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Originally published Friday, May 20, 2011 at 11:20 AM

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Judge: Anti-tunnel measure going on August ballot

A King County Superior Court judge ruled Friday that a single portion of the agreements between the city and state to proceed on a deep-bore tunnel should be sent to voters in the August primary election.

Seattle Times staff reporters

Seattle referendum

The referendum will ask voters to keep or repeal Section 6 of a City Council ordinance that approved agreements over street use, utilities, design and liability for a deep-bore highway tunnel.

Section 6: The City Council is authorized to decide whether to issue the notice referenced in Section 2.3 of each Agreement. The decision shall be made at an open public meeting held after issuance of the Final Environmental Impact Statement.

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Seattle's 10-year fight over how to replace the Alaskan Way Viaduct could intensify this summer.

A King County Superior Court judge ruled Friday that a single portion of the agreements between the city and state to proceed on a waterfront tunnel should be sent to voters in the August primary election.

Judge Laura Gene Middaugh cited the strong tradition of initiative and referendum in Washington state and said the tunnel agreements approved by the City Council in February could represent the last opportunity for the public to weigh in on the $2 billion tunnel.

But in making her ruling, the judge cautioned a referendum won't decide whether a tunnel gets built along the Seattle central waterfront.

"Is there going to be a tunnel or not? This doesn't resolve that. What happens if the state wants a tunnel and the city doesn't? I have no idea who controls that. By allowing that to go to the voters, that doesn't resolve any of the issues," Middaugh said.

Attorneys for the city, state and a coalition of business and labor groups that opposed the referendum said the Seattle vote would be a narrow decision about how the City Council gives its final notice to proceed on the project to the state.

But anti-tunnel activists — including the group Protect Seattle Now, which collected 29,000 signatures to place a referendum on the ballot — said any ballot measure would become an up-or-down vote on the tunnel, and they welcomed the opportunity to debate the issue.

They are joined in the cause by the city's tunnel-opponent in chief, Mayor Mike McGinn, who supported the referendum and has continually raised questions about the potential for Seattle to get stuck with cost overruns and about the possibility of gridlock if the tunnel is tolled to help pay for its construction.

It's possible tunnel supporters could ask an appellate court to remove the referendum from the ballot. That ruling would have to come by late June, before primary ballots are printed.

Four members of the pro-tunnel City Council called a brief news conference after Friday's ruling to say they would vote Monday to place the referendum on the Aug. 16 ballot.

Tom Rasmussen, chairman of the council's Transportation Committee, noted the ballot measure will address a characteristically Seattle issue: the process by which a decision will be made.

Rasmussen emphasized that while many referendum proponents want to replace the tunnel with a surface-street/transit option, voters won't see that option on the ballot.

Unlike the tunnel, Rasmussen said, which the Legislature has agreed to fund, the competing viaduct-replacement choices "haven't been selected by the state, haven't been funded and are not what the council approved agreements on."

The state's tunnel project manager, Ron Paananen, who was in the courtroom for the ruling, said neither the judge's decision nor the referendum would affect the ongoing project.

"We're moving ahead to complete the EIS (environmental-impact statement). This doesn't stop anything we're doing," Paananen said.

An anti-tunnel vote would be a political blow, however, to the eight City Council members who back the project, the Seattle-area legislators who voted to fund it, and Gov. Chris Gregoire, who has warned that the big cost-overrun risk is delay.

On Friday, Gregoire issued a statement noting the decade of debate and technical analysis over how to replace the viaduct after it was damaged in the 2001 Nisqually earthquake.

McGinn, on the other hand, issued a statement saying, in part, "Now we can make a decision once and for all on this project."

Cary Moon, a leading opponent of the tunnel, acknowledged no option, whether a surface-transit alternative, elevated structure or tunnel, has gained majority support in the city. But she said the Protect Seattle Now measure is a good use of the referendum tool.

"Citizens will only go into action when they see a bullheaded decision being made," she said. "The ability to weigh in on those decisions is sacred."

The referendum ended up in court after City Attorney Pete Holmes filed a lawsuit in April to block the measure, arguing the city-state agreements were administrative and not subject to a citywide vote.

Middaugh ruled Friday that only one portion of the city's 140-page agreement with the state was subject to referendum — Section 6, where the council says it will "give notice" to the state this summer that final agreements on the tunnel project will proceed.

The state already has signed a contract with a tunnel construction consortium and digging is scheduled to begin in September.

Middaugh's ruling, though it narrowed the scope of the original referendum, was a victory for the Seattle Group of the Sierra Club and Protect Seattle Now, which challenged Holmes' lawsuit.

Knoll Lowney, attorney for the Sierra Club, praised the judge's decision.

"This referendum has always been about letting the people have a voice," he said.

Lynn Thompson: 206-464-8305 or lthompson@seattletimes.com

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