New battleground for the Seattle waterfront

Can the City Council vote on the tunnel go to referendum? A judge said Yes and No, adding to the frayed nerves and murky politics.

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The Alaskan Way Viaduct

Can the City Council vote on the tunnel go to referendum? A judge said Yes and No, adding to the frayed nerves and murky politics.

At least civic dithering has been replaced by open combat. But, 10 years after the Nisqually quake, how to replace the current Alaskan Way Viaduct before the Big One reduces it to rubble remains, if not an open question, at least ajar.

By this time, everyone in the Seattle area can probably tell the players even without a scorecard: The people who want to replace the Alaskan Way Viaduct with a deep-bore tunnel — including eight-ninths of the city council — don't want a public vote. The people who want a public vote — including Mayor Mike McGinn and Councilmember Mike O'Brien — don't want a deep-bore tunnel.

Anti-tunnel activists have, of course, collected enough signatures to place on the August ballot a referendum challenging the city council's approval of tunnel construction agreements with the state. Seattle City Attorney Pete Holmes sued to keep the referendum off the ballot. Last Friday (May 13), King County Superior Court Judge Laura Middaugh said Holmes couldn't challenge the referendum; he had to defend it. But since he wasn't the only plaintiff — Let's Move Forward, one of that organization's officals, and the state Department of Transportation are all asking the judge to keep the measure off the ballot — she was willing to proceed.

A little background: The state constitution gives the people power to legislate, but not administer, through the initiative and referendum. Therefore, if an elected body acts legislatively, the people can second-guess it. It an elected body acts administratively, the people cannot.

In 2009, the Seattle City Council passed an ordinance designating a deep-bore tunnel as its preferred alternative to the current viaduct. The city and state subsequently negotiated three agreements covering preliminary design, rights of way, and utility relocation. Earlier this year, the council passed an ordinance approving those agreements and authorizing a council decision to proceed with the project after completion of an environmental impact statement. The referendum that qualified for the August ballot challenges the council's 2011 vote. Opponents argued that because the council's 2011 action was purely administrative, it couldn't be challenged.

The judge said yes and no. She said that if the referendum had challenged the 2009 ordinance, which was clearly a legislative decision, it would have been entirely constitutional. But she said the large portion of the 2011 resolution that dealt with the three agreements was administrative and largely not subject to referendum.

The part of the 2011 ordinance that authorized council action after completion of an EIS might be legislative, however, and therefore it might be subject to referendum. The referendum challenges the entire ordinance. Can it proceed as written? Can it be altered? Must it be scrapped?

This Friday afternoon (May 20), lawyers for both sides will present arguments on that subject.

After last week's ruling, both sides claimed victory, or at least a non-loss. "Mike O'Brien, the lone tunnel opponent on the City Council, ... sparred with City Council President Richard Conlin over the meaning of the judge's Friday ruling," Chris Grygiel reported on O'Brien said, "'The judge ruled on Friday, from the bench, that the public is entitled to a vote' ... Conlin replied: 'The judge did not make the statement that the people were entitled to a vote...she raised a question about (part) of the ordinance...she asked a question of our attorneys.' "

The council scheduled a Tuesday morning meeting to vote on a resolution that might tilt the legal proceedings against the referendum. As abruptly as the meeting had been called, it was canceled.

Which leaves things . . . up in the air — which has become their usual and accustomed place. Seattle attorney Knoll Lowney, who represents anti-tunnel forces, suggests that they're "a lot less up in the air than they were last Friday. ... I think the next stop is the ballot, and I think both sides should probably moved toward the election."

Pro-tunnel Let's Move Forward spokesman Alex Fryer disagrees. Can at least part of the referendum go forward? "I don't think that's been decided," Fryer says. He suggests that the part of the agreements that Middaugh said was legislative authorizes but does not require the council to act. Therefore, it is not a decison. Therefore, there is nothing on which the people can vote.

Is an appeal inevitable? "I don't know," Lowney says, "because I don't undertand why the tunnel proponents don't choose this opportunity to make their case." He concedes that "one could try to fight this all the way to the supreme court, all the way to the eve of the election." The question becomes whether or not it would be politically wise to do so.

An attempt to keep the people from voting may not win many friends if they actually get to vote. Even if the referendum reaches the ballot and the people say yes, they want to overturn the council's action, that doesn't have to be the end of the road, either legally or politically. The referendum could be appealed after the election, too. If the referendum passes, one assumes that it will be.

And whatever Seattle voters decide, the state — not bound by a city election — can do as it pleases anyway. Would it push ahead in the face of a negative vote? We may find out.


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.