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Judges Expresses "Grave Concerns" About the Tunnel Law Putting Seattle Taxpayers on Hook for Cost Overruns

 

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State Legislators Laugh at Bankrupting Seattle for Tunnel Cost Overruns

LEFT TO RIGHT: Lisa Brown, (Senate Majority Leader), Rep. Bruce Dammeier, (Republican House representative), Mike Hewett (Senator Minority Leader), and Larry Springer (House Majority Liason).

When asked whether the City of Seattle would be forced to pay for cost overruns on the tunnel project, legislative leaders were unanimous: YES.

 

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A Comment Letter Criticizing the State's Draft Environmental Impact Statement for the Tunnel

Today, Friends of Seattle mailed a comment letter to the Washington State Department of Transportation ("WSDOT") criticizing its 2010 Supplemental Draft Environmental Impact Statement ("2010 Draft EIS") for the Alaskan Way Viaduct replacement project.  A PDF of the letter is available here.

Friends of Seattle supplemented its letter with exhibits--a CD-ROM containing all the analysis and information provided to WSDOT's Stakeholder Advisory Committee in 2008.  We believe that these documents show that a surface/transit alternative is reasonable and should be included in the final EIS.

Other highlights of our letter:

  • The statement of purpose and need for the project has changed without explanation to focus on capacity for automobiles, and this change is arbitrary, capricious, and contrary to law.
  • The Bored Tunnel Alternative fails to meet the needs of the project because, without downtown exits, it will not be used by transit and will not create connections to downtown Seattle.
  • Because the analysis of the effects of tolling is cursory, the 2010 Draft EIS does not adequately analyze the significant adverse effects on the environment that could result.

We also learned today that the Director of the Seattle Department of Transportation wrote a letter to WSDOT laying out city agencies' concerns with the 2010 Draft EIS.  A PDF of this letter from the City is available here.

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Tunnel Resolution - Proposed Amendments

On Monday the City Council will vote to approve a resolution that will say the Council intends, in the future, to authorize the city-state agreements necessary to construct a deep bore tunnel.

Friends of Seattle has proposed two amendments (see below) which would affirm the people's power of referendum and would put in writing--for the first time--the Council's belief that the cost overruns provision of RCW 47.01.402(6)(b) is legally unenforceable.

Proposed Amendment - People's Power of Referendum

The Council should allay public fears that the Council plans to find a loophole to avoid the referendum power. Our proposed amendment would reassure the public that Council is acting in good faith and respects the people's ultimate authority to legislate. If Council says no to our proposed amendment, then the question becomes, "Why?" A refusal to adopt it would suggest that the Council does in fact intend to find a way around a referendum.

Proposed Text: "With this Resolution, the City Council does not intend to abridge the people's power to subject city ordinances to a public referendum. Upon the Council's authorization of the agreements attached as Attachments 1, 2 and 3 to this Resolution, the Council recognizes that the people may subject the Council's authorization of the agreements to a referendum, as provided in the City Charter."

Proposed Amendment - Cost Overruns

The resolution says city policy is that Seattle is not liable for cost overruns. However, we think state law is what matters, not city policy. Many councilmembers have joined the City Attorney in saying that the cost overruns provision of RCW 47.01.402(6)(b) is not enforceable. If the Council really believe that the cost overruns provision is legally meaningless, the Council should put it in writing. We have lingering doubts about it, of course. But the city would be better off going on the record. If the Council demurs, our question, given that the above amendment is consistent with their position, again is "Why?"

Proposed Text: "RCW 47.01.402(6)(b) provides that any costs for the Alaskan Way Viaduct replacement project 'in excess of two billion eight hundred million dollars shall be borne by property owners in the Seattle area who benefit from replacement of the existing viaduct with the deep bore tunnel.' The City Council believes that this portion of RCW 47.01.402(6)(b) is legally unenforceable, and the State therefore does not presently have the legal authority to levy a tax or special assessment on Seattle area property owners for any cost overruns."

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Video: A Viaduct Replacement for Everyone, Not Just People Who Can Afford Champagne

This video was created by a member of Friends of Seattle. We now share it with you.

In January 2009, downtown elites and members of the Seattle City Council drank champagne to celebrate the agreement to build a deep bore tunnel to replace the Alaskan Way Viaduct.

