Pande Cameron and Co. of Seattle, Inc. v. Central Puget Sound Reg. Transit Authority

• Decision Date: 20 March 2009
• Docket Number: Case No. 07-cv-1312-JPD.
• Citation: 610 F.Supp.2d 1288
• Parties: PANDE CAMERON AND COMPANY OF SEATTLE, INC., et al., Plaintiff, v. CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY (Sound Transit), et al., Defendants.
• Court: U.S. District Court — Western District of Washington

Page 1288

610 F.Supp.2d 1288

PANDE CAMERON AND COMPANY OF SEATTLE, INC., et al., Plaintiff, v. CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY (Sound Transit), et al., Defendants.

Case No. 07-cv-1312-JPD.

United States District Court, W.D. Washington. at Seattle.

March 20, 2009.

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James J. Klauser, Robert C. Rowley, Rowley & Klauser, Michael E. Withey, Law Office of Mike Withey, Seattle, WA, for Plaintiff.

Matthew J. Segal, Paul J. Lawrence, Sarah C. Johnson, K & L Gates LLP, David Nelson Bruce, Duffy J. Graham, Savitt & Bruce LLP, Seattle, WA, for Defendants.

ORDER REGARDING PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

JAMES P. DONOHUE, United States Magistrate Judge.

I. INTRODUCTION AND SUMMARY CONCLUSION

This matter comes before the Court on the parties' cross-motions for summary judgment. Dkt. Nos. 38, 45, 50. After careful consideration of the motions, the oppositions and the reply briefs, the supporting materials, the governing law, oral argument of counsel, and the balance of the record, Defendant Sound Transit's motion for summary judgment, Dkt. No. 38, is GRANTED, Defendant City of Seattle's motion for summary judgment, Dkt. No. 45, is GRANTED, and Plaintiffs' joint motion for summary judgment, Dkt. No. 50, is DENIED.

II. FACTS AND PROCEDURAL HISTORY

A. Background of the Stub Tunnel Project

In 1996, the Washington State voters in the Central Puget Sound area, which includes King, Pierce, and Snohomish Counties, approved financing for the ten-year Sound Move regional transit system plan. The Central Link Light Rail Project, a major element of the Sound Move plan, is a 23.4-mile light rail line connecting the Northgate Urban Center, the University District, downtown Seattle, southeast Seattle, the city of Tukwila and the Seattle-Tacoma International Airport. Defendant Central Puget Sound Regional Transit Authority ("Sound Transit") is responsible for building the Central Link Light Rail Project.

As part of the construction of the initial segment of the light rail line, Sound Transit conducted certain retrofit work on Seattle's existing downtown transit tunnel. Part of the retrofit work included the construction of a "stub tunnel," which is a tunnel segment connected to the existing downtown transit tunnel and extending several blocks along Pine Street between Eighth Avenue and Interstate 5. The stub tunnel was constructed to allow light rail trains to stop and change direction and, additionally, it serves as the point at which the north link light rail segment will join with the downtown transit tunnel. The location of the stub tunnel was determined by Sound Transit upon consideration of a variety of light rail alignment alternatives and pursuant to an environmental review process.

B. Environmental Review and Approval of the Light Rail Project

In 1999, Sound Transit completed the Environmental Impact Statement ("EIS") for the Central Link Light Rail Project, including the construction of the stub tunnel. The EIS was prepared under both the National Environmental Policy Act ("NEPA") and the State Environmental Policy Act ("SEPA"). By its Record of Decision ("ROD") dated January 5, 2000, the Federal Transit Administration ("FTA") determined that the requirements of NEPA had been satisfied for construction of the light rail line. Dkt. No. 42, ¶ 3; Dkt. No. 47, Exh. G. Sound Transit later conducted a supplemental environmental review and, among other things, further examined the potential impacts and mitigation measures of the Pine Street, stub tunnel's construction. Dkt. No. 42, ¶ 4. The FTA issued an Amended ROD in May 2002, which found that Sound Transit's environmental review satisfied the requirements of NEPA. Id.; Dkt. No. 47, Exh. H. The Amended ROD included measures to mitigate noise, vibration, air quality, and to reduce impacts to local businesses during construction of the entire light rail line. Id., Dkt. No. 47, Exh. H, Att. E.

C. Overview of the Permitting Process for the Stub Tunnel's Construction

In June 2000, the Seattle City Council passed Ordinance 119975, which authorized the City of Seattle to enter into an agreement with Sound Transit for the nonexclusive use of certain City of Seattle streets and rights-of-way for the light rail construction project ("Transitway Agreement"). Dkt. No. 40, ¶ 3; Dkt. No. 47, Exh. K. The Transitway Agreement required that any construction in the public right-of-way be subject to permitting and oversight by the Seattle Department of Transportation ("SDOT"). Id.

