I understand the whistle has bothered some people and I can understand why. But they very rarely bothered me in those 40 years. As I travel those streets now I see people having to do u-turns just to turn in their driveway and people struggling to ease out of their driveway. To my eyes those barriers seem more of a hassle than those train whistles.

  6. I think the selfish people are the ones telling the woman to basically shut up and be happy the train whistle isn’t blowing all night. Make lemonade out of lemons. Tell the clients they need more meditation time prior to the massage – sort of like a mediation labyrinth .. but just in the car and around a couple of blocks and don’t get hit and focus.

    Tami Kegley and Tim McHugh are right. It’s not about getting rid of the curb, it’s about making the process fair and transparent with some accountability. The curb can be shortened. Those who say there wasn’t a taking are wrong. There was taking of value, it’s just that you value the quiet more than you value her complaint. She is factually worse off. You are factually better. She should be compensated. You cannot force her to accept your value. She might be hard of hearing from living so near the train.

  7. What this situation demonstrates, even by example, is that there is frequently a lack of proper and practical impact analysis by planners, and that implementation can often be arbitrary. When sitting in an office removed from the project, an engineer or reviewer doesn’t have the opportunity to visually see all the real-world consequences — this isn’t an excuse for them, but should serve as cautionary tale for the city and state to improve their process. It’s safe to assume that someone realized the effects the barriers would create in various parts of the city, pointed out by the story and commenters. There are numerous examples of poor design review just north of downtown, aside from the lane barriers: commercial business entrances (Whataburger on Cypress and Starbucks on San Pedro) permitted 20 – 40 feet from a major intersection on roadways with no turn lanes, high traffic volume and VIA bus stops, which regularly creates great traffic frustration; the placement of a pedestrian island on McCullough near Methodist Hospital , which reduces the two lanes in each direction into one lane at the island then widens back to two lanes with one lane left only and the other a thru and right turn only lane — oh, and a VIA bus stop immediately after the island; the randomness of McCullough two lanes/four lanes as it runs from Hildebrand through downtown — and the same for Hildebrand, which constricts from two lanes to four from seemingly block to block. It’s all arbitrary and nobody addresses it, which is infuriating.

    As for the litigant, the situation created is unfortunate, especially before the city corrected the original length of the barrier, but that her customers no longer have the convenience of making turns East or West from the driveway isn’t a hazard, it’s just that — an inconvenience. As for customers damaging their cars on the median, the photo and rendering would indicate any vehicular damage would be due to driver error.

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