In this agreement (see the PDF) between the City of Seattle, King County, and the State, the State said it would work to get the County the authority it needed for an motor vehicle excise tax (MVET) to raise over $200 million for transit. Two years later, the State has not kept this promise.

We need transit to make the Viaduct replacement work for everyone, not just people who can afford champagne.

2010 City Council - Deep Bore Tunnel Poll

A poll was taken on July 20, 2010 of Seattle voters who are likely to vote in the Seattle City Council elections in 2011. The poll, conducted by the firm Win Power Stragies, asked about:

  1. The likelihood that a voter would support a candidate for city council who approves a tunnel contract with the state that leaves Seattle on the hook for cost overruns.
  2. The likelihood that a voter would approve or reject such a contract if there were a ballot referendum on it.

More than half of voters polled, 51.6 percent said that they would be somewhat or very unlikely to support a Seattle City Councilmember who voted to sign a contract with the State that would put Seattle on the hook for cost overruns for the deep bore tunnel. Only 35.2 percent said they were somewhat or very likely to support such a councilmember.

When asked whether they would support the tunnel in an up or down vote in a referendum 48.8 percent of the respondents said they would vote "no" on contract obligating Seattle to pay for overruns. Only 32.5 percent said they would vote to approve the contract.

Complete results, including cross-tabs: (PDF) (jpg1) (jpg2)

Poll demographics and weighting information are available here (PDF).

Press release: (PDF)

There are 411 responses, for a margin of error of 4.9%.

Here is the complete text of the two questions:

Question 1: Effect of a Councilmember Approving a Tunnel Contract with the State

The state legislature passed a law in 2009 supporting the replacement of the Alaskan Way Viaduct with a deep bore tunnel under downtown Seattle. The state estimates the cost of replacing the Viaduct will be over four billion dollars. State law says that all cost overruns will have to be paid by Seattle taxpayers, not the State. Several Seattle City Council members want to sign a contract with the State agreeing to the tunnel and accepting the state law that makes Seattle taxpayers liable for all cost overruns. Press 1 if you are very likely to support a Council member who signed this contract. Press 2 if you are somewhat likely to support a Council member who signed this contract. Press 3 if you are somewhat unlikely to support a Council member who signed this contracts. Press 4 if you are very unlikely to support a Council member who signed this contract. Press 5 if you’re not sure.

Responses:

FOS_candidates.jpg

 

Question 2: Effect of a Councilmember Approving a Tunnel Contract with the State

If the Seattle City Council signs such a contract with the State accepting Seattle taxpayers will be liable for all cost overruns for construction of a deep bore tunnel, some Seattle citizens want to put the contract to a ballot referendum. Would you vote to approve or reject such a contract? Press 1 if you would vote to approve the contract. Press 2 if you would vote to reject the contract.

Responses:

poll_tunnel_referendum.jpg

2009 Report Card - Deep Bore Tunnel

Overview (50%): If the modern-day writer wanted to write an update to John F. Kennedy's Profiles in Courage, they would undoubtedly reserve a chapter for the political leader who stood up for our environmental, equity, and economic ideals and said no to the waterfront tunnel. Unfortunately, it would be a very short chapter. The tunnel represents a litmus test for civic leadership: will we seize the opportunity to define a new future or will we spend an inordinate amount of money to repeat the mistakes of the past? No councilmember distinguished themselves here except by their haste to do the wrong thing and vote in favor of the tunnel. Unless there was some nuance to their stance, all councilmembers are noted as having the "standard pro-tunnel position" which is based on the perceived need to increase automobile capacity for economic benefit or political expediency.

Tim Burgess (F/F)

Standard pro-tunnel position.

Sally Clark (F/F)

Standard pro-tunnel position.

Richard Conlin (F/F)

Conlin basically took the standard pro-tunnel position, a position strikingly inconsistent with his stated values: During his 2009 reelection campaign, he claimed, "Richard has focused on making Seattle a more sustainable city, developing innovative programs to protect the environment, building neighborhoods, improving pedestrian mobility and transportation infrastructure, and making government more transparent." Conlin's role as Council President would have afforded him a unique opportunity to give full debate on the issue after last November's election, rather than force a unanimous vote through before the election. The tunnel is anything but sustainable
and the timing of the vote was inappropriate.

Jan Drago (F/F)

Standard pro-tunnel position.

Jean Godden (F/F)

Standard pro-tunnel position.