Sound Transit obtained two construction permits from SDOT for the stub tunnel construction that occurred in the public right-of-way. Dkt. No. 40, ¶ 4. These permits are known as Project Construction Permits ("PCPs"). The first PCP (Y1429) authorized use of the right-of-way for utility relocation work and the second PCP (Y4495) authorized construction of the stub tunnel in the public right-of-way. Id. Sound Transit also applied for and received three Master Use Permits ("MUPs") from the City's Department of Planning and Development ("DPD") to cover the three staging areas to be used for the construction of the stub tunnel. Id., ¶ 5. A staging area is typically used during construction for storage of materials, access to the construction site, and parking and operating of construction vehicles. Dkt. No. 47, Exh. A. The three staging areas for the stub tunnel's construction were located: (1) on the north side of Pine Street east of Eighth Avenue; (2) within the Convention Place Station, on the north side of Pine Street across from the Paramount Theater; and (3) south of Pine Street and east of the Paramount Theater. Id.

Plaintiff Pande Cameron and Company of Seattle, Inc. ("Pande Cameron") and other affected businesses (known as the "Pine Street Stakeholders") appealed the DPD's decision to issue the MUPs. Dkt. No. 40, ¶ 6. After a multi-day hearing, the Hearing Examiner approved the DPD's issuance of the MUPs based on the construction impact mitigation measures provided in the environmental documents. Id. The Pine Street Stakeholders did not appeal the decision. Id.

The permits issued by the City of Seattle for the stub tunnel's construction included construction impact mitigation measures from the FTA's ROD and Amended ROD, which contained the mitigation provisions developed through the environmental review and approval process, applicable City of Seattle ordinances, including City Ordinance 119975, provisions within the Seattle Municipal Code, and technical requirements that emerged during the City's review of Sound Transit's construction plan. Dkt. No. 47, Exhs. A, C.

D. Timeline of the Stub Tunnel's Construction

The Pine Street stub tunnel's construction began in April 2004. The first phase involved relocating public utilities that were located in and around the public right-of-way on Pine Street, and that phase lasted until approximately September 2004. Dkt. No. 43, ¶ 5. Sound Transit then began preparatory work for the stub tunnel construction project. Id., ¶ 7. Major construction operations related to the stub tunnel were shut down between Thanksgiving 2004 and New Year's Day 2005. Id. In January 2005, Sound Transit began the construction work on the stub tunnel, which continued until the stub tunnel's completion in May 2007. Id., ¶ 8. The stub tunnel was constructed using the "cut-and-cover" method of tunnel construction, which, simply put, involves excavating a large trench which is then enclosed and the road surface is restored.

E. Plaintiffs Pande Cameron and the Andonians

Plaintiff Pande Cameron is a retail business that has been selling high-end Oriental floor coverings since its founding in Seattle in 1928. Pande Cameron was located at 815 Pine Street in downtown Seattle from 1966 through January 2005. The three Andonian brothers—Plaintiffs Paul, Gregory, and Charles ("the Andonians")—were all partial owners of Pande Cameron at one time, but as of 2000, only one of the three brothers, Charles, and his adult son, Bradley, own Pande Cameron. The Andonians acquired both the Pande Cameron store and the 815 Pine Street property many years ago when their parents retired from the business.

F. The Pine Street Property

Prior to its sale, the Andonians owned the property located at 815 Pine Street as tenants in common. During the relevant period, the building on the property ("the Pande Cameron building") was occupied by two tenants, Pande Cameron and the Woodside/Braseth art gallery. The Woodside/Braseth art gallery was established in 1961 and sells high-quality contemporary works of art from Northwest artists. Pande Cameron occupied the ground floor of the building, and the Woodside/Braseth art gallery occupied the second floor.

The Pine Street property is located at the southeast corner of Pine Street and Ninth Avenue in downtown Seattle. Across Ninth Avenue to the east is the historic Paramount Theater, and to the west of the Pine Street property is the Tower 801 apartment building (which is located at 801 Pine Street at the corner of Pine Street and Eighth Avenue). Immediately behind the (now former) Pande Cameron building is a parking lot that was used by the customers of Pande Cameron and the Woodside/Braseth gallery. The parking lot was part of the Pine Street property and owned by the Andonians. Behind the parking lot is the Washington State Convention and Trade Center. Between the former Pande Cameron building and the Tower 801 apartment building is an alley that was used to enter Pande Cameron's loading area and Tower 801's resident parking garage.

Pande Cameron's most recent lease with the Andonians was a four-year lease agreement dated June 26, 1999. Dkt. No. 39, Exh. B. The lease included an option to extend the lease for five years. Id. In June 2003, Greg and Paul Andonian sent a letter to Charles Andonian, stating that they believed the lease was...