Sane Transit v. Sound Transit , 151 Wash. 2d 60 ( 2004 )

Alexander, C.J.

We have been asked to overturn a decision of the Kang County Superior Court in which that court dismissed an action by Sane Transit, a Washington nonprofit corporation, and Mark Baerwaldt (collectively Sane Transit). In that action Sane Transit sought to enjoin Sound Transit from expending funds collected from local taxes for construction of a 14-mile light rail line from downtown Seattle to Tukwila. Sane Transit contends that the planned light rail line is an unlawful “substantial deviation” from a planned 21-mile light rail line that had been approved by voters. We affirm the trial court, holding that when the voters approved the implementation of a regional transportation system they granted Sound Transit the discretion to scale back the light rail project in the event of unforeseen circumstances.

I

In 1992, the Washington Legislature authorized any two or more contiguous counties with populations of 400,000 or more to create a regional transit authority to address traffic congestion. Shortly thereafter, the legislative bodies of the counties of Snohomish, King, and Pierce each passed a resolution establishing Sound Transit (officially known as the Central Puget Sound Regional Transit Authority).¹ It was invested with the authority to design and implement a high capacity transportation system in a “service area” (hereinafter referred to as Sound Transit’s “district”) within those counties. RCW 81.112.030(1), .050(1); see also Clerk’s Papers (CP) at 340. Sound Transit’s district boundary stretches generally from Dupont in Pierce County to Everett in Snohomish County, and from the eastern edge of Puget Sound in the west to Issaquah in east King County. It is governed by an 18-person board whose membership is comprised of the Washington secretary of transportation and elected officials from Snohomish, King, and Pierce Counties.

After the voters rejected Sound Transit’s 1995 proposal for a $6.9 billion, 16-year regional transit plan, Sound Transit promulgated a second, less ambitious plan in May 1996. This plan, entitled “Sound Move: The Ten-Year Regional Transit System Plan” (Sound Move), was envisioned to encompass 10 years of planning and construction at a cost of $3.9 billion (in 1995 dollars) to complete. See CP at 14-57; Decl. of Joni Earl, Ex. B. The plan consisted of four primary projects: a high-occupancy-vehicle expressway, a system of regional express buses, commuter rail (the Sounder), and electric light rail.

The plan envisioned a 21-mile electric light rail line running from Seattle’s University District to the Seattle-Tacoma International Airport in the city of SeaTac. The line was to run through downtown Seattle and the Rainier Valley neighborhood in south Seattle on its way to the airport. An extension of the light rail line further north to the Northgate shopping center was envisioned, but only if sufficient funds remained after construction of the line from the University District to the airport.² The cost of constructing the 21-mile light rail line was estimated at $1.8 billion (in 1995 dollars).

In August 1996, Sound Transit passed “Resolution 75” which authorized submission of Sound Move to the voters for their consideration. CP at 413-26. The proposition, called “Proposition 1,” provided for a 0.4 percent sales and use tax increase and a 0.3 percent increase in the motor vehicle excise tax for the residents within the Sound Transit district. CP at 415. The money generated by the imposition of these taxes was to be the primary source of funds for the planning, development, operation, and maintenance of the planned projects set forth in Sound Move.³ As required by statute, the voting public was provided with an 8-page pamphlet that summarized the 36-page (plus appendices) Sound Move plan.⁴ The pamphlet was also entitled “Sound Move: The Ten-Year Regional Transit System Plan.” Decl. of Joni Earl, Ex. E. Voters also received a voters’ pamphlet which included the ballot title, a brief explanatory statement, and statements for and against the measure. The voters’ pamphlet also indicated that the complete text of the measure could be reviewed at the auditor’s office of the county in which the voter resided.⁵ Resolution 75 was the measure on file with those offices.

The ballot title for Proposition 1 on the November 5, 1996, general election ballot stated:

To implement a regional rail and express bus system linking Tacoma, Seattle, Bellevue, Everett, other cities, and Sea-Tac airport, shall the Regional Transit Authority impose a sales and use tax of up to four-tenths of one percent and a motor vehicle excise tax of three-tenths of one percent to provide the local share of funding towards the $3.9 billion estimated cost of the system, as provided in Resolution 75 and the “Ten-Year Regional Transit Plan”?

