STATE OF WASHINGTON
KING COUNTY SUPERIOR COURT
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I. INTRODUCTION
1. The State Environmental Policy Act (SEPA) requires that an Environmental Impact Statement be completed before government decisions are made that commit the government to a particular course of action. When SEPA's requirements are observed, government decisions are made "by deliberation, not default."[i]
2. This action challenges violations of the State Environmental Policy Act (“SEPA”), RCW 43.21C et seq., and the implementing regulations WAC 197-11 by the Defendants, the State of Washington and the City of Seattle, in connection with their decisions to authorize, fund, produce permits for, issue contracts for, acquire right-of-way for, pass ordinances, and otherwise engage in all manner of acts intended to implement the State Route 99 Alaskan Way Viaduct Replacement Project – the State Route 99 deep bored tunnel construction project.
3. This action challenges the decision on February 7, 2011 by the City of Seattle City Council to pass Council Bill 117101, an as yet unnumbered ordinance, attached hereto as Exhibit A, which authorizes legally binding contracts to be established between the State and the City: Memorandum of Agreement No. GCA 6486 SR 99 Alaskan Way Viaduct, Property, Environmental Remediation, Design Review, Permitting, and Construction Coordination Agreement for SR 99 Bored Tunnel Project; Memorandum of Agreement UT 01476 SR 99 Alaskan Way Viaduct Replacement Bored Tunnel Project SPU Facilities Work; and Memorandum of Agreement UT 01474 SR 99 Alaskan Way Viaduct Replacement Bored Tunnel Project SCL Facilities Work for the construction of the SR 99 Bored Tunnel Project.
4. The Washington State Department of Transportation (“WSDOT”) and the City of Seattle (“COS”), the co-lead agencies and co- proponents of the Alaskan Way Viaduct and Seawall Replacement Program, which includes the State Route (“SR”) 99 Bored Tunnel Project, have been and are making a mockery of the SEPA process required for the replacement of the SR 99 Alaskan Way Viaduct (“Viaduct”). The Final Environmental Impact Statement for the project has not been completed and, according to WSDOT and the COS, it will not be completed until approximately June, 2011. Until the Final EIS is completed, WSDOT and the COS (and the respective departments associated with both) are precluded from making decisions or engaging in acts which pre-judge the choice among Viaduct replacement alternatives being analyzed in the current environmental review process for the Viaduct replacement project.
5. Since January, 2009 to even date WSDOT, the State Treasurer, the State Department of Ecology, and the COS are also devoting millions of dollars worth of personnel and financial resources to carry out the SR 99 bored tunnel project. The State Treasurer for example has initiated and sold bond issues for over $1.9 Billion on the basis that the proceeds will be used to construct the bored tunnel in the city of Seattle. WSDOT has bid out and signed a contract for the construction of the tunnel. The Department of Ecology is proceeding to process and establish the basis for the permits for the tunnel. The City of Seattle has entered into agreements with the State to proceed with each of these arrangements as well as has gone ahead and devoted a substantial portion of its institutional heft towards ensuring that the tunnel project proceeds post haste.
6. WSDOT recently initiated and completed a procurement process to select a Design-Builder firm to design and build the tunnel. The process has resulted in the selection of a Design-Build contractor, in the signing of a contract for the construction of the tunnel, and in the commencement of later stage design work for the tunnel facility – all before the Final EIS is completed. The City of Seattle has now ratified that selection on February 7, 2011 through Council Bill 117101.
7. The selection of a Design-Build contractor for the tunnel and the devotion of other substantial resources to develop the tunnel, at a time when similar resources and decisions are not being committed to the other non-tunnel options, means that at the end of the environmental review process just a few months away the tunnel project will in operation have been “chosen”.
The tunnel project at that time will have been underway for two and half year’s when WSDOT and the COS formally makes their “decision” about the replacement alternative for the Viaduct. Given WSDOT and the COS's haste to proceed with the tunnel project, their actions have effectively preempted any opportunity to have a legitimate and balanced decision-making process after the environmental analysis process is completed. WSDOT and the COS's actions effectively preclude WSDOT and the COS from using the results of its environmental review in its decision-making process as required by SEPA.
8. Because WSDOT and the COS are legally precluded from taking steps now that so significantly tilt the playing field among the alternatives and put the tunnel in a substantially favored position, WSDOT and the COS's actions violate the requirements of SEPA and must be enjoined.
