Noise, vibrations, blight: A Pioneer Square building owner says the state owes him almost $400,000 for damage and lost income suffered during years of Highway 99 tunnel delays. The state disagrees.
Long before Bertha began digging, Brian Runberg knew his brick building at the foot of Yesler Way occupied the most precarious spot on the Highway 99 tunnel route.
What he couldn’t foresee was that construction noise, vibrations and blight would linger outside his doorstep for five years.
Runberg, whose daylight is still obscured by a battleship-gray worksite wall, is asking for compensation. But the Washington State Department of Transportation (WSDOT) last month rejected his $364,475 damage claim, raising the question: What does a megaproject owe its neighbors?
The state did pay him $52,712 for repairs four years ago, after brick mortar flaked onto the desks inside Runberg’s architecture firm. Vibrations were the culprit that time, as steel rods were pounded deep into the ground above the tunnel route to create a protective underground fence.
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A lot more has happened. Giant concrete pillars were set in the soil along the Alaskan Way Viaduct. Tunnel-boring machine Bertha stalled and required a giant repair vault, across from his second-floor office and his ground-floor tenant, Al Boccalino Italian restaurant.
One Yesler Way remained a major construction zone longer than anybody expected.
“You get into a level of fatigue, when it’s gone five years,” Runberg said. “Bertha fatigue.”
He claimed a loss of $121,217 when Runberg slashed the restaurant’s rent in half. The owners finally moved last spring to First Avenue.
“A majority of their customers and our clients have decided not to enter this ‘war zone’ of construction noise, diesel fumes, dust and street/sidewalk closure,” Runberg wrote in March. The ground floor is now being remodeled for use by Runberg’s architecture firm.
Runberg seeks another $199,445 to replace grout that has been sloughing like powder off the exterior, and to install thin reinforcing rods. Graffiti removal, repairs to a broken sewer line, legal and administration costs total $43,813, he says.
The state replies that other factors, such as pressure washing, are to blame for erosion of the mortar and it’s “not consistent with vibration or ground settlement.”
The triangular, three-story structure opened in 1911 as a seamen’s and travelers’ hotel. It is the closest building to the path of the tunnel, which given Bertha’s current progress could open in spring 2019, three years late. The seismically vulnerable viaduct would then be removed, creating better Elliott Bay views and higher property values.
WSDOT gives a number of reasons for denying Runberg’s claim.
Engineers and an architect working for WSDOT found no structural damage or foundation settlement, project spokeswoman Laura Newborn said in a statement. Sophisticated laser and satellite devices have been monitoring building and ground movement within a fraction of an inch.
Bertha passed under the viaduct at Yesler on April 29, 2016, and it’s somewhat miraculous that One Yesler Way survived without sinking beyond the half-inch limit in the tunnel contract with Seattle Tunnel Partners (STP).
Meanwhile, Seattle is suing STP based on groundwater pumping in November 2014, when the soil sank an estimated 1¼ inches. The city says it spent $11.4 million to replace a damaged old water main.
Runberg blames groundwater pumping for contributing to a 2-inch gap between his building and the sidewalk.
On the other hand, the weak fill soil in Pioneer Square has been sinking for decades. Seawall construction and utility replacements have also occurred recently, complicating the impacts.
Other impacts are harder to measure for a legal claim.
Runberg’s employees have sometimes been sent home due to noise and exhaust, he said. The blight of construction walls and fencing has encouraged vandals to tag the brick walls and rooftop fans, he suspects.
“The diesel is worse today than yesterday. The truck is closer to the building today and the blue smoke is coming in the office!” said an urgent message in December 2012 from office manager Anne O’Rourke to an STP outreach staffer during drilling work. “We have been exceedingly patient yesterday and having WSDOT put our health in danger for multiple days is ridiculous.”
Cyclops not welcome
The state constitution bans gifts of public funds. Transportation agencies generally say they can’t compensate business owners for lost income during a project
“One Yesler’s mere proximity to construction is not a sufficient basis for a legal cause of action,” says an attorney’s letter denying Runberg’s claim.
Runberg contacted state Sen. Joe Fain, R-Auburn, a Transportation Committee member, who says: “I’ve walked the area, and I can’t imagine how any company, restaurant or landlord would be able to maintain his property under this condition.”
Rare workarounds to help small businesses have occurred where political will is high:
• Merchants in South Seattle received limited compensation through “business interruption grants” and other aid, totaling $15 million, from the Rainier Valley Community Development fund, to help them survive light-rail construction.
• WSDOT itself agreed to spend $20 million to seismically strengthen the doddering old warehouse at 619 Western Ave., rather than demolish it before Bertha went underneath. Ironically, the state feared a delay in tunnel groundbreaking if historic preservation groups sued. An artist colony inside was evicted to enable the retrofit, and the building is now prime office space.
Three other Pioneer Square businesses, and the Seattle Pacific Hotel at the tunnel’s South Lake Union portal, filed claims for settlement or structural damage as of late June, according to a state risk document released through a public-records request. Newborn said the claims have been referred to insurers.
Robie Russell, a nearby tenant whose law-office walls were cracked during the groundwater episode, predicts landowners will file claims when the tunnel is done, based on his chats with neighbors. He said the state paid for a simple pipe repair in the building where he works. The Boston Big Dig project paid for building damage after completion a decade ago.
“I’m sitting back, wondering what’s going to happen when the viaduct is knocked down. It’s a similar situation, you can’t pull the viaduct down without causing the ground to shake,” he said.
After the $2.1 billion tunnel replaces the Alaskan Way Viaduct, the old elevated road will be demolished.
Landowners may sue as a last resort, but Runberg said he can’t afford to match the state’s deep pockets, to pay legal fees in a prolonged case.
The rejection notice cites a document Runberg signed in November 2012, when the state covered the interior mortar repairs, that banned additional claims for damage through 2015.
“There’s an argument that kind of release wouldn’t be enforceable, in light of the delayed circumstances surrounding the tunnel project,” said Runberg’s lawyer, Dale Johnson.
As a symbolic reaction, Runberg told the state that its laser-emitting cyclops, nicknamed R2-D2, and other measuring devices for the tunnel project were no longer welcome on his rooftop.
Those were removed a week ago.