CP at 60. A majority of the voters in the Sound Transit district approved Proposition l.⁶

By September 2000, Sound Transit became aware that, due to unforeseen circumstances, it would not be able to construct the light rail line within a 10-year period and within the estimated budget.⁷ Sound Transit now estimated the cost of constructing the 21-mile light rail line at $2.5 billion (in 1995 dollars), rather than the original estimated $1.8 billion (in 1995 dollars). By April 2001, Sound Transit concluded that the estimated cost of completing the proposed light rail line had risen even further to $4.164 billion.

On November 29, 2001, faced with the specter of increased construction costs, Sound Transit adopted a resolution that scaled the light rail project down to a 14-mile light rail line running from downtown Seattle to Tukwila with a bus shuttle from the city of Tukwila to Seattle-Tacoma International Airport. The resolution authorized construction to begin in 2002 with a projected 2009 completion date. The cost of constructing the 14-mile line was estimated at approximately $1.5 billion in 1995 dollars, or approximately $2.07 billion in year of expenditure dollars. Following adoption of the plan calling for a shortened light rail line, Sound Transit indicated its intent to extend the line to complete substantial portions of the additional planned 7 miles of line, either north to the University District or south to the airport, with the remaining $1.2-$1.4 billion it anticipated it would have following construction of the 14-mile line.

Sound Transit’s adoption of the plan for a scaled back light rail line prompted Sane Transit to file an action against Sound Transit in King County Superior Court. In its action Sane sought a declaratory judgment that construction of a 14-mile line over a 13-year period was an unlawful substantial deviation from the project approved by the voters. Sane Transit also requested an injunction preventing Sound Transit from spending local taxes on the scaled back 14-mile light rail line and an order barring Sound Transit from using taxpayer funds to build the light rail line. After consideration of Sane Transit’s motion for summary judgment, as well as Sound Transit’s cross motion for dismissal, the superior court concluded that although it was undisputed that the modifications to the light rail line “substantially deviated” from the adopted plan, the voters had granted Sound Transit the discretion to construct a shortened light rail line. It concluded that both Resolution 75 and the eight-page summary brochure were instructive in determining the voters’ intent, and that they “must be read together for purposes of determining the scope of authority of Sound Transit.” CP at 855. Based on the language in Resolution 75 authorizing Sound Transit to make certain changes to the Sound Move project, as well as the conclusion that the eight-page brochure did not guarantee the project would be completed “ ‘on time, on budget,’ ” the trial court dismissed Sane Transit’s action with prejudice. CP at 856. Sane Transit sought direct review of that ruling in this court and we granted its petition. Sane Transit also requests that we grant it reasonable attorney fees.

II

We review the trial court’s decision on cross motions for summary judgment de novo. Berger v. Sonneland, 144 Wn.2d 91, 102-03, 26 P.3d 257 (2001); Citizens for More Important Things v. King County, 131 Wn.2d 411, 415, 932 P.2d 135 (1997). A motion for summary judgment is properly granted when “there is no genuine issue as to any material fact and . .. the moving party is entitled to a judgment as a matter of law.” CR 56(c).

The broad question before us is whether Sound Transit’s adoption of a scaled back light rail line that will take more than 10 years to complete was an unlawful substantial deviation from the plan approved by the voters. This question must be viewed in light of established law in Washington that when voters approve taxes for a public project any major deviation to the project is not within the government’s lawful power. O’Byrne v. City of Spokane, 67 Wn.2d 132, 136-37, 406 P.2d 595 (1965); Davis v. City of Seattle, 56 Wn.2d 785, 789-90, 355 P.2d 354 (1960); George v. City of Anacortes, 147 Wash. 242, 244-46, 265 P. 477 (1928); Hayes v. City of Seattle, 120 Wash. 372, 374-75, 207 P. 607 (1922); Thompson v. Pierce County, 113 Wash. 237, 241, 193 P. 706 (1920). While minor details in a public project may be changed by the governing agency, taxpayer funds may not be used to construct a substantially different project than the one approved by voters. See O’Byrne, 67 Wn.2d at 136-37; Davis, 56 Wn.2d at 789-90; George, 147 Wash, at 244-46; Thompson, 113 Wash, at 241-42.

