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Updated: State Supreme Court Rules Against Suit by Kemper Freeman and Others to Block Light Rail on Interstate 90

The State Supreme Court ruled against a lawsuit brought forth by Bellevue developer Kemper Freeman and others that sought to block an agreement that would have led to light rail on Interstate 90.

The State Supreme Court Thursday declined to block a future agreement between the State Department of Transportation and Sound Transit that would lead to the use of Interstate 90 for light rail, and which would bring light rail to the Eastside.

The lawsuit was filed against the state by Bellevue developer Kemper Freeman; the Eastside Transportation Association, which advocates for bus rapid transit and other road-based transportation, and others.

Jim Horn, chairman of the board of the Eastside Transportation Association, said that the lawsuit only covered one issue out of a host  technical and legal issues that the group has with light rail, and also said that the court sidestepped the constitutionality of putting the regional light rail on a bridge paid for through state money.

"I can't tell you what we're going to do next, but I doubt if we'll go away," said Horn, a former state senator of the 41st District.

According to the opinion issued by the court, attorneys for the petitioners argued that the state's 2009-2011 transportation budget set aside $300,000 of motor vehicle funds for a nonhighway purpose -- i.e., light rail. Spending motor vehicle funds for a nonhighway purpose would be against the state constitution. The $300,000 was used by the Department of Transportation to determine the value of the center HOV lanes on I-90 which would be leased for light rail by Sound Transit. The petitioners sought to block the state from entering into an agreement that would allow Sound Transit to lease I-90 for light rail.

The majority of the court agreed that spending the $300,00 did not violate the state constitution because it served the purpose of valuing I-90 for a fair lease, which they determined was a highway purpose. The opinion, authored by Justice Charles W. Johnson, also stated that since there is not yet any lease agreement between Sound Transit and the state DOT -- which is allowed with certain restrictions --  the court cannot judge whether the future agreement violates any law and the lawsuit is premature.

"Furthermore, as  explained above, DOT has no immediate duty to transfer the center lanes of I-90 to Sound Transit and no such transfer has yet occurred. Since this court is not empowered to command the discretionary decisions of state officials in advance, we cannot direct or prohibit DOT's future management of highway property," Charles Johnson wrote. Chief Justice Barbara A. Madsen, justice pro tem, Karen G. Seinfeld, Justice Pro Tem and justices Debra L. Stephens, Tom Chambers and Susan Owens agreed with the analysis.

Justice Gerry L. Alexander concurred, and wrote that even if the $300,000 expenditure, which has already been spent, ran afoul of the law, blocking a future agreement would not be the way to correct it.

"I agree with the majority that the relief requested is 'too general to command issuance of the writ,' " Alexander wrote.

A dissenting opinion by Justice James M. Johnson, signed by Richard B. Sanders, Justice Pro, stated that the use of the money for a study that will lead to an agreement between Sound Transit and DOT did not meet the expectations of citizens who voted 35 years ago to raise their gas tax to benefit roads.

"The people have tolerated or authorized such taxes in the past predicated on the constitutional promise that the revenues  collected by the state through such taxes and fees will be used exclusively for highway purposes," James Johnson wrote.

Justice Mary Fairhurst and Charles Wiggins did not participate in the decision.

The decision means that Washington Department of Transportation and the Sound Transit can now move forward with signing lease agreements for the use of I-90, said Sound Transit spokesman Geoff Patrick.

The lease will not involve an exchange of money from the regional agency to the state agency. The improvements currently being made to I-90 that would make room for the light rail line are being paid for largely by Sound Transit, Patrick said, and more than pays back what Washington taxpayers paid to build the original HOV lanes.

Horn, of the Eastside Transportation Association, said that the court sidestepped the constitutionality of using the Interstate 90 bridge for regional transit when it was paid by taxpayers statewide, which could open the door to a new legal challenge when the leases are finalized. He also said that many of the technical and engineering issues of placing rail on a floating bridge can still be challenged.

Eastside Transportation Association advocates against light rail in favor of bus rapid transit as a faster, more flexible solution for mass transit, he said.

"If this had gone the other way, we wouldn't have said it was a win for us, but it would have been a win for everyone," Horn said.

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