I-1125 was never about tolls. It was designed to fail in the courts due to it's multiple issues. Then allow bond favorable judges to create more case law to support the rights of bond holders.

Fortunately King County voters distrust Eyman initiatives enough to vote against them.

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From the piece:

Specifically, Tim Eyman’s Initiative 1125 threatened to put a roadblock on light rail crossing Lake Washington . . ..

In the Bellevue City Council races, light rail to the Eastside is winning big as well . . ..

Really? Jordan Royer is seeing things in I-1125 that aren’t really there.

The ballot title didn’t reference light rail, Sound Transit, East Link, or even the provision of I-1125 that supposedly would have tied the hands of government managers with respect to transfers of “lanes”. Moreover, the proposed handover of highway infrastructure from WSDOT to Sound Transit wouldn’t involve “lanes”; Sound Transit wants instead to get portions of bridges, roadbeds, tunnels and ramps. Nobody reading that ballot title could have thought voting against I-1125 was a vote for anything Sound Transit would do.

The state AG’s office didn’t think I-1125 would change the law relating to East Link. Here’s the link to the Secretary of State’s website where information about I-1125 is posted:

http://wei.secstate.wa.gov/osos/en/PreviousElections/2011/general/Pages/OVG_20111108.aspx?ElectionID=42&sorttype;=Measures#ososTop

The “Explanatory Statement” relating to I-1125 drafted by the state AG’s office is posted there. It contains a statement of the law as it presently exists, and what changes the initiative would make. The AG’s office doesn’t say anything there about I-1125 putting a roadblock up that would preclude Sound Transit's train line plans. That statement does not say the law as it presently exists allows the proposed WSDOT-to-Sound Transit infrastructure handover. That statement also does not say the changes to the law the measure would make would stop that proposed property handover (or anything else Sound Transit is planning on).

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The real legal barriers to the proposed infrastructure handover from WSDOT to Sound Transit are the same now as they always have been. State law prohibits the proposed handover of I-90 corridor highway infrastructure from WSDOT to Sound Transit.

Article II sec. 40 of the state constitution protects the driving public’s interest in the future and exclusive highway use of those I-90 corridor tunnels, bridges, and roadways. That is because substantial amounts of state highway trust fund assets have been invested in those facilities. That heavy spending over the past several decades means all that infrastructure now must “be used exclusively for highway purposes”. Part use by trains and part use by rubber-tire vehicles does not comply with that constitutional limit. Article II sec. 40 came into play because of the state’s decisions over the years to spend so many tens of millions of dollars of state highway trust fund assets on building, improving, engineering, maintaining and operating that infrastructure. The state now has nobody but itself to blame for those legal effects of its spending.

WSDOT also is precluded from handing over that broad swath of highway infrastructure so Sound Transit can destroy its highway use functionality because of what WSDOT’s enabling statutes say about its duty to maintain and improve highways. Moreover, the several statutes authorizing WSDOT to divest itself of surplus property don’t apply to VERY heavily used highway infrastructure.

Those are the reasons why Paula Hammond hasn’t declared all the highway infrastructure Sound Transit wants to get its hands on “surplus”. Will the legislature change WSDOT’s enabling statutes? It could have done so in any prior legislative session, but it has not despite the fevered lobbying by Sound Transit’s team in Olympia. New statutory language wouldn't solve the constitutional problem, but it would remove the statutory barriers.

Anyone want to discuss those legal bars to the East Link plan?

Hey Crossrip,
Could "Sound Transit" buy out the state's interest in the I-90 corridor? I know that would be expensive and as far as the tax payers concerned a shuffling of money, but would that fix the constitutional problem? It wouldn't be a handover but a sale.

It is a little silly that King County is a net exporter of tax dollars to the rest of the state which, in turn, routinely votes against King County's interests (1125, to wit). There is something not right about that. Just sayin'.

Hey Crossrip,
Could "Sound Transit" buy out the state's interest in the I-90 corridor?

Thanks for the question.

The short answer is “no”, no payment of money to the state would allow the state to transfer to Sound Transit all the I-90 corridor highway infrastructure it wants. That is because the constitution and the state enabling statutes limit what WSDOT may do with those bridges, ramps, tunnels, and roadbeds, and no payment of money from a local government can allow WSDOT to disregard those legal limits.

WSDOT’s enabling legislation and article II sec. 40 of the constitution both limit what that state agency can do with that particular highway infrastructure. State law requires WSDOT to “improve . . . and maintain state highways” for the benefit of the individual and corporate citizens of this state. RCW 47.01.260(1). Selling a large swath of those heavily-used highway facilities to a local government so it can destroy that property’s utility as a highway would violate that statutory limit. Also, WSDOT now is precluded from reengineering that highway infrastructure so it could be used in part by trains and only in part by rubber-tire vehicles. WSDOT is limited in that way because of the state’s decisions over the years to spend so many tens of millions of dollars of state highway trust fund assets on that stretch of highway infrastructure. Article II sec. 40 now operates to bar the proposed infrastructure handover because of that prior spending.

