Bridge project could be test to voter-approved cost limitation

Driving toward a lawsuit?

Posted: Monday, August 21, 2006

A dozen borough roads due for upgrade or rebuilding will share $1.8 million in state dollars accepted Tuesday by the Kenai Peninsula Borough Assembly, including one project whose estimated cost exceeds the $1 million cost limit imposed by voters last fall.

The Spruce Creek Bridge repair project near Seward, included in the list of projects, has been estimated to cost nearly $1.2 million. Peninsula voters last fall passed a ballot proposition (Prop 4) requiring an election for any project costing more than $1 million, and that such projects be approved by 60 percent of voters.

However, in a memo to the assembly, Borough Attorney Colette Thompson cited four reasons why she believes the bridge project could be built without voter approval.

She said sufficient work had “arguably already been done” on the bridge project prior to April 15, 2005 when Prop 4 became effective. According to Thompson, the proposition requires a vote be taken before construction begins, but she said it wasn’t clear at what point before construction that should occur. Further, Prop 4 was not retroactive.

Because funds were first appropriated to the project in May 2002, and since then funds have been spent on repairs, design, an environmental impact statement and other work, applying the provisions of the proposition to the project now would “arguably constitute a retrospective application,” Thompson said.

There are counter arguments that could be made, Thompson added, but other issues weigh on the side of the project not falling under the proposition’s provisions.

An argument can be made that the proposition was unconstitutional, violating Article XI, Section 7 by restricting the power of a legislative body to retain control over allocation of its assets. Requiring advance voter approval for the expenditure of funds appears to violate that provision, Thompson said.

Also, referendums cannot be used to affect appropriations or laws necessary for the immediate preservation of public health and safety, she said, adding that according to Road Service Area Director Gary Davis, the Spruce Creek Bridge has deteriorated to the point that it can no longer support an emergency fire truck and could be vulnerable to a flood.

While the effect of the proposition requires all capital projects costing more than $1 million to be approved prior to construction, no allowance is made for an emergency situation, Thompson said. That contradicts a state statute that states that a governing body “may make supplemental and emergency appropriations.”

Thompson cautioned the assembly that the theories she expressed have not been tested in court, and that arguments rebutting each exist.

“However, in our opinion it appears more probable than not that the voter approval requirement in Proposition 4, as applied to this ordinance and resolution, would not be upheld,” she said.

Mayor John Williams urged the assembly to approve the resolution that awarded the construction contract to replace the bridge to Swalling Construction Co. Inc., for a replacement bid of $977,170. Other money already spent and yet to be spent would push the total price to $1.19 million.

“Any delay could jeopardize completion of the project this season,” Williams said, adding later that delay “would cost no less than 20 percent.”

Assembly member Pete Sprague, of Soldotna, however, argued for a special election in compliance with the proposition. Borough Clerk Sherry Biggs said that would put the election (probably by mail-in ballot) out about 90 days and could cost between $30,000 and $45,000.

Assembly member Gary Superman noted that the issues surrounding the constitutionality of Prop 4 needed to be decided by a court. He argued that the borough should go ahead with the project, and if the borough is sued, let the chips fall where they may.

“I never believed that Proposition 4 was a legal initiative,” he said. “But the way our system works is they allow them to go out, they allow them to go to a vote, and if an issue comes up that is untenable for the legislative body, or for the proponents of whatever initiative they were pushing and they feel it needs to be litigated, then that is where you go. You force the issue; you don’t play along with it. I’ve always believed this is one that needs to be forced, and this is the vehicle for us tonight to lay it on the table.”

He said the safety issue clearly made the proposition unconstitutional.

Assembly member Milli Martin, of Diamond Ridge, said the borough might face even greater liability if it did not move forward quickly on the bridge project.

The assembly voted unanimously in favor of the ordinance, which requires that each project must come back before the assembly in a resolution awarding construction contracts.

Only Sprague voted against the resolution awarding the Spruce Creek Bridge project to Swalling.

The measures are Ordinance 2006-19-09 and Resolution 2006-073.

Other projects included in the ordinance with the Seward Spruce Creek Bridge are:

· Raven Lane, Eagle Lane (Seward)

· Thunder Road, Galankin Street (Nikiski)

· Ron’s Avenue, Eddies’ Way, Jasper Lane, Lynn Court (Nikiski)

· Rounds Road, Koehler Avenue (Nikiski)

· Charlie’ Way, Karen Avenue (Nikiski)

· Palmer Street, Crossman Ridge Road (Homer)

· Juel Avenue, Kenaitze Avenue, Nielson Street (Kasilof)

· Fairway Avenue (Kasilof)

· Foster Avenue, Walker Street, Lopez Avenue (Sterling)

· Moat Way, Excalibur Way, Camelot Drive (Seward)

· Kasilof River Road (Kasilof)

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