Even if Seattle officials argue that replacing the Alaskan Way Viaduct with a new elevated structure would violate shoreline-development...

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Even if Seattle officials argue that replacing the Alaskan Way Viaduct with a new elevated structure would violate shoreline-development laws, they’d likely lose the fight if the state wants the highway built.

Deborah Cade, an assistant attorney general, said the city can’t, through its zoning rules, limit the design of a new highway. “State law gives this responsibility to the Department of Transportation, and that pre-empts any local efforts to tell the state what designs are acceptable.”

She said the state’s shoreline act would apply, but it requires cities to accommodate existing and future transportation facilities.

The city could object, Cade said, “but we’ve always prevailed. It’s something we’ll have to deal with, but ultimately it won’t dictate design. It’s the decision of the governor what the state can afford to build.”

But it could get messy.

“The city will not roll over on this,” said City Councilman Peter Steinbrueck, predicting a court fight should the state insist on an elevated structure. “It’s important if the state intends to proceed with an aerial replacement, it will be in conflict with a significant body of laws, plans and regulations.”

Gov. Christine Gregoire has said she plans to decide by the end of November whether to replace the ailing 53-year-old viaduct with a tunnel, as Mayor Greg Nickels and most of the Seattle City Council want, or with another aerial structure, the option supported by key Seattle legislators.

With the cost estimated at $2.8 billion, the elevated structure is a cheaper choice and would cause less disruption during construction; the $4.6 billion tunnel option would open up views of Elliott Bay and reconnect downtown to the waterfront.

Steinbrueck last month sponsored an ordinance, approved by the council and signed by Nickels, declaring an elevated viaduct “inconsistent” with current use and height regulations and the city’s comprehensive plan, a long-range plan on where to concentrate growth.

Steinbrueck voted with the majority of the council for a tunnel to replace the viaduct but said he also wants to explore tearing down the structure and rerouting traffic onto surface streets.

In a report prepared for Steinbrueck by the city’s Department of Planning and Development, analysts found that a new elevated viaduct would violate three provisions of the city’s comprehensive plan and would be taller than the law allows.

Structures within 200 feet of the shoreline can’t be taller than 45 feet, said Alan Justad, spokesman for the planning department. The proposed new viaduct would be 58 feet tall.

Further, the report said an aerial viaduct would conflict with the city’s requirements for maintaining water views from public areas.

It also might affect public views protected by the state Environmental Policy Act.

Environmental attorney David Bricklin said issues surrounding replacement of the viaduct are more political than legal.

“The city could make a lot of trouble, but ultimately the state holds the trump card. If the state passes a law that [an elevated] viaduct should go in, it doesn’t matter what the city desires.”

He said it’s similar to what happened when the city tried to block reconstruction of the Interstate 90 bridge in 1980.

City opponents filed an initiative to block the then-$1.2 billion project, asking that the money be diverted to other transportation projects.

Ultimately, the state Supreme Court ordered the initiative off the ballot, saying it conflicted with state laws and was illegal.

Attorneys also point out that when the state wanted to replace the Hood Canal Bridge, damaged by high winds in 1979, it quickly amended state law to exempt the replacement bridge from the state Environmental Policy Act and the Shorelines Management Act “to reconstruct a permanent Hood Canal bridge without procedural delays.”

Bricklin said that if the state chooses an elevated replacement for the viaduct, the city could slow the process because it must issue permits.

“One of the cons of this is the state would have a very uncooperative partner with the city of Seattle. The city is hoping this would tip the scales in favor of the other approach.”

A city document shows the $2.8 billion cost of a rebuilt viaduct could be pushed to nearly $5 billion by slowing permits, filing lawsuits and using other tactics to oppose the project.

Ron Paananen, the state’s viaduct project manager, acknowledges that a new elevated viaduct would violate city laws, and that the city could cause problems if that option were chosen.

“The first thing we have to do is make a decision,” he said.

“This is not unsurmountable, but it complicates the project. The city owns the right of way, and we can’t divorce ourselves from the city.”

Susan Gilmore: 206-464-2054 or sgilmore@seattletimes.com