A. The length of the light rail line

There is no disagreement that the reduced 14-mile light rail line is a substantial deviation from the 21-mile light rail line approved by the voters. The trial court so found, and Sound Transit does not dispute that conclusion. Sound Transit contends, however, that the deviation is not unlawful because, in its view, the voters granted it the discretion to scale back the light rail project if funding for its construetion should prove to be insufficient. It argues, therefore, that although most major deviations from a voter approved public project are prohibited, the deviation in this case is not.

We agree that the significant question is not whether the shortened light rail line is a substantial deviation from the proposed plan approved by the voters. Rather, it is whether the deviation was lawful because the voters granted Sound Transit discretion to change the plan. As we stated in Hayes, “[t]he question is one of construction of contract, and that contract is expressed in the original ordinance. If the terms of that instrument do not permit the proposed change, then it cannot be made, regardless of the advantages which might result.” Hayes, 120 Wash, at 375. It is clear that the corollary principle is also true: if the “contract” approved by voters authorizes substantial deviations to a project under particular circumstances, then the agency may lawfully make such changes.

Sound Transit relied upon language in Resolution 75 in wielding its discretionary authority. That resolution, as we have observed, was adopted in 1996. It incorporated the Sound Move plan and directed that voters in the Sound Transit district consider the plan and approve local taxes for its implementation. As we conclude below, Resolution 75 was the enabling legislation for the Sound Move project, and it was the measure approved by the voters. Sound Transit relied on section 2 of Resolution 75 in making its decision to construct a 14-mile light rail line over the course of 13 years. Section 2 of the resolution provides that

In the event that the proceeds of federal contributions, plus any other moneys of the RTA [Regional Transportation Authority, Sound Transit] legally available, are insufficient to accomplish all of the capital improvements provided by this Resolution, the RTA shall use the available funds for paying the cost of those improvements that are contained in the Ten-Year Regional Transit System Plan and are deemed by the Board to be most necessary and in the best interests of the RTA after consideration of the financial policies approved by Resolution No. 72. In the event that the Ten-Year Regional Transit System Plan improvements, or some portion thereof, are impractical to accomplish due to changed conditions or force majeure events, the RTA may use the available funds to pay principal of or interest on bonds, to reduce tax levies, or to pay for other capital and/or service improvements that achieve the stated goals of said plan, as the Board in its discretion shall determine as appropriate or necessary in accordance with law and Board policy.

CP at 415 (emphasis added). Both Resolution 72 and Appendix B to the Sound Move plan, incorporated by Resolution 75, provide that where “actual and projected expenditures exceed [the] actual and projected revenues and funding sources by 5 percent or greater, and/or where unforeseen circumstances occur which would result in an inability to substantially complete projects within [the] plan,” the Board is required to

take one or more of the following actions:

• Correct the shortfall through use of such ... uncommitted funds and/or bond capacity which is available ...; and/or

• Scale back the ... plan or projects within the plan to match a revised budget; and/or

• Authorize a vote of the RTA District on a revised ballot measure.

Decl. of Joni Earl, Ex. B, App. B at B-4. Sound Transit claims that the 14-mile light rail line is a scaled back version of the 21-mile light rail line that it adopted due to unforeseen costs.

Sane Transit responds that Sound Transit could not scale back the light rail line project because the full text of Resolution 75 was not sent to the voters or included in the official voters’ pamphlets distributed by the counties. It contends that the voters were unaware they were granting any such discretion to Sound Transit and could not have approved Resolution 75. It urges that the trial court erred in concluding otherwise.

We disagree. Sane Transit relies upon the principle that acts approved by the people are construed by focusing on the language of the proposal as the average informed voter would read it. See Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2000); State ex rel. Evergreen Freedom Found. v. Wash. Educ. Ass’n, 140 Wn.2d 615, 637, 999 P.2d 602 (2000); City of Spokane v. Taxpayers of City of Spokane, 111 Wn.2d 91, 98, 758 P.2d 480 (1988). In cases where voters are not provided with the full text of the measure to be voted upon, Sane Transit would have us ignore the language of the measure and attempt to construe the measure based on extrinsic documents sent to the voters which the average informed voter may or may not have read. An inquiry into the voter’s subjective understanding of what he or she thought he or she was enacting is a task we will not undertake. See generally Amalgamated Transit, 142 Wn.2d at 205 (inquiry into the voters’ intent will not occur where the text of an initiative is unambiguous); Taxpayers of City of Spokane, 111 Wn.2d at 97-98 (court will avoid entering the realm of pure speculation about what individual voters were thinking, nor will it assume voters do not read or understand the measure presented to them).

