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UPDATE: Alaskan Way Viaduct Growth Management Act Challenge

My somewhat Quixotic battle against the Gregoire power machine continues with my very symbolic Growth Management Act challenge of the Alaskan Way Viaduct Replacement Project.

Two key issues which go to the edge of the Growth Management Hearing Board's authority concern the financial aspects of the Comprehensive planning. RCW 36.70a.120 concerns internal financial requirements. Perhaps even more important for the future of Growth Management is the regional coordination requirements, including fair financial dealings, as in RCW 36.70.100.

As you will recall, the State Legislature required the City of Seattle to cover any cost overruns. Numerous legal authorities have said this is unenforceable, including Rob McKenna and former King County Prosecutor Sally Bagshaw who infamously stated that "virtually every Attorney in Seattle" concurred. I argue, Pro Se, the contrary, extending the Growth Management Act to the full (and appropriate) limits of its authority.

Here's the original petition:

There were some interim pleadings, refining issues and the like that I believe are safe to omit. The Central Puget Sound GMHB's final response was in a PDF:

Download PDF File

Follow the jump to see my response, a 'MOTION FOR RECONSIDERATION'.


Douglas L. Tooley,
Petitioner, Case No. 11-3-0008
(Tooley II)


Christine Gregoire, Governor of Washington State
Richard Conlin, Seattle Council President
Mike McGinn, Seattle Mayor,

This motion only addresses the arguments dismissing the case for lack of jurisdiction. Petitioner does admit that the Central Puget Sound Growth Management Hearings Board (CPSGMHB) does not have the authority to halt the project at this time and any relief would be limited to those specifically outlined in the Growth Management Act AND any findings that would be relevant to future local and State government actions addressing regional financial equity, a subject specifically under the authority of the GMHB. It is noted, again, that no case law exists to guide the board toward that end or in the construction of its findings. The analysis of the CPSGMHB as it addresses these issues suffers first from attempting to apply case law where it **is not** appropriate and secondly from negating the extension and application of case law where it **is** appropriate.

By GMHB case law, including the nearly identical case, Tooley 1, the finalization of the project, for GMHB purposes, can include the adoption of the FEIS. Petitioner has never espoused the “popular belief” that an EIS demands any specific substantive result, rather that the completion of the EIS is necessary for a government to make an informed decision, to do otherwise is merely to put the law above science, a disturbing trend of legal practice in this new century advocated by activist judiciaries of both partisan persuasions.

Additionally citing the CPSGMHB’s case Open Frame LLC v. City of Tukwila that preliminary decision making is not subject to jurisdiction, it is exactly the FEIS that documents the FINAL analysis and presentation of those previously discussed facts.

The question as to whether the Viaduct Replacement Project constitutes a de facto amendment to any Comprehensive Plan is not addressed by the Board, though the subject has been discussed.

It is not clear what the effective date of the project is from documents on the record, this is not a fault of the petitioner, but rather of the State and City. Allowing such unprofessional behavior to preclude accountability would be a substantial abuse of the power of the practice of Law.

Further, the inappropriate public statements made attributing previous project delays to the citizenry, not public and private proponents would suggest such practices are malicious and conspiratorial in nature.

The State, and City, had only one option where a modified EIS process for a project of this size and Comprehensive Plan modifying scope, that would’ve been a direct replacement of the existing Viaduct.

The matter of jurisdiction on the project financing issue is not fully addressed by the CPSGMHB. RCW 47.01.402, where cost overrun responsibility is required, is, in fact a (unchallenged) de facto amendment of applicable internal Comprehensive Plan financial elements as in 36.70a.120.

The argument concerning jurisdiction via GMA regional coordination requirements including external financial elements suffers from same flaw regarding identification of a specific project action for the purposes of GMHB jurisdiction, the FEIS, pursuant to GMHB case law, is sufficient for consideration.

These above problems do indicate a fruitful area for the development of Legislative intent and codified procedure, including in the areas of GMHB financial authority and as de facto amendments of comprehensive plans via project action and the APA and would hope that the Board bring any concerns or lessons to that bodies attention. The pleadings in this case though are within the confines of the Growth Management Act, even if at the very limit of those powers.


Signed Electronically_________________

Douglas L. Tooley
P.O. Box 3135
Durango, CO 81302


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