Tunnel Update April 2011

On Thursday, March 31, I and other Councilmembers joined Governor Gregoire, King County Executive Constantine, Port Commission Chair Bryant, and representatives of the legislature in a news conference reaffirming the state and regional commitment to proceeding with the necessary work to implement the plan for the Alaskan Way Viaduct Replacement program.  The program includes replacing the south end of the viaduct (currently underway), constructing a tunnel under downtown (currently in the final stages of environmental review), and developing a new waterfront park and surface Alaskan Way (to be completed following demolition of the existing viaduct). February 28 marked the ten-year anniversary of the Nisqually earthquake, which was followed by ten years of robust public dialogue.  In 2009, the project partners designated the tunnel as the preferred alternative, recognizing that replacing north-south capacity through downtown is critically important to safety, freight mobility, economic vitality, and preserving current jobs and providing new jobs in Seattle and the region.  Since then, the tunnel project has proceeded through environmental review and into pre-construction design, with a final Record of Decision (ROD) on the Supplemental Environmental Impact Statement (SEIS) scheduled to be completed in mid-summer.  If the ROD and SEIS confirm that the project can meet environmental requirements, the project leads (WSDOT and the Federal Highway Administration) can make a final decision to proceed and authorize construction to begin. Seattle has a once in a lifetime opportunity to enhance our downtown.  By moving the majority of cars and trucks off our waterfront, we can establish a welcoming waterfront while enhancing our maritime and local economy and providing safer and faster corridors for pedestrians, bicyclists, and transit.  The tunnel is the green solution – it clears the streets for transit, bikes, and pedestrians to use, while opening up the waterfront for our future. Unfortunately, the continued intransigence of the Mayor, despite his campaign promise to not stand in the way of the tunnel, may cause project delays.  Delays are the biggest cause of cost overruns on major projects, and these delays could cost approximately $20 million per month, according to WSDOT’s estimates. The most recent action by the Mayor was sponsoring a referendum on Ordinance No. 123542, approved by the Council on February 28.  This legislation codifies agreements between the City and WSDOT which protect and indemnify the City and keep the City at the table as the project moves forward, so that we can ensure that the streets, utilities, and other parts of the City are managed efficiently and in conformance with City policy.  The referendum would not “stop the tunnel”; it would simply nullify these agreements.  This would remove the city from the table and leave the City vulnerable, since this is a State project. The Mayor had been advised by the City Attorney that this referendum was likely to be deemed illegal by the courts. Nevertheless, with the Mayor’s assistance, an estimated 29,000 signatures were gathered in support of a voter referendum on Ordinance No. 123542.  City Attorney Holmes has now filed a Complaint for Declaratory Judgment in King County Superior Court to determine whether Ordinance No. 123542 is subject to Seattle’s municipal referendum power.  I have excerpted below the City Attorney’s reasoning from his news release.  A complete version of the legal reasoning can be found on the City Attorney’s website at http://www.seattle.gov/law/newsdetail.asp?ID=11580&dept=9 Council action to place the proposed referendum on the August ballot cannot take place until the signatures are validated by King County.  As of this writing, it appears that there are between 19,000 and 20,000 valid signatures, which would be enough to require placement on the ballot, if it is a legal referendum.  The Council has until May 24 to put it on the ballot, and we are hopeful that a court determination will be made before then. The State has now joined the City Attorney’s suit against the referendum, and has indicated that they consider the agreements binding pending resolution of the lawsuit.  At this point, then, the project is proceeding, although the cost of delay will start adding up fairly rapidly. Summary of City Attorney Legal Reasoning “The Seattle Charter creates a referendum power, meaning that most—but not all—City ordinances can be subject to a referendum vote…  Some limits on the City’s referendum power are spelled out in the Charter, while others are found in Washington State’s case law… First, City legislative bodies can take both administrative and legislative actions…  The Washington Supreme Court has distinguished between the two types of actions by explaining that a power “is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.”… …Ordinance No. 123542 is actually the third law passed regarding the proposed deep bore tunnel project:  The Legislature passed the first law in early 2009… (directing the State to) “take the necessary steps to expedite the environmental review and design processes to replace the Alaskan Way viaduct with a deep bore tunnel under First Avenue from the vicinity of the sports stadiums in Seattle to Aurora Avenue north of the Battery Street tunnel.”…  In October 2009, the City Council enacted Ordinance 123133, authorizing execution of a Memorandum of Agreement that “outlines the responsibilities of both the City and State and expectations about the role of each in the implementation and funding of the numerous [Alaskan Way Viaduct and Seawall Replacement] Program elements.”…  Ordinance 123133 also declared that “[i]t is the City’s policy that the Alaskan Way Viaduct and Seawall Replacement…Program Bored Tunnel Alternative…is the preferred solution for replacing the existing Alaskan Way Viaduct.”… … on balance I believe Ordinance 123542 is more likely administrative than legislative.  By accepting these three agreements, the ordinance does not “prescribe[] a new policy or plan”; “it merely pursues a plan already adopted by the legislative body itself [i.e., the City Council], or some power superior to it [i.e., the state legislature].”… administrative acts are not subject to the local referendum power. Moreover, even legislative acts, if based on a local government power delegated directly to the governing body of a local jurisdiction, cannot legally be decided by a voter referendum. Local governments only have the powers delegated to them by the State. Most of those powers are delegated to local governments generally, but some are delegated specifically to the “governing body,” “legislative body,” or “legislative authority” of a local jurisdiction. Under state law, powers delegated like this may only be exercised by the City Council (subject to a veto and override) and are not subject to the initiative or referendum powers even if our charter or city law says they are…. … a declaratory judgment now will spare the expense of a campaign overturned post-election…”