Your question refers to “the state’s interest” in those highways. It’s the driving public’s interests that matter, due to what the statutes and the constitution say. No payment from Sound Transit to the state could extinguish the interests of individual and corporate citizens to continued access to that infrastructure for their driving needs.

Any lawyers read Crosscut? It'd be great to discuss this matter with one or more of them.

Crossrip -

You've got it exactly wrong on all fronts. As they say, a fool and his money are soon parted. Well, the same logic applies to Tim Eyman initiatives. Tim Eyman is like Harold Hill from the Music Man....only he can't sing.

Danny Westneat nails it in this column:
Eyman's secret war on light rail
http://seattletimes.nwsource.com/html/dannywestneat/2016606680_danny26.html
From the column:
This initiative says it would bar the state from allowing any highway lanes built with any gas-tax money to be used for "non-highway purposes." That theoretically could mean any state road, but specifically a plan has been in the works to use the center of the I-90 bridge deck for mass transit since 1976.

Sounds just like the wording in the amendment in the Constitution right? Well, it's not quite the same. You see, the Constitution prohibits state money from being used for 'non-highway purposes.' Eyman's initiative would have prohibited from using ANY highway lanes built with ANY gas-tax money from being used for 'non-highway purposes.'

Thanks for your comment, Richard. There’s certainly no need for us to speculate now about what changes I-1125 might have brought about! It failed.

I was hoping we could discuss the current legal framework within which WSDOT must operate, and whether those statutory and constitutional limits would allow the property transaction Sound Transit wants.

Crossrip. When I was President of PMT, we talked about this I-90 issue quite a bit. That's when I was made aware of the 1976 Memorandum of Agreement regarding the future conversion of the center lanes to High Capacity Transit. People say governments don't plan into the future but clearly some very thoughtful people were looking into the future with this 1976 MOA.

While some people think that the center lanes can't be used since the 18th Amendment prevents their use. This amendment prevents the use of state gas tax money for non-highway uses. It says nothing about Federal money.

However, when I-90 was built, Federal funds paid for about 80% of it. So the notion that state gas tax money paid for the I-90 bridge is pretty false. Here's a pretty decent article about that from 2010.

Kemper Freeman is suing to stop light-rail expansion to Eastside
http://seattletimes.nwsource.com/html/localnews/2011756951_kemper02m.html
By Katherine Long

So that's the legal basis for turning over the lanes to Sound Transit. They weren't built with state money in the 1st place so the 18th amendment doesn't even apply.

Richard: That 1976 agreement is just a contract. It would not allow WSDOT to act in ways that would harm the public’s interests that article II sec. 40 protects, nor would it allow WSDOT to act in excess of its statutory authority. Maybe your group should have included a lawyer?

So that's the legal basis for turning over the lanes to Sound Transit. They weren't built with state money in the 1st place so the 18th amendment doesn't even apply.

Paragraph 7 of the Agreed Statement of Facts filed in the “Freeman v. Gregoire” writ action that wrapped up in April says this: “I-90 was built, in part, with motor vehicle funds required to be deposited into the motor vehicle fund pursuant to RCW 46.68.070.” Paragraph 9 of that statement contains this relevant assertion as well: “Motor vehicle funds, in part, are used to maintain I-90”. That’s the tip of the iceberg -- MVF assets were used for the pricey joint replacement work in 2006 as well, for example.

I appreciate your enthusiasm for trains, Richard, but your grasp of the law and the facts is weak.

Anyone else want to discuss whether or not the proposed I-90 corridor infrastructure transfer would be legal in light of the statutory and constitutional limits within which WSDOT now must operate?

Crossrip. Our group was a nonprofit grassroots coalition advocating for better transportation in the Puget Sound region. We opposed the monorail and favored a mix of rail and buses. Only in Seattle does the argument that buses are better than rail seem to resonate with many people. We were mostly concerned with talking about transit issues. We left the legal issues to the governmental bodies.

I very much doubt that light rail on I-90 is on shakey grounds given that all of the agencies involved seem to agree it's legal. Sound Transit has a pretty good history of defending itself legally and prevailing even the decisions don't please everyone.

You seem to be treating all of I-90 as the same. The center lanes were always envisioned for high capacity transit, even back in 1976. The general public supports the light rail construction and they seem to 'get it' that you can't build your way out of congestion by building more highway lanes.

I very much doubt that light rail on I-90 is on shakey grounds given that all of the agencies involved seem to agree it's legal.

The state's political leadership not only recognizes the legal problems with the proposed handover it has delayed East Link because of them.