Reference to the statutes governing placement of a proposal for a high-capacity transportation system on a ballot leads us to conclude that Resolution 75 was the approved proposal. RCW 29.79.035(1) requires the ballot title to contain a concise description which “must. .. clearly identify the proposition to be voted on.” See also RCW 29.27.066. RCW 81.104.140(7) requires reference in the ballot title to the summary pamphlet sent to voters. In order for the ballot title, which has not been challenged, to comply with these statutes, it must be concluded that Resolution 75 is the identified proposition and the eight-page “Sound Move: The Ten-Year Regional Transit System Plan” is the summary pamphlet sent to voters.

We have previously indicated that where the ballot title would lead to an inquiry into the body of the act, proper notice, as required by article II, section 19 of the Washington Constitution, has been given to the voter about what he or she is deciding. Wash. Fed’n of State Employees v. State, 127 Wn.2d 544, 555, 901 P.2d 1028 (1995). Similarly in this case, although Sane Transit claims that the voters did not realize which proposal they were voting on, the ballot title informed the voters that Resolution 75 was the proposal to be enacted, and the resolution was available for consideration by request to the office identified in the voters’ pamphlet.

Sane Transit further argues that reliance on the ballot title does not satisfy the requirement in article II, section 1(e) of the Washington Constitution that the voters be allowed to “study the measures prior to election.” The requirements of article II, section 1(e) of the Washington Constitution are implemented by chapter 29.81 RCW which governs the voters’ pamphlet. Wash. Fed’n of State Employees, 127 Wn.2d at 553. Sane Transit does not challenge the voters’ pamphlet. It does, however, contend that Resolution 75 is not the enabling legislation for the Sound Move project because the full text of the resolution was not set forth in the voters’ pamphlet.

Sane Transit’s argument is unpersuasive. The voters’ pamphlet was required to contain “[t]he text of each measure.” RCW 29.81A.040(3); see also RCW 81.104.140(9) (requiring a voters’ pamphlet). If the word “text” in RCW 29.81A.040(3) means full text as Sane Transit suggests, then the voters’ pamphlet was invalidly drafted because it did not include the full text of any proposed legislation.⁸ We reject Sane Transit’s argument, concluding that RCW 29.81A.040(3) is unhelpful because the voters’ pamphlet did not set forth the full text of any legislation. Moreover, the validity of the voters’ pamphlet is not before us because Sane Transit is not challenging its validity nor could it as the time period for contesting it has long passed.⁹ Instead, we agree with the trial court’s conclusion that the voters’ pamphlet and the summary pamphlet were not sufficient to inform the voters of the detailed aspects of a multibillion dollar transportation and financing plan, and could not be considered enabling legislation.¹⁰ Resolution 75 which provides those details is the legislation adopted by the voters.

Justice Sanders’s dissent asserts that if Resolution 75 were the legislation adopted by the voters, then only that portion of the resolution authorizing an “increase in sales taxes and motor vehicle excise taxes” was adopted. Dissent of Sanders, J., at 98. As noted above, the legislation adopted by the voters must be sufficient in detail. The only document with sufficient detail for enabling legislation is Resolution 75, and even Resolution 75 is sufficient only when it is viewed in its entirety.¹¹

As set out above, section 2 of Resolution 75 recognized that taxpayer funds might exceed anticipated costs or that revenues might be insufficient, and directed the agency to take certain action in either event. Where funds were insufficient, Sound Transit was authorized to use the available funds “to pay for other capital and/or service improvements that achieve the stated goals of [the Ten-Year Regional Transit System] plan, as the Board in its discretion shall determine as appropriate or necessary,” including scaling back the scope of an individual project in the 10-year plan. CP at 415. We conclude, therefore, that Sound Transit acted within its authority in adopting a plan for a 14-mile light rail line.

B. Construction of the light rail line and collection of local taxes beyond the 10-year period

Sane Transit asserts, additionally, that even if the voters adopted Resolution 75 and authorized Sound Transit to scale back the light rail line project, Sound Transit’s plan to extend the construction period beyond the 10-year period and to collect taxes beyond that 10-year period to finance the construction is an unlawful substantial deviation that is not authorized by the discretionary authority granted in Resolution 75.¹² Sane Transit indicates in this regard that Sound Transit assured voters the Sound Move project would take only 10 years by calling it “The Ten-Year Regional Transit System Plan.”

