Wednesday on KUOW’s "Conversation" (June 2) Seattle City Attorney Pete Holmes disagreed with Mayor McGinn’s claim that city residents can legally be held responsible for cost overruns on the deep-bore tunnel set to replace the Alaskan Way Viaduct.
A sentence in Washington legislation authorizing the state's contribution to the tunnel project specifies that property owners in the Seattle area who benefit from viaduct replacement will bear costs that exceed the state’s contribution. Mayor McGinn, focusing on this provision, has sought to halt further progress on the tunnel “while Seattle is at risk for cost overruns,” as he stated in a May KUOW interview. Further, Attorney General Rob McKenna has said on KUOW that a law adopted by lawmakers is presumptively constitutional, and that he would defend the statute.
But Holmes told "Conversation" host Ross Reynolds that a court battle between him and McKenna over the issue is unlikely. “I think that all of our leaders will work hard to avoid what would harm the state and the city. Litigation between Olympia and Seattle is not really in anyone’s interest.” Besides, said Holmes, “Saying you’re going to defend the statute and saying it’s constitutional” are very different things.
The provision is not legally enforceable, Holmes explained, because the state Constitution prohibits the legislature from imposing “what are in essence taxes” on specific populations of citizens. It “can enact universal taxes but can’t single out a population like that.” In addition, the tunnel is part of a state highway, and “presumptively,” said Holmes, all expenses of building and maintaining state highways must be borne by the state.
So the real issue is about politics and timing, not legality, said Holmes. Should the issue of how to deal with cost overruns be debated now, when the project has a fair chance of coming in under budget?
City Council members have expressed concern about what they view as Mayor McGinn’s efforts to impede progress on the tunnel, because slowing it down can make it more expensive to build. On May 18 City Council President Richard Conlin blogged that “the primary cause of potential cost overruns is intentional delay." Councilmembers Tim Burgess and Sally Bagshaw, on "King5 News Upfront" (May 22), agreed. Burgess observed that McGinn can “through his actions cause the cost of the project to go up, so that we have what he says he’s trying to avoid, which is potential cost overruns.”
Holmes said if costs do run over budget, the legislature will have to raise the cap it placed on its proposed contribution. “But that’s the big if,” he added. “City engineers still say that bids will come in under cap.” Should this “big if” be debated now? Holmes asked. “Do we run the risk of injecting further delay into the planning and engineering, or do we go forward?”