Mercer Island Transit Interchange

This afternoon, the Commissioner for the Court of Appeals issued a ruling denying the City’s motion for discretionary review of the Superior Court’s decision granting Sound Transit’s motion for summary judgment. Although the ruling is disappointing, the City is evaluating its options and preparing for the next phase in its litigation with Sound Transit.

After the King County Superior Court’s decision granting partial summary on December 17, 2021, the City has filed a motion with the Washington State Court of Appeals seeking permission to pursue an early appeal of that decision, rather than waiting until after trial on the portion of the case that still remains to be resolved. The City’s motion to the Court of Appeals is fully briefed and those briefs are available here. On April 15, 2022, the Court of Appeals will hear argument on the City’s motion. If the City is successful, the City’s appeal will then go forward before the Court of Appeals. If the City is unsuccessful, then the parties will proceed to trial.

The King County Superior Court also granted the City’s request to re-set the trial date (previously to begin in March 2022) to February 2023. This new trial date will allow time for the Court of Appeals to hear and resolve the City’s motion and time for appropriate discovery in the event the City’s motion is denied and the case proceeds to trial.

Additionally, the City sought and was granted a voluntary dismissal of its appeal of the LUPA decision before the Court of Appeals.

As previously noted, the King County Superior Court last Friday granted Sound Transit’s motion for summary judgment. At the hearing, the Court provided an oral ruling, which it entered as an order this week. The order is available for review, with the transcript of the hearing attached (the Court’s oral ruling begins on page 35 of the transcript). The City invites its residents interested in the decision to review it carefully.

The City respectfully disagrees with the Court’s order. For example, the Court held that the City had no right to file a lawsuit, which in the City’s view would impermissibly render the Settlement Agreement unenforceable and was not supported by the facts before the Court. Additionally, the Court held that the conditions the City imposed on Sound Transit’s permit applications (ones that required Sound Transit to respect the conditions to which it agreed in the Settlement Agreement) constituted impermissible “additional mitigation.” This too was contrary to the law and the evidence before the Court.

Contrary to information that has been circulating, the Court did not rule that former City staff agreed to Sound Transit and Metro’s demands for changes to the Settlement Agreement.

The City and Sound Transit struck a deal four years ago. Since then Sound Transit has acted (and argued in court) that it does not need to follow that deal. The City strongly disagrees and continues to evaluate its options going forward.

This morning the King County Superior Court held a hearing on the City’s motion for a preliminary injunction and Sound Transit’s motion for partial summary judgment. In a ruling during the hearing, the Court denied the City’s motion, which sought to enjoin construction of a curb cut on the north side of North Mercer Way for bus layovers. The Court substantially granted Sound Transit’s motion for summary judgment as well. Sound Transit’s motion pertained to many, but not all issues in dispute between the parties.

The City respectfully disagrees with the Court’s decision and is evaluating all of its options. The City expects to post the Court’s written orders to the City’s Let’s Talk page when those orders are entered by the Court.

UPDATE | 12/22/2021: The Court issued an order granting Sound Transit's motion for summary judgement, denying the City's motion for preliminary injunction.

Last week, the City of Mercer Island sought narrowly-tailored relief from the King County Superior Court. The City seeks an order prohibiting Sound Transit from constructing a curb cut on the north side of North Mercer Way as a part of the construction of the Mercer Island Transit Interchange. The curb cut is in violation of the 2017 Settlement Agreement between the City and Sound Transit, and Sound Transit admits the curb cut will be used for purposes that the Settlement Agreement prohibits. Sound Transit has proceeded with plans for construction in violation of its obligations under the Settlement Agreement. The City believes it is important that the parties’ disputes over the Settlement Agreement be resolved before the City’s streets are altered in ways the Settlement Agreement does not authorize.