This is from a January, 2010 report to the leaders in the state legislature from the Joint Transportation Committee:

***********************

The two valuations completed by the appraisers provide a starting point for WSDOT and Sound Transit to negotiate an agreed value for the conversion of the reversible lanes to high capacity transit. The Transportation Budget directed those negotiations to be completed by December 1, 2009. While negotiations on related matters continue between the parties, the negotiation of price and a lease are on hold pending the resolution of litigation. That litigation, _Freeman et. al. v. Gregoire_, currently pending before the State Supreme Court, challenges the constitutionality of converting the I-90 center lanes to the exclusive use of light rail.

http://www.leg.wa.gov/JTC/Documents/Updates/Update_January2010.pdf

************************

That writ proceeding wrapped up last April, and neither the constitutional nor the statutory problems were resolved. Indeed, the justices suggested -- in a fairly dismissive tone -- that the proposed transaction would not be lawful.

The state Joint Transportation Committee in 2010 noted that WSDOT and Sound Transit were not willing to proceed until manifest legal issues relating to this proposed property handover were resolved in their favor. That's clear acknowledgement of the legal problems it faces.

Anyone else want to discuss whether or not the proposed I-90 corridor infrastructure transfer would be legal in light of the statutory and constitutional limits within which WSDOT now must operate?

Crossrip says: "the justices suggested -- in a fairly dismissive tone -- that the proposed transaction would not be lawful"

Not sure how you got that. Although the Court did decline to rule on the issue for procedural and jurisdictional reasons, it hardly intimated that the transfer would violate the statute or constitution. To the contrary, what the majority of the court said was:

"Even if we were to consider DOT’s proposed lease agreement with Sound Transit, we note that DOT is statutorily authorized to sell, transfer or lease highway lands within certain statutory restrictions. Whether this potential lease specifically complies with these statutory provisions is not before us at this time and, in any event, the statutory provisions authorizing transfers of highway land do not generally violate article II, section 40."

See Freeman v. Gregoire, at p. 23 the opinion is online at http://statecasefiles.justia.com/documents/washington/supreme-court/833494.opn-3.pdf?1316643184

Furthermore, of the four dissenting justices who agreed with crossrip's position, only one remains on the court.

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Do I really need to spell this out for you?

The majority noted at the end of that opinion that “the statutory provisions authorizing transfers of highway land do not generally violate article II, section 40”. It made that point because after the state has invested hundreds of millions of dollars of MVF assets into highway infrastructure the driving public uses heavily – such as the seven mile stretch of roadway, tunnels, ramps, and bridges in the I-90 corridor between Bellevue and Seattle – those facilities can not be characterized as surplus.

Let's start discussing the relevant statutes with WSDOT’s primary enabling statute. It says that state agency is required to “improve . . . and maintain state highways” for the benefit of the individual and corporate citizens of this state. RCW 47.01.260(1). The proposal to hand over a large swath of very useful highway to a local government so it could immediately destroy its utility as highway infrastructure is directly contrary to that affirmative statutory obligation.

Disagree with anything I've posted so far?

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Want to try explaining how the “surplus property” statute the state says it would rely on for legal authority to hand over all that infrastructure might justify the type of property assignment Sound Transit would need?

The state identified RCW 47.12.120 as the particular “surplus property” statute that supposedly authorizes Paula Hammond (as WSDOT’s head) to hand over all that I-90 corridor highway infrastructure to Sound Transit for it to tear up so it never could be used for highway purposes again. That is on page 20 of WSDOT’s brief filed in the “Freeman v. Gregoire” writ action:

“WSDOT has determined to employ the leasing provisions of RCW 47.12.120 for conversion of the transit-designated lanes of the I-90 corridor to light rail”.

Here’s what that statute says:

----
RCW 47.12.120. Lease of unused highway land or air space.

The department may rent or lease any lands, improvements, or air space above or below any lands that are held for highway purposes but are not presently needed. The rental or lease:
. . .
(2) Is subject to the provisions and requirements of zoning ordinances of political subdivisions of government;
. . .
----

There are a number of reasons that statute does not apply to the transaction WSDOT and Sound Transit are contemplating:

-- the lands and improvements are not “unused” -- they are “presently needed” -- and that manifest need will grow considerably over the next six decades;

-- the transaction the term sheet describes is not a “lease”; and

-- the rights in the improvements and land Sound Transit would obtain would not be “subject to the provisions and requirements of zoning ordinances of political subdivisions of government” (Sound Transit’s light rail siting, construction, and operations activities are statutorily exempt from all local government land use ordinances and regulations).

If you want to disagree with those assertions, go ahead. I’ll flesh them out below.