Sane Transit’s argument does not, however, find support in the measure approved by the voters. Resolution 75 does not itself state any limits on the construction or taxation period.¹³ Instead, it instructs the agency to construct those projects in the Sound Move plan that are feasible with the funds raised by the voter approved local taxes. In the event of insufficient funds, Resolution 75 requires Sound Transit to pay for the costs of the improvements “deemed ... to be most necessary” and in the best interests of the project. CP at 415 (“[T]he RTA shall use the available funds for paying the cost of those improvements that are contained in the Ten-Year Regional Transit System Plan . . . .”).

Neither does the information received by the voters support Sane Transit’s argument. The summary brochure mentions the 10-year period only two times. One reference states that the University District to the Northgate shopping center “segment would be built during the ten-year plan period only if additional funding is available.” CP at 301. Another states “[t]he RTA Board is committed to completing Sound Move within ten years of voter approval.” CP at 303. Neither of these references constitutes more than a pledge to complete the project on time.

It is true that references to the construction time period in the more detailed version of Sound Move indicate a serious commitment to completion of the project within 10 years. The following statements are examples of references to the 10-year period set forth in the Sound Move plan:

System completion within ten years—different parts and segments of the plan will be implemented in stages and be operational as soon as possible; the entire system will be completed and operational within ten years.

CP at 26 (emphasis added).

The ten-year timeframe for putting the plan in place begins the day after voters approve funding for the new regional transit system. . . .

. . . [T\he entire system should be up and running within 10 years. . . . [T]he RTA will use a variety of techniques to make sure that the system is developed and operated as cost-effectively as possible.

CP at 45 (emphasis added).

The proposal to be placed before the voters will be a ten-year construction plan financed in part by long-term bonds. As elements are completed, they will begin operating during that ten-year period. After the ten-year period, the RTA’s tax revenues will be used to continue transit operations and pay for debt service. . . .

The RTA is committed to building and operating a ten-year system plan that can be confidently funded and completed as promised to the region’s citizens.

CP at 52.

[T]en-year implementation—Different parts and segments of the plan will be implemented in stages and be operational as soon as possible. The RTA is committed to the entire system being completed and operational within 10 years.

CP at 53.

Sound Transit argues that these and other similar statements were merely declarations of the principles of the plan. We agree with Sound Transit’s characterization of the above statements. Declarations of principles, purposes, and aims are not operative rules of action and do not give rise to enforceable rights or create legal obligations. See Melville v. State, 115 Wn.2d 34, 38, 793 P.2d 952 (1990); Int’l Union of Operating Eng’rs Local No. 286 v. Sand Point Country Club, 83 Wn.2d 498, 505, 519 P.2d 985 (1974); Whatcom County v. Langlie, 40 Wn.2d 855, 863, 246 P.2d 836 (1952). We conclude, therefore, that there is no legal obligation under the statements in the Sound Move summary brochure or the detailed Sound Move plan for Sound Transit to complete the light rail line within 10 years. Pursuant to the language in Resolution 75, Sound Transit must complete the project to the extent possible based on the funds available.

Insofar as continuing the local taxes, Sane Transit claims that the imposed sales and use and motor vehicle taxes were also restricted to a 10-year collection period. Sound Transit responds that the taxes are permanent and are for the construction, operation, and maintenance of the projects in the Ten-Year Regional Transit System Plan. In sections 3 and 4 of Resolution 75, the Sound Transit Board stated:

For the sole purpose of providing funds for the planning, development, operation, and maintenance of a high capacity transportation system . . . the RTA shall levy and collect a sales and use tax not to exceed four-tenths of one percent and levy and collect a motor vehicle excise tax of three-tenths of one percent... if such local option taxes are approved by the voters within the RTA boundaries ....

. . . The Board intends for the levy and collection of the motor vehicle excise tax and the sales and use tax to begin on January 1, 1997.

CP at 415 (emphasis added). This language indicates that the board intended to continue taxation beyond the projected 10-year construction period. Language in the full-length detailed Sound Move document also supports this conclusion.

