Appeals court sides with C-Tran in BRT lawsuit

The Washington State Court of Appeals ruled Tuesday that C-Tran can use tax revenue from 2005 and 2011 ballot measures to pay for The Vine, the transportation agency’s Bus Rapid Transit system.

The decision comes when construction on the project is nearly complete and just over a month before the service is set to go live.

One of the appellants, John Ley, was in North Carolina on Wednesday and said he hadn’t yet read the decision. He said it is too soon to tell what the next move will be.

“I’m sad we lost, but, you know, it’s an uphill battle in all this,” he said.

In 2005, voters approved a 0.2 percent additional sales tax to increase transportation services. In 2011, after facing financial challenges partly caused by the recession, the agency again turned to voters. The public approved an additional 0.2 percent sales tax to preserve local bus services in Vancouver and to meet the current and projected growth for paratransit service.

In November 2014, Ley and 18 other taxpayers sued C-Tran, alleging it violated the part of the Washington Constitution that states “every law imposing a tax shall state distinctly the object of the same to which only it shall be applied” when the agency used revenue from the 2005 and 2011 tax measures to fund the Bus Rapid Transit project.

In 2015, a Clark County Superior Court judge sided with the transit agency and dismissed the lawsuit.

In the ruling released Tuesday, the three-judge Appeals Court affirmed the lower court’s ruling. The judges reasoned that using tax revenue from the two ballot measures to build The Vine was lawful because it was “consistent with the goals of the tax measures as stated in the enabling resolutions — to preserve local transit service.”

According to court documents, Ley argued several points. Among them, he claimed that the 2005 resolution that enabled the tax measures was intended specifically for a C-Tran Service Transportation Plan that didn’t include The Vine.

C-Tran, meanwhile, argued that the purpose is more generally to fund the preservation of current transit service levels and that BRT was part of that. The appeals court agreed.

Ley also argued that the 2005 tax measure didn’t anticipate a capital project the size of The Vine. The court disagreed, writing that the $7.4 million C-Tran is paying for The Vine is in line with other capital expenditure projects the transit agency had previously invested in. The rest of the $53 million BRT project is covered by federal and state grants.

“We hold that funding the BRT project is consistent with the 2005 resolution’s purpose of funding C-Tran’s Service Preservation Plan in order to achieve the goal of preserving current service levels,” the court said in summary of its position on the 2005 tax measure.

As to the 2011 tax measure, Ley argued that the resolution was meant to specifically pay for the preservation of C-Tran’s core bus and C-Van services, and that building The Vine was a significant deviation from that. But the court found the resolution focused on a broader goal of preserving service rather than a specific plan. And as it found with the 2005 resolution, the court said that using funds from the 2011 measure to build The Vine was consistent with the agency’s goals of preserving local fixed-route service.

The Vine will travel the Fourth Plain Boulevard Routes 4 and 44 with a new 6-mile route between downtown Vancouver and Vancouver Mall. C-Tran officials say the longer buses operating with greater frequency will reduce travel time between the ends of the route by up to 10 minutes.

In a statement to The Columbian, C-Tran Executive Director Jeff Hamm said that “C-Tran is certainly pleased by the Washington State Court of Appeals unanimous decision that C-Tran is justified in using local resources to help fund its Fourth Plain Bus Rapid Transit (BRT) Project, as it affirms what the agency has said all along. C-TRAN now looks forward to providing our thousands of riders along Fourth Plain with a more reliable and safer trip when the Fourth Plain BRT service, The Vine, begins on Jan. 8, 2017.”

The appellants were listed as: Ley, William Cismar, Dan Coursey, Mark Engelman, Carl Gibson, Tom Hann, John Jenkins, Sharon Long, Larry Martin, Greg Noelck, Harvey Olson, Larry Patella, Brian Peabody, Fran Rutherford, Gary Schaeffer, Tom Sharples, Charles Stemper and Don Yingling.

The appellants were represented by attorneys from Portland-based Ball Janik. C-Tran was represented by K&L Gates.

Ley and Cismar previously were Republican candidates for state representative in the 18th and 49th legislative districts, respectively. Engelman was a member of Vancouver Vitality, a political action committee formed to support conservative candidates on Vancouver City Council, and Hann was a member of the local Tea Party.

In the wake of a different failed lawsuit against C-Tran, Ley and 13 others were ordered by the Clark County Superior Court to pay $15,000 for attorney fees in February.