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RCW 47.12.120 doesn’t authorize the property assignment WSDOT and Sound Transit are contemplating because the lands and improvements at issue are not “unused” and they are “presently needed”.

Tens of thousands of drivers operate vehicles on the parts of that I-90 corridor highway infrastructure Sound Transit wants every day. That’s heavy use. The population will grow, and the driving public’s needs to use that highway infrastructure will increase, not go away.

Moreover, the lands and improvements at issue are “presently needed” and WSDOT’s own behavior demonstrates that fact. It has been spending huge amounts on the maintenance and improvement of those roadways. It’s ongoing “I-90 Corridor Two Way Improvements” project is all about adding needed highway capacity, and a key feature of that project is retaining the reversible roadway for buses, cars and trucks. We know that because that is what it (and Sound Transit) represented in the EIS documentation that resulted in the 2004 Record of Decision approving the R8A plan:

http://www.soundtransit.org/documents/pdf/projects/Record_of_Decision_September_2004.pdf

Based on that EIS documentation WSDOT began its a $153 million roads construction project several years ago to build additional rubber-tire vehicle capacity on that highway infrastructure. It will convert the road surfaces of the highways components (including the ramp, bridge, and tunnel elements) from 8 lanes to 10 lanes. The central reason for that long-term plan for improving that stretch of highway includes retaining the reversible highway lanes (and their shoulders) for rubber-tire vehicles. WSDOT there acknowledges there will be an increasing need by rubber-tire vehicles to use those facilities over the next several decades.

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RCW 47.12.120 also doesn’t authorized the property assignment WSDOT and Sound Transit are contemplating because that proposed transaction is not a “lease”.

WSDOT would be transferring away all of its rights in that infrastructure, and not retaining any reversionary interest. Even a 40-year term would extend beyond the remaining useful life of those bridges, ramps, and tunnels. That means it’s an outright assignment, not a lease.

The price negotiated does not reflect WSDOT would retain any reversionary interest in the improvements. That is due to the fact that the plan is for Sound Transit to take over control of that highway infrastructure and immediately destroy forever the utility of those facilities for highway purposes. At the end of 40 years what would be left would have no value to WSDOT.

The reality of the transaction is that it would be a sale of highway infrastructure, and that kind of transaction is not authorized by RCW 47.12.120.

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RCW 47.12.120 also doesn’t authorize the property assignment WSDOT and Sound Transit are contemplating because the rights in the improvements and land Sound Transit would obtain would not be “subject to the provisions and requirements of zoning ordinances of political subdivisions of government”. That is because Sound Transit’s light rail siting, construction, and operations activities are statutorily exempt from all local government land use ordinances and regulations.

Sound Transit can site its rail line, and the stations, anywhere it wants in Seattle, Mercer Island, Bellevue and Redmond. That is because Sound Transit’s light rail was designated by the state legislature last year as an “essential public facility”. That means the property rights that Sound Transit would get under the deal the term sheet describes would give it the right to act in a way that is not subject to any of those municipalities’ zoning requirements. That fact is due to what the “essential public facilities” statute says (“No local comprehensive plan or development regulation may preclude the siting of essential public facilities.”). RCW 36.70A.200(5).

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It’s evident the justices think McKennna’s argument about how RCW 47.12.120 supposedly applies to the kind of infrastructure handover WSDOT wants is lame. In the _Freeman v. Gregoire_ majority opinion they went so far as to offer up some (tongue in cheek) alternatives. This is from page 17 of the opinion:

***************

Since DOT is statutorily authorized to transfer highway lands,6 . . .

---
6 See RCW 47.12.120 (permitting lease of highway land or air space); see also RCW 47.12.063 (allowing sale of highway land when not needed for transportation purposes); RCW 47.12.080 (allowing transfer and conveyance of DOT land when in public interest); RCW 47.12.283 (authorizing sale of highway land by public auction).

***************

None of those other three surplus property statutes would work either:

-- by its terms RCW 47.12.063 only applies to transfers of real property that “is no longer required for transportation purposes”, and what the term sheet spells out is a transfer of highway infrastructure that would be used for transportation purposes;

-- RCW 47.12.080 only relates to “unused state-owned real property”, and the highway infrastructure WSDOT would transfer to Sound Transit 1) is parts of ramps, tunnels, roadways, and bridges – not just real property, and 2) it is used heavily; and

-- RCW 47.12.283 is inapplicable as the transfer would not be by public auction.

WSDOT simply lacks the right kind of statutory authority to transfer to Sound Transit the I-90 corridor highway infrastructure it needs.

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Give us your best argument about why article II sec. 40 would not bar this proposed handover as well.

You agree that provision of the constitution limits not only how the state may spend MVF assets, but also how infrastructure in which MVF investments have been made may be used, right? As the constitution says, infrastructure in which MVF investments are made must “be used exclusively for highway purposes”.