II. PARTIES
Plaintiff/Petitioner
Pursuant to RCW 36.70C.060 and common law rules, the plaintiff/petitioner has standing to bring this action as a person who has participated both orally and in writing before the defendants/respondents regarding the matters on which this complaint is based. Plaintiff/Respondent Elizabeth Campbell’s participation before both the State and the City of Seattle in the matter of the Alaskan Way Viaduct and Seawall Replacement project are reasonably related to the issues presented in this Complaint/Petition. Campbell also has standing under RCW 36.70A.280(2)(d) because she stands to be aggrieved or adversely affected by the City’s actions as defined by RCW 34.05.530; and for the following reasons:
9. Plaintiff/petitioner Elizabeth Campbell is a resident of Seattle and a frequent user of the Alaskan Way Viaduct; she is also interested in ensuring that a decision on a replacement for the Alaskan Way Viaduct is made only after a full review of environmental, cost, and other relevant issues. Plaintiff Campbell will be adversely impacted by the construction and operation of the tunnel project. The tunnel will result in greatly reduced traffic mobility for plaintiff Campbell and other Seattle residents and businesses. Because of the project’s design there will be an increase in greenhouse gases and other air quality pollutants further harming the plaintiff. The project also will lead to the imposition of tolls, to an increase in property taxes, and a rise in electric utility rates, all of which will adversely affect Campbell.
10. The north portal of the tunnel is designed to eliminate the south bound access to the SR 99 Alaskan Way corridor now enjoyed by local residents living in Ballard, Magnolia, Queen and adjacent areas - causing delay and congestion in that high-traffic corridor. The south portal will cause increased traffic congestion and hazards to businesses, bicyclists, and pedestrians in Pioneer Square and in the stadiums’ area, the former a fragile and significant historic neighborhood and the latter, an intense pedestrian zone.
The tunnel is designed to accommodate only two lanes of traffic each way with inadequate shoulders and safety clearances; and it does not comply with requirements for handicapped access/egress for people with disabilities. The design will create safety hazards for plaintiff Campbell and Seattle-area drivers. The design will lead to further traffic congestion when accidents and break downs clog the tunnel.
11. Plaintiff Campbell is also adversely affected by the State’s and the City’s actions because there has been no compliance with SEPA which requires that the State and the City of Seattle and other decision-makers fully consider the adverse environmental impacts from the tunnel project. If there was SEPA compliance plaintiff/respondent all of the alternatives in addition to the tunnel alternative would “be on the table”, would be equally being reviewed; and would the other alternatives would have a high probability of being chosen over the tunnel alternative.
These multiple adverse impacts to Elizabeth Campbell provide her with a sufficient interest and standing to bring this action.
Defendants/Respondents
All of the below named defendants/respondents are required to comply with all of the requirements of the Growth Management Act Chapter 36.70A RCW (GMA) and the State Environmental Policy Act Chapter 43.21 RCW (SEPA).
12. Defendant/respondent Washington State Department of Transportation is an agency of the State of Washington and one of the lead agencies for the development of a replacement structure for the SR 99-Viaduct that runs through downtown Seattle. Defendant/respondent Paula Hammond is the Secretary of the Washington State Department of Transportation and its Chief Executive Officer. She is appointed by the Governor and serves at the pleasure of the Governor.
Defendant/respondent Office of the State Treasurer is responsible for originating and selling bond issues which provide funding for the SR 99 Alaskan Way/Deep Bored Tunnel Project. Defendant/respondent James McIntyre is the State Treasurer and is an elected official.
Defendant/respondent Washington State Department of Ecology (“DOE”) is an agency of the State of Washington and one of the State agencies that in concert with WSDOT is facilitating the construction of the deep bored tunnel project through its permitting procedures and related schemes. Defendant/respondent Ted Sturdevant is the director of the DOE. He is appointed by the Governor and serves at the pleasure of the Governor.