Bruce Harrell (C/F)

Harrell supports all the standard pro-tunnel arguments but must be applauded for at least publicly questioning the timing of last falls vote and what its purpose was. He told the PI that the tunnel vote was "a policy statement, it is not a contract—for those who are concerned that this is the last word on the tunnel project" and he went on to state, accurately that "It seems like we're trying to sell the tunnel."

Nick Licata (F/F)

Throughout the years, Councilmember Licata has cast himself as something of an iconoclast, willing to take unpopular positions against huge capital projects. But Licata supports the tunnel—a project that has dubious returns on a huge investment (not including inevitable cost overruns [pdf])—because, he has said, "as a practical matter, with the support of the Governor, State Legislature, Mayor and Council, the deep bore tunnel is moving forward." By this logic, any project—no matter how bad it is—ought to get Licata's vote if large numbers of elected officials support that project. This sort of thinking is at odds with his own branding and values. We expect all city councilmembers, but especially Licata, to exercise independent judgment and advocate for Seattle's interests.

Richard McIver (F/F)

Early in the considerations of options, McIver said, "I love the tunnel." McIver has to be credited for such straightforward expression of his support and feelings.

Tom Rasmussen (F/F)

Rasmussen is chair of the Council's 2010 transportation committee and ought to be taking a close look at the tunnel project and the impact it might have on the City's transportation budget. Instead, Rasmussen seems, like Conlin, to dismiss the very real problem with cost overruns on the tunnel project. When asked about Mayor McGinn's efforts to fight further obligations to pay for tunnel overruns, Rasmussen said, "It seems like that is something he wants to work out with the State, and all I say is, good luck with that."

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Nine Questions About the Tunnel Project for the Seattle City Council

Before the City Council ratifies an agreement with the State about the tunnel project, the Council must have answers to these nine questions:

  1. Why did the state cap its contribution to the tunnel at $2.4 billion and make Seattle taxpayers responsible to pay for cost overruns?
  2. How can the City Council protect Seattle taxpayers from paying for cost overruns on the project?
  3. How can the city manage a state project to prevent cost overruns?
  4. Given the cap in state law, how would the state legally pay more than $2.4 billion for the project?
  5. Why has the state shifted risk on the performance bonds away from itself and the contractor and onto Seattle?
  6. What is the cause of cost overruns on other megaprojects? Is it as proponents claim due to delay? Are there other causes?
  7. What is the state doing differently here than on other megaprojects to prevent overruns?
  8. What will happen if the tunneling machine gets stuck underground? Who will pay? How will it be resolved?
  9. If Seattle has to pay for cost overruns, how would the city pay for them? What taxes would the City Council raise, or what programs would it cut?

UPDATE: We should point out that we saw these questions on an e-mail circulated by the mayor's office to the media. We agree it is essential that the Council have answers to these questions, and so we're asking them here.

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WSDOT Announces Oversight Committee for Deep Bore Tunnel

In WSDOT's most recent email update about the Alaskan Way Viaduct replacement project, WSDOT notes that the Governor is forming an oversight committee for the deep bore tunnel. The members will be state and local elected officials, as well as the CEO of the Port of Seattle:

Governor Gregoire recently announced the formation of an oversight committee to review the projects to replace the Alaskan Way Viaduct, including the proposed bored tunnel, and serve as a single point of accountability for cost, schedule and scope issues. The committee will receive updates from state, city and county departments of transportation, as well as Port of Seattle staff, on delivery of the projects, including major milestones, contracting approach, risk management and expenditures.

Oversight committee meetings will be held quarterly, beginning this spring, and information provided to the committee will be made available to the public to ensure public accountability and transparency. The members of the committee include Governor Christine Gregoire, Sen. Mary Margaret Haugen, Rep. Judy Clibborn, Seattle Mayor Mike McGinn, Seattle Councilmember Tom Rasmussen, King County Executive Dow Constantine, King County Councilmember Larry Phillips, Port of Seattle Commissioner Bill Bryant, and Port of Seattle CEO Tay Yoshitani.

It's a good step, but we're not very impressed. Mayor McGinn is the only committee member who has expressed realism about the project. The others have offered the deep-bore tunnel their full support. They have not questioned the feasibility of the project, and they all seem to brush aside concerns about projects costs and overruns. We wish there was more balance to the committee.

Here is the governor's original announcement.

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