Because the City supports both East Link and the Mercer Island Transit Interchange, the order the City seeks is very narrow. It would allow Sound Transit to proceed with the vast majority of the project, prohibiting only the disputed curb cut until the parties can each have their day in court on the Settlement Agreement dispute - the City is confident in its legal position. The Court will consider the City’s request at a hearing on December 17, 2021.

The City has also learned that Sound Transit has filed a motion for summary judgment and is asking the court to say that it has complied fully with the Settlement Agreement and that the City is in violation of the agreement.

In the years since the Settlement Agreement was approved, Sound Transit repeatedly ignored the City’s rights under that agreement and failed to meet its own obligations under that agreement. Instead of engaging in good faith with the City, it has moved forward without regard for the agreement it reached, rejecting the City’s many attempts to work cooperatively with Sound Transit to find a mutually acceptable resolution.

The City of Mercer Island fully rejects Sound Transit’s arguments and will oppose its motion for summary judgment.

Full court filings and background on the Mercer Island Transit Interchange can be found on Let’s Talk.

Earlier today, the Superior Court issued an order granting Sound Transit’s Motion to Strike the City’s Notice of Supersedeas. This means there is no stay in place of the Court’s earlier order in the Land Use Petition Act appeal directing the City to issue Sound Transit permits to construct bus layovers on the north side of North Mercer Way. Consequently, the disputed permit has been issued to Sound Transit in compliance with the Court’s order.

Fortunately, the Court’s decision is not a ruling based on the terms of the Settlement Agreement or the remedies that it may later provide. The City will continue to litigate its 2020 lawsuit against Sound Transit for breach of the Settlement Agreement which is unimpacted by today’s decision.

On Friday, September 3, King County Superior Court issued an order in the City’s 2020 Settlement Agreement Lawsuit with Sound Transit clarifying and confirming that the costs awarded to the City for Sound Transit’s discovery misconduct include expenses incurred by the City to review Sound Transit’s document dump. The clarification and confirmation was sought by Sound Transit. The City will be recovering $58,985.05 from Sound Transit.

Last June, Sound Transit filed a Land Use Petition Act (LUPA) appeal in Superior Court challenging the Hearing Examiner’s decision on permits related to construction of their bus-rail integration facilities on North Mercer Way. This appeal is separate and distinct from the City’s 2020 lawsuit against Sound Transit for breach of the 2017 Settlement Agreement. The Court held a hearing on Friday, August 20 to consider a motion filed by the City to dismiss the LUPA appeal and a motion filed by Sound Transit for partial summary judgment.

Unfortunately, the Court denied the City’s motion to dismiss and granted Sound Transit’s motion for partial summary judgment to construct a bus layover bay on the north side of North Mercer Way. In granting Sound Transit’s motion, the Court opined that the terms of the mutually agreed upon Settlement Agreement could not be the basis to condition Sound Transit’s permit, even if the resulting permit violates the parties’ Settlement Agreement.

The Court, however, made it explicit that it was not ruling on the terms of the Settlement Agreement or the remedies that it may later provide to either party. This leaves all options open for the City to continue to litigate its 2020 lawsuit against Sound Transit for breach of the Settlement Agreement unimpacted by today’s ruling.

The City is currently evaluating all of its options for responding to Friday's decision. A written order/decision of the rulings was issued by the Court on August 25 and can be viewed here.

As part of the City’s lawsuit against Sound Transit, the City was forced to seek relief from the Court due to Sound Transit’s discovery misconduct and pattern of delays. The City requested this relief after Sound Transit significantly delayed producing documents and dumped more than 100,000 unreviewed documents on the City, requiring the City to expend considerable time and resources sorting through a large number of irrelevant documents. The Court granted the City’s motion in full and ordered Sound Transit to produce all documents requested by the City within a month. The Court likewise ordered Sound Transit to reimburse the City for fees and costs relating to Sound Transit’s misconduct. The City is pleased that the Court granted its motion and looks forward to finally receiving all requested documents so that the City can pursue its claims.