13. Defendant/Respondent City of Seattle, a municipal corporation, sponsored and adopted the decision identified at Paragraph 3, and is one of the lead agencies for the development of a replacement project for the SR99-Alaskan Way Viaduct through downtown Seattle. Defendant/respondent Richard Conlin is an elected City of Seattle Councilmember. Defendant/respondent Sally Bagshaw is an elected City of Seattle councilmember. Defendant/respondent Tom Rasmussen is an elected City of Seattle Councilmember. Defendant/respondent Sally Clark is an elected City of Seattle Councilmember. Defendant/respondent Bruce Harrell is an elected City of Seattle Councilmember. Defendant/respondent Jean Godden is an elected City of Seattle Councilmember. Defendant/respondent Nick Licata is an elected City of Seattle Councilmember. Defendant/respondent Tim Burgess is an elected City of Seattle Councilmember.
14. Defendant/respondent City of Seattle Department of Planning and Development (“DPD”) is a department of the COS. Defendant/respondent Diane Sugimura is the director of DPD. She is appointed by the Mayor of Seattle and serves at the pleasure of the Mayor.
Defendant/respondent Seattle Department of Transportation (“SDOT”) is a department of the COS. Defendant/respondent Peter Hahn is the director of SDOT. He is appointed by the Mayor of Seattle and serves at the pleasure of the Mayor.
III. FACTS
15. WSDOT is the owner of the Alaskan Way Viaduct. The City of Seattle owns the right-of-way that is under the Viaduct.
16. The Alaskan Way Viaduct section of SR 99 is a primary north-south route through the city of Seattle and provides intra-city access for the Ballard, Magnolia, Queen Anne, Interbay, Downtown, and West Seattle districts of Seattle. It is a highway of statewide significance, and it is an essential public facility.
17. The 2001 Nisqually earthquake slightly damaged the Viaduct. WSDOT temporarily shut the Viaduct down following the earthquake. Minor repairs were made and the viaduct was reopened with roadway restrictions for heavy trucks that remain in effect today. WSDOT performs twice yearly inspections of the Viaduct and has found minimal settling of the structure since the 2001 Nisqually earthquake.
18. In 2004, WSDOT and the COS issued a Draft Environmental Impact Statement. The Draft EIS (DEIS) included an evaluation of five alternatives: a rebuilt viaduct, a new aerial structure, a single-level cut-and-cover tunnel, a bypass cut-and-cover tunnel, and a six-lane surface boulevard. WSDOT, the COS, and the Federal Highway Administration selected the cut-and-cover tunnel as the preferred alternative.
19. In 2006, WSDOT and the COS released a Supplemental Draft EIS (SDEIS) that focused on two alternatives: a cut-and-cover tunnel and an elevated structure.
20. There was no analysis of a deep bore tunnel in the 2004 DEIS, i.e., the project that WSDOT and the COS now seeks to build, or in the subsequent SDEIS issued in 2006. In fact, the 2006 SDEIS again focused on two alternatives: a cut-and-cover tunnel and an elevated structure.
21. In 2007, an advisory vote was held in Seattle, calling for an up or down vote on a surface-tunnel hybrid and an elevated structure. Nearly 70 percent of the electorate voted against the tunnel option.
22. In 2008, WSDOT and the COS, the City of Seattle, and King County worked to develop a solution for a central waterfront section of the Alaskan Way Viaduct. Their work was informed by input from a range of handpicked "stakeholders" (e.g., leaders of the downtown business community, labor, and environmental organizations).
23. The agencies and stakeholders developed eight scenarios. These scenarios covered a range of options, from a smaller road along the central waterfront and significant investments in transit and surface streets, to bypass roadways with fewer transit and surface street investments.
24. In December, 2008, the agencies and stakeholders narrowed down the acceptable options to two hybrid scenarios: an "Hybrid I-5/surface/transit" alternative and an "Hybrid SR 99 elevated bypass" alternative. According to WSDOT and the COS's website, these two hybrid options included the best elements from the previous eight scenarios, including improvements to 1-5, surface streets, and transit.
Each of the preferred options was determined by WSDOT and the COS to be technically feasible and lower cost than the bored tunnel proposal.
25. On December 11, 2008, the three agencies, with the support of the broad stakeholder group, recommended these two options and forwarded them to the chief executive officers (the Governor, the County Executive, and the Mayor) for decision.
26. In January of 2009, Governor Christine Gregoire, King County Executive Ron Sims, and Seattle Mayor Greg Nickels rejected the year-long work of their staffs and the stakeholder group, and instead signed a joint letter endorsing a deep bore tunnel beneath downtown Seattle as their preferred option.