Supreme Court hears request of light-rail opponents to ban building tracks on Interstate 90
By NAT LEVY
Bellevue Reporter Staff Writer
September 17, 2010 · Updated 4:07 PM
Opponents of the East Link Light-Rail project had their day in court Thursday, where they argued Sound Transit and the Washington State Department of Transportation do not have the right, under the state's 18th amendment, to use gas tax funds for non-highway purposes or to lease out lanes of Interstate 90 because of their importance, statewide.
The charge against light-rail moving to the Eastside is led by prominent Bellevue developer and property Kemper Freeman. Philip Talmadge, attorney for the group, sought a ruling from the State Supreme Court that would bar Sound Transit from building light-rail lines on the two center lanes of I-90. He argued that such a transfer could only be performed if WSDOT determined the lanes were no longer of need to the highway system.
"Interstate 90 is not surplus, it's never been declared surplus; it's contrary to the declaration of its importance as a state highway, and it's contrary to its use by 140,000 vehicles," Talmadge said.
Talmadge argued that WSDOT's expenditure of $250,000 from the motor vehicle fund for appraisal of the center lanes constituted an illegality because it was not spent on a highway purpose, a requirement of the motor vehicle fund under the state constitution.
Attorneys for the state and Sound Transit argued no misuse of motor vehicle funds occurred because Sound Transit planned to replenish all state investment on the I-90 center lanes. Sound Transit will also pay for a $150 million construction project adding one car pool lane to each side of land-locked portions of I-90, which will mitigate the loss of the two center express lanes.
"You have to use the funds themselves for highway purposes, but if you buy an asset with highway funds and decide to take it out of highway use, you have to reimburse the highway fund the value of that asset so it's not diminished... And the state and Sound Transit made sure every dime of highway funds that ever went into those center lanes is repaid," said Sound Transit attorney Desmond Brown.
Senior Assistant Attorney General Bryce Brown argued that the $250,000 for appraisal was not an improper expenditure. It falls within a 65-year-old WSDOT policy to pay for appraisals out of the motor vehicle fund, so it can be reimbursed later on.
"If a lessee comes to the department we don't make that lessee pay for the appraisal," he said. "We use motor vehicle funds to ensure that the motor vehicle fund is replenished if the decision is made to allow that non-highway use."
Several judges grilled the attorneys for Sound Transit and the state about the use of gas-tax funds for an appraisal, but Bryce Brown maintained that the expense was in line with past policy, and all the money would come back to the fund out of Sound Transit's pocket, if a non-highway use is undertaken.
Chief Justice Barbara Madsen questioned how much power the court had in this case because the process remained ongoing. Talmadge argued that the court had enough evidence to see that a transfer remains imminent. He implored the court to prohibit the transfer and order Sound Transit to repay the $250,000 spent on the appraisal.
Voters approved the $18 billion extension of light-rail out to the Eastside in 2008. Should the plan hold up as constituted, the center express lanes would close in 2015 for the beginning of construction work and reopen in 2021 as light-rail lanes.
Judge James Johnson questioned the price tag of $150 million to widen I-90 to create one car pool lane going in each direction.
"I find it hard to believe that you can add 16 percent capacity and new lanes going each way for $150 million."
Desmond Brown said that's how much it will cost, and it's Sound Transit's responsibility to pay for the project. He also attempted to ease the concerns several judges showed about the increased congestion that will result from the closure of the two center lanes by noting that no net loss of lanes will occur.
No timetable is set for the court to issue an opinion, a process that sometimes takes several months.Contact Bellevue Reporter Staff Writer Nat Levy at email@example.com or 425-453-4290.