System expansion or tax rollback—Auiy second phase capital program which continues local taxes for financing will require voter approval within the RTA District. If voters decide not to extend the system, the RTA will roll back the tax rate to a level sufficient to pay off the bonds and operate and maintain the investments made as part of Sound Move.

CP at 26.

Any second phase capital program which continues local taxes for financing will require approval by a vote of those . . . within the RTA District.

CP at 52.

Because transit facilities provide benefits over a long span of time, it is reasonable to finance their construction over a period that extends beyond the ten-year system plan construction timeframe.

CP at 53 (emphasis added).

System expansion or tax rollback—Any second phase capital program which continues local taxes for financing will require voter approved [sic] within the RTA District. If voters decide not to extend the system, the RTA will roll back the tax rate to a level sufficient to pay off the outstanding bonds and operate and maintain the investments made as part of Sound Move.

CP at 56.

In the financial policies appendix to Sound Move, the board indicated:

Voter approval requirement

The RTA Board recognizes its authority to fund Sound Move’s future operations, maintenance and debt service as well as any future phase capital program through a continuation of the local taxes initially authorized by the voters. However, in its commitment to public accountability, the RTA Board pledges that any second phase capital program which continues local taxes for financing will require approval by a vote of those citizens within the RTA District.

Sales tax rate rollback

Should voter approval for a future phase capital program not be forthcoming, the RTA Board will initiate two steps to roll back the rate of sales tax collected by the RTA.

a) First, the RTA will first [sic] initiate an accelerated pay off schedule for any outstanding bonds. Second, the RTA will implement a tax rollback to a level necessary to pay the accelerated schedule for debt service on outstanding bonds, system operations and maintenance, fare integration, capital replacement, and agency cost.

b) Once all debt is retired, the RTA will implement a tax rollback to a level necessary to pay for the system operations and maintenance, fare integration, capital replacement and agency administration.

Decl. of Joni Earl, Ex. B, App. B at B-7.

It is apparent from the language contained in Resolution 75 and in Sound Move and its appendices that when the voters approved the Ten-Year Regional Transit System Plan they implemented permanent taxes. At a minimum, taxes were to be collected beyond the 10-year period for operations and maintenance of the system, fare integration, capital replacement, and agency administration. It was also expected that taxes for construction costs would extend beyond the 10-year period. The only limitation on the collection of taxes for construction was that they not be collected on a second or any future capital phase without further voter approval. In sum, Sound Transit has the authority to continue to collect taxes within its district to finance construction beyond the 10-year period, as well as for operation and maintenance of the system.

Finally, Sane Transit asserts that the 14-mile light rail line is an unlawful substantial deviation from the plan approved by the voters because a grant of discretionary authority to the agency in Resolution 75 subverts the legislative purpose behind RCW 81.104.100(2)(d)¹⁴ and RCW 81.104.140(7).¹⁵ These statutes required Sound Transit to inform the voters of the details of the system and financing plan. Sane Transit claims the purpose of these statutory requirements was to entitle the voters to make the decision of whether the benefits of Sound Transit’s proposal outweighed its costs. Sane Transit further asserts that a governmental authority cannot retain the type of discretion claimed by Sound Transit for a publicly funded project.

Sane Transit relies on Uhler v. City of Olympia, 87 Wash. 1, 151 P. 117, 152 P. 998 (1915), for the proposition that the discretionary authority set forth in section 2 of Resolution 75 deprived the voters of the statutory right to determine whether the benefits of the light rail plan warrant its costs. In Uhler, this court concluded that it would not allow a city council to increase the necessary sum of bonds to be issued from $90,000 to an amount of at least 10 percent more by allowing the city to pass a supplemental ordinance raising the amount. Uhler, 87 Wash, at 16-17. In reaching this conclusion, we relied upon a statute which compelled a reasonably definite estimate of the value. In this case, Sound Transit has not changed the tax rates approved by the voters. Further, by constructing a shortened light rail line based on its authority to scale back a project to remain within budget, Sound Transit has not violated the voters’ statutory right to pass upon the question of taxation. The discretionary authority in section 2 of Resolution 75 instead provides the agency with guidance regarding what action should be taken in the situation where funds are insufficient and/or changed circumstances occur.¹⁶ The record further indicates that Sound Transit complied with RCW 81.104.100(2)(d) and RCW 81.104.140(7) when it mailed an eight-page summary pamphlet of the system and financing plan to every registered voter. The voters had the opportunity to deliberate over the summary of the plan which was sent to them. In addition, there is nothing in the record that indicated voters were denied the opportunity to examine the details of the plan, and consideration of Resolution 75 was available to them. The discretion granted to Sound Transit in section 2 of Resolution 75 is, therefore, not unlawful.

