Viaduct proviso may be toothless

A requirement that Seattle-area property owners pay for any cost overruns on the deep-bore tunnel to replace the Alaskan Way Viaduct may prove more symbolic than legally binding.

The controversial requirement was inserted as an amendment to the tunnel legislation Wednesday before the House voted to approve the $4.3 billion project.

The amendment irritated Seattle Mayor Greg Nickels and other tunnel advocates who question why Seattle taxpayers are being singled out to take responsibility on cost overruns for a state highway project.

But even as they criticized the amendment, some Seattle officials and state lawmakers say it could ultimately prove toothless because it does not specify which property owners should pay for overruns or how. Since the state will be entering the construction contracts for the tunnel, it's not clear how private-property owners could be held liable for overruns.

Seattle Deputy Mayor Tim Ceis said the city will ask Gov. Chris Gregoire to seek a legal opinion on the amendment from the state Attorney General's Office before signing the tunnel legislation.

"We have serious questions about its enforceability," Ceis said. "Because of that, we don't think it's worth holding things up."

Gregoire's office has previously indicated the state would be responsible for cost overruns on its share of the viaduct project — including the tunnel and the tear-down of the existing viaduct.

The amendment that narrowly passed the House Wednesday says the state will pay only $2.4 billion for the viaduct project and that up to $400 million more could come from tolls. Anything above that, the amendment says, "shall be borne by property owners in the Seattle area who benefit" from the tunnel.

Asked whether that language would actually have any legal force, House Transportation Committee Chairwoman Judy Clibborn, D-Mercer Island, who sponsored the amendment at House Speaker Frank Chopp behest, said Thursday "I have my doubts."

Clibborn said the amendment was necessary to appease tunnel skeptics, including Chopp, D-Seattle, who has opposed the tunnel and compared it with Boston's notorious "Big Dig."

"I think it gave some people comfort. It was symbolic," Clibborn said.

Seattle City Councilwoman Jan Drago, another leading tunnel champion, said she immediately questioned whether the amendment was legal or enforceable.

"I think it's best viewed through the political lens, and that this may have been the price of bringing the project to a full vote. I think this was Frank's price," she said.

Chopp's office referred questions Thursday to Melinda McCrady, House Democratic Caucus spokeswoman, who said she could not comment on how the amendment would be enforced. But she did note the Legislature can refuse to appropriate any additional money for the tunnel if overruns arise.

Despite the flap over the amendment, tunnel supporters said they were eager to see the legislation passed. It now goes the Senate, which earlier passed a version of the bill without the amendment.

Patrick Gordon, chairman of the board of Downtown Seattle Association, called it "a blemish on what is otherwise a wonderful bill."

"We have worked very very hard for eight years," Gordon said. "The overriding reaction is that we're thrilled."

Clibborn said all the discussion of cost overruns is premature.

"The way I see it, I don't think we're going to have overruns," she said, noting that a large pad has been built into the tunnel budget to cover unexpected costs.

If overruns do occur, Clibborn said: "At that point you sit down with Seattle and say, 'Here is where we are, let's work together.'"

Jim Brunner: 206-515-5628 or jbrunner@seattletimes.com