I-90 light-rail opponents led by Kemper Freeman lose case at high court

The Washington state Supreme Court has rejected an attempt to keep light rail off the Interstate 90 floating bridge, prompting cheers from transit backers.

However, opponents expect to wage a second legal fight, perhaps through lower courts.

"You can kind of count on it," said Phil Talmadge, attorney for Kemper Freeman Jr., the downtown Bellevue developer who filed the lawsuit along with others. Talmadge noted that Thursday's ruling leaned on jurisdictional issues rather than confront a core question — is it constitutional to sell or lease highway lanes to be used for transit?

Freeman sought to stop a proposed lease of property on which to build light rail that is being arranged between the state Department of Transportation and Sound Transit. The agencies signed a term sheet agreeing to a future $153 million, 40-year lease.

The East Link line, from Seattle's International District/Chinatown Station to Bellevue and Overlake, is supposed to open by 2021, following voter approval in 2008. Sound Transit seeks to begin construction in 2015 across I-90's center express lanes, after new carpool lanes are added to the west and eastbound sides.

Transit spokesman Geoff Patrick said, "We're certainly pleased with the decision." A poll last fall, to gauge community feeling about budget shortages, found overwhelming support to move forward with the Eastside line, he said.

The pro-transit Transportation Choices Coalition called the suit frivolous. "They're doing whatever they can to thwart the will of the voters, by stopping light rail," said spokesman Viet Shelton.

But Talmadge said even DOT and Sound Transit should be dissatisfied, because the ruling leaves uncertainty over the project.

Freeman's side argued last year that because the bridge was built predominantly with gas-tax funds, it may be used only for highway purposes. Sound Transit's chief counsel, Desmond Brown, pointed to agreements in 1976 and 2004 among local, state and federal governments that call for the conversion of lanes to rail or other high-capacity transit. The state argued that a transit lease falls under DOT power to administer surplus lands.

In the majority ruling, six justices said the state DOT has authority to arrange its own property dealings, so the court may not ban those in advance. "Whether this potential lease specifically complies with these statutory provisions is not before us at this time," writes Charles Johnson, leaving apparent room for future arguments.

Two dissenters, Justices James Johnson and Richard Sanders, said the bridge and Mercer Island crossing were built using motor-vehicle funds, so the state Constitution's 18th Amendment prevents use for transit. "Ask drivers stuck on this bridge at rush hour whether any lanes are 'surplus,' " Johnson wrote.

A third opinion, by Justices Gerry Alexander and Karen Seinfeld — Seinfeld also signed the majority opinion — agreed with Freeman about highway uses, but opposed intervening at this time.

The I-90 project two decades ago cost roughly $1.5 billion, paid mainly with federal gas-tax funds. Sound Transit is paying for its yet-unsigned lease by funding the carpool-lane work, at about $164 million.

Mike Lindblom: 206-515-5631