City attorney sues to prevent tunnel vote

Seattle City Attorney Pete Holmes filed suit Tuesday to prevent an anti-tunnel referendum, saying he wants to save citizens the expense and grief of what he considers a futile election.

The motion, filed in King County Superior Court, basically asks a judge to decide whether City Council agreements for the planned Highway 99 tunnel are subject to a public vote.

The move came the same day that the Protect Seattle Now campaign turned in nearly 29,000 signatures. A referendum requires 16,503 valid signatures to qualify for the August ballot. City voters would be asked to affirm or repeal agreements with the state Department of Transportation (DOT) regarding utility relocations, street right of way and insurance.

Tunnel opponents called on council members to "uphold the democratic process" by placing the referendum on the ballot.

"You're basically suing the people, preventing their right to vote," referendum spokesman Drew Paxton said.

Holmes said he believes the referendum is illegal and wants a judge to rule now, to reduce uncertainty.

Referendums apply only to legislative policy actions, not administrative actions, he argued.

He called the council's agreements with the state "administrative" because they carry out earlier policy laws: the 2009 bill by the Legislature instructing the DOT to design a tunnel, and the City Council's October 2009 memorandum with the DOT selecting a tunnel as the council's "preferred solution."

"I am certainly supportive of that decision of the city government," Holmes said of the council agreements. "But more importantly, I believe it is in the best interest of every Seattle voter to find out if they can vote legally on this measure."

According to the Seattle City Charter, a filing of a referendum suspends the disputed ordinance. Holmes says he acted immediately in hopes of preventing delays in tunnel design or construction.

If city agreements are postponed until August, that would cost $54 million, plus $20 million a month afterward, state Transportation Secretary Paula Hammond has told lawmakers.

City Council President Richard Conlin said he has discussed the legal issues with Holmes "since last summer." Holmes said it was his decision to file the case, and Conlin has conferred with him on behalf of the council.

"Nobody's 'suing the people,' " said Conlin, who in September signed an environmental report to help the DOT, when anti-tunnel Mayor Mike McGinn didn't. "That's the silliest thing I've ever heard."

A recent Elway Poll found that most voters surveyed want the referendum on the ballot. Yet, no particular choice — an elevated highway, a tunnel or improved surface streets — seems to hold majority support with the public. Holmes emphasized that this referendum wouldn't settle that question, nor undo the pro-tunnel government policies.

It's uncertain whether Holmes will get a quick decision. A pair of Tim Eyman initiatives to reduce car-tab taxes, I-695 and I-776, won statewide votes but were weakened in state court rulings. Seattle in 2001 challenged the legality of I-63, a water-conservation initiative, until the two sides agreed the city would improve its conservation programs.

Judge Laura Middaugh was assigned at random to take the new case, Holmes said.

McGinn's spokesman said he would have no comment until a news conference Wednesday morning.

Paxton said the campaign continues to talk with potential attorneys and that it's too early to guess how soon the anti-tunnel camp would prepare for a court hearing.

One argument, he said, is that the city and state "want to have it both ways" — by claiming the pro-tunnel policy decision is done, then claiming the project isn't final when governments have to obey federal environmental laws.

Tunnel opponents hold a variety of views. Some argue underground construction often leads to cost overruns; others abhor highway construction because they want to reduce carbon-spewing vehicle travel. Yet, other opponents prefer a new or retrofitted Alaskan Way Viaduct that maintains road capacity, while avoiding the need for tunnel tolls.

Pro-tunnel groups, including labor unions and downtown business interests, say the city must seize the once-in-a-century chance to eliminate the highway's noise and blight along Elliott Bay, while maintaining freight and traffic mobility. A tunnel also allows a new Highway 99 without closing the old viaduct during more than three years of construction.

A final environmental-impact statement won't be finished until late summer, after which the DOT would tell construction teams to excavate the south tunnel portal in Sodo, under a $1.4 billion contract. The four-lane tunnel is to be completed by late 2015, followed by demolition of the old 1953-vintage viaduct along the central waterfront.

Mike Lindblom: 206-515-5631

or mlindblom@seattletimes.com