O'Connell's transportation plan could face legal challenge

State of play: O'Connell is seeking to take advantage of a 2017 state law called the Improve Act, which allows local governments to create dedicated funding sources for mass transit needs.

• O'Connell proposes a half-cent sales tax increase to fund his $3.1 billion improvement plan.
• Nashville voters must approve the plan for it to take effect.

Driving the news: Cunningham argues the plan includes spending items — such as new sidewalks, bike lanes and traffic signal improvements — that go beyond what's acceptable under the law.

• While the Improve Act allows funding for sidewalks, it specifies that the infrastructure must "provide connectivity" to the mass transit system.
• "It seems clear to me that his proposal is not authorized by the Improve Act," Cunningham tells Axios. "I think it would be clear to anybody looking at the wording of the act. It's for mass transit; that was the intent always."
• Cunningham says, by comparison, there was no legal question that the failed 2018 transit proposal complied with the law, because he says that effort only focused on bus routes and light rail. Cunningham opposed the 2018 plan for spending reasons. The 2018 plan would have improved sidewalks, signals and bike lanes on roads with upgraded bus routes.

The big picture: Though he doesn't often weigh in on Metro issues, Cunningham has a history of advocating for lower taxes.

• He led the charge in 2006 to pass a ballot measure that capped Nashville's property tax rate and requires voter approval if the city ever seeks to raise taxes above that level (which hasn't happened yet).

Friction point: The inclusion of elements like new sidewalks and synchronized traffic lights is key to the O'Connell plan's sales pitch in a city where most people never ride the bus.

The other side: O'Connell spokesperson Alex Apple tells Axios the mayor is "confident" that all elements of Choose How You Move comply with state law.

• "The sidewalks to be funded by the initiative will directly connect residents to transit centers and transit lanes," Metro legal director Wally Dietz tells Axios. "Anyone who drives regularly in Nashville fully appreciates how upgraded traffic signals responding in real time to traffic patterns will improve commute times and experiences for everyone, whether in cars or on buses."

At a campaign kickoff event on Monday, the pro-transportation group unveiled a new logo featuring a green traffic light.

• During his speech at the campaign launch, O'Connell highlighted how his proposal will benefit people even if they don't take the bus.

Zoom in: "This plan impacts the entire city; we worked carefully on that. It should have something for everyone, no matter how you're choosing to move," said O'Connell.

• "If you think you may never be on a bus, if you think you will never ride a bike, even if you don't like to walk, everybody is going to benefit from the bigger number of green lights we're all going to have when this is successful."

Flashback: Former state Rep. Barry Doss, who was the lead House sponsor of the Improve Act, tells Axios the law came about because the state needed more funding for roads.

• Doss, who lives in Lawrence County, says he hasn't reviewed O'Connell's proposal but agrees traffic is a problem.
• "We all know Nashville has to do something. We can't continue down the same road we're going. There has to be alternative ways for transit there."
• Describing the strategy behind the Improve Act, Doss, a Republican, says "Our complete focus was getting every municipality more funding. It wasn't to give you money and tell you how to spend it. It was, 'We'll put money into your [hands], and you guys figure out what you need.'"

Zoom out: Although he won't lead the opposition effort, Cunningham acknowledges that a group or two will be formed to oppose the plan.

• Cunningham did not provide details on the opposition effort or when a lawsuit might be filed. But his involvement is an early indication of political resistance.
• Any opposition group that emerges will likely trail supporters in terms of organization and fundraising, since the pro-referendum group has already been working for several months.
• Earlier this year, the anti-tax group Americans for Prosperity said it likely won't oppose the plan. The libertarian think tank the Beacon Center also indicated it will stay on the sidelines.

The bottom line: "There's a pretty easy case against the plan even if you get beyond the legal issue. A small percentage of people use the bus. There's issues with crime. A bus system has no history of reducing traffic or congestion."

• "My argument is representing taxpayers and wanting to reduce taxes. That's my bias, always has been."

Editor's note: This story has been updated with an additional detail about the failed 2018 transit plan.