Ill

Sane Transit seeks reasonable attorney fees under the common fund doctrine. Attorney fees, however, will not be awarded where the suit brought by a party fails to preserve, protect, or create a common fund which benefits a group of others in addition to the plaintiff because it is unsuccessful. Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 542, 585 P.2d 71 (1978); Grein v. Cavano, 61 Wn.2d 498, 505, 379 P.2d 209 (1963). In light of our conclusion that Sound Transit was authorized to scale back the light rail line and continue construction and taxation beyond a 10-year period, Sane Transit is not entitled to fees. Its request is, therefore, denied.

IV

In conclusion, we affirm the trial court’s order dismissing Sane Transit’s action with prejudice. We hold that when the voters approved the implementation of a regional transportation system they approved Resolution 75 which granted Sound Transit the discretionary authority to scale back the light rail line from 21 miles to a 14-mile line because unforeseen circumstances and changes in conditions resulted in insufficient funds. We further hold that Sound Transit is not restricted to constructing the light rail line within a 10-year period, which concludes in 2006, and may continue the sales and use tax of up to four-tenths of one percent and a motor vehicle excise tax of three-tenths of one percent approved by the voters. We deny Sane Transit’s request for attorney fees.

Madsen, Ireland, Bridge, Owens, and Fairhurst, JJ., concur.

1 According to the April 1, 2000, federal census, only four counties in Washington State have a population in excess of 400,000. Washington State Yearbook 301 (Scott D. Dwyer & Mary B. Dwyer eds., 2003). Three of them are contiguous: Snohomish, King, and Pierce. Spokane County, the fourth, does not join any of the other three counties.

2 The project also included a 1.6 mile light rail line in downtown Tacoma. That line is essentially complete, and no issues regarding it are encompassed in this case.

3 Sound Transit also sought a federal grant as an additional source of revenue.

4 The voting public included those voters who reside within the boundaries of the Sound Transit district.

5 The voters’ pamphlet provided to Snohomish County voters contained a statement that “[t]he complete text of this measure may be reviewed at the Auditor’s Office.” CP at 60. In King County, the voters’ pamphlet included a statement that “[t]he complete text of this measure may be reviewed at the Division of Records and Elections,” at the bottom of the page. CP at 668. The record we have been furnished does not contain the pertinent language from the Pierce County voters’ pamphlet.

6 The percentage of votes in favor of the proposition was 56.45 percent. The votes against the measure totaled 406,238. The “yes” votes totaled 526,671.

7 In January 2001, Sound Transit found that the following unforeseen conditions and changed circumstances had occurred: “a different location and design for the light rail guideway segment and airport station in order to better serve a newly planned airport terminal; the addition of tunnel and station shell under Beacon Hill; the discovery of unstable soils beneath Portage Bay and in the vicinity of a number of the proposed -underground stations; constraints based on more complete engineering and construction design information; increased right-of-way costs and construction costs; and increased environmental mitigation costs to address such issues as noise, vibration, endangered species protection, and traffic and safety impacts associated with construction in a densely populated urban environment.” Decl. of Joni Earl, Ex. I, at 2.

8 Inconsistently, Justice Sanders’s dissent would hold that Resolution 75 was not the legislation voted on because its text was not set forth in the voters’ pamphlet, but it would hold that the eight-page summary pamphlet was the legislation voted on, even though the text of the summary pamphlet was not published in the voters’ pamphlet either. Dissent of Sanders, J., at 83; compare CP at 297-304 (summary pamphlet) with CP at 306-08 (voters’ pamphlet).

9 The process for challenging a local voters’ pamphlet is determined by the appropriate county. RCW 29.81A.030. RCW 29.04.030 does, however, require that all challenges alleging an error in the certification of an election must be brought within 10 days of the election’s certification. Therefore, a challenge to a local voters’ pamphlet must be brought within 10 days of the election, if not sooner. Here, Sane Transit waited over five years after the election to bring this action.

