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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Page Graham has been a resident of San Antonio – on and off – for over 30 years now. He has moved into the corporate world, making a living developing training materials and Powerpoint presentations...