Thiel: Lawsuit clouds city's deal with Hansen


by Art Thiel


Posted on October 17, 2012 at 2:30 PM

Updated Wednesday, Oct 17 at 2:30 PM

It’s always dangerous when politicians strain for sports analogies to explain episodes of legislation. We hear about horse races, buzzer-beaters, home runs vs. singles, big scores, Hail Marys . . . the urge is powerful to channel Moe and line up everyone shoulder to shoulder for a Stooge slap.

But county council member Pete von Reichbauer found one Monday that was a little outdoorsy, but fairly apt.

“We’ve reached Camp Muir,” he said, referring to the overnight stop at the 10,000-foot level for climbers of Mt. Rainier. If you’ve ever had the experience, making Muir seems like an accomplishment until it’s realized the final 4,410 feet to the summit is all up, all cold and no fun.

Muir is the metaphorical location at the moment for Chris Hansen’s project building a basketball/hockey arena is Sodo. He just finished the easy part.

What happened Monday were the formalities after the completion of negotiations with Hansen a few weeks ago -- the King County Council voting 9-0 and the Seattle City Council voting 7-2 to approve the improved agreement with Hansen for a public-private partnership -- a deal that has won some acclaim for its financial virtues, but criticism for the arena’s site adjacent to Safeco Field and near the doorstep to the Port of Seattle.

Hansen, Mayor Mike McGinn and Executive Dow Constantine will sign the deal at 1:30 p.m. Tuesday at the Rainier Vista Boys and Girls Club. Another formality.

The formalities were overshadowed by what many familiar with this project anticipated would be an inevitability: A lawsuit. Local 19 of the International Longshore and Warehouse Union, the people who load and unload cargo at the port, is taking up the cudgel.

Union members said at a press conference Monday that they are planning to file litigation in King County Superior Court, perhaps as soon as next week, to challenge the memorandum of understanding.

They think the location that has already appears to have been pre-selected  “threatens the livelihoods” of members and other maritime industry workers in SoDo because arena events will further impede what is already one of the city’s most congested areas.

Union members are not port employees but contract as a group for the longshoring work. The Port of Seattle is not part of the suit, nor are the Mariners and the Manufacturing Industrial Council.

There is no funding to be done, because the union hired an attorney, Peter Goldman, one of the most prominent environmental attorneys in the state and a passionate defender of the industrial character of SoDo, who is working pro bono.

Goldman attended both council meetings Monday and came away with a strong belief that the memorandum of understanding between the parties is stacking the deck to favor Hansen’s choice without giving serious public consideration to the project’s next phase – a State Environmental Policy Act (SEPA) review, including its mandatory search for alternate sites.

Even though the MOU stipulates a commitment to SEPA’s demand for alternatives, Goldman called the MOU “a sham” and “a farce” because it contains many decisions already made that favor the SoDo site before the SEPA review, not after, which is how the law is written.

“The politics of this is that no one wants to be anti-arena, and no one wants to thumb their noses at state law,” Goldman said after the city council vote. “So they found a cute way to move forward the process while camouflaging the fact that important decisions already have been made.

“The union wants to challenge it by saying SEPA should have been done even before we got this far. We got off on a wrong start here.”

Goldman said the union seeks to invalidate the MOU, its only option because an injunction is a valid a tool only for a project that has broken ground. The Hansen camp will also argue that the MOU can’t be invalidated because it is a non-binding deal. It serves as a plan after the SEPA review is completed, not a contract.

Goldman is willing to say, “We might or might not be right on our legal argument,” but claims lawyers for the county and city are equally unsure.

“It certainly no slam dunk on either side,” he said. “They have lawyers saying the case law is a close call; you can probably get away with it. Hansen and his lawyers are saying,  so what? They know we can’t get an injunction using SEPA law against a project that hasn’t broken ground.

“The union felt we had to do something now. When you call a foul after the game, no one listens. When you call a foul when it happens, people listen. It’s important to call it out now.”

Goldman reiterated a theme common to the site opponents.

“This is not about bringing the Sonics back,” he said. “What we’re against is someone coming in and telling us where his project must go. If this were a sewer treatment plant or a noisy highway, you can be sure people would want to see process. All of sudden we’re looking the other way because it’s the Sonics? Sports aren’t exempt from the law.

“We can have a preferred site, but he can’t come in here and say my way or the highway. That’s what’s offensive to the law. It might not be a great way to shop for an NBA team, but it’s the way to comply with the law.”

Now that the MOU is to be signed, Hansen has committed to go team-hunting. But the uncertain outcome of the lawsuit, which Goldman says could take from three to nine months to reach the court, may be seen by the NBA owners as a too large a risk to permit a team to move to Seattle.

If the MOU is upended, it doesn’t mean the project is done unless Hansen says so. The MOU can be re-done to satisfy the union, but time will be lost.  Goldman says time was already wasted when McGinn conducted secret negotiations with Hansen for several months, and again when the city and county councils weighted the MOU so heavily in favor of Hansen’s choice ahead of SEPA.

Goldman said the reason SoDo works for Hansen is the availability of less expensive nearby real estate.

“Hansen has made a good deal for the city; we know that,” Goldman said. “The only way it works is if he got in real early and doesn’t overpay for some of the real estate, and has more growth opportunity for other real estate.

“He was well counseled that if he comes into Seattle pig-headed, trying to make too much money off this, it won’t fly. He had to make Seattle a very good deal. He said the only deal I’m making is in place where I can recoup my investment. It’s the only place that works for him.”

Whether the SoDo site can be made to work for the union, and all the constituencies for whom it and Goldman are carrying water, remains to be seen. Meanwhile, enjoy the view from Muir, and keep the ice ax handy.

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