10 Justice Sanders’s dissent disagrees and would have this court cobble together enabling legislation based only on the language used in the eight-page summary pamphlet. Resp’t’s Br. at 29; Dissent of Sanders, J., at 83. The dissent does not explain how the summary pamphlet contains sufficient details to be enabling legislation.

11 Justice Sanders’s dissent also contends that it is “[njonsense” to hold that Resolution 75 is, in its entirety, the enabling legislation because section 6 requires the director to submit Proposition 1, as listed in Resolution 75, section 7, to the voters. Dissent of Sanders, J., at 99. Thus, it suggests including sections 6 and 7 in the enabling legislation “would mean the voters elected to submit an approved measure to themselves for approval.” Id. Construing Resolution 75 against Sound Transit, as the dissent contends we must, we agree that it was unartfully drafted. The dissent’s point, though, is insignificant. These two sections merely explain how the director is to seek voter approval for the other provisions of Resolution 75, and therefore, sections 6 and 7 are inoperative now and were inoperative when Resolution 75 was voted on.

12 Sound Transit indicated its intent to construct the 14-mile light rail line beginning in 2003 and complete construction in 2009. It also committed to substantially constructing the entire 21-mile line. Should this additional construction be undertaken, it will likely be necessary for Sound Transit to extend the construction period even further.

13 Section 5 of Resolution 75 includes the only reference to a 10-year construction period. It is stated, however, in the context of the agency’s plan to maintain a citizen’s oversight committee to review the agency’s annual performance audit, financial plan, and to report and make recommendations to the Sound Transit Board.

14 RCW 81.104.100(2)(d) states:

(2) High capacity transportation system planning is the detailed evaluation of a range of high capacity transportation system options, including: Do nothing, low capital, and ranges of higher capital facilities. To the extent possible this evaluation shall take into account the urban mass transportation administration’s requirements ....

High capacity transportation system planning shall proceed as follows:

(d) The system plan submitted to the voters pursuant to RCW 81.104.140 shall address, but is not limited to the following issues:

(i) Identification of level and types of high capacity transportation services to be provided;

(ii) A plan of high occupancy vehicle lanes to be constructed;

(iii) Identification of route alignments and station locations with sufficient specificity to permit calculation of costs, ridership, and system impacts;

(iv) Performance characteristics of technologies in the system plan;

(v) Patronage forecasts;

(vi) A financing plan describing: Phasing of investments; capital and operating costs and expected revenues; cost-effectiveness represented by a total cost per system rider and new rider estimate; estimated ridership and the cost of service for each individual high capacity line; and identification of the operating revenue to operating expense ratio.

The financing plan shall specifically differentiate the proposed use of funds between high capacity transportation facilities and services, and high occupancy vehicle facilities;

(vii) Description of the relationship between the high capacity transportation system plan and adopted land use plans;

(viii) An assessment of social, economic, and environmental impacts; and

(ix) Mobility characteristics of the system presented, including but not limited to: Qualitative description of system/service philosophy and impacts; qualitative system reliability; travel time and number of transfers between selected residential, employment, and activity centers; and system and activity center mode splits.

15 RCW 81.104.140(7) states, “Dedicated high capacity transportation funding sources authorized in RCW 81.104.150, 81.104.160, and 81.104.170 shall be subject to voter approval by a simple majority. A single ballot proposition may seek approval for one or more of the authorized taxing sources. The ballot title shall reference the [summary brochure sent to voters which describes the systems plan and the financing plan set forth in RCW 81.104.100].”

16 Sane Transit also relies on Hughbanks v. Port of Seattle, 193 Wash. 498, 76 P.2d 603 (1938), and Bremerton Municipal League v. City of Bremerton, 13 Wn.2d 238, 124 P.2d 798 (1942). In Hughbanks the court prevented construction of port projects under a voter approved plan which allowed any conceivable improvement without further consideration by the voters. In this case, Sound Transit is restricted to the specific detailed plan set forth in Resolution 75 and Sound Move, and the agency may not deviate by constructing any improvement outside the scope of the approved plan. In Bremerton Municipal League, changed circumstances undermined the voters’ consent to a city project. In this case, Sound Transit is limited to the actions it may take in changed circumstances, and those actions, including scaling back the project, were approved by the voters when they adopted Resolution 75. These cases, therefore, are distinguishable and do not support Sane Transit’s argument.